United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
M. KELLISON UNITED STATES MAGISTRATE JUDGE
a prisoner proceeding pro se, brings this civil rights action
pursuant to 42 U.S.C. § 1983. Pending before the court
is plaintiffs complaint (Doc. 1).
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. See 28 U.S.C.
§ 1915A(a). The court must dismiss a complaint or
portion thereof if it: (1) is frivolous or malicious; (2)
fails to state a claim upon which relief can be granted; or
(3) seeks monetary relief from a defendant who is immune from
such relief. See 28 U.S.C. § 1915A(b)(1), (2).
Moreover, the Federal Rules of Civil Procedure require that
complaints contain a ". . . short and plain statement of
the claim showing that the pleader is entitled to
relief." Fed.R.Civ.P. 8(a)(2). This means that claims
must be stated simply, concisely, and directly. See
McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996)
(referring to Fed.R.Civ.P. 8(e)(1)). These rules are
satisfied if the complaint gives the defendant fair notice of
the plaintiffs claim and the grounds upon which it rests. See
Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996).
Because plaintiff must allege with at least some degree of
particularity overt acts by specific defendants which support
the claims, vague and conclusory allegations fail to satisfy
this standard. Additionally, it is impossible for the court
to conduct the screening required by law when the allegations
are vague and conclusory.
names the following as defendants: (1) Thomas Barrett; (2)
Tim Kam; (3) Steve Darden; and (4) the Vallejo Police
Department. Plaintiff alleges that defendants violated his
constitutional rights from his arrest through trial on the
conviction underlying his current incarceration.
Specifically, he claims that Vallejo Police Department
officer Coleman arrested him based on a flawed witness
identification. He claims that his count-appointed attorney,
defendant Barrett, was ineffective. Plaintiff alleges that
the trial judge, defendant Kam, was biased. He alleges that
his accuser, defendant Darden, admitted that he did not know
the description of the suspect.
state prisoner challenges the legality of his custody and the
relief he seeks is a determination that he is entitled to an
earlier or immediate release, such a challenge is not
cognizable under 42 U.S.C. § 1983 and the prisoner's
sole federal remedy is a petition for a writ of habeas
corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500
(1973); see also Neal v. Shimoda, 131 F.3d 818, 824
(9th Cir. 1997); Trimble v. City of Santa Rosa, 49
F.3d 583, 586 (9th Cir. 1995) (per curiam). Thus, where a
§ 1983 action seeking monetary damages or declaratory
relief alleges constitutional violations which would
necessarily imply the invalidity of the prisoner's
underlying conviction or sentence, or the result of a prison
disciplinary hearing resulting in imposition of a sanction
affecting the overall length of confinement, such a claim is
not cognizable under § 1983 unless the conviction or
sentence has first been invalidated on appeal, by habeas
petition, or through some similar proceeding. See Heck v.
Humphrey, 512 U.S. 477, 483-84 (1994) (concluding that
§ 1983 claim not cognizable because allegations were
akin to malicious prosecution action which includes as an
element a finding that the criminal proceeding was concluded
in plaintiffs favor); Butterfield v. Bail, 120 F.3d
1023, 1024-25 (9th Cir. 1997) (concluding that § 1983
claim not cognizable because allegations of procedural
defects were an attempt to challenge substantive result in
parole hearing); cf Neal, 131 F.3d at 824
(concluding that § 1983 claim was cognizable because
challenge was to conditions for parole eligibility and not to
any particular parole determination); cf Wilkinson v.
Dotson, 544 U.S. 74 (2005) (concluding that § 1983
action seeking changes in procedures for determining when an
inmate is eligible for parole consideration not barred
because changed procedures would hasten future parole
consideration and not affect any earlier parole determination
under the prior procedures).
plaintiffs claims are not cognizable under § 1983
because each implies the invalidity of his underlying
conviction. Because it does not appear possible that the
deficiencies identified herein can be cured by amending the
complaint, plaintiff is not entitled to leave to amend prior
to dismissal of the entire action. See Lopez v.
Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en
on the foregoing, the undersigned recommends that this action
be dismissed for failure to state a claim.
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within 14 days
after being served with these findings and recommendations,
any party may file written objections with the court.
Responses to objections shall be filed within 14 days after
service of objections. Failure to file objections ...