Burnhart v. Marai

Full title: MICHAEL A BURNHART, Plaintiff, v. DET. JIM MARAI et al., Defendants

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

Date published: Jan 3, 2007

Case No. C06-5643 FDB (W.D. Wash. Jan. 3, 2007)

Opinion

Case No. C06-5643 FDB.

January 3, 2007

ORDER ADOPTING REPORT AND RECOMMENDATION

FRANKLIN BURGESS, District Judge

The Magistrate Judge recommends that this civil rights complaint be dismissed prior to service for failure to state a claim. As detailed by the Magistrate Judge, Plaintiff's claim for relief necessarily implies the invalidity of a criminal judgment and must be brought as a petition for a writ of habeas corpus, and not as a 42 U.S.C. § 1983 action. See, Butterfield v. Bail, 120 F.3d 1023 (9^th Cir. 1997).

Petitioner has not filed a formal objection to the Report and Recommendation. Instead, Petitioner has filed a "Motion to Dismiss with ability to pursue at a later date." Because this matter will be dismissed without prejudice, Plaintiff's motion is unnecessary and moot.

The Court, having reviewed, the Report and Recommendation of Magistrate Judge J. Kelley Arnold, and the remaining record, does hereby find and ORDER:

(1) The Court adopts the Report and Recommendation.

(2) The Complaint [Dkt #5] is DISMISSED WITHOUT PREJUDICE for failure to state a claim. This action must proceed in habeas corpus as it calls into question a criminal conviction.

(3) Plaintiff's Motion to dismiss [Dkt. #7] is denied as MOOT.

(4) The Clerk is directed to send copies of this Order to plaintiff, and to the Hon. J. Kelley Arnold.