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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

ROBERT BERGEN,

Plaintiff,

v.

CHARLES FRENCH, et al.,

Defendants.

Case No. C05-5722RJB

ORDER ADOPTING REPORT

AND RECOMMENDATION AND

DISMISSING CASE

This matter comes before the Court on consideration of the Report and Recommendation of the

Magistrate Judge. Dkt. 27-1. The Court has considered the relevant documents and the file herein.

I. FACTS

On October 10, 2005, Plaintiff, a resident of the Special Commitment Center (SCC), filed a civil

rights complaint against several defendants in Washington State Superior Court. Dkt. 1. Plaintiff, who is

proceeding in forma pauperis by order of the state court, challenges his civil commitment. Id. Plaintiff

seeks monetary damages and declaratory relief. Id. The case was removed to this Court on November 4, 

2005. Id. 

On January 30, 2006, U.S. Magistrate J. Kelley Arnold issued a Report and Recommendation,

recommending that the action be dismissed without prejudice because Plaintiff’s claims are barred by Heck

v. Humphrey, 512 U.S. 477 (1994). Dkt. 27-1.

II. DISCUSSION

Plaintiff contends that, as a result of the actions of the Defendants, he is being unlawfully detained

under RCW 71.09, in violation of his constitutional rights. Dkt.1. 

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ORDER

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A claim that relates to the fact and duration of confinement is not cognizable in a civil rights action

unless an inmate can demonstrate that the conviction or sentence has already been invalidated. Heck v.

Humphrey, 512 U.S. 477 (1994). The proper avenue to challenge the fact or duration of confinement is to

file a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973). See Wilkinson v. Dotson, 125

S.Ct. 1242, 1248 (2005)(“a state prisoner's § 1983 action is barred (absent prior invalidation)--no matter

the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct

leading to conviction or internal prison proceedings)--if success in that action would necessarily

demonstrate the invalidity of confinement or its duration”). Emphasis in the original. Heck v. Humphrey

applies to persons detained as sexually violent predators who have access to habeas relief. Huftile v.

Miccio-Fonseca, 410 F.3d 1136, 1140 (9th Cir. 2005). Before a petition for writ of habeas corpus may be

brought in federal court, state remedies must be exhausted. Rose v. Lundy, 455 U.S. 509 (1982). 

Plaintiff’s claims alleging that his confinement as a sexually violent predator is illegal due to the

conduct of the Defendants are challenges to the fact or duration of his confinement. He has not

demonstrated that his detention has been invalidated; in fact, Plaintiff is currently detained at the SCC,

allegedly as a result of the criminal and civil commitment proceedings he contends were unlawful. 

Plaintiff’s claims for declaratory relief and damages should be dismissed as barred by Heck v. Humphrey. 

Therefore, it is hereby,

ORDERED that the Report and Recommendation of the Magistrate Judge (Dkt. 27-1), is

ADOPTED. The case is DISMISSED WITHOUT PREJUDICE. Plaintiff may only bring these claims

in a subsequent civil action upon a sufficient showing that his confinement or detention has been

invalidated.

The Clerk of the Court is directed to send uncertified copies of this Order to all counsel of record

and to any party appearing pro se at said party’s last known address.

DATED this 3rd day of March, 2006.

ARobert J. Bryan

United States District Judge 

Case 3:05-cv-05722-RJB Document 28 Filed 03/03/06 Page 2 of 2