(PC) Perryman v. Thomas, et al, No. 2:2015cv02646 - Document 25 (E.D. Cal. 2016)
Court Description: ORDER; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 4/22/16 ORDERING that Plaintiffs motion for a competency hearing and for appointment of a guardian ad litem (ECF No. 21 ) is DENIED; Plaintiffs request for permanent PLU status, contained in his motion for a temporary restraining order (ECF No. 22 ), is DENIED; It is RECOMMENDED that this action be dismissed. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID PERRYMAN, 12 13 14 15 No. 2: 15-cv-2646 JAM KJN P Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS M.S. THOMAS, et al., Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court is plaintiff’s amended complaint. (ECF No. 24.) 19 For the reasons stated herein, the undersigned recommends that this action be dismissed. 20 Named as defendants are Warden Duffy and Correctional Lieutenant Thomas. Plaintiff 21 alleges that defendant Thomas presided over a disciplinary hearing where plaintiff was charged 22 with assaulting a peace officer. Plaintiff alleges that defendant Thomas denied plaintiff’s request 23 to call Dr. Gray as a witness in violation of his right to due process. Plaintiff alleges that Dr. 24 Gray would have testified that plaintiff did not assault the officer. Plaintiff alleges that defendant 25 Thomas found plaintiff guilty and assessed 60 days of time credits. Plaintiff seeks money 26 damages for the alleged violation of his right to due process. 27 28 In order to recover damages for an allegedly unconstitutional conviction or imprisonment or for other harm caused by actions whose unlawfulness would render a conviction or sentence 1 1 invalid, a Section 1983 plaintiff must prove that the conviction or sentence has been reversed, 2 expunged or declared invalid. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Heck bars a 3 claim of unconstitutional deprivation of time credits because such a claim necessarily calls into 4 question the lawfulness of the plaintiff’s continuing confinement, i.e., it implicates the duration of 5 the plaintiff’s sentence. Edwards v. Balisok, 520 U.S. 641, 648 (1997). 6 Plaintiff’s claim implicates the validity of his prison disciplinary conviction for which he 7 was assessed time credits. Plaintiff does not allege that the prison disciplinary has been reversed, 8 expunged or declared invalid. Accordingly, plaintiff’s claim that he was denied his right to call a 9 witness is barred by Heck. Because it is clear that plaintiff cannot cure this pleading deficiency, 10 11 the undersigned recommends that this action be dismissed. On April 6, 2016, plaintiff filed a motion for a competency hearing and for appointment of 12 a guardian ad litem. (ECF No. 21.) The grounds of this request are plaintiff’s mental illness. On 13 January 22, 2016, plaintiff filed a motion for a competency hearing and for appointment of a 14 guardian ad litem. (ECF No. 10.) On January 29, 2016, the undersigned denied this motion. 15 (ECF No. 13.) The grounds of plaintiff’s pending request for a competency hearing and for 16 appointment of a guardian ad litem are the same as those made in the January 22, 2016 request. 17 In other words, there is no indication that plaintiff’s mental health status has significantly 18 changed between the filing of these two motions. Accordingly, for the reasons stated in the 19 January 29, 2016 order, plaintiff’s April 6, 2016 motion for a competency hearing and for 20 appointment of a guardian ad litem is denied. 21 On April 6, 2016, plaintiff filed a motion for a temporary restraining order. (ECF No. 22.) 22 Plaintiff alleges that inmates in the Psychiatric Services Unit (“PSU”), where he is now housed, 23 classified with preferred legal user status (“PLU”) receive four hours of law library access per 24 week if they have a court order giving them a 30 day deadline. Plaintiff requests that the court 25 order prison officials to grant him permanent PLU status. 26 Because the undersigned recommends that this action be dismissed, plaintiff’s request for 27 permanent PLU status is moot. Accordingly, plaintiff’s request for permanent PLU status, 28 contained in his motion for a temporary restraining order, is denied. 2 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff’s motion for a competency hearing and for appointment of a guardian ad litem 3 4 5 (ECF No. 21) is denied; 2. Plaintiff’s request for permanent PLU status, contained in his motion for a temporary restraining order (ECF No. 22), is denied; 6 IT IS HEREBY RECOMMENDED that this action be dismissed. 7 These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 9 after being served with these findings and recommendations, plaintiff may file written objections 10 with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 12 failure to file objections within the specified time may waive the right to appeal the District 13 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 Dated: April 22, 2016 15 16 17 18 19 Per2646.dis 20 21 22 23 24 25 26 27 28 3
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