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28 REPORT AND RECOMMENDATION - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

DANIEL HOPPER,

Plaintiff,

v.

COMMISSIONER DORIS MEISNER AND

TWO JOHN DOES,

Defendants.

Case No. C06-5057FDB

REPORT AND

RECOMMENDATION:

NOTED FOR:

April 7th, 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 currently an INS detainee being held at the Northwest

Detention Center pending deportation. Plaintiff is proceeding in forma pauperis. (Dkt. # 5). 

Plaintiff filed this action to challenge the actions of two John Doe United States Assistant Attorneys

who allegedly indicated plaintiff could litigate his claim of United States citizenship from Trinidad. 

(Dkt. # 5).

FACTS

Plaintiff was deported to Trinidad and he alleges during his deportation hearings two

Assistant United States Attorneys argued he could litigate his claim of United States citizenship from

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28 REPORT AND RECOMMENDATION - 2

Trinidad. Plaintiff alleges that on his return he learned his deportation case was dismissed the day he

was deported for lack of personal jurisdiction. Plaintiff states he returned from Trinidad on January

8th, 1994. (Dkt. # 5). Thus his claims against the two unnamed Assistant United States Attorneys

are at least eleven years old. His claim against Commissioner Doris Meisner is that it would be cruel

and unusual punishment to again deport him to Trinidad..

DISCUSSION

Plaintiff’s action is intertwined with the facts involving his current deportation proceedings to

the extent that proceeding with this action would call into question the propriety of his current

detainment. When a person confined by government 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). 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)). This action should be

DISMISSED WITHOUT PREJUDICE. A proposed order accompanies this Report and

Recommendation.

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28 REPORT AND RECOMMENDATION - 3

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 April 7th, 2006.

DATED this 13th day of March, 2006.

/S/ J. Kelley Arnold

J. Kelly Arnold

United States Magistrate Judge

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