United States District Court, W.D. Washington, Tacoma
ORDER TO SHOW CAUSE OR AMEND COMPLAINT
RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE.
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.
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.
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
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.
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).
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).
complaint does not sufficiently allege these claims, which
will result in dismissal of his case if not corrected in an
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.
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.
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.
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 ...