United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se and in forma pauperis, has
filed this civil rights action seeking relief under 42 U.S.C.
§ 1983. The matter was referred to a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)
and Local Rule 302.
this court are plaintiff's objections to the
undersigned's findings and recommendations issued October
17, 2019. (See ECF Nos. 7, 8). For the reasons
stated herein, the undersigned shall vacate those findings
and recommendations and instead recommend that this action be
dismissed without leave to amend for failure to state a claim
upon which relief may be granted.
RELEVANT PROCEDURAL HISTORY
October 17, 2019, the undersigned reviewed this court's
docket and found that the claim in the instant complaint was
identical to those in the earlier filed Hickman v.
Chisholm, No. 2:19-cv-1254 TLN AC P (“Hickman
I”), which was recently dismissed for failure to
state a claim upon which relief may be granted. (ECF No. 7 at
1). It was further determined that the claim in the instant
complaint was also identical to the one in the subsequently
filed Hickman v. Chisholm, No. 2:19-cv-1828 KJM AC P
(“Hickman III”), which was also recently
dismissed as duplicative of Hickman I. (See
id.). As a result, it was recommended that this action
be dismissed as duplicative of both Hickman I and
Hickman III. (See id.). Plaintiff was given
fourteen days to file objections to these findings and
recommendations. (See id.).
October 28, 2019, plaintiff filed objections to the findings
and recommendations. (ECF No. 8). The undersigned considers
those objections herein.
plaintiff's objections to the undersigned's findings
and recommendations, plaintiff argues that the claim in the
instant action is not duplicative of those in Hickman
I and Hickman III because unlike those cases,
which argued that his rights were being violated under the
Fourteenth Amendment when the prosecutor proffered false
evidence at trial which, in turn, led to his conviction, the
instant action argues that his rights have been violated
under the Fourth Amendment. Specifically, plaintiff contends
that as a result of the prosecutor presenting false evidence
at trial, he was convicted and is now being falsely
imprisoned in violation of it. (See ECF No. 8).
core, plaintiff's argument is a technical one which does
not change the ultimate outcome of a recommended dismissal.
To the extent plaintiff asserts different violations of right
in all three cases which stem from a singular act, namely,
the prosecution's alleged proffer of false evidence, in
the interests of judicial economy, those claims should have
been brought in one action, not three.
importantly, to the extent plaintiff argues that he is being
falsely imprisoned in the instant action (see ECF
No. 1 at 3), ultimately, he is contesting his conviction
and/or sentence. A Section 1983 complaint is not the
appropriate pleading for such claims. Such claims must be
brought in a habeas action. Preiser v. Rodriguez,
411 U.S. 475, 500 (1973) (stating sole federal remedy to
challenge to fact or duration of confinement is writ of
habeas corpus). Plaintiff appears to be aware of this fact to
some degree, given that he has filed a habeas petition in
this court which is currently under review. See Hickman
v. People of the State of California, No. 2:18-cv-2967
KJM CKD P. Thus, converting this matter to a habeas action is
not warranted, either.
the instant action asks for monetary damages for false
imprisonment on a conviction and sentence that plaintiff is
currently serving. (See ECF No. 1 at 6). A prisoner
may not pursue a Section 1983 action for civil damages for a
conviction or sentence without proof that the conviction or
sentence has been reversed, expunged or invalidated. Heck
v. Humphrey, 512 U.S. 477, 486-87 (1994). Plaintiff is
currently serving the sentence for his conviction. Thus,
neither plaintiff's conviction nor his sentence have been
reversed, expunged or invalidated. Consequently,
plaintiff's request for money damages on the grounds of
false imprisonment is premature.
these reasons, the undersigned finds that the complaint fails
to state a cognizable civil rights claim under 42 U.S.C.
§ 1983 and that amending it would be futile. “A
district court may deny leave to amend when amendment would
be futile.” Hartmann v. CDCR, 707 F.3d 1114,
1130 (9th Cir. 2013); accord Lopez v. Smith, 203
F.3d 1122, 1129 (9th Cir. 2000) (“Courts are not
required to grant leave to amend if a complaint lacks merit
IT IS HEREBY ORDERED that the undersigned's findings and
recommendations issued October 17, 2019 (ECF No. 7) are
FURTHER RECOMMENDED that plaintiff's complaint be
DISMISSED without leave to amend for failure to state a claim
upon which relief ...