Lloyd v. Kingston

• Court: District Court, W.D. Washington
• Decided: April 28, 2020
• Docket: 3:20-cv-05287
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 LARRY LLOYD, CASE NO. 3:20-cv-05287-RBL-JRC 11 Plaintiff, AMENDED ORDER TO FILE 12 v. HABEAS PETITION 13 PENNY L. KINGSTON, et al., 14 Defendants. 15 16 This District Court has referred this matter filed under 42 U.S.C. § 1983 to the 17 undersigned. This matter is before the Court on plaintiff’s application to proceed in forma 18 pauperis and proposed complaint and the Court’s Order to File Habeas Petition. See Dkt. 1, 4. 19 This Order supersedes the Court’s prior Order to File Habeas Petition (Dkt. 4) and requires 20 plaintiff to provide the Court with a § 2254 habeas petition and in forma pauperis (“IFP”) 21 application on or before May 28, 2020. 22 BACKGROUND 23 Plaintiff, who is currently incarcerated at the Coyote Ridge Corrections Center, requests 24 to proceed IFP in this action that he brings under 42 U.S.C. § 1983. See Dkt. 1. Plaintiff seeks 1 to bring suit against a DOC community corrections officer and a hearings officer. See Dkt. 1-1, 2 at 3. He requests damages (Dkt. 1-1, at 14) and that the Court order defendants to review the 3 length of his remaining sentence. 4 Plaintiff alleges violations of the Fourteenth Amendment’s due process clause and the

5 Eighth Amendment’s prohibition against cruel and unusual punishment. See Dkt. 1-1, at 8. 6 Although somewhat unclear, plaintiff’s underlying claim appears to be that at a community 7 custody revocation hearing, DOC employees wrongfully calculated his remaining “[r]eturn 8 [t]ime [t]o prison.” See Dkt. 1-1, at 19. 9 DISCUSSION 10 A prisoner challenging the validity of the decisions underlying his confinement must 11 bring a writ for habeas corpus. Nonnette v. Small, 316 F.3d 872, 874 (9th Cir. 2002) (citing 12 Preiser v. Rodriguez, 411 U.S. 475, 488–90 (1973)). Habeas corpus is the exclusive remedy for 13 a prisoner who is challenging the fact or duration of his confinement and seeking immediate or 14 speedier release. See Heck v. Humphrey, 512 U.S. 477, 481 (1994) (citing Preiser, 411 U.S. at

15 488–90). A prisoner cannot bring a Section 1983 action for damages until the prisoner’s 16 confinement has already been invalidated through habeas corpus proceedings or some other 17 means. Id. (citing Heck, 512 U.S. at 486–87). 18 Here, plaintiff alleges that he has been unsuccessful making these arguments in state 19 court, so that he cannot proceed in a § 1983 action. Plaintiff’s claims for both damages and 20 injunctive relief are foreclosed in a § 1983 action where his relief would call into question the 21 validity of his sentence. See Edwards v. Balisok, 520 U.S. 641, 646–48 (9th Cir. 1997). Plaintiff 22 must bring this action as a petition for habeas corpus, which is the appropriate method for a 23 prisoner to challenge the length or validity of his underlying sentence. See Badea v. Cox, 931

24 1 F.3d 573, 574 (9th Cir. 1991). In such a proceeding, the remedy would be relief from the invalid 2 sentence and not damages. 3 Plaintiff should be aware that the filing fee for a habeas petition is $5, unlike the $400 4 filing fee for a § 1983 action. Moreover, the form complaint and IFP application for habeas

5 petitions differ from those in a § 1983 action. 6 If plaintiff intends to pursue the claims as alleged in this complaint, he must file a habeas 7 corpus petition on the form provided by the Court including only claims challenging the fact or 8 duration of his custody. The petition will act as a complete substitute for the complaint, and not 9 as a supplement. 10 Further, in a habeas petition, federal habeas relief is available only after a petitioner has 11 exhausted his state judicial remedies. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). The 12 exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas 13 corpus. 28 U.S.C. § 2254(b)(1). A petitioner can satisfy the exhaustion requirement by 14 providing the highest state court with a full and fair opportunity to consider all claims before

15 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. 16 Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). Full and fair presentation of claims to the state court 17 requires “full factual development” of the claims in that forum. Kenney v. Tamayo-Reyes, 504 18 U.S. 1, 8 (1992). 19 Additionally, plaintiff must name as respondent, the “person who has custody over [the 20 petitioner].” 28 U.S.C. § 2242; see also § 2243; Brittingham v. United States, 982 F.2d 378 (9th 21 Cir. 1992); Dunne v. Henman, 875 F.2d 244, 249 (9th Cir. 1989). This would be, for instance, 22 the superintendent of the prison where plaintiff is confined. 23 ///

24 1 DIRECTIONS TO PLAINTIFF 2 (1) If plaintiff intends to pursue the claims as alleged in this complaint, he must file a 3 habeas corpus petition on the form provided by the Court. He must also submit 4 the proper IFP form or pay the $5.00 filing fee.

5 (2) Failure to comply with this Order on or before May 28, 2020 will result in a 6 recommendation that this action be dismissed. 7 (3) The Clerk shall send a copy of this order to plaintiff and the Court’s habeas 8 corpus IFP application and form petition for 28 U.S.C. § 2254 petitions. 9 (4) The Clerk shall strike the prior Order to File Habeas Petition (Dkt. 4), which is 10 superseded by this Order. 11 Dated this 28th day of April, 2020. 12

13 A 14 J. Richard Creatura 15 United States Magistrate Judge

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