Opinion
No. C 04-1468 SI (pr).
August 9, 2004
JUDGMENT
This action is dismissed without prejudice to petitioner filing a new civil rights action if the time credit calculation decision that he claims is erroneous is ever set aside or otherwise invalidated.
IT IS SO ORDERED AND ADJUDGED.
ORDER OF DISMISSAL
Thomas George Parrish, an inmate at San Quentin State Prison, filed this pro se civil rights action under 42 U.S.C. § 1983. In his complaint, he alleges that his right to due process was denied because prison officials did not correctly calculate his time credits and release date. He alleges that, as a result, he will be kept imprisoned beyond his proper release date. He also seeks appointment of counsel and leave to proceed in forma pauperis.The complaint does not state a claim for relief. Parrish's damages claim runs afoul of a line of cases that bars a damages claim for unconstitutional imprisonment until the underlying erroneous decision is set aside. In order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 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. Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). Heck bars a claim of unconstitutional deprivation of time credits because such a claim necessarily calls into question the lawfulness of the plaintiff's continuing confinement, i.e., it implicates the duration of the plaintiff's sentence. Sheldon v. Hundley, 83 F.3d 231, 233 (8th Cir. 1996). The damages claim is dismissed without prejudice to Parrish filing a new action for damages after he has had the time credits decision set aside.
To the extent Parrish wants to ask this court to order his release from prison, he must do so by filing a petition for writ of habeas corpus, Preiser v. Rodriguez, 411 U.S. 475, 500 (1973), but not until he exhausts state judicial remedies,Granberry v. Greer, 481 U.S. 129, 134 (1987) for each of his claims. That is, Parrish must present his claims concerning the calculation of time credits to the California Supreme Court (e.g., in a petition for writ of habeas corpus) and give that court a fair opportunity to rule on the merits of his claims before he may present them to the federal court in a petition for writ of habeas corpus.
For the foregoing reasons, this action is DISMISSED without prejudice to Parrish filing a new civil rights action if the time credit calculation decision that he claims is erroneous is ever set aside or otherwise invalidated. Parrish's motion for appointment of counsel and application to proceed in forma pauperis are DENIED. (Docket # 3.)
IT IS SO ORDERED.