# Hebrard v. Nofziger

> District Court, D. Oregon · March 25, 2022

URL: https://www.frixlaw.com/law-library/cases/10394557

## Case

- **Court:** District Court, D. Oregon
- **Decided:** March 25, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10394557

## How later opinions describe it (automated extraction)

- holding that “requests for relief turning on circumstances of confinement may be presented in a § 1983 action”

## Opinion text

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON
EUGENE DIVISION

ALEXANDER THOMAS HEBRARD,

Plaintiff, Case No. 6:19-cv-01498-YY

v.
OPINION AND ORDER
JEREMY M. NOFZIGER, BRANDON KELLY,
JAMES BROWN, C. GOVE,

Defendants.

YOU, Magistrate Judge.
Plaintiff Alexander Hebrard, an adult in custody at the Snake River Correctional
Institution, brings this action pursuant to 42 U.S.C. § 1983, alleging that defendants violated his
procedural due process rights under the Fourteenth Amendment by subjecting him to a
constitutionally deficient disciplinary hearing. The defendants are Correctional Hearings Officer
Jeremy Nofziger (“Officer Nofziger”), Inspector Chris Gove (“Inspector Gove”), Assistant
Inspector General Jason Brown (“Brown”), and Superintendent Brandon Kelly (“Kelly”). The
court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 as it raises a
question of federal law.1
Defendants have filed a Motion for Summary Judgment.2 ECF 57. During the course of
resolving that motion, the court inquired whether plaintiff’s claim is barred under Heck v.

Humphreys, 512 U.S. 477 (1994). Defendant claims that it is and plaintiff claims it is not. See
Supplemental Brief in Support of Defendants’ Motion for Summary Judgment, ECF 78;
Plaintiff’s Response to Supplemental Questions, ECF 79.
For the reasons discussed below, the court finds that this action is barred under Heck and
sua sponte dismisses the case without prejudice pursuant to 28 U.S.C. § 1915(a)(1). Defendants’
pending Motion for Summary Judgment is therefore moot.
I. Proceeding In Forma Pauperis and Sua Sponte Dismissal
Under the Prison Litigation Reform Act (“PLRA”), indigent prisoners may commence a
civil action in forma pauperis without prepaying court fees. 28 U.S.C. § 1915(a)(1). However,
the court must screen such actions and dismiss them if the complaint fails to state a claim upon

which relief may be granted. 28 U.S.C. § 1915A(a), (b)(1). The court’s obligation to dismiss a
case that fails to state a claim persists throughout the case. The PLRA instructs that “the court
shall dismiss the case at any time if the court determines that the action fails to state a claim on
which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii) (emphasis added).

1 All parties have consented to allow a magistrate judge to enter final orders and judgment in this
case in accordance with Federal Rule of Civil Procedure 73 and 28 U.S.C. § 636(c).

2 In their motion for summary judgment, defendants argue that (1) any claims against Inspector
Gove, Brown, and Kelly fail because they did not engage in any conduct implicating plaintiff’s
due process rights, (2) plaintiff received all the process he was due from Officer Nofzinger, and
(3) Officer Nofzinger is entitled to qualified immunity. These arguments have merit, but the
court does not have reach them because, as discussed in this opinion and order, plaintiff’s claims
are barred by Heck.
“The phrase ‘fails to state a claim upon which relief may be granted’ . . . purposely
‘parallels the language of Federal Rule of Civil Procedure 12(b)(6).’” El-Shaddai v. Zamora,
833 F.3d 1036, 1043 (9th Cir. 2016) (citation omitted). “A complaint may be subject to
dismissal under Rule 12(b)(6) when an affirmative defense appears on its face.” Jones v. Bock,

549 U.S. 199, 215 (2007). “[C]ompliance with Heck most closely resembles the mandatory
administrative exhaustion of PLRA claims, which constitutes an affirmative defense.”
Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1056 (9th Cir. 2016). Thus, the
court “may properly dismiss a Heck-barred claim under Rule 12(b)(6) if there exists an obvious
bar to securing relief on the face of the complaint.” Id. (citation and quotation marks omitted);
see also El-Shaddai, 833 F.3d at 1044.
Further, when a plaintiff proceeds in forma pauperis, the Ninth Circuit permits dismissal
sua sponte and without notice. Turner v. Boldt, 172 F.3d 59 (9th Cir. 1999); Omar v. Sea-Land
Service, Inc., 813 F.2d 986, 991 (9th Cir. 1987). District courts in the Ninth Circuit routinely
enter such dismissals, often during pre-answer screenings before the defendants are even served.

E.g., Bernard v. City of San Diego, No. 21-cv-967-MMA-AGS, 2021 WL 3269658, at *6 (S.D.
Cal. July 29, 2021) (dismissing complaint sua sponte as Heck-barred pursuant to 28 U.S.C.
§ 1915). However, as noted, the PLRA requires that “the court shall dismiss the case at any time
if the court determines that the action fails to state a claim on which relief may be granted.”
28 U.S.C. § 1915(e)(2)(B)(ii) (emphasis added).
II. Heck Doctrine
Federal law provides two exclusive avenues of relief for complaints related to state
imprisonment: (1) a petition for habeas corpus pursuant to 28 U.S.C. § 2254, and (2) a civil
rights complaint pursuant to 42 U.S.C. § 1983. Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir.
2016) (en banc). Habeas relief is the exclusive vehicle for challenges to the fact or duration of
confinement. Id. A § 1983 action is the exclusive vehicle for claims brought by state prisoners
that are not within this “core of habeas corpus.” Id. at 927, 931, 934. Otherwise stated, claims
that “would not necessarily” affect the fact or duration of confinement do not fall within “the

core of habeas corpus” and may be brought under § 1983. See id. at 934-35; Muhammad v.
Close, 540 U.S. 749, 750 (2004) (holding that “requests for relief turning on circumstances of
confinement may be presented in a § 1983 action”).
Importantly, under Heck, “where success in a prisoner’s § 1983 damages action would
implicitly question the validity of conviction or duration of sentence, the litigant must first
achieve favorable termination of his available state, or federal habeas, opportunities to challenge
the underlying conviction or sentence.” Muhammad, 540 U.S. at 751; Nettles, 830 F.3d at 928;
see also Heck, 512 U.S. at 489-90 (“[A] § 1983 cause of action for damages attributable to an
unconstitutional conviction or sentence does not accrue until the conviction or sentence has been
invalidated.”) (emphasis added). The Supreme Court extended Heck to prison disciplinary

proceedings in Edwards v. Balisok, 520 U.S. 641, 648 (1997). “At its core, the favorable
termination rule, as first articulated in Heck v. Humphries and extended by Edwards v. Balisok,
precludes a prisoner from seeking damages for an alleged constitutional violation which, if
established, would necessarily imply the invalidity of his conviction, sentence, or deprivation of
good-time credits.” Stevenson v. Holland, No. 1:16-cv-01831-AWI-SKO, 2018 WL 1109707, at
*4 (E.D. Cal. Mar. 1, 2018); Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) ( “[A] state
prisoner’s § 1983 action is barred (absent prior invalidation)—no matter the relief sought
(damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to
conviction or internal prison proceedings)—if success in that action would necessarily
demonstrate the invalidity of confinement or its duration.”).
III. Analysis
This action must be dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for

failure to state a claim because it is apparent on the face of the complaint that Heck bars
plaintiff’s claims.
The court granted plaintiff’s application for leave to proceed in forma pauperis pursuant
to 28 U.S.C. § 1915 shortly after he filed his complaint.3 See Application, ECF 1; Order, ECF 7.
In his complaint, plaintiff alleges a Fourteenth Amendment due process violation arising from
sanctions he received for attempting to introduce suboxone4 into the Oregon State Penitentiary
and receipt of funds from stolen credit cards. See Compl. ¶ 98, ECF 2. Plaintiff alleges that
Inspector Gove opened an investigation into his conduct and froze the funds in his Telmate
account. Id. ¶¶ 4, 12. Inspector Gove questioned plaintiff about letters he had written to four
people “detailing how to bring drugs into [the] institution.” Id. ¶ 26. Inspector Gove also filed a

misconduct report charging plaintiff with racketeering, distribution 1, drug possession, and
contraband. Id. ¶ 30.
Officer Nofziger conducted plaintiff’s disciplinary hearing. Id. ¶ 44. Plaintiff alleges he
made various requests prior to the hearing, including to view evidence and for additional
investigation to be conducted, id. ¶¶ 31-42, all of which were denied. Id. ¶¶ 46-61. Officer
Nofziger dismissed the contraband charge but convicted plaintiff of racketeering, distribution 1,
and drug possession. Id. ¶¶ 30, 60, 62. The complaint alleges that plaintiff was sanctioned with

3 The court also appointed pro bono counsel.

4 Suboxone is a trade name for Buprenorphine, a Schedule III narcotic.
120 days in disciplinary segregation, a $100 fine, 365 days of no visitation rights, and the
retraction of 27 days in earned time credit, and $1,050 was confiscated from plaintiff’s Telmate
account. Id. ¶ 62.
This case thus presents a mixed-sanctions scenario. Mixed-sanctions cases concern

convictions with sanctions affecting both the fact or duration of confinement and some other
sanction, usually involving the conditions of confinement. While the Ninth Circuit has not
decided whether mixed-sanctions cases are barred under Heck, the Seventh and D.C. Circuits
have found that these types of cases are Heck-barred. See Haywood v. Hathaway, 842 F.3d
1026, 1028-30 (7th Cir. 2016); Skinner v. U.S. Dep’t of Just. & Bureau of Prisons, 584 F.3d
1093, 1100 (D.C. Cir. 2009).
The Second Circuit has permitted mixed-sanctions cases to proceed when the § 1983
plaintiff “abandons any duration of imprisonment claims arising out of the same disciplinary
process” as the other sanction. Peralta v. Vasquez, 467 F.3d 98, 106 (2d Cir. 2006). However,
the Seventh and D.C. Circuit’s approach most closely follows Heck and its progeny. Properly

understood, the Heck bar is a “version of issue preclusion (collateral estoppel), under which the
outstanding criminal judgment or disciplinary sanction, as long as it stands, blocks any
inconsistent civil judgment.” Haywood, 842 F.3d at 1029. Allowing plaintiff to abandon any
claims affecting the duration of his imprisonment is no solution because, where both causes of
action arise from the same disciplinary process, success in a § 1983 action targeting the former
sanction “would implicitly question the validity” of the latter. See Muhammad, 540 U.S. at 751;
Skinner, 584 F.3d at 1100 (“because recovery for the ‘other, separate disciplinary harms’
depends on overturning the adverse determination that also led to his loss of good-time credits, if
Skinner were to win damages for the former, he would necessarily have demonstrated the
invalidity of the latter”). As explained by the Seventh Circuit,
Nothing in Heck, Edwards, or any of the Court’s later decisions suggests that the
“favorable termination” element that the Court thought essential can be elided by
a plaintiff’s disavowing a kind of relief that Preiser [v. Rodriguez, 411 U.S. 475,
490 (1973),] holds is never available under § 1983 in the first place. The
approach taken in Peralta is incompatible with Heck and its successors; Peralta is
functionally what would happen if the whole sequence were overruled and only
Preiser left standing.

Id. Inmates “cannot make an end run around Heck by filing an affidavit waiving challenges to
the portion of their punishment that revokes good-time credits.” Morgan v. Schott, 914 F.3d
1115, 1117 (7th Cir. 2019).
Here, plaintiff alleges there was one investigation, one disciplinary hearing, and one set
of disciplinary convictions. He alleges Officer Nofziger denied all of his requests to access
evidence and conduct additional investigation. He further alleges the disciplinary convictions
resulted in the revocation of 27 days of good time credits, which affects the duration of his
confinement. Compl. ¶ 62, ECF 2. While the other sanctions, such as disciplinary segregation
and the confiscation of funds, do not affect the fact or duration of plaintiff’s confinement,
success on the merits of plaintiff’s due process claim “would implicitly question the validity” of
the very disciplinary convictions resulting in the retraction of good time credits. See
Muhammad, 540 U.S. at 751. Plaintiff does not allege that he has otherwise invalidated the
disciplinary convictions. Heck, 512 U.S. at 487; Edwards, 520 U.S. at 648. Therefore, his claim
is Heck-barred. Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), this court has no choice but to dismiss
this case without prejudice.
ORDER
Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), this action is dismissed sua sponte and without
prejudice because it is Heck-barred.
DATED March 25, 2022.

/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10394557. Public record. Not legal advice.