Wilkins v. Solano Cnty.

Full title: MARVELL WILKINS, Plaintiff, v. SOLANO COUNTY, Defendant.

Court: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Date published: Oct 21, 2013

No. 2:13-cv-0097 LKK CKD P (E.D. Cal. Oct. 21, 2013)

Opinion

No. 2:13-cv-0097 LKK CKD P

2013-10-21

MARVELL WILKINS, Plaintiff, v. SOLANO COUNTY, Defendant.

LAWRENCE K. KARLTON

ORDER

Plaintiff, a state prisoner proceeding pro se, 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.

On January 29, 2013, the magistrate judge filed findings and recommendations herein which were served on plaintiff and which contained notice to plaintiff that any objections to the findings and recommendations were to be filed within fourteen days. Plaintiff has not filed objections to the findings and recommendations.

Although it appears from the file that plaintiff's copy of the findings and recommendations was returned, plaintiff was properly served. It is the plaintiff's responsibility to keep the court apprised of his current address at all times. Pursuant to Local Rule 182(f), service of documents at the record address of the party is fully effective.

The court has reviewed the file. Plaintiff, who was incarcerated in the Solano County Jail at the time that he filed this action, claims that defendant violated his rights by failing to give him "any credits" against his sentence. Complaint, filed January 17, 2013 (ECF No. 1) at 3. He claims that he would have been released in either July 2012 or October 2012 had he been given properly calculated "actual days" credit. Id. He seeks compensation, apparently for the extended time he spent in custody. See id. The magistrate judge finds that plaintiff's action "is properly the subject of an action brought pursuant to 28 U.S.C. § 2254" and that his § 1983 complaint could not be cured by amendment because the statement of claim does not concern conditions of confinement.

On February 8, 2013, the Solano County Sheriff filed notice that plaintiff was released from custody on January 28, 2013. On the same day, plaintiff's copy of the magistrate judge's findings and recommendations, served on plaintiff at the Solano County Sentenced Detention Facility, was returned undelivered. Plaintiff has not filed a notice of change of address.

When filed, plaintiff's § 1983 complaint was barred by the rule announced in Heck v. Humphrey, 512 U.S. 477 (1994) and its progeny, which precludes plaintiffs from proceeding on damages claims arising from events that implicate the validity of a conviction or sentence unless that conviction or sentence has been set aside. It was therefore subject to dismissal without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9^th Cir. 1995). Plaintiff's release from incarceration raises the question whether any habeas action would have been rendered moot and his damages action therefore permissible. See Nonnette v. Small, 316 F.3d 872, 877 (9^th Cir. 2002); but see Guerrero v. Gates, 442 F.3d 697 (9^th Cir. 2006). The court need not reach these questions, however, because plaintiff has filed to notify the court of his current address as required by Local Rule 182(f). This action will, therefore, be dismissed for lack of prosecution. See Local Rule 183(b).

In accordance with the above, IT IS HEREBY ORDERED that this action is dismissed for lack of prosecution. See Local Rule 183(b).

_________________

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT