Finch v. Miller et al

Filing 6

ORDER TO SHOW CAUSE: If plaintiff intends to pursue the claims allege in his Complaint, he must file habeas corpus petition on the form provided by the Court on or before 6/5/17. The 1 MOTION for Leave to Proceed In Forma Pauperis is re-noted for 6/5/17. Plaintiff also filed a Motion for Leave to File Overlength Memorandum in Support of his Complaint. (Dkt. 1-2.) Plaintiff has presented nothing to show the request should be granted, and has not shown this case is unusually complicated or presents novel issues to justify the request. Thus, Plaintiff's Motion is denied. Signed by Magistrate Judge David W. Christel. (Attachments: # 1 Petition for Writ of Habeas Corpus (blank))**19 PAGE(S), PRINT ALL**(Emanuel Finch, Prisoner ID: 348900)(CMG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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Emanuel L Finch Sr,

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Plaintiff,

CASE NO. C17-5293 RBL-DWC
ORDER TO SHOW CAUSE

v.
Keith Miller et al.,
Defendants.

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Plaintiff Emanuel L. Finch, Sr., proceeding pro se, filed a Complaint pursuant to 42

17 U.S.C. §1983. See Dkt. 1-1. Having reviewed the Complaint, the Court declines to serve the
18 Complaint as Plaintiff is challenging the fact and duration of his confinement, not his conditions
19 of confinement. The Court, however, provides Plaintiff leave to file a habeas corpus petition by
20 June 5, 2017 to cure the deficiencies identified herein.
BACKGROUND

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Plaintiff, who is currently incarcerated at the Airway Heights Corrections Center

23 (“AHCC”) and alleges Defendants violated Plaintiff’s Fourth and Sixth Amendment rights when
24 he was arrested in 2010 and convicted in 2011. Dkt. 1-1. Plaintiff requests the Court overturn his

ORDER TO SHOW CAUSE - 1

1 conviction on the grounds Plaintiff was deprived of effective assistance of counsel and
2 Defendant Miller entered into Plaintiff’s home without probable cause or a warrant. Dkt. 1-1 at
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DISCUSSION
An “action lying at the core of habeas corpus is one that goes directly to the

6 constitutionality of the prisoner’s physical confinement itself and seeks either immediate release
7 from that confinement or the shortening of its duration. With regard to such actions, habeas
8 corpus is now considered the prisoner’s exclusive remedy.” Preiser v. Rodriguez, 411 U.S. 475,
9 503 (1973) (internal quotation omitted). “A civil rights action, in contrast, is the proper method
10 of challenging conditions of confinement.” Badea v. Cox, 931 F.3d 573, 574 (9th Cir. 1991).
11 Here, Plaintiff challenges his physical confinement, asking the Court to “overturn” his
12 conviction. Dkt. 1-1. As Plaintiff’s claims challenge the fact and duration of his custody, his
13 claims are properly raised in a 28 U.S.C. § 2254 petition.
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If Plaintiff intends to pursue the claims alleged in his Complaint, he must file a habeas

15 corpus petition on the form provided by the Court, including only claims challenging the fact or
16 duration of his custody. Under Rule 2(a) of the Rules Governing Section 2254 Cases, “the
17 petition must name as respondent the state officer who as custody.” Further,
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[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.

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Id. at Rule 2(c). The Petition must “substantially follow” a form prescribed by this Court or the
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form attached to the Rules Governing Section 2254 Cases. Id. at Rule 2(d). The petition should
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be an original and not a copy, it should contain the same case number, and it may not incorporate
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ORDER TO SHOW CAUSE - 2

1 any part of the Complaint by reference. The petition will act as a complete substitute for the
2 Complaint, and not as a supplement. If Plaintiff fails to adequately address the issues raised
3 herein and file a petition on or before June 5, 2017, the undersigned may recommend dismissal
4 of this action.
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Plaintiff also filed a Motion for Leave to File Overlength Memorandum in Support of his

6 Complaint. Dkt. 1-2. Plaintiff’s Proposed Memorandum is over 200 pages in length. Plaintiff has
7 presented nothing to show the request should be granted, and has not shown this case is
8 unusually complicated or presents novel issues to justify the request. Thus, Plaintiff’s Motion is
9 denied. If Plaintiff wishes to pursue this cause of action, he must file an amended pleading which
10 complies with the Local Rules.
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The Clerk is directed to: (1) provide Plaintiff with the forms for filing a petition for

12 habeas corpus relief pursuant to 28 U.S.C. § 2254; (2) re-note Plaintiff’s Motion to Proceed In
13 Forma Pauperis for June 5, 2017; and (3) provide copies of this Order to Plaintiff.
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Dated this 4th day of May, 2017.

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David W. Christel
United States Magistrate Judge

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