Willis v. Kiser et al

Filing 12

ORDER TO SHOW CAUSE OR AMEND by 9/1/2017, signed by Magistrate Judge J Richard Creatura. (Attachments: # 1 Pro se Information Sheet, # 2 Habeas Corpus petition, # 3 Complaint form)**28 PAGES, PRINT ALL**(Darrel Willis, Prisoner ID: 854804)(GMR)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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DARREL PATRICK WILLIS,

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Plaintiff,

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CASE NO. 3:17-CV-05373-BHS-JRC
ORDER TO SHOW CAUSE OR
AMEND

v.
NICK KISER,
Defendant.

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Plaintiff Darrel Patrick Willis, proceeding pro se, filed this civil rights complaint under
42 U.S.C. § 1983.

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Plaintiff alleges he was unlawfully jailed three separate times for violations of his

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community custody, even though he had allegedly completed his community custody sentence.

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Dkt. 5. He filed this suit, claiming monetary damages for losses he incurred while jailed.

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However, his claim, if found in plaintiff’s favor, would necessarily invalidate a sentence not yet

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shown to be unlawful, which would not be the proper subject of a 1983 complaint. Further,

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though he cites to the First Amendment, plaintiff has not pled a legitimate constitutional

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violation. Having reviewed and screened plaintiff’s Complaint under 28 U.S.C. § 1915A, the

ORDER TO SHOW CAUSE OR AMEND - 1

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Court declines to serve the Complaint, but provides plaintiff leave to file an amended pleading

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by September 1, 2017, to cure the deficiencies identified below.

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BACKGROUND
Plaintiff claims he was sentenced to one year of community custody in August 2014. Dkt.

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5 at 3. He states that he finished that sentence on August 29, 2015. Id. He claims that, despite

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this, defendant Nick Kiser arrested him for violation of his community custody in September

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2015. Id. After a full hearing, he was sentenced to 25-30 days incarceration. Id. He claims that

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the Department of Corrections altered his sentence without informing him, and that because of

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this incarceration, he lost his apartment, his security deposit, and all his possessions. Id. He

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further alleges that he was arrested and jailed twice more, in November 2015 and May 2016. Id.

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After his third alleged violation, plaintiff was transferred to Grays Harbor County Jail on a

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warrant for an offense stemming from his first arrest in 2015. Id. He asks the Court to grant him

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monetary damages calculated according to his actual losses and to the number of days he was

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allegedly unlawfully detained. Id. at 4.

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DISCUSSION
Under the Prison Litigation Reform Act of 1995, the Court is required to screen

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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 the

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complaint, or any portion of the complaint, if the complaint: (1) is frivolous, malicious, or fails to

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state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant

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who is immune from such relief.” Id. at (b); 28 U.S.C. § 1915(e)(2); see Barren v. Harrington,

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152 F.3d 1193 (9th Cir. 1998).

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ORDER TO SHOW CAUSE OR AMEND - 2

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In order to state a claim for relief under 42 U.S.C. § 1983, a plaintiff must show: (1) he

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suffered a violation of rights protected by the Constitution or created by federal statute, and (2)

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the violation was proximately caused by a person acting under color of state law. See Crumpton

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v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The first step in a § 1983 claim is to identify the

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specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994). To

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satisfy the second prong, a plaintiff must allege facts showing how individually named

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defendants caused, or personally participated in causing, the harm alleged in the complaint. See

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Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981).

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Plaintiff’s Complaint suffers from deficiencies requiring dismissal if not corrected in an
amended complaint.

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I.

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Plaintiff alleges that his constitutional rights were violated when, after full hearings, he

Challenge to Lawfulness of Incarceration – Heck Bar

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was wrongfully imprisoned three times for violating his community custody even though he had

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completed his community custody sentence. However, a civil rights complaint under § 1983

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cannot proceed when “a judgment in favor of the plaintiff would necessarily imply the invalidity

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of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff

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can demonstrate that the conviction or sentence has already been invalidated.” Heck v.

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Humphrey, 512 U.S. 477, 487 (1994). The § 1983 action “is barred (absent prior invalidation) --

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no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s

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suit (state conduct leading to conviction or internal prison proceedings) -- if success in that

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action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v.

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Dotson, 544 U.S. 74, 81-82 (2005). To obtain federal judicial review of a state conviction or

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sentence, a party must file a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and

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ORDER TO SHOW CAUSE OR AMEND - 3

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must first exhaust his state judicial remedies. See Preiser v. Rodriguez, 411 U.S. 475, 500

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(1973).

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Here, a finding in favor of plaintiff’s 1983 claims would necessarily invalidate his arrest

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and imprisonment. Thus, plaintiff is calling into question his convictions for violations of

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community custody and his confinements as a result of those convictions. The wrong he

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describes is jail time for violating his community custody even though he had completed his

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community custody sentence. Dkt. 5 at 3. He requests monetary damages calculated to recoup

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money and possessions lost during his confinement. Id. at 4. To find in plaintiff’s favor would be

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a finding that his incarceration was unlawful. A federal 1983 action cannot be heard if it would

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necessarily invalidate a conviction or sentence. Heck, 512 U.S. at 487. Before plaintiff can

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recover in a 1983 action for damages caused by an unlawful incarceration, he must first

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demonstrate the incarceration was unlawful by exhausting his state remedies and filing a petition

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for habeas corpus. Preiser, 411 U.S. at 500.

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II.

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As noted above, plaintiff is calling into question his convictions for violations of his

First Amendment Claim

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community custody. However, plaintiff alleges that his unlawful incarceration was a violation of

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his First Amendment rights. Dkt. 5 at 4. He does not explain how his First Amendments rights

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were violated and this does not appear to be the case based on his alleged facts.

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The First Amendment protects from government interference an individual’s freedom of

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speech, freedom of religion, freedom of press. U.S. CONST. amend. I. Though prisoners retain

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their constitutional rights while incarcerated, that “does not mean that these rights are not subject

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to restrictions and limitations.” Bell v. Wolfish, 441 U.S. 520, 545-46 (1970) (internal quotations

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omitted). If a prison restricts a prisoner’s First Amendment rights, this Court must consider

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ORDER TO SHOW CAUSE OR AMEND - 4

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whether the challenged restriction was “reasonably related to legitimate penological interests.”

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Turner v. Safley, 482 U.S. 78, 89 (1987).

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Here, plaintiff does not plead any facts that give rise to a First Amendment claim. He

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states that because of this incarceration, he lost his apartment, his security deposit, and all of his

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possessions. Id. However, even if true, these facts do not allege that anybody restricted any of his

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First Amendment rights. Without demonstrating facts amounting to a constitutional violation,

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plaintiff cannot establish a 1983 claim. The Court declines to serve the complaint until plaintiff

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files an amended complaint including facts, if possible, that give rise to a constitutional violation.

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III.

Due Process

Plaintiff twice alleges that the Department of Corrections changed the length of his

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community custody. Dkt. 5 at 3. He further alleges that this change in sentence occurred without

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due process and that, therefore, his arrest for a violation of community custody was

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unconstitutional. Although it is not entirely clear, plaintiff also appears to claim that a prosecutor

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later confirmed to Judge Edwards that plaintiff was not on probation when he was picked up for

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the first community custody violation and that an unrelated charge to his current claim was,

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therefore, dismissed. See id. at 5. Plaintiff may be attempting to plead a due process violation,

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but has not named an party responsible for such actions or presented facts sufficient to establish

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such a claim.

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A due process claim will only succeed if a plaintiff can prove both a constitutional

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violation and that the party charged with the violation is “a person who may fairly be said to be a

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state actor.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). Similarly, 42 U.S.C. §

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1983 applies to the actions of “persons” acting under color of state law. Neither a state nor a state

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agency is a “person” for purposes of § 1983. See Howlett v. Rose, 496 U.S. 356, 365 (1990)

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ORDER TO SHOW CAUSE OR AMEND - 5

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(citing Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989)). To state an appropriate

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claim, plaintiff must allege facts showing how individually named defendants caused, or

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personally participated in causing, the harm alleged in the complaint. See Arnold v. IBM, 637

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F.2d 1350, 1355 (9th Cir. 1981).
Here, plaintiff has failed to name any individual who caused the unlawful alteration of his

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sentence. Dkt. 5 at 3. Instead, he indicates it was caused by “DOC,” an entity that is not a

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“person” for purposes of § 1983. Id. Therefore, he must either amend his complaint to comply

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with the standard or show cause why his complaint should not be dismissed.

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IV.

Instructions to Plaintiff
If Plaintiff intends to pursue a § 1983 civil rights action in this Court, he must file an

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amended complaint containing a short, plain statement telling the Court: (1) the constitutional

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right plaintiff believes was violated; (2) the name of the people or entity who violated the right;

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(3) exactly what the individual did or failed to do; (4) how the action or inaction of all

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individuals is connected to the violation of plaintiff’s constitutional rights; and (5) what specific

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injury Plaintiff suffered because of the individual’s conduct. See Rizzo v. Goode, 423 U.S. 362,

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371–72, 377 (1976). However, the Court will not address his complaint if judgment in his favor

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would necessarily invalidate a conviction or sentence. Heck, 512 U.S. at 487. To recover for an

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unlawful incarceration, the plaintiff must first prove its unlawfulness by successfully presenting

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a habeas petition after exhausting all available state remedies. However, plaintiff should be

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aware that monetary damages are not available when filing a habeas corpus petition, and be that

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habeas corpus relief in federal court cannot be pursued until he has exhausted his state remedies.

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If plaintiff wishes to proceed with an amended complaint alleging specific facts
comprising a § 1983 claim, plaintiff shall present the amended complaint on the § 1983 form

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ORDER TO SHOW CAUSE OR AMEND - 6

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provided by the Court. The amended complaint must be legibly rewritten or retyped in its

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entirety, it should be an original and not a copy, it should contain the same case number, and it

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may not incorporate any part of the original complaint by reference. The amended complaint will

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act as a complete substitute for the original Complaint, and not as a supplement. The Court will

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screen the amended complaint to determine whether it contains factual allegations linking each

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defendant to the alleged violations of plaintiff’s rights. The Court will not authorize service of

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the amended complaint on any defendant who is not specifically linked to a violation of

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plaintiff’s rights.

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CONCLUSION

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If Plaintiff fails to file an amended complaint or fails to adequately address the issues

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raised herein on or before September 1, 2017, the Court will recommend dismissal of this

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action.

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The Clerk is directed to send plaintiff the appropriate forms for filing a habeas corpus

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petition and a 42 U.S.C. § 1983 civil rights complaint. The Clerk is further directed to send

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copies of this Order and Pro Se Instruction Sheet to plaintiff.

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Dated this 7th day of August, 2017.

A

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J. Richard Creatura
United States Magistrate Judge

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ORDER TO SHOW CAUSE OR AMEND - 7