United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DISMISS CASE AS BARRED
BY HECK V. HUMPHRY, 512 U.S. 477 (1994) (Docs. 1, 9) 21-DAY
Jennifer L. Thurston, UNITED STATES MAGISTRATE JUDGE
contends he suffered a wrongful arrest by defendant Ruiz on
June 28, 2017 after defendant Cook harassed him and his
family. (Doc. 1.) In essence, he claims his arrest was
without probable cause because he claims, “Officer H.
Ruiz incarceration of me off statement of he say she say.
Officer Ruiz had no other reason to put me in jail on
6-28-16.” (Id. at 3.) Notably, on September
16, 2016, pleaded no contest to a violation of California
Penal Code section 148(A)(1) (resisting arrest) and a
violation of California Penal Code section 245(A)(4) (assault
on a person causing great bodily injury) stemming from his
arrest on June 28, 2016. As a result, the plaintiff was
sentenced to four years in prison. Thus, on February 22,
2017, the Court ordered Plaintiff to show cause why this
action should not be dismissed as barred by Heck v.
Humphrey, 512 U.S. 477, 487-88 (1994). (Doc. 9.) Despite
lapse of nearly three months, Plaintiff did not file any
response to that order.
prisoner challenges the legality or duration of his custody,
or raises a constitutional challenge which could entitle him
to an earlier release, his sole federal remedy is a writ of
habeas corpus. Preiser v. Rodriguez, 411 U.S. 475
(1973); Young v. Kenny, 907 F.2d 874 (9th Cir.
1990), cert. denied 11 S.Ct. 1090 (1991). Moreover,
when seeking damages for an allegedly unconstitutional
conviction or imprisonment, "a § 1983 plaintiff
must prove that the conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such
determination, or called into question by a federal
court's issuance of a writ of habeas corpus, 28 U.S.C.
§ 2254." Heck v. Humphrey, 512 U.S. 477,
487-88 (1994). "A claim for damages bearing that
relationship to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983."
Id. at 488. This "favorable termination"
requirement has been extended to actions under § 1983
that, if successful, would imply the invalidity of prison
administrative decisions which result in a forfeiture of
good-time credits. Edwards v. Balisok, 520 U.S. 641,
Complaint does not contain any allegations to show that
Plaintiff's conviction has been reversed, expunged,
declared invalid, or called into question by a writ of habeas
Conclusion & Recommendations
claims challenge his arrest, conviction, and sentence, which
may be brought only in a petition for a writ of habeas
corpus. Thus, Plaintiff has failed to state any claims that
are cognizable under section 1983 until the actions he
complains of have been reversed, expunged, declared invalid,
or called into question by a writ of habeas corpus. Plaintiff
need not be given leave to amend as these deficiencies are
not capable of being cured through amendment. Akhtar v.
Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012).
on the foregoing, the Court RECOMMENDS that the Complaint
(Doc. 1) be dismissed without prejudice for failure to state
a claim upon which relief can be granted.
Findings and Recommendations will be submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of Title 28 U.S.C. § 636(b)(1). Within 21
days after being served with these Findings and
Recommendations, Plaintiff may file written objections with
the Court. The document should be captioned “Objections
to Magistrate Judge's Findings and
Recommendations.” Plaintiff is advised that failure to
file objections within the specified time may result in the
waiver of rights on appeal. Wilkerson v. Wheeler,
772 F.3d 834, 839 (9th Cir. Nov. 18, 2014) (citing Baxter
v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
 The court may take notice of facts
that are capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be
questioned. Fed.R.Evid. 201(b); United States v.
Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). The
record of state court proceeding is a source whose accuracy
cannot reasonably be questioned, and the Court make take
judicial notice of court records. Mullis v. United States
Bank. Ct., 828 F.2d 1385, 1388 n.9 (9th Cir. 1987);
Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635
n. 1 (N.D.Cal.1978), aff'd, 645 F.2d 699 (9th
Cir.); see also Colonial Penn Ins. Co. v. Coil, 887
F.2d 1236, 1239 (4th Cir. 1989); Rodic v. Thistledown
Racing Club, Inc., 615 F.2d 736, 738 (6th. Cir. 1980).
Thus, the Court takes judicial notice of the court record in
Kern County Superior Court case, People v. Ezell
Moore, case number BF164651A.
 The docket shows that the OSC was
returned as undeliverable “Not in Custody” on
March 6, 2017. Plaintiff was informed of his duty as a
pro se litigant, he has a duty to notify the Clerk
of the Court of any change of his address. (Doc. 3.) Thus, ...