Opinion
No. CIV S-08-2838 KJM P.
December 8, 2008
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff, a county prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983 together with a request for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
A court may deny leave to proceed in forma pauperis if it appears from the face of the proposed complaint that the action is frivolous. Minetti v. Port of Seattle, 152 F.3d 1113 (9th Cir. 1998). In determining whether an action is frivolous, the court may "pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke v. Williams, 490 U.S. 319, 327 (1989).
Plaintiff alleges that he was arrested for a parole violation after the expiration of his three-year parole term and seeks both monetary damages and the release from custody. He has also filed a request for injunctive relief, seeking his release.
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court ruled a § 1983 action that would necessarily call into question the lawfulness of a plaintiff's conviction is not cognizable unless the plaintiff can show his conviction has been reversed.Id. at 486-87. Heck bars civil rights actions based on parole revocation proceedings unless the revocation has been reversed or otherwise declared invalid. Thomas v. Pennsylvania, 375 F.Supp.2d 406, 409 (M.D. Penn. 2005). Plaintiff's challenge to his confinement is therefore barred.
IT IS THEREFORE ORDERED that the Clerk of the Court assign this case to a district judge.
IT IS HEREBY RECOMMENDED that this action be dismissed and plaintiff's motion for injunctive relief (docket no. 3) be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).