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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

CALVIN ROUSE,

Plaintiff,

v.

DOUG WADDINGTON et al.,

Defendants.

Case No. C06-5183RJB

ORDER DENYING PLAINTIFF’S

MOTION TO FILE A SECOND

AMENDED COMPLAINT 

This civil rights action has been referred to the undersigned Magistrate Judge pursuant to Title 28

U.S.C. § 636(b)(1)(B). Before the court is plaintiff’s renewed motion to file a second amended complaint

(Dkt. # 38). Defendants have responded and do not oppose the motion (Dkt. # 39). The response does

not consider the file in this case or this courts prior rulings.

The original complaint in this action challenged a disciplinary hearing where plaintiff lost 360 days

of good time credits (Dkt. # 12). A Report and Recommendation to dismiss the action prior to service was

entered (Dkt. # 13). Plaintiff then raised issues regarding medical treatment and cruel and unusual

punishment. Those issues were not part of the original complaint. (Dkt. # 15). Plaintiff was granted leave

to amend to raise his new issues (Dkt. # 16). Claims relating to the disciplinary hearing and loss of good

time were dismissed without prejudice as those claims must proceed by way of habeas corpus.

The court ordered plaintiff to file an amended complaint and he complied with that order (Dkt. # 18

and 19). The amended complaint was served. Plaintiff then moved to file a second amended complaint,

but, he did not supply a proposed amended complaint for the court to review (Dkt. # 25). The motion was

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ORDER

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denied without prejudice (Dkt. # 27).

Plaintiff now files a second amended complaint and has renewed his motion to amend (Dkt. # 38). 

Review of the second amended complaint shows plaintiff is again trying to challenge the propriety of the

disciplinary hearing where he lost 360 days of good time credit. He specifically asks the court to expunge

the disciplinary infraction where he lost 360 days of good time credits. 

The motion to amend is DENIED. The court explained in the First Report and Recommendation:

[W]hen 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)). 

(Dkt. # 13).

The Clerk is directed to send plaintiff and counsel for defendants a copy of this Order and remove

Dkt. # 38 from the court calendar.

DATED this 13, day of March, 2007.

/S/ J. Kelley Arnold

J. Kelley Arnold

United States Magistrate Judge

Case 3:06-cv-05183-RJB Document 41 Filed 03/13/07 Page 2 of 2