Smith v. Wallace

Filing 5

ORDER TO AMEND COMPLAINT or SHOW CAUSE, by 11/19/2010, why this matter should not be dismissed. Signed by Magistrate Judge Karen L Strombom. (CMG; cc w/attachments mailed to Plaintiff)

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 because it is deficient. DISCUSSION Under the Prison Litigation Reform Act of 1995, the Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b)(1), (2) and 1915(e)(2); See Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998). ORDER TO AMEND OR SHOW CAUSE- 1 KEVIN JOSEPH SMITH, Plaintiff, v. ORDER TO AMEND OR SHOW CAUSE ALEXIS T. WALLACE, Defendant. This matter has been referred to Magistrate Judge Karen L. Strombom pursuant to 28 U.S.C. § 636(b)(1), Local Rules MJR 3 and 4. Under separate Order, Plaintiff's application to proceed in forma pauperis (Dkt. 1) has been granted. On October 14, 2010, Plaintiff filed his proposed civil rights complaint. Dkt. 1. After review, the court declines to serve the complaint No. C10-5763 RBL/KLS UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

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A complaint is legally frivolous when it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. A complaint or portion thereof, will be dismissed for failure to state a claim upon which relief may be granted if it appears the "[f]actual allegations . . . [fail to] raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true." See Bell Atlantic, Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)(citations omitted). In other words, failure to present enough facts to state a claim for relief that is plausible on the face of the complaint will subject that complaint to dismissal. Id. at 1974. The court must construe the pleading in the light most favorable to plaintiff and resolve all doubts in plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Although complaints are to be liberally construed in a plaintiff's favor, conclusory allegations of the law, unsupported conclusions, and unwarranted inferences need not be accepted as true. Id. While the court can liberally construe plaintiff's complaint, it cannot supply an essential fact an inmate has failed to plead. Pena, 976 F.2d at 471 (quoting Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982)). "Under Ninth Circuit case law, district courts are only required to grant leave to amend if a complaint can possibly be saved. Courts are not required to grant leave to amend if a complaint lacks merit entirely." Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). See also, Smith v. Pacific Properties and Development Corp., 358 F.3d 1097, 1106 (9th Cir. 2004), citing Doe v. United States, 58 F.3d 494, 497(9th Cir.1995) ("a district court should grant leave to

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amend even if no request to amend the pleading was made, unless it determines that the pleading could not be cured by the allegation of other facts.") On the basis of these standards, Mr. Smith has failed to state a claim upon which relief can be granted. Mr. Smith seeks $300,000.00 from Alexis T. Wallace, a Kitsap county prosecutor.1 He alleges that Ms. Wallace maliciously prosecuted him and made false statements in a Probable Cause Affidavit in bringing criminal charges against Mr. Smith. It appears that the criminal case occurred in Kitsap County Court at some time in 2008. ECF No. 4. It is unclear from Mr. Smith's complaint, however, if the criminal charges were dismissed or if they resulted in a judgment of conviction pursuant to which Mr. Smith is presently incarcerated. "To maintain an action for malicious prosecution, the plaintiff must allege and prove the following: (1) that the prosecution claimed to have been malicious was instituted or continued by the defendant; (2) that there was want of probable cause for the institution or continuation of the prosecution; (3) that the proceedings were instituted or continued through malice; (4) that the proceedings terminated on the merits in favor of the plaintiff, or were abandoned; and (5) that the plaintiff suffered injury or damage as a result of the prosecution. Bender v. City of Seattle, 99 Wn.2d 582, 593 (1983). Here, there is no allegation that the proceedings against Mr. Smith were terminated on the merits in his favor or were abandoned. In order to recover damages for an alleged unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into
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Plaintiff also names Russell D. Hauge, another Kitsap County prosecuting attorney, but states that his involvement in the action is "to be determined." ECF No. 4, p. 6.

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question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). In addition, prisoners in state custody who wish to challenge the length of their confinement in federal court by a petition for writ of habeas corpus are first required to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every issue they seek to raise in federal court. See 28 U.S.C. § 2254(b)(c); Granberry v. Greer, 481 U.S. 129, 134 (1987); Rose 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 134. If state remedies have not been exhausted, the district court must dismiss the petition. Rose, supra, at 510; Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). As a dismissal solely for failure to exhaust is not a dismissal on the merits, Howard v. Lewis, 905 F.2d 1318, 1322-23 (9th Cir. 1990), it is not a bar to returning to federal court after state remedies have been exhausted. It appears that Mr. Smith is requesting monetary compensation for his alleged unlawful incarceration based on the malicious prosecution and false statements of the prosecuting attorney. ECF No. 4, pp. 11-12. As noted above, however, Mr. Smith fails to allege that the proceedings against him were terminated on the merits in his favor or were abandoned. Additionally, before a prisoner may sue to recover damages for an alleged unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a

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state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus. Mr. Smith is further advised that a state prosecuting attorney who acts within the scope of his or her duties in initiating and pursuing a criminal prosecution and presenting the State's case is absolutely immune from a suit brought for damages under 42 U.S.C. § 1983, Imbler v. Pachtman, 424 U.S. 409, 424, 427 (1976); Ashelman v. Pope, 793 F.2d 1072, 1076, 1078 (9th Cir. 1986) (en banc), "insofar as that conduct is `intimately associated with the judicial phase of the criminal process,'" Burns v. Reed, 500 U.S. 478, 486 (1991)(quoting Imbler, 424 U.S. at 431). This is so even though the prosecutor has violated a plaintiff's constitutional rights, Broam v. Bogan, 320 F.3d 1023, 1028-29 (9th Cir. 2003), or the prosecutor acts with malicious intent, Genzler v. Longanbach, 410 F.3d 630, 637 (9th Cir.), cert. denied, 546 U.S. 1031, 126 S.Ct. 736, 546 U.S. 1031, 126 S.Ct. 737, 546 U.S. 1032, 126 S.Ct. 749 (2005); Ashelman, 793 F.2d at 1078. Due to the deficiencies described above, the Court will not serve the complaint. Mr. Smith may file an amended complaint curing, if possible, the above noted deficiencies, or show cause explaining why this matter should not be dismissed no later than November 19, 2010. If Mr. Smith chooses to file an amended complaint, which seeks relief cognizable under 42 U.S.C. § 1983, the amended complaint shall operate as a complete substitute for (rather than a mere supplement to) the present complaint. Mr. Smith shall present his complaint on the form provided by the Court. The amended complaint must be legibly rewritten or retyped in its entirety, it should be an original and not a copy, it may not incorporate any part of the original complaint by reference, and it must be clearly labeled the "First Amended Complaint" and Cause Number C10-5763 RBL/KLS must be written in the caption. Additionally, Plaintiff must submit a copy of the "First Amended Complaint" for service on each named Defendant. ORDER TO AMEND OR SHOW CAUSE- 5

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If Mr. Smith decides to file an amended civil rights complaint in this action, he is cautioned that if the amended complaint is not timely filed or if he fails to adequately address the issues raised herein on or before November 19, 2010, the Court will recommend dismissal of this action as frivolous pursuant to 28 U.S.C. § 1915 and the dismissal will count as a "strike" under 28 U.S.C. § 1915(g). Pursuant to 28 U.S.C. § 1915(g), enacted April 26, 1996, a prisoner who brings three or more civil actions or appeals which are dismissed on grounds they are legally frivolous, malicious, or fail to state a claim, will be precluded from bringing any other civil action or appeal in forma pauperis "unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). The Clerk is directed to send Mr. Smith the appropriate form for filing a 42 U.S.C. 1983 civil rights complaint. The Clerk is further directed to send a copy of this Order and a copy of the General Order to Plaintiff.

DATED this 25th day of October, 2010.

A

Karen L. Strombom United States Magistrate Judge

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