Hodges v. The State of Washington in and for Clark County et al

Filing 5

ORDER TO SHOW CAUSE why this action should not be dismissed prior to service, or alternatively plaintiff may file an amended complaint by 2/17/2012. Signed by Magistrate Judge J Richard Creatura. (CMG; cc to Plaintiff)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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NATHANIEL ALEXANDER HODGES,

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Plaintiff,

CASE NO. C11-6036-RJB-JRC
ORDER TO SHOW CAUSE OR
AMEND THE COMPLAINT

v.
THE STATE OF WASHINGTON IN AND
FOR CLARK COUNTY et al.,
Defendants.

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This 42 U.S.C. § 1983 civil rights action has been referred to the undersigned Magistrate
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Judge pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B) and Local Magistrate Judge Rules MJR 1,
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MJR 3, and MJR 4. The Court has reviewed the complaint. Plaintiff complains of excessive
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force during an arrest and alleges he was “tase” twice (ECF No. 1). In the request for relief
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plaintiff asks for monetary damages and “[v]acating all criminal judgment removing punitive
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damages, pain and suffering.” (ECF No. 1).
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ORDER TO SHOW CAUSE OR AMEND THE
COMPLAINT - 1

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It appears plaintiff is attempting to collaterally challenge his current incarceration or

2 conviction. Plaintiff is seeking expungement of a conviction. If a petitioner is challenging the
3 very fact or duration of physical imprisonment, and the relief sought will determine whether
4 petitioner is or was entitled to immediate release or a speedier release from that imprisonment,
5 petitioner’s sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475,
6 500 (1973).
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The United States Supreme Court held that “[e]ven a prisoner who has fully exhausted

8 available state remedies has no cause of action under § 1983 unless and until the conviction or
9 sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas
10 corpus.” Heck v. Humphrey, 512 U.S. 477, 487 (1994). The Court added:
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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.

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Id. at 489. “[T]he determination whether a challenge is properly brought under § 1983 must be
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made based upon whether ‘the nature of the challenge to the procedures [is] such as necessarily
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to imply the invalidity of the judgment.’ Id. If the court concludes that the challenge would
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necessarily imply the invalidity of the judgment or continuing confinement, then the challenge
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must be brought as a petition for a writ of habeas corpus, not under § 1983.” Butterfield v. Bail,
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120 F.3d 1023, 1024 (9th Cir. 1997) (quoting Edwards v. Balisok, 520 U.S. 641 (1997)).To
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expunge or vacate any conviction plaintiff must proceed through habeas corpus with its attendant
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state court exhaustion requirement.
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Plaintiff is ordered to show cause why this action should not be dismissed prior to
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service. A response will be due on or before February 17, 2012. In the alternative plaintiff may
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ORDER TO SHOW CAUSE OR AMEND THE
COMPLAINT - 2

1 file an amended complaint clarifying the facts and showing that he is not seeking to expunge a
2 current conviction or challenge the length of his confinement through a civil rights action.
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Dated this 12th day of January, 2012.

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A

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J. Richard Creatura
United States Magistrate Judge

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ORDER TO SHOW CAUSE OR AMEND THE
COMPLAINT - 3