Opinion
No. C 04-1278 SI (pr).
May 10, 2004
JUDGMENT
This action is dismissed without prejudice to plaintiff's ability to challenge any conviction or sentence that may result from his prosecution and without prejudice to plaintiff filing a new civil rights action if the criminal charges against him are dismissed or, if he is convicted, his conviction is set aside.
IT IS SO ORDERED AND ADJUDGED.
ORDER OF DISMISSAL INTRODUCTION
Mario Martinez Arias, an inmate at the Santa Clara County Jail, filed this pro se civil rights action under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). The complaint is now before the court for review of the complaint pursuant to 28 U.S.C. § 1915A.BACKGROUND
Arias alleges in his complaint that he is being prosecuted for a violation of immigration laws as a result of the actions of defendant Percy Orum, an agent of the U.S. Department of Homeland Security. Arias alleges that he was taken into custody by the San Jose police on October 20, 2003, at which time an INS detainer/hold was issued for him. On October 23, 2003, agent Orum interviewed him regarding his immigration status and Arias countered "with concerns regarding time constraints when detaining an alien." Complaint, p. 3. After Arias stated that he was not being held on any other charges, Orum stated "we have to do something with you quick," id. and another agent interviewed him. The next day, agent Orum drove Arias to the federal courthouse in San Jose and turned him over to the U.S. Marshal's custody. "As a result of S.A. Percy Orum's breaking immigration regulations, and abusing his powers and duties I am being prosecuted in federal court for a violation of immigration laws." Id.
DISCUSSION
A federal court must engage in a preliminary screening of any case in which a prisoner seeks 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 private cause of action under Bivens and its progeny, plaintiff must allege: (1) that a right secured by the Constitution of the United States was violated, and (2) that the violation was committed by a federal actor. See Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991) (§ 1983 and Bivens actions are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens).
Arias' complaint seeks damages and declaratory relief for defendant Orum's actions which allegedly led to Arias being prosecuted for an immigration law violation. Essentially, Arias complains that he is being maliciously prosecuted and that time constraints were exceeded for his detention. As explained below, Arias may not assert his claims in a civil rights action at this time because no cause of action has accrued yet.
The case of Heck v. Humphrey, 512 U.S. 477 (1994), held that a plaintiff cannot bring a civil rights action for damages for a wrongful conviction unless that conviction already has been determined to be wrongful. See id. at 486-87. A conviction may be determined to be wrongful by, for example, being reversed on appeal or being set aside when a state or federal court issues a writ of habeas corpus. See id. TheHeck rule also prevents a person from bringing an action that — even if it does not directly challenge the conviction — would imply that the conviction was invalid. The practical importance of this rule is that plaintiffs cannot attack their convictionsin a civil rights action for damages; the conviction must have been successfully attacked before the civil rights action for damages is filed. Heck generally bars claims challenging the validity of an arrest or prosecution or conviction. See Guerrero v. Gates, 357 F.3d 911, 918 (9th Cir. 2004) (Heck barred plaintiff's claims of wrongful arrest, malicious prosecution and conspiracy among police officers to bring false charges against him); Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) (Heck barred plaintiff's false arrest and imprisonment claims until conviction was invalidated);Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996) (Heck barred plaintiff's claims that defendants lacked probable cause to arrest him and brought unfounded criminal charges against him).
Although Heck was a civil rights action under 42 U.S.C. § 1983, the rationale and conclusion of Heck apply in cases brought under Bivens as well as § 1983. See Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996).
Heck is not limited to just those who have been convicted or sentenced. Heck also applies in the pretrial setting and bars claims which necessarily implicate the validity of pending criminal charges. See Harvey v. Waldron, 210 F.3d 1008, 1014 (9th Cir. 2000). A civil claim for damages which necessarily implicates the validity of pending criminal charges does not accrue until after one has succeeded in the criminal justice realm.
Heck bars Arias' claims because they implicate the validity of the pending criminal charges for immigration law violations. No cause of action accrues until the charges are dismissed or any conviction obtained is set aside. The complaint must be dismissed.
CONCLUSION
For the foregoing reasons, the complaint is dismissed. The dismissal is without prejudice to Arias' ability to challenge any conviction or sentence that may result from his prosecution and without prejudice to Arias filing a new civil rights action if the criminal charges against him are dismissed or, if he is convicted, his conviction is set aside.The clerk shall close the file.
IT IS SO ORDERED.