Kissler v. State of Washington

Filing 5

ORDER TO SHOW CAUSE why Plaintiff's 1 MOTION for Leave to Proceed in forma pauperis should not be denied and this case dismissed as frivolous, signed by Magistrate Judge Karen L Strombom. Show Cause Response due on or before 4/26/2013. (GMR- cc: pltf)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JOEL EVERETT KISSLER,

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Plaintiff,

No. C13-5141 RBK/KLS

v.
ORDER TO SHOW CAUSE
STATE OF WASHINGTON, PIERCE
COUNTY,

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Defendants.

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This matter has been referred to Magistrate Judge Karen L. Strombom pursuant to 28

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U.S.C. § 636(b)(1), Local Rules MJR 3 and 4. Plaintiff’s application to proceed in forma

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pauperis (ECF No. 1) is pending. The Court has reviewed Plaintiff’s proposed civil rights

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complaint. ECF No. 1-1. The complaint seeks only relief in habeas. For that reason, the Court

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declines to serve the complaint in this case. Plaintiff shall show cause why this case should not

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be dismissed. In the meantime, the Court will hold his application to proceed in forma pauperis

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(ECF No. 1) pending Plaintiff’s response to this Order so that Plaintiff will not incur the $350.00

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filing fee debt.

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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

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employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint
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or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that

ORDER TO SHOW CAUSE- 1

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fail to state a claim upon which relief may be granted, or that seek monetary relief from a

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defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b)(1), (2) and 1915(e)(2); See

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Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998). A complaint is legally frivolous when it

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lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v.

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Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). A complaint or portion thereof, will be
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dismissed for failure to state a claim upon which relief may be granted if it appears the “[f]actual

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allegations . . . [fail to] raise a right to relief above the speculative level, on the assumption that

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all the allegations in the complaint are true.” See Bell Atlantic, Corp. v. Twombly, 127 S.Ct.

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1955, 1965 (2007)(citations omitted). In other words, failure to present enough facts to state a

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claim for relief that is plausible on the face of the complaint will subject that complaint to

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dismissal. Id. at 1974.

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To state a claim under 42 U.S.C. § 1983, a complaint must allege: (i) the conduct
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complained of was committed by a person acting under color of state law and (ii) the conduct

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deprived a person of a right, privilege, or immunity secured by the Constitution or laws of the

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United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 687 L.Ed.2d 420 (1981),

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overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). Section 1983 is the

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appropriate avenue to remedy an alleged wrong only if both of these elements are present.

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Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985).

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On the basis of these standards, Plaintiff has failed to state a claim upon which relief can

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be granted. Plaintiff purports to sue the State of Washington and Pierce County because he was

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denied his right to a speedy trial. ECF No. 1-1, p. 3. He asks to be compensated for loss and

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suffering. Id., p. 4.

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ORDER TO SHOW CAUSE- 2

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Because Plaintiff seeks an earlier release from confinement and damages relating to his

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continued confinement, his action is not cognizable under 42 U.S.C. § 1983 and the proper

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course of action to challenge his incarceration is through a habeas corpus petition, which he must

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first file in state court. Plaintiff does not allege that he has done so nor does he allege that his

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conviction or sentence has been reversed or otherwise declared invalid.
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When a person confined by government is challenging the very fact or duration of his

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physical imprisonment, and the relief he seeks will determine that he is or was entitled to

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immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ

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of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). In order to recover damages

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for an alleged unconstitutional conviction or imprisonment, or for other harm caused by actions

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whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove

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that the conviction or sentence has been reversed on direct appeal, expunged by executive order,
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declared invalid by a state tribunal authorized to make such determination, or called into

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question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. Heck v.

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Humphrey, 512 U.S. 477, 486-87 (1994).

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In addition, prisoners in state custody who wish to challenge the length of their

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confinement in federal court by a petition for writ of habeas corpus are first required to exhaust

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state judicial remedies, either on direct appeal or through collateral proceedings, by presenting

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the highest state court available with a fair opportunity to rule on the merits of each and every

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issue they seek to raise in federal court. See 28 U.S.C. § 2254(b)(c); Granberry v. Greer, 481

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U.S. 129, 134 (1987); Rose v. Lundy, 455 U.S. 509 (1982); McNeeley v. Arave, 842 F.2d 230,

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231 (9th Cir. 1988).

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ORDER TO SHOW CAUSE- 3

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State remedies must be exhausted except in unusual circumstances. Granberry, supra, at

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134. If state remedies have not been exhausted, the district court must dismiss the petition.

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Rose, supra, at 510; Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). As a dismissal solely

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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

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exhausted.
Because Plaintiff seeks an earlier release from confinement and damages relating to his
continued confinement, his action is not cognizable under 42 U.S.C. § 1983 and must be

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dismissed. Plaintiff is ORDERED to show cause why the Court should not deny his application

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to proceed in forma pauperis and dismiss this case as frivolous. Plaintiff must file a response

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with this Court on or before April 26, 2013. If he fails to do so, the Court will recommend

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dismissal of this action as frivolous pursuant to 28 U.S.C. § 1915 and the dismissal will count as
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a “strike” under 28 U.S.C. § 1915(g). Pursuant to 28 U.S.C. § 1915(g), enacted April 26, 1996, a

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prisoner who brings three or more civil actions or appeals which are dismissed on grounds they

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are legally frivolous, malicious, or fail to state a claim, will be precluded from bringing any other

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civil action or appeal in forma pauperis “unless the prisoner is under imminent danger of serious

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physical injury.” 28 U.S.C. § 1915(g).

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DATED this 29th day of March, 2013.

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Karen L. Strombom
United States Magistrate Judge

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ORDER TO SHOW CAUSE- 4