Opinion
No. C 06-3224 JW (PR), (Docket Nos. 2 and 4).
July 19, 2007
ORDER OF DISMISSAL
Plaintiff, a detainee of the Department of Immigrations and Customs Enforcement ("I.C.E.") in Bakersfield, California, has filed a pro se civil rights complaint under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Plaintiff challenges his detention, as well as a removal order by I.C.E. officials. He seeks money damages, release from custody and to vacate the removal order. Plaintiff requests leave to proceed in forma pauperis under 28 U.S.C. § 1915. (Docket Nos. 2 and 4).
DISCUSSION
A. Standard of Review
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1990).
To 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. West v. Atkins, 487 U.S. 42, 48 (1988).
B. Legal Claims
Plaintiff does not state a cognizable claim upon which relief may be granted. With respect to his claims for money damages, he may not obtain such damages based on his allegedly unlawful detention and removal by I.C.E. officials until his detention and removal order have reversed on direct, expunged, declared invalid by a tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus. See Heck v. Humphrey, 512 U.S. 477, 486-487 (1994); see Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996) (holding the rationale and conclusion of Heck apply in cases brought underBivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)).
With respect to plaintiff's claims for injunctive relief, specifically for release from custody and to have the removal order vacated, the Supreme Court has consistently held that any claim by a prisoner attacking the fact or duration of his confinement must be brought under the habeas sections of Title 28 of the United States Code. See Calderon v. Ashmus, 523 U.S. 740, 747 (1998); Edwards v. Balisok, 520 U.S. 641, 648 (1997); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). To the extent plaintiff wishes to challenge the fact or duration of his custody, he must do so in a habeas petition, not in a civil rights complaint.
CONCLUSION
For the foregoing reasons, the complaint is DISMISSED for failure to state a claim upon which relief may be granted. Plaintiff's motions to proceed in forma pauperis (Docket Nos. 2 and 4) are DENIED. No fee is due.
This order terminates Docket Nos. 2, 4, and any other pending motions.