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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

TIMOTHY E. SCOTT,

Plaintiff,

v.

NORMAN MALENG, et al.,

Defendants.

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Case No. C06-839-JCC-JPD

ORDER GRANTING ADDITIONAL

LEAVE TO AMEND COMPLAINT

AND DENYING PLAINTIFF’S

MOTION FOR APPOINTMENT OF

COUNSEL

Plaintiff is an inmate housed in the Special Offenders Unit of the Monroe Correctional

Complex in Monroe, Washington. He is proceeding pro se and in forma pauperis (“IFP”) in

an attempt to bring this 42 U.S.C. § 1983 civil rights action against King County Prosecutors

Norman Maleng, a deputy prosecutor, and Michael T. Dijulio, a former senior deputy

prosecutor. Plaintiff asserts that defendants unlawfully prosecuted and convicted him of three

counts of Trafficking in Stolen Property, (former) R.C.W. § 9A.82.50.2, which conviction

was later vacated on the prosecutor’s motion following the Washington Court of Appeals’

decision in State v. Thomas, 103 Wn.App. 800, 14 P.2d 854 (2000). Plaintiff complains that

his offender score was nevertheless increased despite the vacated convictions. This matter

comes before the Court on the plaintiff’s complaint (Dkt. No. 11), plaintiff’s second motion

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1

 In order for this Court to have personal jurisdiction over a § 2254 petition, a petitioner

must name the state officer having custody of him as the respondent to the petition. Rumsfeld v.

Padilla, 542 U.S. 426, 434-35 (2004); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th

Cir. 1994) (citations omitted); see also Rules Governing Section 2254 Cases in the United States

District Courts 2(a). For inmates, this person is typically the warden of the facility in which the

petitioner is incarcerated. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley, 21

F.3d at 359. 

ORDER

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for appointment of counsel (Dkt. No. 21), and defendants’ motion to dismiss (Dkt. No. 23). 

After careful consideration of the complaint and motions, supporting materials, governing

law and the balance of the record, the Court ORDERS as follows:

(1) The Court finds that plaintiff’s complaint (Dkt. No. 11) fails to state a claim

upon which relief can be granted. Specifically, the merits of plaintiff’s argument are either

unavailable in or beyond the scope of a § 1983 action. 

First, plaintiff has named as defendants two governmental actors who enjoy absolute

immunity from suit when performing their official role as advocate of the state. See Imbler v.

Pachtman, 424 U.S. 409, 427 (1976) (holding that prosecutors enjoy quasi-judicial absolute

immunity when performing functions “intimately associated with the judicial phase of the

criminal process”). 

Second, because plaintiff’s claim that his offender score was miscalculated and his

incarceration continued despite the vacated convictions challenges not the conditions of

plaintiff’s confinement but rather the validity of his confinement, this claim must be brought as

a petition for a writ of habeas corpus, not as a § 1983 action. See Preiser v. Rodriguez, 411

U.S. 475, 500 (1973); Heck v. Humphrey, 512 U.S. 477, 489 (1994) (holding that a § 1983

claim that calls into question the lawfulness of a plaintiff’s conviction or confinement does not

accrue “unless and until the conviction or sentence is reversed, expunged, invalidated, or

impugned by the grant of a writ of habeas corpus.”). Where, as here, a prisoner challenges the

fact or duration of his confinement, his federal remedy is a writ of habeas corpus, to which the

exhaustion requirement applies. Young v. Kenny, 907 F.2d 874, 875 (9th Cir. 1990), cert.

denied, 498 U.S. 1126 (1991).1

 Accordingly, plaintiff’s complaint, in its current form, fails to

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ORDER

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state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6). 

(2) Plaintiff, however, is GRANTED LEAVE TO AMEND his complaint in order

to lodge a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Plaintiff shall

file his amended complaint by October 30, 2006. The amended complaint must be filed

under the same case number as this one, and will operate as a complete substitute for, rather

than a mere supplement to, the existing complaint. See Ferdik v. Bonzelet, 963 F.2d 1258,

1262 (9th Cir. 1992) (internal citation omitted). The Court may recommend that

defendants’ motion to dismiss (Dkt. No. 23) be granted and the complaint dismissed if

plaintiff fails to comply with this Order. 

(3) For reasons similar to those stated above, plaintiff’s second motion for

appointment of counsel (Dkt. No. 21) is DENIED. Pursuant to 28 U.S.C. § 1915(e)(1), this

Court has the discretion to appoint counsel for indigent litigants who are proceeding IFP. 

United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). However,

the Court will appoint counsel only on a showing of “exceptional circumstances.” Id.; Wilborn

v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). “A finding of exceptional circumstances

requires an evaluation of both the likelihood of success on the merits and the ability of the

plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.” 

Wilborn, 789 F.2d at 1331 (internal quotations omitted). These factors must be viewed

together before reaching a decision on a request for counsel under § 1915(e)(1). Id. 

Plaintiff has failed to demonstrate that exceptional circumstances warrant the

designation of counsel at this time. Not only is plaintiff unable to offer evidence suggesting

that his § 1983 case is likely to succeed on the merits, but as explained above, the action fails

to state a claim upon which relief can be granted. Furthermore, although the inadequacy of

plaintiff’s complaint suggests that he has difficulty articulating his claims, the Court cannot

conclude that an appointment of counsel is appropriate at this time. 

(4) The Clerk is directed to send a copy of this Order to plaintiff and to the

Honorable John C. Coughenour.

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ORDER

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DATED this 27th day of September, 2006.

AJAMES P. DONOHUE

United States Magistrate Judge 

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