Opinion
No. C 02-3290 MMC (PR)
August 5, 2002
ORDER OF DISMISSAL; DENYING LEAVE TO PROCEED IN FORMA PAUPERIS
Plaintiff, a California prisoner currently incarcerated in Santa Clara County Jail, has filed a pro se civil rights complaint under 42 U.S.C. § 1983 against two San Jose police officers, the San Jose Police Department and the City of San Jose. Plaintiff alleges that he that he is currently incarcerated on false charges following a false arrest by the two defendant police officers. Specifically, plaintiff claims that the arrest and charges were based on his race. Plaintiff seeks money damages.
In order to recover damages for an allegedly unconstitutional conviction or term of imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a 42 U.S.C. § 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. See Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). A claim for damages based upon a conviction or sentence that has not been so invalidated is not cognizable under § 1983. See id. at 487.
Plaintiff claims that his arrest was false and his charges were fabricated. Heck bars claims which necessarily implicate the validity of pending criminal charges. See Harvey v. Waldron, 210 F.3d 1008, 1014 (9th Cir. 2000); Alvarez-Machain v. United States, 107 F.3d 696, 700-01 (9th Cir. 1997). Heck also bars claims challenging the validity of an arrest.See Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) (holding Heck barred plaintiff's false arrest and imprisonment claims until conviction was invalidated); Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996) (holding Heck barred plaintiff's claims that defendants lacked probable cause to arrest him and brought unfounded criminal charges against him). Accordingly, this action is barred by Heck until plaintiff's criminal charges have been dismissed or any resulting conviction is overturned either on direct review or by way of a writ of habeas corpus after he has fully exhausted his state court remedies under 28 U.S.C. § 2254(b), (c). See Harvey, 210 F.3d at 1014.
Plaintiff does not indicate whether he is currently awaiting trial or whether he has already been convicted and sentenced. Whether he has been convicted or sentenced yet does not alter the Court's analysis.
A civil rights complaint seeking habeas relief should be dismissed without prejudice to bringing it as a petition for a writ of habeas corpus once all state remedies have been exhausted. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995); see also Calderon v. Ashmus, 118 S Ct 1694, 1699 (1998) (holding claims attacking the validity or duration of confinement must be brought under the federal habeas provisions). Accordingly, this action is DISMISSED without prejudice.
In light of this dismissal, the application to proceed in forma pauperis is DENIED and no filing fee is due.
All pending motions are terminated and the Clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
IT IS ORDERED AND ADJUDGED this action is DISMISSED without prejudice.In light of this dismissal, the application to proceed in forma pauperis is DENIED and no filing fee is due.
All pending motions are TERMINATED.