(PC) Smith v. Ayris, No. 1:2010cv00428 - Document 13 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissal of 4 Action without Prejudice; Objections, if any, Due within Twenty-One Days signed by Magistrate Judge Dennis L. Beck on 10/9/2010. Referred to Judge Anthony W. Ishii. Objections to F&R due by 11/5/2010. (Sant Agata, S)

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(PC) Smith v. Ayris Doc. 13 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 STEVIE SMITH, 9 10 CASE NO. 1:10-CV-00428-AWI-DLB PC Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION WITHOUT PREJUDICE v. 11 ROBERT L. AYRIS, JR., et al., (DOC. 4) 12 OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS Defendants. 13 / 14 15 Findings And Recommendations 16 I. Background 17 Plaintiff Stevie Smith (“Plaintiff”) is a prisoner in the custody of the California 18 Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in 19 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this 20 action in the Northern District of California on January 19, 2010. This action was transferred to 21 this Court on February 26, 2010. 22 The Court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 24 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 25 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 26 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 27 § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been 28 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 1 Dockets.Justia.com 1 appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 2 1915(e)(2)(B)(ii). 3 A complaint must contain “a short and plain statement of the claim showing that the 4 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 5 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 6 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing 7 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 8 matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly, 9 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id. 10 II. Summary Of Complaint And Analysis 11 Plaintiff is currently incarcerated at California State Prison - Corcoran (“CSP”), in 12 Corcoran, California. Plaintiff names as Defendants Robert L. Ayris, Jr., Darden, and A. K. 13 Scribner. 14 Plaintiff contends the following. Plaintiff was in prison from July 7, 1994 to July 19, 15 1995 in Lancaster State Prison. Plaintiff contends that Defendants Darden and Ayris put a hold 16 on Plaintiff’s release. Plaintiff has been in prison ever since. Plaintiff contends that there is no 17 evidence for his continued incarceration. Plaintiff requests as relief release from prison, and to 18 sue the state. 19 “[A] state prisoner’s § 1983 action is barred (absent prior invalidation) - no matter the 20 relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state 21 conduct leading to conviction or internal prison proceedings) - if success in that action would 22 necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 23 U.S. 74, 81-82 (2005). This principle, known as the favorable termination rule, see Heck v. 24 Humphrey, 512 U.S. 477, 483-87 (1994), is applicable in this action. Because Plaintiff’s request 25 for relief, if successful, would result in Plaintiff’s duration of confinement being reduced, 26 Plaintiff does not state a cognizable § 1983 claim. Plaintiff’s claim fails as a matter of law. 27 The undersigned does not recommend leave to amend, as there are no set of facts which 28 can be alleged which will cure the deficiencies in this complaint. Lopez v. Smith, 203 F.3d 1122, 2 1 1130-31 (9th Cir. 2000) (en banc). The undersigned recommends dismissal of the action without 2 prejudice as the proper remedy. Heck, 512 U.S. at 487. This dismissal for violation of Heck 3 should count as a strike pursuant to 28 U.S.C. § 1915(g). 4 III. Conclusion and Recommendation 5 Based on the foregoing, it is HEREBY RECOMMENDED that 6 1) This action be dismissed without prejudice pursuant to the favorable termination rule of Heck v. Humphrey, 512 U.S. 477 (1994); and 7 8 2) The dismissal count as a strike pursuant to 28 U.S.C. § 1915(g). 9 These Findings and Recommendations will be submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty11 one (21) days after being served with these Findings and Recommendations, the plaintiff may 12 file written objections with the Court. The document should be captioned “Objections to 13 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 14 objections within the specified time may waive the right to appeal the District Court’s order. 15 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 17 18 IT IS SO ORDERED. Dated: 3b142a October 9, 2010 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 3

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