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ORDER -1 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT SEATTLE 

RICHARD A. CASE, 

 Plaintiff, 

v. 

JOHN TAYLOR HICKS, et al., 

 Defendants. 

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CASE NO. C05-2074TSZ 

ORDER 

The Court ADOPTS the Report and Recommendation, docket no. 23, with the 

following clarifications. Although plaintiff contends that the Court must grant him 

leave to amend his complaint, the Court need not grant leave to amend in lieu of 

dismissal if the Court determines that the deficiencies in his complaint could not 

possibly be cured by the allegation of other facts. Lopez v. Smith, 203 F.3d 1122, 1130 

(9th Cir. 2000) (en banc). Here, plaintiff’s complaint alleges that the defendants 

conspired to fabricate evidence against him in his criminal case. Compl., docket no. 8. 

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ORDER -2 

Success on plaintiff’s claim in this case would necessarily undermine his state criminal 

conviction, which plaintiff concedes has not been reversed, expunged, or invalidated. 

Therefore, the Court need not grant plaintiff leave to amend because he can plead no set 

of facts that would establish a cognizable claim for relief under 42 U.S.C. § 1983. 

Heck v. Humphrey, 512 U.S. 477 (1994); see also Wilkinson v. Dotson, 544 U.S. 74, 

81-82 (2005) (“[A] state prisoner’s § 1983 action is barred (absent prior invalidation)-no 

matter the relief sought (damages or equitable relief) . . . if success in that action would 

necessarily demonstrate the invalidity of confinement . . . .”). Plaintiff’s claims are 

DISMISSED without prejudice. 

The Court further DENIES plaintiff’s motion for an extension of time, docket 

no. 24. Although captioned as a motion for an extension of time, the Court construes 

plaintiff’s motion as a request for leave to amend his complaint to state new claims for 

relief against new parties. Specifically, plaintiff seeks to abandon his section 1983 

claims in lieu of alternative relief under the federal declaratory judgment and mandamus 

statutes. Plaintiff requests that this Court issue a Writ of Mandamus directing the state 

court that heard his criminal case to process his motion for relief from judgment, which 

plaintiff contends the state court has ignored. Plaintiff’s proposed amendments would 

not state a cognizable claim for relief because this Court is without jurisdiction to issue a 

writ of mandamus to a state court. See Smith v. Thompson, 437 F. Supp. 189, 191 

(E.D. Tenn. 1976) (holding that the federal court did not have jurisdiction to issue a writ 

of mandamus directing a state court to act on plaintiff’s post-conviction petition for 

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ORDER -3 

relief); Clark v. Washington, 366 F.2d 678, 681 (9th Cir. 1966) (“The federal courts are 

without power to issue writs of mandamus to direct state courts or their judicial officers 

in the performance of their duties . . . .”). 

The Clerk is directed to send copies of this Order to all counsel of record, to 

plaintiff pro se, and to Magistrate Judge Theiler. 

DATED this 25th day of October, 2010. 

Thomas S. Zilly 

United States District Judge 

A

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