01 

02 

03 

04 

05 

06 

07 

08 

09 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22

REPORT AND RECOMMENDATION 

PAGE -1 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT SEATTLE 

RICHARD A. CASE, 

Plaintiff, 

v. 

JOHN TAYLOR HICKS, et al. 

Defendants. 

____________________________________

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CASE NO. C05-2074-TSZ-MAT 

REPORT AND RECOMMENDATION

 This is civil rights action brought under 42 U.S.C. § 1983. Plaintiff Richard Case 

submitted the instant action to this Court for filing in December 2005 while he was awaiting 

trial in King County Superior Court on a charge of first degree murder. Plaintiff alleged in his 

complaint that the named defendants had conspired to deprive him of his federal constitutional 

rights. Plaintiff asserted that the alleged conspiracy involved the fabrication and 

misrepresentation of video evidence which was to be used against him in his state court 

criminal trial. Plaintiff identified his then stand-by counsel, three prior court appointed 

 

Case 2:05-cv-02074-TSZ Document 23 Filed 09/10/10 Page 1 of 4
01 

02 

03 

04 

05 

06 

07 

08 

09 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22

REPORT AND RECOMMENDATION 

PAGE -2 

attorneys, a private investigator, and various video experts as defendants in this action. 

Plaintiff requested declaratory and injunctive relief, and damages. 

 In April 2006, the Honorable Thomas S. Zilly, United States District Judge, issued an 

Order staying this action pending final resolution of plaintiff’s state court proceedings. (Dkt. 

No. 10.) In February 2010, Judge Zilly lifted the stay, after determining that plaintiff’s direct 

appeal had been terminated, and referred this matter to the undersigned for further proceedings. 

(Dkt. No. 18.) 

 In April 2010, this Court issued an Order directing plaintiff to show cause why this 

action should not be dismissed pursuant to 28 U.S.C. § 1915A(b) based upon his failure to state 

a cognizable ground for relief. (Dkt. No. 19.) The Court explained in that Order that a claim 

brought under § 1983 which 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." (See id. at 2, citing Heck v. 

Humphrey, 512 U.S. 477, 489 (1994)). The Court further explained that because it appeared 

that a decision in plaintiff’s favor on the claims set forth in his civil rights complaint would 

undermine the validity of his criminal conviction, and because plaintiff had made no showing 

that his conviction has been invalidated, it appeared that plaintiff’s claims were not cognizable 

in this § 1983 action and that this action was subject to dismissal. (Id.) 

 In early August 2010, plaintiff filed a response to the Order to Show Cause. (Dkt. No. 

22.) In his response, plaintiff makes no claim that his criminal conviction has been 

invalidated. Instead, he asserts that the stay in these proceedings was prematurely lifted 

because his state court criminal proceedings have not yet concluded. (See id. at 4.) 

Case 2:05-cv-02074-TSZ Document 23 Filed 09/10/10 Page 2 of 4
01 

02 

03 

04 

05 

06 

07 

08 

09 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22

REPORT AND RECOMMENDATION 

PAGE -3 

Specifically, plaintiff contends that he filed a motion for relief from judgment in the King 

County Superior Court in August 2009 which remains pending. (Dkt. No. 22 at 4.) He 

further contends that the Superior Court has refused to take action on his motion thereby 

violating his rights to due process and to equal protection. (Id. at 6.) Plaintiff asks this Court 

to direct the King County Superior Court to “file, docket and process” his motion for relief from 

judgment. (Id. at 8.) 

 Plaintiff submitted in support of his response to the Order to Show Cause a copy of what 

appears to be the last page of the docket for his King County Superior Court criminal case. (Id. 

at 13.) The docket shows that a mandate was issued with respect to plaintiff’s direct appeal on 

January 8, 2010. (See id.) The mandate signifies that the appellate court has terminated 

review. See Washington Rule of Appellate Procedure 12.5(a). The docket also appears to 

show that the Superior Court ruled on two motions filed by plaintiff in August 2009. (Dkt. No. 

22 at 13.) The docket does not indicate that there are any motions still pending in that court.1

 

 As it appears clear from the record before this Court that plaintiff’s conviction is now 

final in the state courts, the stay of this proceeding was properly lifted. And, as it further 

appears clear from the record that plaintiff’s conviction has not, at this juncture, been 

invalidated in any way, plaintiff’s claims for relief under § 1983 are barred by Heck. 

// 

// 

// 

 

 1 Even if there were matters still pending in the King County Superior Court, this 

Court would have no authority, in the context of this civil rights action, to issue any directives to 

that court. 

Case 2:05-cv-02074-TSZ Document 23 Filed 09/10/10 Page 3 of 4
01 

02 

03 

04 

05 

06 

07 

08 

09 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22

REPORT AND RECOMMENDATION 

PAGE -4 

Accordingly, this Court recommends that the instant action be dismissed without prejudice 

under 28 U.S.C. § 1915A(b) for failure to state a cognizable ground for relief. A proposed 

order accompanies this Report and Recommendation. 

 DATED this 9th day of September, 2010. 

 /s/ MARY ALICE THEILER 

 Mary Alice Theiler 

 United States Magistrate Judge 

Case 2:05-cv-02074-TSZ Document 23 Filed 09/10/10 Page 4 of 4