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While two documents entitled “Second Amended Complaint” were filed with this 1

court on October 14, 2005, and October 21, 2005, pursuant to the court’s October 28, 2005,

order, plaintiff has informed the court he wishes to proceed on the October 14, 2005, filing. The

October 21, 2005, filing will, therefore, be disregarded. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JEFFREY MARSHALL, No. CIV S-04-1841-LKK-CMK-P

Plaintiff, 

vs. FINDINGS AND RECOMMENDATIONS

FAIRFIELD POLICE 

DEPARTMENT, et al.,

Defendants.

 /

Plaintiff, a state prisoner proceeding pro se and in forma pauperis, brings this civil

rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s amended

complaint (Doc. 27), filed on October 14, 2005.1

The court is required to screen complaints brought by prisoners seeking relief

against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 

This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,

84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are

satisfied if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds

upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff

must allege with at least some degree of particularity overt acts by specific defendants which

support the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it

is impossible for the court to conduct the screening required by law when the allegations are

vague and conclusory. 

Here, the gravamen of plaintiff’s complaint is that his arrest and resulting

conviction were the product of an illegal search and seizure. Plaintiff names as defendants

various officers of the Fairfield Police Department, as well as the department itself. When a

state prisoner challenges the legality of his custody and the relief he seeks is a determination that

he is entitled to an earlier or immediate release, such a challenge is not cognizable under 42

U.S.C. § 1983 and the prisoner’s sole federal remedy is a petition for a writ of habeas corpus. 

See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Neal v. Shimoda, 131 F.3d 818,

824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (per

curiam). Similarly, where a § 1983 action seeking monetary damages or declaratory relief

alleges constitutional violations which would necessarily imply the invalidity of the prisoner’s

underlying conviction or sentence, such a claim is not cognizable under § 1983 unless the

conviction or sentence has first been invalidated on appeal, by habeas petition, or through some

similar proceeding. See Edwards v. Balisok, 520 U.S. 641, 646 (1987) (holding that § 1983

claim not cognizable because allegations of procedural defects and a biased hearing officer

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implied the invalidity of the underlying prison disciplinary sanction); Heck v. Humphrey, 512

U.S. 477, 483-84 (1994) (concluding that § 1983 not cognizable because allegations were akin to

malicious prosecution action which includes as an element a finding that the criminal proceeding

was concluded in plaintiff’s favor); Butterfield v. Bail, 120 F.3d 1023, 1024-25 (9th Cir. 1997)

(concluding that § 1983 claim not cognizable because allegations of procedural defects were an

attempt to challenge substantive result in parole hearing); see also Neal, 131 F.3d at 824

(concluding that § 1983 claim was cognizable because challenge was to conditions for parole

eligibility and not to any particular parole determination). In particular, where the claim

involves loss of good-time credits as a result of an adverse prison disciplinary finding, the claim

is not cognizable. See Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997).

If a § 1983 complaint states claims which sound in habeas, the court should not

convert the complaint into a habeas petition. See id.; Trimble, 49 F.3d at 586. Rather, such

claims must be dismissed without prejudice and the complaint should proceed on any remaining

cognizable § 1983 claims. See Balisok, 520 U.S. at 649; Heck, 512 U.S. at 487; Trimble, 49

F.3d at 585.

In this case, plaintiff’s claims regarding the constitutionality of his underlying

arrest, if successful, would necessarily imply the invalidity of his conviction. As such, plaintiff’s

claim is not cognizable under § 1983. 

Because it does not appear possible that the deficiencies identified herein can be

cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of

the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). 

Based on the foregoing, the undersigned recommends that this action be

dismissed without prejudice.

/ / /

/ / /

/ / /

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These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten days

after being served with these findings and recommendations, any party may file written

objections with the court. The document should be captioned “Objections to Magistrate Judge's

Findings and Recommendations.” Failure to file objections within the specified time may waive

the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: December 9, 2005.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

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