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Michalek v. Kaide

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

August 29, 2019

BRIAN JUDAH MICHALEK, Plaintiff,
v.
LILLIAN POWERS KAIDE, et al., Defendants.

          ORDER TO SHOW CAUSE OR AMEND THE COMPLAINT AND DENYING REQUEST FOR COUNSEL AS PREMATURE

          THERESA L. FRICKE UNITED STATES MAGISTRATE JUDGE

         This 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.

         BACKGROUND

         Plaintiff's 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.

         DISCUSSION

         The 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).

         Before 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. 1991).

         To 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).

         I. Habeas Corpus versus § 1983 Actions

         The 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.

         An “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 omitted).

         Thus, 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.

         II. Challenge to Ongoing State Criminal Action

         To the 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 ...


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