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Willis v. Kiser

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

September 26, 2017

DARREL PATRICK WILLIS, Plaintiff,
v.
NICK KISER, et al., Defendants.

          ORDER DENYING MOTION TO AMEND AS MOOT AND ORDER TO SHOW CAUSE OR AMEND

          J. RICHARD CREATURA, UNITED STATES MAGISTRATE JUDGE.

         The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States Magistrate Judge J. Richard Creatura. The Court's authority for the referral is 28 U.S.C. § 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR3 and MJR4. Plaintiff Darrel Patrick Willis, proceeding pro se, filed this civil rights complaint under 42 U.S.C. § 1983.

         Plaintiff has filed a motion to amend complaint (Dkt. 14) and a corrected amended complaint (Dkt. 17). He alleges that he was unlawfully incarcerated on three separate occasions, that he was subjected to cruel and unusual punishment during his incarceration, and that the police searched his home unlawfully based on a false allegation of a parole violation. Though plaintiff states the foundation for an Eighth Amendment claim, he has neglected to identify as defendants specific persons who caused him harm. His other claims still imply the invalidity of an underlying conviction and are not the proper subject of a §1983 action under Heck. Further, because he has already filed an amended complaint, as is his right, his motion to amend is moot. Therefore, the Court denies plaintiff's motion to amend and orders plaintiff to amend his complaint to remedy the deficiencies identified herein. The Court also directs the clerk's office to file separately, plaintiff's habeas corpus petition, as set forth below.

         BACKGROUND

         Plaintiff filed this § 1983 action and an application to proceed in forma pauperis on May 18, 2017. Dkts. 1, 5. On July 5, 2017, he paid his filing fee (Dkt. Event at 07/05/2017) and the Court recommended his application to proceed in forma pauperis be denied as moot (Dkt. 8). The District Court Judge adopted the Court's recommendation on August 8, 2017. Dkt. 13.

         In his original complaint, plaintiff claimed that he had been unlawfully arrested on three separate occasions for violations of community custody after he already completed his community custody sentence. Dkt. 5. He further stated that this was a violation of his First Amendment rights. Id. On August 7, 2017, the Court ordered plaintiff to show cause or amend his complaint for failing to state a claim. Dkt. 12. Plaintiff filed a motion to amend his complaint and include additional days of false imprisonment on August 8, 2017. Dkt. 14. On August 30, 2017, plaintiff filed a proposed amended complaint as well as a proposed petition for a writ of habeas corpus. Dkts. 15, 16. On September 11, 2017, he filed a corrected version of his amended complaint as well as a corrected version of his habeas petition. Dkts. 17, 18. In his corrected complaint, he reiterated his claims of false arrest and imprisonment and included additional claims that his Fourth and Eighth Amendment protections had been violated. Dkt. 17. He also alleged that his due process and equal protection rights were infringed. Id. His habeas petition reflects these allegations. Dkt. 18. The Court notes that the original complaint is a §1983 complaint, and not a habeas petition.

         DISCUSSION

         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 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 complaint suffers from deficiencies requiring dismissal if not corrected in an amended complaint.

         I. Motion to Amend Complaint

         Plaintiff has filed a motion to amend complaint to include additional days of false imprisonment. Dkt. 14. However, since filing this motion, plaintiff has filed an amended complaint (Dkt. 15) and a corrected amended complaint (Dkt. 17). Because the Court accepts his corrected amended complaint as the operative complaint, his motion for leave to amend (Dkt. 14) is denied as moot.

         II. Challenge to Lawfulness of Incarceration - Heck Bar

         Though he has followed the Court's instruction and properly named defendants and their actions, plaintiff still states causes of action that, if found in plaintiff's favor, would imply the invalidity of an underlying ...


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