Berry v. White et al

Filing 8

ORDER Adopting 5 Report and Recommendations by Judge John C Coughenour. Plaintiffs complaint (Dkt. No. 1) and this action are DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Copy of Order and Pro Se Ligitation Guide mailed to Plaintiff. (LMK)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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DARYL BERRY,

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Plaintiff,
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CASE NO. C14-1015-JCC
ORDER

v.
J. WHITE, et al.,
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Defendants.
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This matter comes before the Court on the Report and Recommendation (Dkt. No. 5) of

16 the Honorable Mary Alice Theiler, United States Magistrate Judge. Judge Theiler recommends
17 that the Court deny Plaintiff’s motion to proceed in forma pauperis and dismiss his proposed §
18 1983 complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) because it “appears clear from the face of
19 the complaint that the claims asserted by plaintiff call into question the lawfulness of his
20 conviction on state court criminal charges[, even though] plaintiff has not demonstrated that his
21 conviction or sentence has been reversed, expunged, invalidated, or impugned in any way.” (Dkt.
22 No. 5 at 2 (citing Heck v. Humphrey, 512 U.S. 477 (1994).) Plaintiff did not file any objections
23 to Judge Theiler’s Report and Recommendation, though he did send two letters to the Court in
24 which he requests assistance in bringing a lawsuit because he believes he is unable to
25 competently represent himself. (Dkt. Nos. 6, 7.) He requests the right to further pursue his
26 lawsuit after a decision has been made by the state courts on the appeal of his criminal

ORDER
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1 conviction. (Dkt. No. 7.)
The Court has reviewed the Report and Recommendation, Plaintiff’s complaint, and

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3 Plaintiff’s subsequent filings. Nothing in Plaintiff’s letters to the Court provides a basis for
4 rejecting Judge Theiler’s Report and Recommendation. The Court is sympathetic to Mr. Berry’s
5 stated need for assistance in bringing a future lawsuit on an appropriate basis, and will
6 accordingly direct the Clerk to provide Plaintiff with a copy of this district’s pro se litigation
7 guide. That document will assist Plaintiff in determining how to bring an appropriate collateral
8 challenge under 28 U.S.C. § 2254 to his state court conviction or, as future circumstances may
9 warrant, a civil action under 42 U.S.C. § 1983. The Court also notes that in any future lawsuit,
10 Mr. Berry may request that the Court appoint counsel on his behalf. Nonetheless, a review of
11 Plaintiff’s proposed complaint and Judge Theiler’s Report and Recommendation make clear that
12 the proposed complaint as submitted provides no basis for Plaintiff to proceed with this action in
13 forma pauperis. Accordingly, the Court hereby finds and ORDERS as follows:
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(1)

The Court ADOPTS the Report and Recommendation;

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(2)

Plaintiff’s complaint (Dkt. No. 1) and this action are DISMISSED without

16 prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii);
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(3)

The Clerk is respectfully directed to provide Plaintiff with a copy of this district’s

18 pro se litigation guide; and
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(4)

20 Judge Theiler.
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ORDER
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The Clerk is respectfully directed to send copies of this Order to Plaintiff and to

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DATED this 27th day of August 2014.

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A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER
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