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Gilbert v. Becker-Green

United States District Court, W.D. Washington, Tacoma

June 19, 2017

KEVIN ABDUL GILBERT, Plaintiff,
v.
JODY BECKER-GREEN, et al., Defendants.

          SECOND ORDER TO SHOW CAUSE OR AMEND AND ORDER DENYING MOTION TO APPOINT COUNSEL

          J. RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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.

         BACKGROUND

         Plaintiff, 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 Dkt. 8.

         DISCUSSION

         A. Deficiencies in First Amended Complaint

         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 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).

         In 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).

         Plaintiff's first amended complaint suffers from deficiencies requiring dismissal if not corrected in a second amended complaint.

         1. Invalid Warrant of Transfer

         Plaintiff 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.

         To the 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 dismissed.

         To the 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 ...


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