Opinion
No. C 02-3092 WHA (PR).
February 10, 2003
ORDER OF DISMISSAL
Plaintiff, an inmate at San Quentin State Prison, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. He has been granted leave to proceed in forma pauperis.
STATEMENT
Plaintiff contends that defendant Nehaus and the "CDC Parole Dept." conspired to plant weapons in his motel room in retaliation for a lawsuit he had filed against Nehaus. He asks damages for "mental and physical anguish" and for "going to prison."
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. See 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief See id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See 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 violation of a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged deprivation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
B. Legal Claims
Plaintiff alleges that defendants Nehaus and unnamed "parole officers" conspired to plant weapons in his motel room while he was on parole. He asks damages for "going to prison." It is thus clear that the alleged conspiracy resulted in the revocation of his parole.
Plaintiff's claim is barred by the rule announced in Heck v. Humphrey, 114 S.Ct. 2364, 2372 (1994). In that case the United States Supreme Court held that 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 § 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, 114 S.Ct. at 2372.
"Heck applies to proceedings [that] call into question the fact or duration of parole." Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir.),cert. denied, 516 U.S. 851 (1995). A plaintiff in a section 1983 suit may not question the validity of the confinement resulting from a parole revocation hearing if he does not allege that the parole board's decision has been reversed, expunged, set aside or called into question. Littles v. Bd. of Pardons and Paroles Div., 68 F.3d 122, 123 (5th Cir. 1995); see also McGrew v. Texas Bd. of Pardons Paroles, 47 F.3d 158, 161 (5th Cir. 1995) (Heck bars § 1983 action challenging revocation of supervised release). When a state prisoner's section 1983 suit implicates the length of his or her incarceration, the complaint must be dismissed unless the plaintiff can demonstrate that the decision establishing the length of incarceration (here, the decision to revoke parole) has already been invalidated. Butterfield v. Bail, 120 F.3d 1023, 1025 (9th Cir. 1997) (claim barred by Heck may be dismissed under Rule 12(b)).
A judgment in favor of the plaintiff here would implicate the revocation decision, which has not already been invalidated; therefore, this complaint fails to state a cognizable claim under § 1983 and must be dismissed.
Aside from the Heck issue, there are other reasons plaintiff has failed to state a claim against any defendant. He does not even mention defendants Davis, Gomez, or Burke in his statement of claim. He has failed to allege any facts regarding defendant Nehaus' alleged involvement in the conspiracy. "`A mere allegation of conspiracy without factual specificity is insufficient.'" Johnson v. California, 207 F.3d 650, 655 (9th Cir. 2000) (quoting Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 626 (9th Cir. 1988)) (claims under 42 U.S.C. § 1985(3)). And defendant Patel is a private individual, not a state actor. There is no right to be free from the infliction of constitutional deprivations by private individuals. Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996). Although conceivably Patel might be treated as a state actor if he were involved in the conspiracy, plaintiff has not provided the necessary factual specificity as to it, as noted with regard to the claim against Nehaus.
CONCLUSION
For the foregoing reasons plaintiff's claims are DISMISSED without prejudice to asserting them in a new lawsuit if a cause of action ever accrues.The clerk shall close the file.
IT IS SO ORDERED.