McGary v. Cunningham et al

Filing 5

ORDER ADOPTING REPORT AND RECOMMENDATIONS by Judge Benjamin H Settle re 4 Objections to Report and Recommendation filed by Darnell McGary. (TG; cc mailed to plaintiff)

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA DARNELL MCGARY, Plaintiff, v. KELLY CUNNINGHAM, et al., Defendants. No. C10-5440BHS ORDER ADOPTING REPORT AND RECOMMENDATION

This matter comes before the Court on the Report and Recommendation of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 3) and Plaintiff's ("McGary") objection to Report and Recommendation (Dkt. 4). The Court has considered the Report and Recommendation, McGary's objection, and the remaining record, and hereby adopts the Report and Recommendation. I. DISCUSSION This matter arises out of McGary's 42 U.S.C. §1983 challenge to his continued confinement at the Special Commitment Center (SCC). See Dkt. 1 at 1. A. Plaintiff Must File a Writ of Habeas Corpus On June 20, 2010, McGary filed his complaint against Defendants contending that Defendants violated his due process rights when they allegedly recorded erroneous information in McGary's file at the SCC. See Dkt. 1 at 1. Because McGary's complaint and objections implicitly challenge his confinement (Dkts. 1, 4), he cannot proceed under § 1983 "until and unless his confinement has been overturned by way of habeas corpus." Dkt. 3 at 2; see also Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir. 1997) (when "the court
ORDER ­ 1

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concludes that the challenge would necessarily imply the invalidity of the . . . continuing confinement, then the challenge must be brought as a petition for a writ of habeas corpus, not under § 1983."). Therefore, the Court agrees with the Magistrate Judge's Report and Recommendation that McGary's claims must be dismissed as pleaded. Plaintiff can still bring a petition for a writ of habeas corpus. Procedural Issues Raised on Objection Additionally, McGary argues in his objection that the Magistrate Judge improperly

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8 dismissed this action before following the proper procedural requirements of a § 1983 suit. 9 However, the procedural requirements referenced by McGary are only required in a civil 10 rights suit (Dkt. 4 at 4), which the Magistrate Judge properly deemed not to be actionable by 11 McGary absent a grant of writ of habeas corpus (Dkt. 3). 12 C. 13

In Forma Pauperis Because McGary is barred from bringing his § 1983 claim at this time, his request to

14 proceed in forma pauperis is DENIED. 15 16 17 herein. 18 19 20 21 22 23 24 25 26 27 28 ORDER ­ 2

II. CONCLUSION Therefore, the Court ADOPTS the report and recommendation for the reasons stated

DATED this 1st day of September, 2010.

A

BENJAMIN H. SETTLE United States District Judge