Smith v. Coleman

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 10 JOHN GARRETT SMITH, CASE NO. 3:20-cv-05319-RBL-JRC 11 Plaintiff, ORDER TO SHOW CAUSE OR 12 v. AMEND PROPOSED COMPLAINT 13 J COLEMAN, 14 Defendant.

16 This matter is before the Court on plaintiff’s application to proceed in forma pauperis.

17 See Dkt. 1. Plaintiff seeks to bring two types of claims—claims calling into question the validity of his underlying conviction, which must be brought in a habeas corpus petition, and claims under the Eighth Amendment related to his conditions of confinement, which must be brought in a 42 U.S.C. § 1983 matter. Yet, plaintiff disavows that he is bringing either type of action.

21 If he wishes to proceed on these claims, plaintiff must file a § 1983 complaint or habeas petition under 28 U.S.C. § 2254 on or before May 29, 2020. If plaintiff fails to do so or if his amended complaint or petition fails to comply with the Court’s Order, the undersigned will recommend dismissal of this matter. The Court will not grant plaintiff’s in forma pauperis application unless plaintiff complies with this Order.

4 DISCUSSION 5 Under 28 U.S.C. § 1915(e)(2)(B), this Court may dismiss a complaint at any time if plaintiff proceeds or seeks to proceed in forma pauperis and fails to state a claim upon which relief can be granted.

8 Plaintiff has requested to proceed in forma pauperis, but his complaint fails to state a claim upon which relief can be granted and appears to be frivolous. Plaintiff specifically states that he does not wish to bring either a 42 U.S.C. § 1983 claim or a petition for habeas corpus.

11 See Dkt. 1, at 4.

12 Plaintiff appears to intend to bring state law tort claims in a case arising under this Court’s diversity jurisdiction. See Dkt. 1, at 2. His claims are deficient for the reasons identified herein.

15 First, although plaintiff seeks to bring a non-§ 1983 claim for cruel and unusual punishment, there is no freestanding cause of action for a constitutional violation. Rather, plaintiff must proceed under a statute providing for a private right of action, such as 42 U.S.C. § 18 1983. As noted, plaintiff disavows that he intends to bring such a cause of action. Dkt. 1, at 4.

19 Second, plaintiff appears to challenge the facts underlying his continued imprisonment, asserting that he is imprisoned on false charges and a false conviction. See Dkt. 1, at 2. As this Court has already informed plaintiff: 22 To obtain federal judicial review of a state conviction or sentence, a party must file a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and must first 23 exhaust his state judicial remedies. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).

1 Dkt. 5, at 2–3, Smith v. Haynes, 3:18-cv-5144-RBL (March 2, 2018).

2 If plaintiff wishes to proceed with claims that effectively attack his underlying conviction and sentence, he must proceed by filing a § 2254 habeas petition, not by bringing some other type of civil action.

5 Plaintiff’s claims also fail to the extent that he relies on federal criminal statutes that he alleges were violated. Neither 18 U.S.C. § 3 nor § 4 creates a private right of action. E.g. Pankey v. Webster, 816 F. Supp. 553, 559 (W.D. Mo. 1993); Gipson v. Callahan, 18 F. Supp. 2d 8 662, 668 (W.D. Tex. 1997). Although plaintiff cites to 18 U.S.C. § 1030 (concerning computer fraud), he alleges no facts related to any form of fraud perpetuated using a computer. See generally Dkt. 1. 18 U.S.C. 1515, which plaintiff also cites, is merely a definitional statute.

11 CONCLUSION AND DIRECTIONS TO PLAINTIFF AND CLERK 12 Because plaintiff’s claims under the Eighth Amendment are the type of claims that should typically be brought in a § 1983 complaint, plaintiff is granted to leave to file a § 1983 complaint on the form provided by this Court. Plaintiff should be aware that if he intends to pursue a § 1983 civil rights action in this Court, he must file an amended complaint and within the amended complaint, he must write a short, plain statement telling the Court: (1) the constitutional right plaintiff believes was violated; (2) the name or names of the person or persons who violated the right; (3) exactly what each individual or entity did or failed to do; (4) how the action or inaction of each individual or entity is connected to the violation of plaintiff’s constitutional rights; and (5) what specific injury plaintiff suffered because of the individuals’ conduct. See Rizzo v. Goode, 423 U.S. 362, 371–72, 377 (1976).

22 Plaintiff shall present the amended complaint on the form provided by the Court. The amended complaint must be legibly rewritten or retyped in its entirety, it should be an original and not a copy, it should contain the same case number, and it may not incorporate any part of the original complaint by reference. The amended complaint will act as a complete substitute for the original complaint, and not as a supplement. An amended complaint supersedes the original complaint. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), overruled in part on other grounds, Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012). Therefore, the amended complaint must be complete in itself and all facts and causes of action alleged in the original complaint that are not alleged in the amended complaint are waived. Forsyth, 114 F.3d 8 at 1474. The Court will screen the amended complaint to determine whether it contains factual allegations linking each defendant to the alleged violations of plaintiff’s rights. The Court will not authorize service of the amended complaint on any defendant who is not specifically linked to a violation of plaintiff’s rights. Moreover, the Court will not grant plaintiff leave to proceed in forma pauperis unless he otherwise satisfies the requirements of 28 U.S.C. § 1915.

13 If plaintiff fails to file an amended complaint or fails to adequately address the issues raised herein on or before May 29, 2020, the undersigned will recommend dismissal of this action pursuant to 28 U.S.C. § 1915.

16 Plaintiff may also choose to file a habeas petition under § 2254. However, plaintiff is warned that if he chooses to do so, his petition will be subject to dismissal if plaintiff has already brought a habeas petition challenging his conviction or sentence unless plaintiff obtains permission to bring a second or successive petition.

20 The Clerk is directed to send plaintiff the appropriate forms for filing a 42 U.S.C. § 1983 civil rights complaint and for filing a 28 U.S.C. § 2254 petition. The Clerk shall renote petitioner’s in forma pauperis motion for consideration on May 29, 2020. Plaintiff’s response to this show cause order is due on or before May 29, 2020.

3 Dated this 6th day of May, 2020.

A J. Richard Creatura United States Magistrate Judge