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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

GEORGE C. SWINYER, JR., et al.,

Plaintiffs,

v.

DONALD MAGARIAN et al.,

Defendants.

CASE NO. C06-5199 RJB

ORDER DECLINING TO

ADOPT REPORT AND

RECOMMENDATION AND

RE-REFERRING CASE TO

MAGISTRATE JUDGE

This matter comes before the Court on Plaintiffs’ Complaint (Dkt. 7) and the Report and

Recommendation of United States Magistrate Judge Karen Strombom (Dkt. 8). The Court has considered

Plaintiffs’ Complaint, the Report and Recommendation, Plaintiffs’ objections to the Report and

Recommendation, and the file herein.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff George Swinyer is currently a prisoner at the Washington Corrections Center in Shelton,

Washington. According to the complaint, Plaintiff was arrested on July 15, 2003, at his residence, after law

enforcement received a phone call alleging acts of domestic violence. Dkt. 1(2) at 3. Plaintiff contends

that, during the course of the investigation, he was forcibly subdued and arrested, and later pled guilty to

assault in the second degree. Id. at 9. It is not clear from the Complaint whether Plaintiff pled guilty to

assaulting a law enforcement officer or another individual, nor it is clear what other charges, if any, were

brought against him. Id. Plaintiff’s sentence is scheduled to end on July 14, 2006. Dkt. 9 at 1.

 On April 10, 2006, Plaintiff George Swinyer filed a Complaint in federal court, alleging violations

of his civil rights under 42 U.S.C. § 1983. Dkt. 1(2). Plaintiff, who is pro se in this matter, makes several

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ORDER

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allegations in his Complaint, some of which are ambiguous. Id. Moreover, while the Complaint is signed

only by Plaintiff George Swinyer, it also names as plaintiffs four other individuals who appear to have been

present at the Swinyer residence when the arrest occurred. Id. at 1-9. Because Plaintiff is pro se, the Court

has construed the Complaint as broadly as reasonable under the circumstances, and has interpreted it to

allege the following claims: (1) civil rights violations under 42 U.S.C. § 1983 for the use of excessive force

against Plaintiff George Swinyer by several Defendant law enforcement officers during and immediately

following his arrest, resulting in bodily injury and medical damages; the illegal search of Plaintiff George

Swinyer’s residence and person by Defendant law enforcement officers during and immediately following

his arrest; and the illegal seizure of Plaintiff George Swinyer when arrested; (2) malicious prosecution by

Defendants Thomas Duffy and Clark County against Plaintiff George Swinyer; (3) various negligence

claims; (4) harassment of Plaintiff Jamiedee Swinyer and Plaintiff Robin Swinyer by unknown defendants,

and (5) unspecified violations of the constitutional rights of all Plaintiffs under the First, Fourth, Fifth,

Eighth, and Fourteenth Amendment of the United States Constitution. Id. at 3-11. Plaintiffs seek (1)

compensatory damages of $100,000 and future medical costs, and (2) the dismissal of all charges against

Plaintiff George Swinyer in the criminal case, including all fines, costs, and restitution. Id. at 12.

On May 24, 2006, Judge Strombom recommended that the complaint in this matter be dismissed

without prejudice as barred by Heck v. Humphry, 512 U.S. 477, 487 (1994), because plaintiff had not

shown that his conviction or sentence had been invalidated. Dkt. 8 at 2. On June 6, 2006, Plaintiff filed an

objection to the Report and Recommendation, arguing that a writ of habeas corpus would not adequately

address many of his claims. Dkt. 9 at 2.

DISCUSSION

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

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

Humphry, 512 U.S. 477, 486-87 (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). However,

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)

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The Report and Recommendation recommended that the court dismiss all claims as barred by Heck

v. Humphrey. It is unclear at this point whether and which claims should be barred under Heck v.

Humphrey. Further, although the Complaint is unclear, it appears that plaintiff George Swinyer may be

attempting to bring claims that are independent from those claims that would be barred by Heck v.

Humphrey. Plaintiff George Swinyer should be offered the opportunity to file an amended complaint,

raising claims that are not barred by Heck v. Humphrey. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th

Cir.1987) (pro se litigants must be given leave to amend complaint unless it is absolutely clear that

amendment would be futile). 

The court should decline to adopt the Report and Recommendation. The case should be referred to

the Magistrate Judge for further proceedings. While it appears that George Swinyer may be attempting to

prosecute this action on behalf of other pro se individuals, the Magistrate Judge will deal with this issue by

further order. 

ORDER

Therefore, it is hereby

ORDERED that the court DECLINES TO ADOPT the Report and Recommendation (Dkt. 8).

The matter is RE-REFERRED to the Magistrate Judge for further proceedings consistent with this order

and with the original order of reference.

The Clerk is directed to send copies of the Order to all counsel of record, to any party appearing pro

se at said party’s last known address, and to Magistrate Judge Karen L. Strombom.

DATED this 7th day of July, 2006.

ARobert J. Bryan

United States District Judge 

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