(PC) Bland v. Messinger

Opinion

JOSHUA DAVIS BLAND, No. 2:20-cv-0051 KJM DB P Plaintiff, v. ORDER JON A. MESSINGER, et al., Defendants. Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims defendants subjected him to verbal harassment and used excessive force against him. The dispositive motion filing deadline expired on October 22, 2021. (ECF No. 28.) Neither party filed a motion for summary judgment. The undersigned issued a show cause order directing the parties to show cause why this action should not be set for trial. (ECF No. 39.) Defendants filed a response requesting additional time to file a motion for judgment on the pleadings because plaintiff’s claim may be barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).1 (ECF No. 39.) Plaintiff filed an objection to the response indicating he was opposed to

1 In Heck, the Supreme Court held that a plaintiff cannot maintain a § 1983 action to recover damages for “harm caused by actions whose unlawfulness would render [his] conviction or sentence invalid” when his sentence and conviction have not previously been reversed, expunged, declared invalid, or called into question upon issuance of a writ of habeas corpus by a federal court. allowing defendants another opportunity to request dismissal. (ECF No. 41.) Defendants’ request for additional time was denied because it failed to show good cause sufficient to warrant modification of the dispositive motion deadline. (ECF No. 42.) However, in light of the issue raised in defendants’ response to the show cause order, the undersigned will direct the parties to file briefing on whether Heck is a jurisdictional bar to adjudication of plaintiff’s underlying claims. Accordingly, IT IS HEREBY ORDERED that within sixty days of the date of this order the parties shall file and serve briefs indicating whether Heck serves as a jurisdictional bar to plaintiffs claims in this action. Dated: July 12, 2022

B .B ORAH BARNES UNITED STATES MAGISTRATE JUDGE DB:12 DB/DB Prisoner Inbox/Civil Rights/R/blan005 1.supp.brief.