Anthony Avon Dabbs Sr. v. Officer Preston

Opinion

11 ANTHONY AVON DABBS SR., Case No. 5:22-cv-01292-MEMF-KES

12 Plaintiff, ORDER ACCEPTING IN PART REPORT 13 v. AND RECOMMENDATION OF U.S.

14 OFFICER PRESTON, et al., MAGISTRATE JUDGE

15 Defendants.

18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the pleadings and all the

19 records and files herein, along with the Report and Recommendation (“R&R”) of

20 the United States Magistrate Judge (Dkt. 12). No objections to the R&R were filed, 21 and the deadline for filing such objections has passed. The Court accepts the 22 findings, conclusions, and recommendations of the United States Magistrate Judge, 23 with the clarification noted below. 24 The R&R found all of Plaintiff’s a 42 U.S.C. § 1983 Heck-barred or, 25 alternatively, time-barred. They cannot be both, because Heck-barred claims do not 26 accrue unless and until the plaintiff’s underlying conviction has been invalidated. 27 Heck v. Humphrey, 512 U.S. 477, 489-90 (1994) (“Under our analysis the statute of 28 1 | limitations poses no difficulty while the state challenges are being pursued, since 2 | the § 1983 claim has not yet arisen.”’); see also Wallace v. Kato, 549 U.S. 384, 393 3 | (2007) (holding that the Heck bar “delays what would otherwise be the accrual date 4 | ofa tort action until the setting aside of an extant conviction which success in that 5 | tort action would impugn”). Heck-barred claims should be dismissed without 6 | prejudice “so that [the plaintiff] may reassert his claims if he ever succeeds in 7 | invalidating his conviction.” Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th 8 | Cir. 1995). 9 The Court, therefore, dismisses all Plaintiff's claims without prejudice, but 10 | without further leave to amend in this action. The Court declines to reach the 11 | question of whether the claims are time-barred, and therefore DECLINES to adopt 12 | the portion of the R&R concerning this alternative ground for dismissal. 13 14 Af 15 | DATED: January 22, 2025 16 MAAME EWUSI-MENSAH FRIMPONG UNITED STATES DISTRICT JUDGE

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