Rosev.McMurray

United States District Court, D. IdahoMay 9, 2001
Case No. CVOO-655-S-EJL (D. Idaho May. 9, 2001)

Case No. CVOO-655-S-EJL.

May 9, 2001


ORDER


EDWARD J. DODGE, UNITED STATES DISTRICT JUDGE.

The Court previously ordered Plaintiff to file a brief with the Court to demonstrate that he had previously invalidated his conviction in order to proceed with the present civil rights action. Plaintiff filed a First Amended Complaint on February 7, 2001, along with over 500 pages of exhibits, consisting of transcripts of his state court criminal proceedings, appellate briefs and correspondence between Plaintiff and his state criminal attorneys.

Nowhere in Plaintiff's filings does the Court find that Plaintiff has demonstrated that he has previously invalidated his criminal conviction. As explained in the Court's previous Order, Plaintiff's failure to show that his criminal conviction was previously invalidated requires the Court to dismiss this action without prejudice under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994). Any decision by the Court on the claims in Plaintiff's Complaint in this action would call into question the validity of the state court conviction and would amount to an inappropriate collateral attack on his conviction, which is prohibited by Heck. Plaintiff is not barred from bringing his § 1983 action at a later date if he is able to overturn or invalidate his conviction upon appeal, by post-conviction relief action, or in a habeas corpus action.

ORDER

NOW THEREFORE IT IS HEREBY ORDERED that Plaintiff's motion to augment (Docket No. 10) is GRANTED.

IT IS FURTHER HEREBY ORDERED that Plaintiff's First Amended Complaint is dismissed without prejudice.

JUDGMENT

On May 9, 2001, the Court entered an Order dismissing this action without prejudice. Based upon that Order, and the Court being fully advised in the premises, IT IS HEREBY ORDERED AND ADJUDGED that Plaintiff's cause of action is DISMISSED without prejudice.