Arnette v. State of Washington et al

Filing 7

ORDER DECLINING SERVICE AND GRANTING LEAVE TO AMEND by Hon. Brian A Tsuchida. (Attachments: # 1 Amended 1983 Prisoner Civil Rights Complaint form)**9 PAGE(S), PRINT ALL**(William Arnette, Prisoner ID: 397101)(ST)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 WILLIAM ERIC ARNETTE, 8 Case No. C17-451 JLR-BAT Plaintiff, 9 v. 10 STATE OF WASHINGTON, KING COUNTY, ORDER DECLINING SERVICE AND GRANTING LEAVE TO AMEND 11 12 13 Defendants. William Eric Arnette, a pro-se prisoner incarcerated at the Washington Corrections 14 Center (WCC), submitted a 42 U.S.C. § 1983 complaint against the State of Washington and 15 King County. The Court DECLINES to serve the complaint because, as discussed in more 16 detail below, the complaint contains numerous deficiencies. However, the Court GRANTS Mr. 17 Arnette leave to file an amended complaint by May 26, 2017. 18 19 BACKGROUND Mr. Arnette alleges that his assigned counsel, who was related to the judge in his criminal 20 case, provided ineffective assistance of counsel and violated his right to conflict free counsel by 21 failing to properly advise him as to his plea. Mr. Arnette also claims that his right to a speedy 22 trial was violated and that his case should have gone to trial in January 2017. Dkt. 4-1. Mr. 23 Arnette asks the Court to help him file a lawsuit. Id. ORDER DECLINING SERVICE AND GRANTING LEAVE TO AMEND - 1 1 DISCUSSION 2 An inmate such as plaintiff may bring an action for violation of his constitutional rights 3 under 42 U.S.C. § 1983 if he can show that (1) a state actor (2) violated his constitutional rights. 4 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986). However, based on the facts 5 alleged in his complaint, Mr. Arnette fails to state a viable claim for relief under § 1983. 6 A. Criminal Plea/Conviction 7 Mr. Arnette seeks relief in this § 1983 action for conduct that led to his conviction. 8 However, he has not alleged that the conviction has been invalidated. 9 When a person confined by government is challenging the very fact or duration of his 10 physical imprisonment, and the relief he seeks will determine that he is or was entitled to 11 immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ 12 of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). To recover damages for an 13 alleged unconstitutional conviction or imprisonment, or for other harm caused by actions whose 14 unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that 15 the conviction or sentence has been reversed on direct appeal, expunged by executive order, 16 declared invalid by a state tribunal authorized to make such determination, or called into 17 question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. Heck v. 18 Humphrey, 512 U.S. 477, 486-87 (1994). 19 In addition, prisoners in state custody who wish to challenge their confinement in federal 20 court by a petition for writ of habeas corpus are first required to exhaust state judicial remedies, 21 either on direct appeal or through collateral proceedings, by presenting the highest state court 22 available with a fair opportunity to rule on the merits of each and every issue they seek to raise in 23 federal court. See 28 U.S.C. § 2254(b)(c); Granberry v. Greer, 481 U.S. 129, 134 (1987); Rose ORDER DECLINING SERVICE AND GRANTING LEAVE TO AMEND - 2 1 v. Lundy, 455 U.S. 509 (1982); McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988). State remedies must be exhausted except in unusual circumstances. Granberry, supra, at 2 3 134. If state remedies have not been exhausted, the district court must dismiss the petition. 4 Rose, supra, at 510; Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). As a dismissal solely 5 for failure to exhaust is not a dismissal on the merits, Howard v. Lewis, 905 F.2d 1318, 1322-23 6 (9th Cir. 1990), it is not a bar to returning to federal court after state remedies have been 7 exhausted. 8 Thus, claims relating to Mr. Arnette’s criminal conviction are not yet cognizable § 1983 9 claims and he must show cause why his claims should not be dismissed. 10 B. State of Washington and King County as Defendants 11 In addition, plaintiff has failed to name proper parties to his complaint. Neither a state 12 nor its officials acting in their official capacities are “persons” within the meaning of § 1983. 13 Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989). States and state agencies 14 are immune from suit in federal court under the Eleventh Amendment unless a state expressly 15 waives its constitutional immunity. Alden v. Maine, 527 U.S. 706 (1999). The State of 16 Washington has not waived its Eleventh Amendment immunity. Whiteside v. State of 17 Washington, 534 F.Supp. 774 (E.D. Wash. 1982). Therefore, the State of Washington cannot be 18 named as a defendant. 19 Although King County may be sued under § 1983, to hold such a municipality liable, a 20 plaintiff must show the municipality itself violated his rights or that it directed its employee(s) to 21 do so. Bd. of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 404 (1994). Under this 22 theory of liability, the focus is on the “policy statement, ordinance, regulation, or decision 23 officially adopted and promulgated by [the municipality’s] Officers.” City of St. Louis v. ORDER DECLINING SERVICE AND GRANTING LEAVE TO AMEND - 3 1 Praprotnik, 485 U.S. 112, 121 (1988) (quoting Monell, 436 U.S. at 690). A local governmental 2 unit may not be held responsible for the acts of its employees under a respondeat superior theory 3 of liability. See Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694 (1978). Thus, to sue a local 4 governmental entity, a plaintiff must allege facts showing that any constitutional deprivation he 5 suffered was the result of a custom or policy of the local governmental unit. Id. There are no 6 such allegations contained in Mr. Arnette’s complaint. 7 Finally, Mr. Arnette is advised that a state public defender performing traditional lawyer 8 functions is not a state actor for purposes of Section 1983. See, e.g., French v. Carlson, 368 9 Fed.Appx. 839 (9th Cir. 2010). 10 11 CONCLUSION The Court DECLINES to serve the complaint which as discussed above is deficient. 12 The Court realizes Mr. Arnette is proceeding pro se. Thus rather than simply dismissing the 13 action, the Court grants him permission to file an amended complaint to cure the above14 mentioned deficiencies by May 24, 2017. The amended complaint must carry the same case 15 number as this one. If no amended complaint is timely filed, the Court will recommend that 16 this matter be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on 17 which relief can be granted. 18 19 20 21 DATED this 28th day of April, 2017. A BRIAN A. TSUCHIDA United States Magistrate Judge 22 23 ORDER DECLINING SERVICE AND GRANTING LEAVE TO AMEND - 4

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