Opinion
No. C 01-2027 MMC (PR)
July 2, 2001
ORDER OF DISMISSAL
Plaintiff, a California prisoner currently incarcerated in San Francisco County has filed a pro se civil rights complaint under 42 U.S.C. § 1983 against two San Francisco police officers, the San Francisco Police Department and the City and County of San Francisco. Plaintiff alleges that he that he is currently facing fabricated 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 courts 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 pending 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 plaintiffs false arrest and imprisonment claims until conviction was invalidated); Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996) (holding Heck barred plaintiffs claims that defendants lacked probable cause to arrest him and brought unfounded criminal charges against him). Accordingly, this action is barred by Heck until the 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.
A civil rights complaint seeking habeas relief should be dismissed without prejudice to bringing it as a petition for 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. All pending motions are TERMINATED. The Clerk shall close the file.
IT IS SO ORDERED.