United States District Court, N.D. California
ORDER OF DISMISSAL
WILLIAM H. ORRICK UNITED STATES DISTRICT JUDGE.
Carlos Romero Burnett alleges in this federal civil rights
action that his state conviction is invalid and that in
consequence he is owed money damages by the prosecutors and
his appellate attorney. The United States Supreme Court in
Heck v. Humphrey, 512 U.S. 477, 486-487 (1994)
barred claims brought under 42 U.S.C. § 1983 that, if
successful, would appear to invalidate a conviction or
sentence that has not already 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. Burnett's case appears to do what
Heck precludes. Accordingly, this suit is DISMISSED.
2015, a Monterey County Superior Court jury convicted Burnett
of possessing a weapon in a penal institution. People v.
Burnett, No. H042861, 2017 WL 25499 at *1 (Cal.Ct.App.
Jan. 3, 2017). He was sentenced to 25 years to life in state
prison, a sentence to be served consecutively to the
sentences for first degree murder and attempted murder he was
already serving. Id. In 2017, the state appellate
court affirmed the conviction. Id.
his 2015 conviction and sentence that Burnett contends are
Standard of Review
initial review of this pro se complaint, this Court must
dismiss any claim that is frivolous or malicious, or fails to
state a claim on which relief may be granted, or seeks
monetary relief against a defendant who is immune from such
relief. See 28 U.S.C. § 1915(e). Pro se
pleadings must be liberally construed. See Balistreri v.
Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
“complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (quoting
Twombly, 550 U.S. at 556). Furthermore, a court
“is not required to accept legal conclusions cast in
the form of factual allegations if those conclusions cannot
reasonably be drawn from the facts alleged.” Clegg
v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two essential elements: (1) that a right secured by
the Constitution or laws of the United States was violated,
and (2) that the alleged violation was committed by a person
acting under the color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988).
order to recover damages for an allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or
sentence invalid, a 42 U.S.C. § 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. Heck, 512 U.S. at 486-487. A
claim for damages bearing that relationship to a conviction
or sentence that has not been so invalidated is not
cognizable under section 1983. Id. at 487.
as in this case, a state prisoner seeks damages in a section
1983 suit, the district court must consider whether a
judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence; if it would,
the complaint must be dismissed unless the plaintiff ...