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28 REPORT AND RECOMMENDATION - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

JOHN PERKINS,

Plaintiff,

v.

T. ANDERSON et al.,

Defendants.

Case No. C06-5160FDB

REPORT AND

RECOMMENDATION:

NOTED FOR:

JUNE 9TH, 2006

This civil rights action has been referred to the undersigned Magistrate Judge pursuant to

Title 28 U.S.C. § 636(b)(1)(B). Plaintiff is an inmate currently incarcerated at the Clallam Bay

Corrections Center. Plaintiff is proceeding in forma pauperis. (Dkt. # 5). Plaintiff filed this action

to challenge a disciplinary hearing in which he lost 100 days good time credits. (Dkt. # 6), Plaintiff

specifically seeks restoration of good time and custody points taken from him. (Dkt. # 6).

FACTS

Plaintiff was infracted while housed at the Olympic Correction Center. He had a hearing and

the hearings Lieutenant found him guilty and recommended loss of good time credits and custody

points. After the hearing plaintiff was transferred to Clallam Bay Corrections Center. 

DISCUSSION

When a person confined by the state is challenging the very fact or duration of his physical

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28 REPORT AND RECOMMENDATION - 2

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)). 

Plaintiff is challenging the propriety of the decision to revoke good time credits and this

action must be filed as a habeas corpus petition. This 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 January 7th, 2006.

DATED this 15th day of May, 2006.

/S/ J. Kelley Arnold

J. Kelley Arnold

United States Magistrate Judge

Case 3:06-cv-05160-FDB Document 9 Filed 05/15/06 Page 2 of 2