Dickens v. Fullwood et al
Filing
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ORDER DISMISSING CASE WITHOUT PREJUDICE, signed by Magistrate Judge Gary S. Austin on 11/21/2011. CASE CLOSED(Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CRAIG DICKENS,
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Plaintiff,
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1:10-cv-00933 GSA PC
ORDER DISMISSING ACTION WITHOUT
PREJUDICE
v.
ISAAC FULLWOOD, et al.,
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Defendants.
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/
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I.
Screening Requirement
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Plaintiff is a federal prisoner proceeding pro se and in forma pauperis in this civil rights
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action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction
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pursuant to 28 U.S.C. § 636(c)(1).
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a
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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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II.
Plaintiff’s Claim
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A.
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Plaintiff is currently housed at the Federal Correctional Institution in Coleman, Florida.
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Plaintiff’s claim arose while he was housed at the U.S. Penitentiary at Awater, California. Plaintiff
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names as defendants members of the U.S. Parole Commission. Plaintiff alleges that he was denied
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release on parole. Plaintiff claims that the denial was erroneous, as the Parole Commission relied
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on the 2000 Parole Guidelines instead of the 1987 regulations, which would have entitled Plaintiff
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to consideration for an earlier release on parole. Plaintiff attaches as an exhibit to his complaint a
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decision on a petition to the U.S. Parole Commission. This exhibit indicates that because Plaintiff’s
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offenses occurred between March 15, 1985 and August 5, 1998, his conviction falls under the criteria
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set forth by the Commission’s “limited adoption of the Sellmon Analysis of the D.C. Board of Parole
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1987 & 1991 Guidelines.”
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State Actor
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A.
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Plaintiff filed this action pursuant to 42 U.S.C. § 1983. To state a claim under section 1983,
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a plaintiff must allege that (1) the defendant acted under color of state law and (2) the defendant
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deprived him of rights secured by the Constitution or federal law. Long v. County of Los Angeles,
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442 F.3d 1178, 1185 (9th Cir. 2006). “A person deprives another of a constitutional right, where that
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person ‘does an affirmative act, participates in another’s affirmative acts, or omits to perform an act
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which [that person] is legally required to do that causes the deprivation of which complaint is made.”
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Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743
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9th Cir. 1978)). “[T]he ‘requisite causal connection can be established not only by some kind of
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direct, personal participation in the deprivation, but also by setting in motion a series of acts by
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others which the actors knows or reasonably should know would cause others to inflict the
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constitutional injury.’” Id. (quoting Johnson at 743.44).
Summary of Complaint
State Actor
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The sole defendants in this action are officials employed by the U.S. Parole Commission.
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Plaintiff has not alleged any facts indicating that Defendant acted under color of state law. Any
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claims pursuant to 42 U.S.C. § 1983 should therefore be dismissed.
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Further, when a prisoner challenges the legality or duration of his custody, or raises a
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constitutional challenge which could entitle him to an earlier release, his sole federal remedy is a writ
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of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 (9th
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Cir. 1990), cert. denied 11 S.Ct. 1090 (1991).
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Where the complaint states a habeas claim instead of a § 1983 claim, the court should dismiss
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the claim without prejudice for failure to exhaust, rather than converting it to a habeas and
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addressing it on the merits. See Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997); Trimble v.
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City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995).
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III.
Conclusion and Order
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Plaintiff’s complaint does not state any cognizable claims under section 1983. Plaintiff’s
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claim arises from the denial of a decision to grant him release on parole. Plaintiff’s challenge , if
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successful, would clearly entitle him to earlier release. His sole federal remedy is therefore a writ
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of habeas corpus. Because the Court finds that this deficiency is not capable of being cured by
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amendment, the Court HEREBY ORDERS that this action be dismissed without prejudice to the
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filing of a petition for writ of habeas corpus. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir.
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1987). The Clerk is directed to close this case.
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IT IS SO ORDERED.
Dated:
6i0kij
November 21, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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