United States District Court, E.D. California
ORDER DISMISSING ACTION, WITHOUT PREJUDICE, FOR
FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF [ECF No.
Raul Garza is appearing pro se and in forma pauperis in this
civil rights action pursuant to 42 U.S.C. § 1983.
Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to
the jurisdiction of the United States Magistrate Judge on
March 13, 2017. Local Rule 302.
before the Court is Plaintiff's complaint, filed March 2,
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that “fails to state a claim on
which relief may be granted, ” or that “seeks
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B).
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief. . .
.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations
are not required, but “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Plaintiff must demonstrate that each named defendant
personally participated in the deprivation of his rights.
Iqbal, 556 U.S. at 676-677; Simmons v. Navajo
County, Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).
proceeding pro se in civil rights actions are still entitled
to have their pleadings liberally construed and to have any
doubt resolved in their favor, but the pleading standard is
now higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121
(9th Cir. 2012) (citations omitted), and to survive
screening, Plaintiff's claims must be facially plausible,
which requires sufficient factual detail to allow the Court
to reasonably infer that each named defendant is liable for
the misconduct alleged. Iqbal, 556 U.S. at 678-79;
Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th
Cir. 2009). The “sheer possibility that a defendant has
acted unlawfully” is not sufficient, and “facts
that are ‘merely consistent with' a defendant's
liability” falls short of satisfying the plausibility
standard. Iqbal, 556 U.S. at 678; Moss, 572
F.3d at 969.
April 18, 2002, Plaintiff was prosecuted in the Kern County
Superior Court, for violation of California Penal Code
245(a). District Attorney, Ronald Shumaker, pursued a
criminal conviction based on false testimony by a police
officer. The District Attorney had no physical evidence.
Plaintiff's public defender, Howard Levich, never
objected on the record as to the lack of evidence and did not
advise Plaintiff of the lack of evidence. Plaintiff agreed to
a three year plea agreement, which was based on improper
testimony. Plaintiff seeks $3, 000, 000 in punitive damages
and requests that his conviction be expunged.
habeas corpus petition is the correct method for a prisoner
to challenge the “legality or duration” of his
confinement. Badea v. Cox, 931 F.2d 573, 574 (9th
Cir. 1991), quoting, Preiser v. Rodriguez, 411 U.S.
475, 485 (1973); Advisory Committee Notes to Rule 1 of the
Rules Governing Section 2254 Cases. In contrast, a civil
rights action pursuant to 42 U.S.C. § 1983 is the proper
method for a prisoner to challenge the conditions of that
confinement. McCarthy v. Bronson, 500 U.S. 136,
141-42 (1991); Preiser, 411 U.S. at 499;
Badea, 931 F.2d at 574; Advisory Committee Notes to
Rule 1 of the Rules Governing Section 2254 Cases.
“[R]elief is available to a prisoner under the federal
habeas statute … if success on the claim would
‘necessarily spell speedier release' from custody,
which . . . include termination of custody, acceleration of
the future date of release from custody, or reduction of the
level of custody.” Nettles v. Grounds, 788
F.3d 992, 1001 (9th Cir. 2015) (quoting Skinner v.
Switzer, 562 U.S. 521, 534 (2011)).
is seeking to challenge the constitutionality of his
conviction and/or his custody rather than the conditions of
his confinement. In order for Plaintiff's conviction to
be expunged from his record, it would have to be determined
Plaintiff's conviction is invalid. Thus, Plaintiff's
claims challenge his criminal conviction which cannot be
raised by way of a section 1983 complaint. Plaintiff must
file a habeas corpus petition pursuant to 28 U.S.C. §
2254. Plaintiff's claim is not cognizable
unless and until he can show that the criminal conviction has
been set aside by the grant of writ of habeas corpus.
Heck v. Humphrey, 512 U.S. 477, 487 (1994).
Accordingly, Plaintiff's complaint must be dismissed,
without prejudice. Although the Court would generally grant
Plaintiff leave to amend in light of his pro se status,
amendment is futile in this instance because the deficiencies
cannot be cured by amendment. See Lopez v. Smith,
203 F.3d 1122, 1127 (9th Cir. 2000); Schmier v. U.S.
Court of Appeals for the Ninth Circuit, 279 F.3d 817,
824 (9th Cir. 2002) (recognizing “[f]utility of
amendment” as a proper basis for dismissal without
leave to amend); see also Trimble v. City of
Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (a civil
rights complaint seeking habeas relief should be dismissed
without prejudice to filing as a petition for writ of habeas
on the foregoing, it is HEREBY ORDERED that:
1. Plaintiff s complaint is dismissed, without prejudice,
failure to state a ...