United States District Court, W.D. Washington, Tacoma
ORDER TO SHOW CAUSE OR AMEND THE COMPLAINT AND
DENYING REQUEST FOR COUNSEL AS PREMATURE
THERESA L. FRICKE UNITED STATES MAGISTRATE JUDGE
matter is before the Court on plaintiff's filing of a
civil rights complaint. Plaintiff has been granted in
forma pauperis status in this matter and is proceeding
pro se. Considering the deficiencies in the
complaint discussed below, the undersigned will not direct
service of the complaint at this time. On or before
September 30, 2019, plaintiff must either
show cause why the claims discussed below should not be
dismissed/why the Court should not abstain from deciding the
claims raised in his complaint pursuant to Younger v.
Harris, 401 U.S. 37, 45, 46 (1971), or file an amended
complaint addressing these issues.
complaint appears to allege his probation officer, Tracie
Lake, gave him inaccurate information or failed to notify him
that he was required to report to probation. Dkt. 12.
Plaintiff alleges, as a result, a warrant was issued based on
his failure to report and he was arrested and charged with a
misdemeanor. Id. He further alleges ineffective
assistance of counsel by his public defender, Lillian Powers
Kaide, it appears, for seeking to have his mental health
evaluated, for delays in his case, and because she generally
does not seem to know what is going on with his case.
Id. Plaintiff seeks monetary damages and for the
Court to “give [him] relief from being in jail for no
reason[.]” Id., at 10. Plaintiff also requests
appointment of counsel in this case. Id.
Court must dismiss the complaint of a prisoner proceeding
in forma pauperis “at any time if the [C]ourt
determines” that the action: (a) “is frivolous or
malicious”; (b) “fails to state a claim on which
relief may be granted”' or (c) “seeks
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2); 28 U.S.C. §
1915A(a), (b). A complaint is frivolous when it has no
arguable basis in law or fact. Franklin v. Murphy,
745 F.3d 1221, 1228 (9th Cir. 1984).
the Court may dismiss the complaint as frivolous or for
failure to state a claim, though, it “must provide the
[prisoner] with notice of the deficiencies of his or her
complaint and an opportunity to amend the complaint prior to
dismissal.” McGucken v. Smith, 974 F.2d 1050,
1055 (9th Cir. 1992); see also Sparling v. Hoffman
Constr., Co., Inc., 864 F.2d 635, 638 (9th Cir. 1988);
Noll v. Carlson, 809 F.2d 1446, 1449 (9th Cir.
1987). On the other hand, leave to amend need not be granted
“where the amendment would be futile or where the
amended complaint would be subject to dismissal.”
Saul v. United States, 928 F.2d 829, 843 (9th Cir.
state a claim under 42 U.S.C. § 1983, a complaint must
allege: (1) the conduct complained of was committed by a
person acting under color of state law, and (2) the conduct
deprived a person of a right, privilege, or immunity secured
by the Constitution or laws of the United States. Parratt
v. Taylor, 451 U.S. 527, 535 (1981). Section 1983 is the
appropriate avenue to remedy an alleged wrong only if both of
these elements are present. Haygood v. Younger, 769
F.2d 1350, 1354 (9th Cir. 1985).
Habeas Corpus versus § 1983 Actions
Court first notes that it is unclear from plaintiff's
complaint whether he is seeking monetary damages exclusively,
or whether he is also seeking immediate release from custody.
To the extent plaintiff is challenging the constitutionality
of his pretrial detention/physical confinement and seeks
immediate release, this claim must be raised in a habeas
corpus petition under 28 U.S.C. §2241 rather than a
§ 1983 complaint.
“action lying at the core of habeas corpus is one that
goes directly to the constitutionality of the prisoner's
physical confinement itself and seeks either immediate
release from that confinement or the shortening of its
duration. With regard to such actions, habeas corpus is now
considered the prisoner's exclusive remedy.”
Preiser v. Rodriguez, 411 U.S. 475, 503 (1973)
(internal quotation marks and citation omitted). Section
2241(c)(3) permits federal courts to grant relief to a
pretrial detainee held “in custody in violation of the
Constitution.” 28 U.S.C. § 2241(c)(3); see
also McNeely v. Blanas, 336 F.3d 822, 824 n. 1 (9th Cir.
2003). “A civil rights action, in contrast, is the
proper method of challenging conditions of
confinement.” Badea v. Cox, 931 F.2d 573, 574
(9th Cir. 1991) (internal quotation marks and citation
while it is somewhat unclear from the complaint, to the
extent plaintiff challenges the fact of his custody and seeks
immediate release his claims are properly raised in a §
2241 petition, not a § 1983 complaint.
Challenge to Ongoing State Criminal Action
extent plaintiff is seeking monetary damages related to
defendants' actions, his claims appear to be integrally
related to his underlying state criminal proceedings.
Specifically, plaintiff alleges that his probation officer
failed to notify him that he was required to report to
probation and as a result he was arrested and charged with a
misdemeanor related to that failure to report. Thus, the
basis for plaintiff's § 1983 claims appear to also
be the basis for his defense to his pending criminal
proceeding. If this Court determined that defendants ...