-CMK (PC) DeLoney v. Mass, No. 2:2011cv00059 - Document 7 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 02/16/11 recommending that this action be dismissed without prejudice. Referred to Judge Frank C. Damrell. Objections due within 14 days. (Plummer, M)

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-CMK (PC) DeLoney v. Mass Doc. 7 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICKEY B. DeLONEY, 12 No. CIV S-11-0059-FCD-CMK-P Plaintiff, 13 vs. 14 WILLIAM MASS, 15 16 17 18 19 ORDER Defendant. / Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1). The court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 24 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 26 This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 1 Dockets.Justia.com 1 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied 2 if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon 3 which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must 4 allege with at least some degree of particularity overt acts by specific defendants which support 5 the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 6 impossible for the court to conduct the screening required by law when the allegations are vague 7 and conclusory. 8 9 Plaintiff alleges that defendant – William Mass, plaintiff’s criminal defense attorney – rendered ineffective assistance of counsel. In particular, plaintiff claims that Mr. Mass 10 “refuse[d] to work with my witnesses at hand.” When a state prisoner challenges the legality of 11 his custody – either the fact of confinement or the duration of confinement – and the relief he 12 seeks is a determination that he is entitled to an earlier or immediate release, such a challenge is 13 cognizable in a petition for a writ of habeas corpus under 28 U.S.C. § 2254. See Preiser v. 14 Rodriguez, 411 U.S. 475, 500 (1973); see also Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 15 1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (per curiam). Where a 16 prisoner challenges the conditions of confinement, as opposed to the fact or duration of 17 confinement, his remedy lies in a civil rights action under 42 U.S.C. § 1983. See Rizzo v. 18 Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985). Thus, 28 U.S.C. § 2254 cannot be used to 19 challenge the conditions of confinement, and 42 U.S.C. § 1983 cannot be used to challenge the 20 fact or duration of confinement. 21 In this case, plaintiff’s claim constitutes a challenge to the fact or duration of his 22 confinement. Specifically, if he is successful on his claim of ineffective assistance of counsel, 23 plaintiff’s underlying criminal conviction and resulting incarceration would necessarily be 24 invalid. Because plaintiff’s claims are not cognizable under 42 U.S.C. § 1983, this action must 25 be dismissed without prejudice to plaintiff’s ability to seek whatever relief may be available to 26 him through a petition for a writ of habeas corpus. See Edwards v. Balisok, 520 U.S. 641, 646 2 1 (1987) (holding that § 1983 claim not cognizable because allegations of procedural defects and a 2 biased hearing officer implied the invalidity of the underlying prison disciplinary sanction); Heck 3 v. Humphrey, 512 U.S. 477, 483-84 (1994) (concluding that § 1983 not cognizable because 4 allegations were akin to malicious prosecution action which includes as an element a finding that 5 the criminal proceeding was concluded in plaintiff’s favor); Butterfield v. Bail, 120 F.3d 1023, 6 1024-25 (9th Cir. 1997) (concluding that § 1983 claim not cognizable because allegations of 7 procedural defects were an attempt to challenge substantive result in parole hearing). 8 9 10 11 12 Because it does not appear possible that the deficiencies identified herein can be cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Based on the foregoing, the undersigned recommends that this action be dismissed without prejudice. 13 These findings and recommendations are submitted to the United States District 14 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 15 after being served with these findings and recommendations, any party may file written 16 objections with the court. Responses to objections shall be filed within 14 days after service of 17 objections. Failure to file objections within the specified time may waive the right to appeal. 18 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 20 21 22 DATED: February 16, 2011 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 23 24 25 26 3

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