Smith v. Brunson et al
ORDER TO SHOW CAUSE why this case should not be dismissed prior to service; Show Cause Response due by 1/19/2007. by Judge J. Kelley Arnold. (CAR, )
Smith v. Brunson et al
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This civil rights action has been referred to the undersigned Magistrate Judge pursuant to Title 28 U.S.C. § 636(b)(1)(B). Plaintiff was given leave to proceed in forma pauperis. Review of plaintiff's proposed complaint discloses plaintiff is challenging the fact that he is in custody (Dkt. # 1). The court now ORDERS PLAINTIFF TO SHOW CAUSE why this action should not be dismissed prior to service. When a person is challenging the very fact or duration of his physical imprisonment, and the relief he seeks will determine that he is or was entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). In June 1994, the United States Supreme Court held that "[e]ven a ORDER v. KAREN BRUNSON et al., Defendants. SCOTT C. SMITH, Plaintiff, Case No. C06-5712FDB ORDER TO SHOW CAUSE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA
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prisoner who has fully exhausted available state remedies has no cause of action under § 1983 unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus." Heck v. Humphrey, 512 U.S. 477, 487 (1994)(emphasis added). The court added: Under our analysis the statute of limitations poses no difficulty while the state challenges are being pursued, since the § 1983 claim has not yet arisen. . . . [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. Id. at 489. "[T]he determination whether a challenge is properly brought under § 1983 must be made based upon whether `the nature of the challenge to the procedures [is] such as necessarily to imply the invalidity of the judgment.' Id. If the court concludes that the challenge would necessarily imply the invalidity of the judgment or continuing confinement, then the challenge must be brought as a petition for a writ of habeas corpus, not under § 1983." Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir.1997) (quoting Edwards v. Balisok, 520 U.S. 641 (1997)). Plaintiff has not indicated he has received relief in habeas corpus. At the current time he fails to state a claim. Plaintiff should show cause why this action should not be dismissed for failure to state a claim on or before January 19, 2007. The Clerk is directed to send plaintiff a copy of this to plaintiff and note the January 19, 2007 due date on the court's calendar.
DATED this 22, day of December, 2006. /S/ J. Kelley Arnold J. Kelley Arnold United States Magistrate Judge
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