United States District Court, W.D. Washington, Tacoma
ORDER DIRECTING SUPPLEMENTAL BRIEFING
Richard Creatura, United States Magistrate Judge.
the Court is defendants' motion to dismiss. Dkt. 17.
After a review of the relevant record, the Court is not yet
persuaded whether defendants' motion to dismiss should be
granted or denied and whether some or all the claims in
plaintiff's complaint are barred under Heck v.
Humphrey, 512 U.S. 477, 487 (1994), as they may
necessarily imply that plaintiff's conviction, sentence,
or length of incarceration is invalid. Accordingly, the Court
orders supplemental briefing with respect to plaintiff's
is an inmate currently in the custody of the Washington State
DOC and is housed at the Washington Corrections Center
(“WCC”). See Dkt. Plaintiff alleges that
he was convicted of attempted murder, but the DOC erroneously
“labeled [him as] a murderer, since 1996.” Dkt.
12 at 3. As a result, plaintiff contends that there was an
error in calculating his sentence because his conviction for
attempted murder requires a 25% reduction in prison time from
a murder conviction. Id. Plaintiff also alleges that
he was placed in a close-custody facility for a minimum of
four years. Id. Plaintiff contends that while in
close-custody he was bullied by another prisoner, physically
assaulted, and “forced to break rules under threat of
physical violence.” Id. Plaintiff alleges that
he did not report these actions because he was too afraid of
being labeled a “rat” and targeted for 20 years.
Id. Plaintiff contends that his “CCP”
was revoked because of the error. Id. It is not
entirely clear from the complaint, but it appears that
plaintiff is referring to revocation of his community custody
placement. See Id. Plaintiff alleges that the
mis-classification has stopped him from getting fair
treatment in plea negotiations. Id.
alleges that he has attempted to correct the
mis-classification and sentence computation error over the
past 25 years. Id. Plaintiff alleges that his most
recent attempt to correct the error occurred in a conference
call with the records department and defendant Greene.
Id. Plaintiff contends that he informed the records
department of the error and that defendant Greene hung up the
call and told plaintiff he could not tell the records
department how to do their job. Id. Plaintiff seeks
punitive damages and for the Court to order all parties to
correct the computer records. Id. at 4.
filed this case on November 5, 2018. Dkt. 1. Plaintiff
initially filed his complaint in November 2018. Dkt. 1, 5. On
December 28, 2018, the Court screened plaintiff's initial
complaint and found it deficient. Dkt. 6. The Court ordered
plaintiff to correct the deficiencies by February 1, 2019.
Id. The Court declined to rule on plaintiff's
motion for leave to proceed in forma pauperis until
after an amended complaint was filed. Dkt. 6. The Court found
that plaintiff's claims may necessarily imply the
invalidity of his underlying sentence or conviction, and
thus, were barred by Heck, 512 U.S. at 487. Dkt. 6
filed the amended complaint on January 24, 2019. Dkt. 7. On
February 25, 2019, the Court again ordered plaintiff to
correct the deficiencies in an amended complaint by March 25,
2019. Dkt. 8. The Court noted that plaintiff may not be
challenging his underlying conviction or the process by which
the DOC allegedly mis-classified his conviction, but rather,
that plaintiff was complaining of his treatment in prison
because of the mis-classification. Dkt. 8 at 1-2. The Court
concluded that plaintiff may be able to demonstrate that some
or all his claims were not barred under Heck, but
did not decide the issue, assuming that once defendants were
served, this issue could be fully vetted. See id.
filed the amended complaint (hereinafter
“complaint”) on March 20, 2019. Dkt. 9. Plaintiff
was granted in forma pauperis status on April 18,
2016. Dkt. 11. Plaintiff's complaint was served on
defendants on the same day. Dkt. 12.
3, 2019, defendants filed the motion to dismiss, arguing that
plaintiff has failed to plausibly allege a claim under 42
U.S.C. § 1983, DOC and “DOC Records” are
immune from this lawsuit and are not persons under §
1983, and plaintiff failed to establish personal
participation of defendants White and Greene. Dkt. 17.
Defendants also argue the complaint deprives defendants from
reviewing the defense of qualified immunity because plaintiff
does not sufficiently identify a legal claim with which to
review qualified immunity. Dkt. 17 at 3-4. Defendants did not
address whether some or all of plaintiff's claims were
barred under Heck. See Dkt. 17. Plaintiff did not
file a response to defendants' motion. See Dkt.
Ninth Circuit and Supreme Court precedent allow the Court to
sua sponte order supplemental briefing. See
Warren v. C.I.R., 282 F.3d 1119, 1120 (9th Cir. 2002);
United States Nat'l Bank v. Independent Ins.
Agents of America, Inc., 508 U.S. 439, 445-48 (1993). In
Warren, the Ninth Circuit explained:
When judges ask for supplemental briefing on an issue, it
does not mean, as the dissent mistakenly asserts, that they
have decided to reach a particular result. The purpose of
requesting briefing in this case is to obtain more
information in order to make a more informed and reasoned
decision about whether to address an issue and, if
so, how the issue should be resolved. Information, speech,
and truth do not hurt; ...