United States District Court, W.D. Washington, Tacoma
SECOND ORDER TO SHOW CAUSE OR AMEND AND ORDER DENYING
MOTION TO APPOINT COUNSEL
RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE.
proceeding pro se and in forma pauperis,
filed this civil rights complaint under 42 U.S.C. §
1983. Plaintiff alleges that he is being unlawfully
imprisoned. Having reviewed and screened plaintiff's
first amended complaint under 28 U.S.C. § 1915A, the
Court declines to serve plaintiff's first amended
complaint because plaintiff does not have a liberty interest
in his classification status or being transferred. Moreover,
to the extent that plaintiff seeks damages for unlawful
imprisonment; he has not alleged that his conviction or
sentence has been overturned. However, the Court provides
plaintiff leave to file an amended pleading by July 14, 2017,
to cure the deficiencies identified herein.
who is currently incarcerated because he never received a
“Warrant of Commitment.” Dkt. 8 at 3. Plaintiff
seeks damages in the amount of $2, 500 per day since February
3, 2006. Id. at 4. Plaintiff contends that his
Felony Warrant of Transfer to the Department of Corrections
was never signed or filed. Dkt. 8 at 6. Plaintiff also styles
his complaint as a “tort claim.” See
Deficiencies in First Amended Complaint
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 employee
of a governmental entity. 28 U.S.C. § 1915A(a). The
Court must “dismiss the complaint, or any portion of
the complaint, if the complaint: (1) is frivolous, malicious,
or fails to state a claim upon which relief may be granted;
or (2) seeks monetary relief from a defendant who is immune
from such relief.” Id. at (b); 28 U.S.C.
§ 1915(e)(2); see Barren v. Harrington, 152
F.3d 1193 (9th Cir. 1998).
order to state a claim for relief under 42 U.S.C. §
1983, a plaintiff must show: (1) he suffered a violation of
rights protected by the Constitution or created by federal
statute, and (2) the violation was proximately caused by a
person acting under color of state law. See Crumpton v.
Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The first
step in a § 1983 claim is therefore to identify the
specific constitutional right allegedly infringed.
Albright v. Oliver, 510 U.S. 266, 271 (1994). To
satisfy the second prong, a plaintiff must allege facts
showing how individually named defendants caused, or
personally participated in causing, the harm alleged in the
complaint. See Arnold v. IBM, 637 F.2d 1350, 1355
(9th Cir. 1981).
first amended complaint suffers from deficiencies requiring
dismissal if not corrected in a second amended complaint.
Invalid Warrant of Transfer
alleges that he is currently incarcerated based on an
“Invalid Felony Warrant of Transfer.” Dkt. 8.
Plaintiff alleges that the judge failed to sign his Warrant
of Transfer. See Dkt. 8. As an initial matter, the
Court notes that plaintiff attached a copy of the Warrant of
Transfer to his complaint, and it appears that Judge Bruce
Hilyer's typed name appears on the signature line of the
document. Dkt. 8 at 13.
extent that plaintiff is alleging that his transfer from King
County to DOC custody is invalid, prisoners have no liberty
interest in avoiding being transferred to another prison.
See Olim v. Wakinekona, 461 U.S. 238, 245 (1983);
Meachum v. Fano, 427 U.S. 215, 225-27 (1976).
Moreover, prisoners have no constitutionally protected right
to classification status pursuant to the Fourteenth
Amendment. See, e.g. Camarena v. Adams, 11 Fed.Appx.
789, 790 (9th Cir. 2001); Moody v. Daggett, 429 U.S.
78, 88 n. 9 (1976). Therefore, plaintiff has not demonstrated
a deprivation of a constitutional right regarding his
transfer from King County to DOC custody. Plaintiff is
directed to show cause why this claim should not be
extent that plaintiff is alleging that he has been unlawfully
incarcerated based on an invalid transfer or judgment,
plaintiff does not allege that his conviction or sentence
have been reversed or otherwise declared invalid. Thus, it
appears that plaintiff's claims are barred by Heck v.
Humphrey,512 U.S. 477 (1994). In Heck, the
United States Supreme Court held that a civil rights
complaint under § 1983 cannot proceed when “a
judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence; if it would,
the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been
invalidated.” Id. at 487.
“Heck, in other words, says that if a criminal
conviction arising out of the same facts stands and is
fundamentally inconsistent with the unlawful behavior for
which section 1983 damages are sought, the 1983 action must
be dismissed.” Smithart v. Towery, 79 F.3d
951, 952 (9th Cir. 1996). The § 1983 action “is
barred (absent prior invalidation)-no matter the relief
sought (damages or equitable relief), no matter the target of
the prisoner's suit (state conduct leading to conviction
or internal prison proceedings)-if success in that action
would necessarily demonstrate the invalidity of confinement
or its duration.” Wilkinson v. Dotson, 544
U.S. 74, 81- 82 (2005); Cabrera v. City of Huntington
Park,159 F.3d 374, 380 (9th Cir. 1998) (false arrest
and imprisonment claims barred by Heck given ...