UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

DALE RAY NICKERSON, 

Plaintiffs, 

v. 

ATTORNEY GENERAL ELLEN 

ROSENBLUM, et al., 

Defendants. 

CLARKE, Magistrate Judge. 

1:15-cv-00684-CL 

FINDINGS AND 

RECOMMENDATION 

Plaintiff, an inmate in the custody of the Oregon 

Department of Corrections, filed this action pursuant to 42 

U.S.C. § 1983 alleging that his constitutional rights were 

violated by defendants' alleged "conspiracy and fraud within 

the post conviction court to obtain a result in the states 

favor to deny petitioner relief." Plaintiff seek's $250 

million in damages. 

1 - FINDINGS AND RECOMMENDATION 

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In an Order (#5) entered April 24, 2015, plaintiff was 

advised that his complaint is properly construed as a petition 

for habeas corpus under 28 U.S.C. § 2254. 

Plaintiff was allowed 30 days to file an amended pleading 

on a form provided by the court and advised that failure to do 

so would result in the dismissal of this action. Plaintiff 

was provided with the appropriate form. 

On June 29, 2015, plaintiff filed an amended complaint 

(#16) that is not consistent with the courts order. 

Specifically, the claims are not filed on the form provided by 

the court and are basically a re-hash of the civil rights 

claims alleged in plaintiff's previous complaint. For the 

reasons previously explained to plaintiff, plaintiff's 

allegations are properly construed as a claim for habeas 

corpus relief. 

Specifically, habeas corpus is the exclusive remedy when 

a plaintiff seeks to challenge the fact or duration of 

confinement or seeks immediate or speedier release. Preiser 

v. Rodriguez, 411 U.S. 475, 488-490 (1973). When the legality 

of a confinement is challenged so that the remedy would be 

release or a speedier release, the case must be filed as a 

habeas corpus proceeding rather than under 42 U.S.C. § 1983, 

and the plaintiff must comply with the exhaustion of state 

remedies requirement. Heck v. Humphrey, 512 U.S. 477 (1994). 

2 - FINDINGS AND RECOMMENDATION 

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In this case, plaintiff alleges that he is "bringing this 

suit not as the initial illegal imprisonment (sic), but that 

the defendants conspired to deny the plaintiff of a fair and 

just post conviction hearing [which] caused additional 

confinement and the continued loss of life and liberty." 

Complaint (#2), p. 8. The "distinction" plaintiff apparently 

attempts to make is immaterial. His claim is in essence that 

defendants' alleged conspiracy and false testimony resulted in 

his continued confinement. Therefore, a judgment in his favor 

would arguably entitled plaintiff to be release and the 

allegations are therefore properly construed as a habeas 

claim. 

The fact that plaintiff seeks money damages as a remedy 

does not preclude treatment of his complaint as a petition for 

habeas corpus relief. The collateral effects of a finding 

that a prisoner's incarceration is illegal are substantially 

the same whether the complaint is styles as one for money 

damages or one for injunctive relief. Id. 

Under the circumstances alleged in plaintiff's complaint, 

a judgment in favor of plaintiff would necessarily imply the 

invalidity of plaintiff's confinement and arguably entitle 

plaintiff to release. Plaintiff has not alleged or 

established that he has exhausted state remedies as required 

by 28 U.S. C. § 2254. Rose v. Lundy, 455 U.S. 509 (1982). 

3 - FINDINGS AND RECOMMENDATION 

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In addition, in order to recover damages under 42 U.S.C. 

§ 1983 for an allegedly unconstitutional confinement, a 

plaintiff must prove that the conviction or sentence has been 

reversed on direct appeal, expunged by executive order, 

declared invalid by a state tribunal authorized to make such 

a determination, or called into question by a federal court's 

issuance of a writ of habeas corpus. Heck v. Humphrey, supra. 

In other words, unlawful confinement does not constitute a 

compensable injury under section 1983 until the confinement 

has been invalidated. 

Plaintiff has not established that the incarceration he 

challenges in this proceeding has been reversed or 

invalidated. Accordingly, a 42 U.S.C. § 1983 claim for money 

damages is premature. 

In addition, I note for the record, under well settled 

principles of law: 

Defendant Rein is absolutely immune from liability to 

plaintiff; 

Defendants Rosenblum and Evans are not subject to res 

pondeat superior liability; 

Defendant Orf is not a state actor or act under the color 

of state law for purposes of liability under §1983; and 

Defendants Harris and Brown are immune from liability 

under witness immunity. 

4 - FINDINGS AND RECOMMENDATION 

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For all of these reasons, this action should be 

dismissed. Plaintiff's Application to proceed in forma 

pauperis (#17) should be denied as moot. 

This recommendation is not an order that is immediately 

appealable to the Ninth Circuit Court of Appeals. Any notice 

of appeal pursuant to Rule 4(a) (1), Federal Rules of Appellate 

Procedure, should not be filed until entry of the district 

court's judgment or appealable order. The parties shall have 

fourteen (14) days from the date of service of a copy of this 

recommendation within which to file specific written 

objections with the court. Thereafter, the parties have 

fourteen (14) days within which to file a response to the 

objections. Failure to timely file objections to any factual 

determinations of the Magistrate Judge will be considered a 

waiver of a party's right to de novo consideration of the 

factual issues and will constitute a waiver of a party's right 

to appellate review of the findings of fact in an order or 

judgment entered pursuant to the Magistrate Judge's 

recommendation. 

Any appeal form an order adopting this Findings and 

Recommendation or judgment dismissing this case would be 

frivolous and not taken in good faith. Therefore, plaintiff's 

in for.ma pauperis status should be revoked. 

5 - FINDINGS AND RECOMMENDATION 

Case 1:15-cv-00684-CL Document 18 Filed 07/01/15 Page 5 of 6
DATED this I 

United States Magistrate Judge 

6 - FINDINGS AND RECOMMENDATION 

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