McGary v. Gregoire

Full title: DARNELL McGARY, Plaintiff, v. CHRISTINE GREGOIRE et al., Defendants

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

Date published: Nov 13, 2007

Case No. C07-5587RJB (W.D. Wash. Nov. 13, 2007)

Opinion

Case No. C07-5587RJB.

November 13, 2007

REPORT AND RECOMMENDATION

J. ARNOLD, Magistrate Judge

This Civil Rights action has been referred to the undersigned Magistrate Judge pursuant to Title 28 U.S.C. §§ 636(b)(1)(A) and 636(b)(1)(B) and Local Magistrates' Rules MJR 1, MJR 3, and MJR 4. Review of Mr. Mc Gary's application to proceed in form pauperis and review of the complaint discloses that Mr. Mc Gary is challenging the fact of his commitment and seeks damages for the length of time he has been civilly committed at the Special Offenders Center (Dkt. # 1, proposed complaint).

Mr. Mc Gary does not show that his state civil commitment has been overturned or invalidated by way of habeas corpus. His action cannot proceed as a civil rights action. Heck v. Humphrey, 512 U.S. 477, 487 (1994). In his proposed complaint Mr. Mc Gary names the governor of the state of Washington, Assistant Attorneys Generals who may have represented the state in his civil commitment proceedings, and personnel at the Special Commitment Center. He challenges the diagnosis used to civilly commit him and the legality of the state proceedings (Dkt # 1, proposed complaint). While Mr. Mc Gary makes a cursory allegation of racial animus, (Dkt. # 1, proposed complaint, page 9 ¶ 5.15), he provides no facts to support his claim or link his allegation to any named defendant.

The court recommends plaintiff's application to proceed in forma pauperis be denied as this action fails to state a claim and is subject to dismissal under 28 U.S.C. 1915(e)(2)(B)(ii). It does not appear to the court that amendment can cure this defect.

DISCUSSION

When a complaint fails to state a claim, or contains a complete defense to the action on its face, the court may dismiss an in forma pauperis complaint before service of process under 28 U.S.C. § 1915(e) (2)(B)(ii). Noll v. Carlson, 809 F.2d 1446, 575 (9th Cir. 1987) (citing Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984)).

When a person confined by the state is challenging 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 June 1994, the United States Supreme Court held that "[e]ven a prisoner who has fully exhausted available state remedies has no cause of action under § 1983 unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus." Heck v. Humphrey, 512 U.S. 477, 487 (1994) (emphasis added). The court added:

Under our analysis the statute of limitations poses no difficulty while the state challenges are being pursued, since the § 1983 claim has not yet arisen. . . . [A] § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated.

Id. at 489. "[T]he determination whether a challenge is properly brought under § 1983 must be made based upon whether 'the nature of the challenge to the procedures [is] such as necessarily to imply the invalidity of the judgment.' Id. If the court concludes that the challenge would necessarily imply the invalidity of the judgment or continuing confinement, then the challenge must be brought as a petition for a writ of habeas corpus, not under § 1983." Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir. 1997) (quoting Edwards v. Balisok, 520 U.S. 641 (1997)). The complaint fails to state a cause of action.

Plaintiff alleges he was illegally committed (Dkt. # 1, proposed complaint, page 4). Were plaintiff to prevail, the decision would call into question the propriety of his current confinement. Plaintiff must proceed in habeas corpus. This action should be DISMISSED WITHOUT PREJUDICE.

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule 72(b), the clerk is directed to set the matter for consideration on December 7, 2007, as noted in the caption.