Swinyer v. Magarian

Full title: GEORGE C. SWINYER, JR., et al., Plaintiff, v. DONALD MAGARIAN et al.…

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

Date published: May 23, 2006

Case No. C06-5199RJB/KLS (W.D. Wash. May. 23, 2006)

Opinion

Case No. C06-5199RJB/KLS.

May 23, 2006

REPORT AND RECOMMENDATION

KAREN STROMBOM, Magistrate Judge

This civil rights action has been referred to the undersigned Magistrate Judge pursuant to Title 28 U.S.C. § 636(b)(1) and Local MJR 3 and 4. Plaintiff, George C. Swinyer, Jr., was given leave to proceed in forma pauperis. (Dkt. # 6). After reviewing the complaint in this action, the undersigned recommends that the action be DISMISSED WITHOUT PREJUDICE prior to service.

FACTUAL BACKGROUND

Plaintiff George C. Swinyer, Jr.¹ alleges that the two police officers involved in his arrest assaulted him. He further alleges that several additional police officers improperly searched him, leaving him with a knife which resulted in his attempted suicide. Plaintiff also names an individual and Clark County and alleges that they maliciously prosecuted him. Plaintiff requests monetary damages, medical costs, and dismissal of his criminal conviction. (Dkt. # 1 Proposed Complaint).

1 Plaintiff George C. Swinyer, Jr. is the only named plaintiff that has appeared in this action. Also named as Plaintiffs are several individuals collectively referred to by the plaintiff as his "family," but they are not sufficiently identified for the Court to determine whether plaintiff has standing to sue on their behalf.

DISCUSSION

In order to state a claim under 42 U.S.C. § 1983, a complaint must allege that (1) the conduct complained of was committed by a person acting under color of state law and that (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), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). 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), cert. denied, 478 U.S. 1020 (1986).

In addition, when a person confined by government 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)).

Here, plaintiff is attacking "the charges, fines, costs and restitution in [his] criminal case." This action must proceed in habeas. Plaintiff's case fails to state a claim and must be DISMISSED WITHOUT PREJUDICE.

CONCLUSION

Plaintiff's 42 U.S.C. § 1983 action has not and will not accrue until he receives relief in habeas. The action should be DISMISSED WITHOUT PREJUDICE. A proposed order accompanies this report and recommendation.

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 June 9^th , 2006, as noted in the caption.