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Navarro v. Westphal

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON
Dec 29, 2016
No. 4:16-cv-05094-EFS (E.D. Wash. Dec. 29, 2016)

Opinion

No. 4:16-cv-05094-EFS

12-29-2016

PEDRO NAVARRO, Plaintiff, v. A. WESTPHAL, VICTORIA TAPIA, JACKIE FLUAITH, MIKE MCCOURTIE, LT. ROBERT LONG, JEFFERY UTTECH, ROY GONZALEZ, SCOTT FRANKS, EARL X. WRIGHT and BERNARD WARNER, Defendants.


ORDER DENYING MOTION TO AMEND, ADOPTING REPORT AND RECOMMENDATION AND DISMISSING FIRST AMENDED COMPLAINT

BEFORE THE COURT are Plaintiff's Motion for Leave to Amend, ECF No. 14, and his Objection, ECF No. 15, to the Report and Recommendation to Dismiss the First Amended Complaint. Plaintiff, a prisoner at the Coyote Ridge Corrections Center, is proceeding pro se and in forma pauperis; Defendants were not served.

On November 1, 2016, Magistrate Judge Dimke recommended dismissal of the First Amended Complaint as Plaintiff had failed to show any actual injury to his access to court and, even if he could, any § 1983 challenge to a conviction that has not been invalidated would be precluded by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).

On November 14, 2016, Plaintiff filed both his Motion and Objection. He seeks leave to amend to specifically state how his access to the court was frustrated. Plaintiff had been granted the opportunity to do so in the initial Order to Amend or Voluntarily Dismiss, ECF No. 8. He did not do so. He did not present a proposed amended complaint and he has failed to present any facts demonstrating that he was denied access to the court, causing actual injury.

Regardless, as stated above and in the Report and Recommendation, even if Plaintiff could demonstrate that his conviction would have been overturned, but for the actions of identified Defendants, he has not shown that his conviction has been invalidated. Therefore, his § 1983 claims would be precluded by Heck v. Humphrey, and amendment would be futile. Accordingly, Plaintiff's Motion, ECF No. 14, is DENIED.

In his Objections, ECF No. 15, Plaintiff contends that his assertions were not conclusory and he objects to the finding that his allegations were insufficient to state an access to court claim. He also objects to the dismissal of his First Amended Complaint without leave to amend. He provides no support for his contentions.

The Court has reviewed the record and is fully informed. For the reasons set forth above and in the Report and Recommendation, the Court adopts the Report and Recommendation, ECF No. 13, in its entirety, and the First Amended Complaint, ECF No. 10, is dismissed without prejudice to Plaintiff seeking appropriate remedies in state court. Because this was not purely a Heck matter, it does not appear that it would count has a strike under 28 U.S.C. § 1915(g). See Washington v. Los Angeles Cty. Sheriff's Dep't, 833 F.3d 1048, 1058 (9th Cir. 2016).

Accordingly, IT IS HEREBY ORDERED:

1. Plaintiff's Motion, ECF No. 14, is DENIED.

2. The Report and Recommendation, ECF No. 13, is ADOPTED in its entirety.

3. The First Amended Complaint, ECF No. 10, is DISMISSED without prejudice to Plaintiff seeking appropriate remedies in state court.

4. The case shall be CLOSED.

IT IS SO ORDERED. The Clerk's Office is directed to enter this Order, enter Judgment, forward a copy to Plaintiff, and CLOSE the file. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal of this Order would not be taken in good faith and would lack any arguable basis in law or fact.

DATED this 29th day of December 2016.

s/Edward F. Shea

EDWARD F. SHEA

Senior United States District Judge Q:\EFS\Civil\2016\prisoner16cv5094efs-12-28-adpRRdnymtnamdDISMISS.docx


Summaries of

Navarro v. Westphal

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON
Dec 29, 2016
No. 4:16-cv-05094-EFS (E.D. Wash. Dec. 29, 2016)
Case details for

Navarro v. Westphal

Case Details

Full title:PEDRO NAVARRO, Plaintiff, v. A. WESTPHAL, VICTORIA TAPIA, JACKIE FLUAITH…

Court:UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

Date published: Dec 29, 2016

Citations

No. 4:16-cv-05094-EFS (E.D. Wash. Dec. 29, 2016)