(PC) Hickman v. Chisholm

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN DUANE HICKMAN, No. 2:19-cv-1725 KJM DB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 MATT CHISHOLM, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil 18 rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 Before this court are plaintiff’s objections to the undersigned’s findings and 21 recommendations issued October 17, 2019. (See ECF Nos. 7, 8). For the reasons stated herein, 22 the undersigned shall vacate those findings and recommendations and instead recommend that 23 this action be dismissed without leave to amend for failure to state a claim upon which relief may 24 be granted. 25 I. RELEVANT PROCEDURAL HISTORY 26 On October 17, 2019, the undersigned reviewed this court’s docket and found that the 27 claim in the instant complaint was identical to those in the earlier filed Hickman v. Chisholm, No. 28 2:19-cv-1254 TLN AC P (“Hickman I”), which was recently dismissed for failure to state a claim 1 upon which relief may be granted. (ECF No. 7 at 1). It was further determined that the claim in 2 the instant complaint was also identical to the one in the subsequently filed Hickman v. Chisholm, 3 No. 2:19-cv-1828 KJM AC P (“Hickman III”), which was also recently dismissed as duplicative 4 of Hickman I. (See id.). As a result, it was recommended that this action be dismissed as 5 duplicative of both Hickman I and Hickman III. (See id.). Plaintiff was given fourteen days to 6 file objections to these findings and recommendations. (See id.). 7 On October 28, 2019, plaintiff filed objections to the findings and recommendations. 8 (ECF No. 8). The undersigned considers those objections herein. 9 II. DISCUSSION 10 In plaintiff’s objections to the undersigned’s findings and recommendations, plaintiff 11 argues that the claim in the instant action is not duplicative of those in Hickman I and Hickman 12 III because unlike those cases, which argued that his rights were being violated under the 13 Fourteenth Amendment when the prosecutor proffered false evidence at trial which, in turn, led to 14 his conviction, the instant action argues that his rights have been violated under the Fourth 15 Amendment. Specifically, plaintiff contends that as a result of the prosecutor presenting false 16 evidence at trial, he was convicted and is now being falsely imprisoned in violation of it. (See 17 ECF No. 8). 18 At its core, plaintiff’s argument is a technical one which does not change the ultimate 19 outcome of a recommended dismissal. To the extent plaintiff asserts different violations of right 20 in all three cases which stem from a singular act, namely, the prosecution’s alleged proffer of 21 false evidence, in the interests of judicial economy, those claims should have been brought in one 22 action, not three. 23 More importantly, to the extent plaintiff argues that he is being falsely imprisoned in the 24 instant action (see ECF No. 1 at 3), ultimately, he is contesting his conviction and/or sentence. A 25 Section 1983 complaint is not the appropriate pleading for such claims. Such claims must be 26 brought in a habeas action. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (stating sole federal 27 remedy to challenge to fact or duration of confinement is writ of habeas corpus). Plaintiff appears 28 to be aware of this fact to some degree, given that he has filed a habeas petition in this court 1 which is currently under review. See Hickman v. People of the State of California, No. 2:18-cv- 2 2967 KJM CKD P. Thus, converting this matter to a habeas action is not warranted, either. 3 Finally, the instant action asks for monetary damages for false imprisonment on a 4 conviction and sentence that plaintiff is currently serving. (See ECF No. 1 at 6). A prisoner may 5 not pursue a Section 1983 action for civil damages for a conviction or sentence without proof that 6 the conviction or sentence has been reversed, expunged or invalidated. Heck v. Humphrey, 512 7 U.S. 477, 486-87 (1994). Plaintiff is currently serving the sentence for his conviction. Thus, 8 neither plaintiff’s conviction nor his sentence have been reversed, expunged or invalidated. 9 Consequently, plaintiff’s request for money damages on the grounds of false imprisonment is 10 premature.1 11 For these reasons, the undersigned finds that the complaint fails to state a cognizable civil 12 rights claim under 42 U.S.C. § 1983 and that amending it would be futile. “A district court may 13 deny leave to amend when amendment would be futile.” Hartmann v. CDCR, 707 F.3d 1114, 14 1130 (9th Cir. 2013); accord Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (“Courts are 15 not required to grant leave to amend if a complaint lacks merit entirely.”). 16 Accordingly, IT IS HEREBY ORDERED that the undersigned’s findings and 17 recommendations issued October 17, 2019 (ECF No. 7) are VACATED. 18 IT IS FURTHER RECOMMENDED that plaintiff’s complaint be DISMISSED without 19 leave to amend for failure to state a claim upon which relief may be granted. 28 U.S.C. § 20 1915A(b)(1). 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 26

27 1 The undersigned need not and does not reach the question of whether named defendants Chisholm, a deputy district attorney, and the County of Sacramento would be liable for monetary 28 damages in this matter. 1 | objections shall be served and filed within fourteen days after service of the objections. The 2 | parties are advised that failure to file objections within the specified time may waive the right to 3 | appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 | Dated: November 4, 2019 5 6 4 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 8 | piB:13 DB/ORDERS/ORDERS.PRISONER.CIVIL RIGHTS /hick1725.obj.vac.f&r 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28