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Rotchford v. Davies

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

April 25, 2019

Fraser Rotchford, Plaintiff,
v.
Richard Davies et al., Defendants.

          ORDER TO SHOW CAUSE OR AMEND COMPLAINT

          J. RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Fraser Rotchford, proceeding pro se and in forma pauperis, filed this civil rights complaint under 42 U.S.C. § 1983. Plaintiff's claims against his defense counsel are barred under Heck v. Humphrey, 512 U.S. 477 (1994), unless plaintiff can show his convictions were overturned through the appeals process or a habeas corpus petition. Plaintiff's allegations that defendants Dempsey, Charlton, Davies, and Jacobs verbally harassed and threatened him and that he had a consensual sexual relationship with defendant Moore are not sufficient to demonstrate a violation of the Eighth Amendment. Accordingly, the Court declines to serve plaintiff's complaint, however, the Court provides plaintiff leave to file an amended pleading by May 24, 2019, to cure the deficiencies identified herein.

         BACKGROUND

         In his plaintiff, who is currently housed at Clallam County Jail, names as defendants Richard Davies, Jack Range, Jefferson County Associated Counsel (“JCAC”), Jennifer Dempsey, Scott Charlton, Nat Jacobs, and Ashley Moore. Dkt. 8 at 2. Plaintiff alleges that defendants Davies, Dempsey, JCAC, Charlton, Range, and Jacobs failed to inform plaintiff of his ability to appeal a plea bargain, failed to inform plaintiff that he was required to be at pre-trial hearings, refused to provide plaintiff with discovery, and filed an appeal against his wishes. Id. at 3-12.

         Plaintiff alleges that defendant Dempsey repeatedly asked for his phone number, which he alleges constituted sexual harassment. Id. at 3-6. Plaintiff alleges that defendants Davies, Charlton, and Jacobs threatened him with physical violence. Id. at 4. Plaintiff alleges that he had a consensual sexual relationship with defendant Moore, a deputy at Jefferson County Sheriff's Department. Id. at 7.

         Plaintiff seeks $16 million dollars for “application of mens rea as criterion for determination of relief instead of proof beyond a reasonable doubt of damages(s)[.]” Id. at 14.

         DISCUSSION

         Under the Prison Litigation Reform Act of 1995 (“PLRA”), 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 sufficiently allege that: (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 step, 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 does not sufficiently allege these claims, which will result in dismissal of his case if not corrected in an amended complaint.

         I. Heck Bar and Defense Counsel as Defendants Plaintiff's allegations that defendants Davies, Dempsey, Charlton, Range, and Jacobs failed to inform plaintiff of his ability to appeal a plea bargain, failed to inform plaintiff that he was required to be at pre-trial hearings, refused to provide plaintiff with discovery, and filed an appeal against his wishes, raise a direct challenge to plaintiff's prior criminal convictions. Id. at 3-12.

         When a prisoner confined by the government challenges the very fact or duration of his physical imprisonment, and the relief he seeks will determine that he is or was entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). In order to recover damages for an alleged unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. Heck, 512 U.S. at 486-87.

         Here, plaintiff does not allege that his prior criminal convictions have been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a writ of habeas corpus. See Dkt. 8. Rather, plaintiff's allegations indicate that he was “wrongfully accused of stalking” and “violating a protection order” Id. at 5. Thus, plaintiff's claims against defendants Davies, JCAC, Charlton, Range, Jacobs and Dempsey are barred under Heck unless plaintiff can show his convictions were overturned through the appeals process or a habeas corpus petition. See Heck, 512 U.S. at 486-87.

         Moreover, even if plaintiff's claims are not barred under the Heck doctrine, plaintiff has not alleged that defendants Davies, JCAC, Charlton, Range, Jacobs and Dempsey were acting under color of state ...


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