1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

UNDRA-CHRISTOPHER WATKINS,

Plaintiff,

v.

JACK E. TANNER et al.,

Defendants.

Case No. C05-5640RBL

REPORT AND

 RECOMMENDATION

 

 NOTED FOR:

November 11th, 2005

This action has been referred to the undersigned Magistrate Judge pursuant to Title 28 U.S.C. §§

636(b)(1)(A) and 636(b)(1)(B) and Local Magistrates' Rules MJR 1, MJR 3, and MJR 4. The action is filed

under a number of statutes but is not filed a s a civil rights action. After reviewing the complaint in this action

the undersigned recommends that the action be DISMISSED WITHOUT PREJUDICE prior to service for

failure to state a claim.

FACTUAL BACKGROUND AND DISCUSSION

Plaintiff alleges his continued incarceration is illegal and he is innocent of the crimes for which he is

currently serving a sentence. (Dkt. # 1). He claims to have sent documents to the named defendants in this

action and alleges their failure to respond to his documents constitutes an admission of wrong doing or criminal

conduct. Plaintiff is in error.

Case 3:05-cv-05640-RBL Document 3 Filed 10/07/05 Page 1 of 2
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 2

Plaintiff is one of a growing number of persons who seems to believe they may send documents to a

person that demands responses. These people argue that failure to get a reply to their documents is some sort of

admission. The convoluted logic used in cases of this nature results in a waste of precious judicial resources. 

A review of the compliant shows this action to be frivolous. (Dkt. # 1). 

Further, as plaintiff seeks release from incarceration, his sole remedy is to file an action in habeas. 

When a person 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). Heck

v. Humphrey, 114 S.Ct. 2364, 2373 (1994). Plaintiff is filing a collateral challenge to the legality of his

continued confinement in this action and this action must proceed by was of habeas corpus. The compliant

filed, (Dkt. # 1), is not worthy of further discussion.

CONCLUSION

Plaintiff cannot bring an action outside of habeas corpus to obtain his release and his conviction is

valid unless and until it is overturned by way of habeas corpus. The action should be DISMISSED

WITHOUT PREJUDICE.

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 November 11th, 2005, as noted in the caption. 

DATED this 6th day of October, 2005.

A

Karen L. Strombom

United States Magistrate Judge

Case 3:05-cv-05640-RBL Document 3 Filed 10/07/05 Page 2 of 2