1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GERROD HERNDON, Case No. 22-cv-01366-CRB (PR)

8 Plaintiff, ORDER OF DISMISSAL 9 v. (ECF No. 4)

10 LT. MAHER, 11 Defendant(s).

12 Plaintiff, a former state prisoner currently at All Saints Extended Care, an assisted living 13 facility in San Rafael, California, has filed a pro se complaint under

using the 14 court’s prisoner complaint form wherein he seeks damages for allegedly unlawful criminal 15 prosecution, conviction and sentence. Plaintiff also seeks leave to proceed in forma pauperis (IFP) 16 under

(ECF No. 4) which, based solely on his affidavit of poverty, is 17 GRANTED. 18 DISCUSSION 19 A. Standard of Review 20 Section 1915(e)(2) permits the court to dismiss any case brought IFP at any time if the 21 court determines that the action “is frivolous or malicious,” “fails to state a claim on which relief 22 may be granted,” or “seeks monetary relief against a defendant who is immune from such relief.” 23

(e)(2). Pro se pleadings must be liberally construed, however. Balistreri v. 24 Pacifica Police Dep’t,

(9th Cir. 1990). 25 To state a claim under

, a plaintiff must allege two elements: (1) that a 26 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 27 violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. ] B. Legal Claims 2 In order to recover damages for allegedly unconstitutional conviction or imprisonment, or 3 for other harm caused by actions whose unlawfulness would render a conviction or sentence 4 || invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct 5 appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such 6 || determination, or called into question by a federal court’s issuance of a writ of habeas corpus. 7 || Heck v. Humphrey,

(1994). A claim for damages bearing that relationship to a 8 conviction or sentence that has not been so invalidated is not cognizable under § 1983. Id. at 487. 9 This court accordingly must ask whether a judgment in favor of the plaintiff here would 10 || necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be 11 dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been 12 || mvalidated. See id. A review of the complaint and documents submitted by plaintiff make clear 13 || that a judgment in favor of the plaintiff here would imply the invalidity of a state conviction which 14 || has not already been invalidated. Plaintiff notes that he is seeking expungement of his conviction 3 15 || pursuant to California’s Clean Slate Act and/or a petition for expungement, but he must obtain 16 || such expungement from the appropriate state agency or court before seeking damages for i 17 || allegedly unlawful prosecution, conviction and/or sentence under § 1983 in this court. See id. Z 18 || Because plaintiff's complaint for damages fails to state a cognizable claim under § 1983 under the 19 rationale of Heck, it must be DISMISSED without prejudice. See Edwards v. Balisok,

|| 641, 649 (1997); Trimble v. City of Santa Rosa,

(9th Cir. 1995). 21 CONCLUSION 22 For the foregoing reasons, the complaint is DISMISSED under

(e)(2) for 23 failure to state a claim on which relief may be granted. The dismissal is without prejudice to filing 24 || anew complaint if a cause of action later accrues. 25 IT ISSO ORDERED. 26 || Dated: April 22, 2022 27 zc ba CHARLES R. BREYER 28 United States District Judge