Opinion
CIV. NO. 13-00507 DKW/KSC
10-31-2013
ROSALENE MILDRED LOPES, #A0223855, Plaintiff, v. STATE OF HAWAII, DEP'T OF PUBLIC SAFETY, OFFICE OF OMBUDSMAN, OFFICE OF PUBLIC DEFENDER, Defendants.
ORDER DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C. §§ 1915A
& 1915(e)
ORDER DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C. §§ 1915A & 1915(e)
Before the court is pro se Plaintiff Rosalene Mildred Lopes' prisoner civil rights complaint brought pursuant to 42 U.S.C. § 1983. Plaintiff is incarcerated at the Women's Community Correctional Center ("WCCC"). Plaintiff alleges that past and present officials of the State of Hawaii, the Hawaii Department of Public Safety, the Office of the Ombudsman, and the Office of the Public Defender are falsely imprisoning her by refusing to credit a putative "Expungement Certificate" that allegedly annulled her criminal charges. Plaintiff's Complaint is dismissed without prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1) and § 1915(e)(2).
Plaintiff is proceeding in forma pauperis.
Plaintiff names these entities in the Complaint's caption. She names WCCC officials: (1) Richard Melo ; (2) Pua Miha; (3) Mark Patterson; (4) Milton Kotsubo; (5) Michael Hoffman; (6) Eric Chung; and (7) Nicole Alana; and (8) Deputy Public Defender Kenji K. Akamu; (9) Ombudsman Analyst Iyvonne Jinbo; and (10) Hawaii Paroling Authority Administrator Tommy Johnson (collectively, "Defendants") in the Complaint's body.
I. LEGAL STANDARD
The court must screen all civil actions brought by prisoners relating to prison conditions and/or seeking redress from a governmental entity, officer, or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if its claims are legally frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1).
A complaint may be dismissed for failure to state a claim if it (1) lacks a cognizable legal theory; or (2) contains insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim, a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. A complaint fails to state a claim if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.
The court must construe a pro se complaint liberally, accept all allegations of material fact as true, and construe those facts in the light most favorable to the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hebbe v. Pliler, 611 F.3d 1202, 1205 (9th Cir. 2010) (stating that "we continue to construe pro se filings liberally"). Leave to amend should be granted unless it appears that amendment is futile. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).
II. BACKGROUND
Because Plaintiff's Complaint is largely incoherent without reference to the criminal conviction to which it refers, the court takes judicial notice of Plaintiff's state criminal conviction in Hawaii v. Lopes, 1PC06-1-001831, in which she pled guilty to one count of Forgery in the Second Degree and one count of Theft in the Second Degree, on November 20, 2006. See Hawai'i State Judiciary's Public Access to Court Information, publicly available at: http://hoohiki1.courts.state.hi.us/jud/Hoohiki/. On January 29, 2007, the state circuit court issued a bench warrant against Plaintiff, which was executed on August 7, 2009. On October 28, 2009, judgment of conviction and sentence was entered. Plaintiff was sentenced to five years incarceration for both counts, to be served concurrently with credit for time served. Mittimus entered immediately.
A court "'may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.'" Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)).
Plaintiff says that she received an "Expungement Certificate" on or about July 20, 2010, which allegedly annulled her criminal charges in Hawaii v. Lopes, 1PC06-1-001831. Plaintiff admits that she does not have possession of this certificate; she alleges that the WCCC Warden's secretary destroyed or altered the only copy of the original document. The state court docket in Hawaii v. Lopes, 1PC06-1-001831, shows that Plaintiff's Motion for Reconsideration of Sentence was denied on January 21, 2010. A sealed "Presentence Diagnosis and Report Dated 10/12/09" was docketed in the case on August 17, 2010. There is no entry in the docket on July 20, 2010, and no indication that Plaintiff's sentence has been expunged, overturned, or otherwise called into question.
Plaintiff asks this court to produce her Expungement Certificate, to prove that the Hawaii Attorney General expunged her criminal charges on or about July 20, 2010. She seeks immediate release and damages for her allegedly false imprisonment.
III. DISCUSSION
A habeas corpus petition is the correct method for a prisoner to challenge the "legality or duration" of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973)); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of that confinement and to seek damages. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases.
A. Plaintiff's Section 1983 Claims Are Dismissed
When a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in her favor would necessarily impugn the validity of her conviction or sentence; if so, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. Heck v. Humphrey, 512 U.S. 477, 487 (1994). Thus, to recover damages for an allegedly unconstitutional imprisonment, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus. Id. at 486-87.
A civil rights "cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated." Id. at 489-90 (footnote omitted). Such a claim is not cognizable and should be dismissed. Id. at 487; Edwards v. Balisok, 520 U.S. 641, 649 (1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (holding that the district court may dismiss sua sponte a Heck-barred claim without prejudice under 28 U.S.C. § 1915).
Heck generally bars all claims challenging the validity of an arrest, prosecution or conviction. See Guerrero v. Gates, 442 F.3d 697, 703 (9th Cir. 2006) (holding that plaintiff's wrongful arrest, malicious prosecution and conspiracy to bring false charges against police officers were Heck-barred ). Heck also bars a plaintiff's false arrest and imprisonment claims until the conviction is invalidated. Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998); Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996). In short, Heck bars all claims that "necessarily imply" the invalidity of a conviction. See, e.g., Valdez v. Rosenbaum, 302 F.3d 1039, 1049 (9th Cir. 2002) (holding that a prisoner's claim of denial of access to counsel while a pretrial detainee was barred by Heck, because the claim would necessarily imply invalidity of subsequent conviction).
Plaintiff alleges that her conviction was expunged in July 2010, but claims she has no proof of this expungement because the WCCC Warden's secretary, Pua Miha, "altered and modified the truth of a proven legal documentation." Compl., ECF No. 1 at 2. It is clear that Plaintiff remains incarcerated, and with reference to the state circuit court's docket, that her conviction and sentence have not been invalidated in any manner. Leaving aside the facial implausibility of Plaintiff's claims when assessed against her state court criminal docket, it is also clear that success in this action would necessarily invalidate Plaintiff's present incarceration. Plaintiff's claims are barred by the Heck doctrine.
B. Plaintiff's Claims for Immediate Release
Claims challenging the validity of a prisoner's continued incarceration, including the fact or length of the custody, are within the "heart of habeas corpus" and are cognizable only in federal habeas corpus. Preiser, 411 U.S. at 498-99, 499 n.14. To the extent Plaintiff seeks immediate release, she must bring such claims in a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Preiser, 411 U.S. at 485. Before she may do so, however, she must present her claims to the highest state court with authority to hear them. See Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b).
IV. CONCLUSION
Plaintiff's Complaint and action are DISMISSED without prejudice for failure to state a claim on which relief may be granted. Because it is clear that amendment is futile, this dismissal is without leave to amend. Plaintiff may file a new complaint seeking damages in a new civil rights action after her conviction and sentence are invalidated. In the alternative, Plaintiff may bring her claims for immediate release in a petition for writ of habeas corpus, after she has fully- exhausted her claims in the state courts. The Clerk shall terminate any pending motions and close the file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 31, 2013.
_______________
Derrick K. Watson
United States District Judge
Rosalene Mildred Lopes v. State of Hawaii, Dept of Public Safety, et al.; CV 13-00507 DKW/KSC; ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. §§ 1915A & 1915(e) Lopes v. Hawaii, et al., 1:13-cv-00507 DKW/KSC;G:\docs\DKW shared\Pro Se Atty\Lopes 13-507 dkw (FTSC,dsm lv amd, imp. d's, incoherent cls).wpd