Opinion
Case No. C02-5492FDB
January 10, 2003
REPORT AND RECOMMENDATION
This 42 U.S.C. § 1983 Civil Rights action has been referred to the undersigned Magistrate Judge pursuant to Title 28 U.S.C. § 636 (b)(1)(A) and 636(b)(1)(B) and Local Magistrates' Rules MJR 1, MJR 3, and MJR 4. The Defendants have moved for dismissal. (Dkt. #13). Plaintiff has responded. (Dkt. #14). In the reply defendants show definitively that the plaintiff lost 20 days good conduct time in the disciplinary hearing that is at issue in this case. (Dkt. #15 and 16). Having considered the entire file, the following report is hereby submitted for the Honorable Franklin D. Burgess's review.
FACTUAL BACKGROUND
Plaintiff is in state custody at Stafford Creek Corrections Center. (Dkt. #5). In the complaint he alleges that he was denied due process at a disciplinary hearing. Plaintiff is careful not to mention any sanction he received at the hearing in the complaint. (Dkt. #5). Defendants moved to dismiss alleging that plaintiff had not alleged that he suffered any injury as a result of the hearing. Plaintiff responded again indicating specifically that "[p]laintiff has at no time claim[ed] any violation in the sanction entered against plaintiff during the disciplinary hearing." (Dkt. #14 page 1). Defendants have replied and placed before the Court documents showing that plaintiff was sanctioned to 20 days loss of good time. Defendants now move to dismiss pursuant to Heck v. Humphrey. Heck v. Humphrey, 114 S.Ct. 2364, 2373 (1994).
DISCUSSION
When a person confined by the state is challenging the very fact or duration of his physical imprisonment, and the relief he seeks will determine that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). In June 1994, the United States Supreme Court further held that "[e]ven a prisoner who has fully exhausted available state remedies has no cause of action under § 1983 unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus." Heck v. Humphrey, 114 S.Ct. 2364, 2373 (1994). The court added:
Under our analysis the statute of limitations poses no difficulty while the state challenges are being pursued, since the § 1983 claim has not yet arisen. . . . [A] § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated.Id. at 2374. "[T]he determination whether a challenge is properly brought under § 1983 must be made based upon whether `the nature of the challenge to the procedures [is] such as necessarily to imply the invalidity of the judgment.' Id. If the court concludes that the challenge would necessarily imply the invalidity of the judgment or continuing confinement, then the challenge must be brought as a petition for a writ of habeas corpus, not under § 1983."Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir. 1997) ( quoting Edwards v. Balisok, 117 S.Ct. 1584, 1587 (1997)).
Mr. Eiland is challenging the process given to him at a hearing. As a result of that hearing he lost 20 days good time. Any finding in plaintiffs favor would necessarily invalidate the sanction. Thus, Mr. Eiland's current § 1983 complaint challenges or collaterally attacks the validity of his sentence. The court must dismiss the plaintiff's § 1983 claims for failure to state a claim as Mr. Eiland's cause of action will not accrue until the conviction or sentence has been invalidated.Heck v. Humphrey, 114 S.Ct. 2364, 2374 (1994).
Dismissal for failure to state a claim is a strike pursuant to 42 U.S.C. § 1915(g).
CONCLUSION
The Court should dismiss this action in accordance Preiser v. Rodriguez, Butterfield v. Bail, and Heck v. Humphrey. The dismissal would be a strike under 42 U.S.C § 1915(g). A proposed order and proposed judgment accompanies this Report and Recommendation.