Finch v. Miller et al

Filing 11

ORDER by Magistrate Judge David W. Christel: Denying Plaintiff's 9 Motion to Stay; Denying Plaintiff's 10 Motion to Voluntarily Dismiss Defendants Miller and Whitehead; and Granting Plaintiff's 10 Request for an Extension of Ti me to Comply with the Court's 6 Order to Show Cause. The 1 MOTION for Leave to Proceed In Forma Pauperis and deadline for Compliance with the 6 Order to Show Cause is 8/4/2017. (Attachments: # 1 2254 Petition for Habeas Corpus form)**19 PAGE(S), PRINT ALL**(Emanuel Finch, Prisoner ID: 348900)(GMR)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 EMANUEL L FINCH SR, 11 Plaintiff, 13 ORDER v. 12 CASE NO. 3:17-CV-05293-RBL-DWC KEITH MILLER et al., Defendants. 14 15 This 42 U.S.C. § 1983 civil rights action has been referred to the undersigned Magistrate 16 17 Judge pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B) and Local Magistrate Judge Rules MJR 1, 18 MJR 3, and MJR 4. Before the Court are Plaintiff’s (1) Motion to Stay (Dkt. 9) and (2) Motion to 19 Voluntarily Dismiss Defendants Miller and Whitehead and Motion for Extension of Time (Dkt. 20 10). 21 Plaintiff, who is currently incarcerated at the Airway Heights Corrections Center 22 (“AHCC”) and alleges Defendants violated Plaintiff’s Fourth and Sixth Amendment rights when 23 he was arrested in 2010 and convicted in 2011. Dkt. 1-1. Plaintiff requests the Court overturn his 24 conviction on the grounds Plaintiff was deprived of effective assistance of counsel and ORDER - 1 1 Defendant Miller entered into Plaintiff’s home without probable cause or a warrant. Dkt. 1-1 at 2 20. The Court entered an Order to Show Cause because plaintiff was challenging a current 3 conviction, which he cannot do in a civil rights action. Dkt. 6. 4 Plaintiff has now filed a Motion to Stay (Dkt. 9), asking the Court to stay this action, 5 which he calls a “petition.” Dkt. 9. Plaintiff has also filed a Motion to Voluntarily Dismiss 6 Defendants Miller and Whitehead and Motion for Extension of Time, seeking a 60-day extension 7 to amend his “complaint to the people.” Dkt. 10. None of these motions addresses the problems 8 raised in the Court’s Order to Show Cause. Plaintiff was previously advised: 9 10 11 12 13 14 15 16 17 An “action lying at the core of habeas corpus is one that goes directly to the constitutionality of the prisoner’s physical confinement itself and seeks either immediate release from that confinement or the shortening of its duration. With regard to such actions, habeas corpus is now considered the prisoner’s exclusive remedy.” Preiser v. Rodriguez, 411 U.S. 475, 503 (1973) (internal quotation omitted). “A civil rights action, in contrast, is the proper method of challenging conditions of confinement.” Badea v. Cox, 931 F.3d 573, 574 (9th Cir. 1991). Here, Plaintiff challenges his physical confinement, asking the Court to “overturn” his conviction. Dkt. 1-1. As Plaintiff’s claims challenge the fact and duration of his custody, his claims are properly raised in a 28 U.S.C. § 2254 petition. If Plaintiff intends to pursue the claims alleged in his Complaint, he must file a habeas corpus petition on the form provided by the Court, including only claims challenging the fact or duration of his custody. Under Rule 2(a) of the Rules Governing Section 2254 Cases, “the petition must name as respondent the state officer who as custody.” Further, 18 [t]he petition must: (1) specify all the grounds for relief available to the petitioner; (2) state the facts supporting each ground; (3) state the relief requested; (4) be printed, typewritten, or legibly handwritten; and (5) be signed under penalty of perjury by the petitioner or person authorized to sign it for the petitioner under 28 U.S.C. §2242. 19 20 21 Id. at Rule 2(c). 22 23 24 ORDER - 2 1 Dkt. 6 at 2. 1 2 Thus, Plaintiff’s Motion to Stay (Dkt. 9) and Motion to Voluntarily Dismiss Defendants 3 Miller and Whitehead (Dkt. 10) are denied without prejudice. The Court will, however, grant 4 Plaintiff’s request for an extension (Dkt. 10). Plaintiff is allowed an additional 30 days to comply 5 with the Court’s Order to Show Cause. If Plaintiff fails to adequately address the issues raised in 6 the Court’s Order to Show Cause and file a habeas petition on or before August 4, 2017, the 7 undersigned may recommend dismissal of this action. The Court will not consider any further 8 extensions without good cause. 9 The Clerk is directed to: (1) provide Plaintiff with the forms for filing a petition for 10 habeas corpus relief pursuant to 28 U.S.C. § 2254; (2) re-note Plaintiff’s Motion to Proceed In 11 Forma Pauperis for August 4, 2017; and (3) provide copies of this Order to Plaintiff. 12 Dated this 5th day of July, 2017. A 13 14 David W. Christel United States Magistrate Judge 15 16 17 18 19 20 21 22 23 1 The Court granted Plaintiff an extension until 7/5/2017 to respond to the Court’s Order 24 to Show Cause. Dkt. 8. ORDER - 3

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