Honesto v. Schwartzenegger et al
Filing
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ORDER DISMISSING 1 Complaint WITH LEAVE TO AMEND and DENYING 14 Motion for Reconsideration; First Amended Complaint Due within Thirty Days signed by Magistrate Judge Gerald B. Cohn on 6/10/2011. First Amended Complaint due by 7/14/2011. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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PEDRO J. HONESTO,
CASE NO. 1:10-cv-01177-GBC (PC)
Plaintiff,
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ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND AND DENYING
MOTION FOR RECONSIDERATION
v.
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A. SCHWARZENEGGER, et al.,
(ECF Nos. 1 & 14)
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Defendants.
FIRST AMENDED COMPLAINT DUE
/ WITHIN THIRTY DAYS
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SCREENING ORDER
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I.
PROCEDURAL HISTORY
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Plaintiff Pedro J. Honesto (“Plaintiff”) is a state prisoner proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this
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action on June 22, 2010 and consented to Magistrate Judge jurisdiction on July 29, 2010.
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(ECF Nos. 1 & 9.) No other parties have appeared.
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Plaintiff’s Complaint is now before the Court for screening. For the reasons set forth
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below, the Court finds that Plaintiff has failed to state any claims upon which relief may be
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granted.
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II.
SCREENING REQUIREMENTS
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The Court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has
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raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which
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relief may be granted, or that seek monetary relief from a defendant who is immune from
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such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion
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thereof, that may have been paid, the court shall dismiss the case at any time if the court
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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be
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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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A complaint must contain “a short and plain statement of the claim showing that the
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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are
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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set
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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its
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face.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual
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allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
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III.
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SUMMARY OF COMPLAINT
Plaintiff appears to be alleging violations of his due process rights. Plaintiff names
the following individuals as Defendants: A. Schwarzenegger, J. Hartley, and Does.
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It appears to the Court that Plaintiff’s statement of the case contains almost no
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allegations of constitutional violations. Plaintiff states that Defendant Hartley is responsible
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for establishing minimum eligibility release dates (MERD) for prisoners, including Plaintiff,
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with indeterminate release dates. Plaintiff goes on to detail what is involved in the
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calculation of the date (application of good time credits, work-time credits, county jail
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credits, disciplinary actions, etc.) and hearings that are held. Plaintiff describes the series
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of events that occur after a prisoner is found unsuitable for parole in preparation for the
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subsequent suitability hearing, including interviews conducted by correctional counselors
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and psychiatric doctors.
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Plaintiff states that he was not advised of his right to counsel during this process,
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specifically for the interviews conducted by correctional counselors and psychiatric doctors.
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Plaintiff seeks declaratory and injunctive relief.
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IV.
ANALYSIS
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to
the deprivation of any rights, privileges, or immunities secured
by the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.
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42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal
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Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir.
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1997) (internal quotations omitted).
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A.
Due Process Claim
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It is extremely difficult for the Court to determine what Plaintiff is alleging as he talks
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in generalities and procedures and not specifics. It appears that he may be asserting that
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his rights of due process were violated in relation to his unsuitability hearing and
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subsequent interviews.1 If in fact Plaintiff is attempting to make an argument under due
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process, he should keep in mind the following legal standard.
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The Due Process Clause of the Fourteenth Amendment to the United States
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Constitution prohibits state action that “deprive[s] a person of life, liberty or property without
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due process of law.” U.S. Const. amend. XIV, § 2. A person alleging a due process
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violation must first demonstrate that he or she was deprived of a protected liberty or
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property interest, and then show that the procedures attendant upon the deprivation were
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not constitutionally sufficient. Ky. Dep’t. Of Corrs. v. Thompson, 490 U.S. 454, 459-60
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(1989); McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002). A protected liberty
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interest may arise from either the Due Process Clause itself or from state laws. Bd. of
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Pardons v. Allen, 482 U.S. 369, 373 (1987). In the context of parole, the United States
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Constitution does not, in and of itself, create a protected liberty interest in the receipt of a
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parole date, even one that has already been set. Jago v. Van Curen, 454 U.S. 14, 17-21
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W ilkinson v. Dotson, 544 U.S. 74, 82 (2005) (concluding that § 1983 claim s were cognizable
because granting declaratory and injunctive relief that would render invalid state procedures used to deny
parole eligibility and suitability would “[not] necessarily spell speedier release”).
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(1981). If a state’s statutory parole scheme uses mandatory language, however, it
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“‘creates a presumption that parole release will be granted’ when or unless certain
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designated findings are made, thereby giving rise to a constitutional liberty interest.”
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McQuillan, 306 F.3d at 901 (quoting Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 12
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(1979)).
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California state prisoners serving indeterminate prison sentences “may serve up to
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life in prison, but they become eligible for parole consideration after serving minimum years
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of confinement.” In re Dannenberg, 104 P.3d 783, 791 (2005). California’s statutory
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scheme governing parole eligibility for indeterminately sentenced prisoners provides,
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generally, that a release date will be granted unless the Board determines that “the gravity
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of the current convicted offense or offenses, or the timing and gravity of current or past
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convicted offense or offense, is such that consideration of the public safety requires a more
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lengthy period of incarceration.” Cal.Penal Code § 3041(b). California state prisoners
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whose sentences carry the possibility of parole, therefore, have a clearly established,
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constitutionally protected liberty interest in the receipt of a parole release date. Allen, 482
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U.S. at 377-78 (quoting Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 12 (1979)); see
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also Irons v. Carey, 505 F.3d 846, 850-51 (9th Cir. 2007) (citing Sass v. Cal. Bd. of Prison
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Terms, 461 F.3d 1123, 1128 (9th Cir.2006)); Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir.
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2003); McQuillion, 306 F.3d at 903.
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Despite the existence of this liberty interest, it is well established that inmates are
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not guaranteed the “full panoply of rights” during a parole suitability hearing as are normally
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afforded to criminal defendants under the Due Process Clause. See Pedro v. Or. Parole
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Bd., 825 F.2d 1396, 1398-99 (9th Cir. 1987). Nonetheless, inmates are afforded limited
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procedural protections. The Supreme Court has held that a parole board, at minimum,
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must give an inmate an opportunity to be heard and a decision informing him of the
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reasons he did not qualify for parole. Hayward v. Marshall, 603 F.3d 546, 560 (9th Cir.
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2010) (citing Greenholtz, 442 U.S. at 16). In addition, as a matter of state constitutional
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law, denial of parole to California inmates must be supported by “some evidence”
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demonstrating that the inmate poses an unreasonable risk of danger to society. Hayward,
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603 F.3d at 562 (citing In re Rosenkrantz, 59 P.3d 174 (2002)); see also In re Lawrence,
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190 P.3d 535, 539 (recognizing the denial of parole must be supported by “some evidence”
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that an inmate “poses a current risk to public safety”); In re Shaputis, 190 P.3d 573, 584-
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585 (2008) (same). “California’s ‘some evidence’ requirement is a component of the liberty
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interest created by the parole system of [the] state,” Cooke v. Solis, 606 F.3d 1206, 1213
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(9th Cir. 2010), making compliance with this evidentiary standard mandated by the federal
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Due Process Clause. Pearson v. Muntz, 606 F.3d 606, 609 (9th Cir. 2010).
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Plaintiff’s only allegation is that he was not advised of his right to counsel for the
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suitability hearings. Plaintiff does not give any description of the hearing, whether he was
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given an opportunity to be heard or whether he received notice of why he was deemed
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unsuitable for parole.
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As currently pleaded, Plaintiff fails to state a due process claim. Plaintiff will be
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given one additional opportunity to amend his complaint. In his amended complaint,
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Plaintiff must describe in greater detail his claim so the Court can make a determination
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of any constitutional violations.
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The Court would also like Plaintiff to note that there is not a federal constitutional
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right to counsel in a parole suitability hearing. Gomez v. California Bd. Of Pardons, 2010
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WL 539409, *1 (N.D. Cal. Feb. 9, 2010) (citing Bonin v. Calderon, 59 F.3d 815, 841-42 (9th
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Cir.1995) (denial of state-created procedural right not cognizable on habeas corpus review
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unless there is deprivation of substantive right protected by federal constitution)).
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B.
Habeas Claim
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It appears that Plaintiff may be quibbling with his release date. The Court would like
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Plaintiff to keep in mind that when a prisoner challenges the legality or duration of his
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custody, or raises a constitutional challenge which could entitle him to an earlier release,
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his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475,
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498-500 (1973); Young v. Kenny, 907 F.2d 874, 875-76 (9th Cir. 1990), cert. denied 11
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S.Ct. 1090 (1991). If Plaintiff is indeed complaining about the legality or duration of his
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custody, Plaintiff’s civil rights complaint will be dismissed entirely. In his Amended
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Complaint, Plaintiff should describe his allegations and claims regarding his allegedly
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unlawful detention in more detail to allow the Court to determine whether his allegations
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should be filed as a civil rights action or a petition for writ of habeas corpus.
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V.
MOTION FOR RECONSIDERATION
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On June 6, 2011, Plaintiff filed a Motion for Reconsideration by the Court to Serve
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Defendants. (ECF No. 14.) In it, Plaintiff requests that the Court reconsider the denial of
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service contained in the Mary 23, 2011 Order and states that the Court previously
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screened this complaint on July 12, 2010.
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The July 12, 2010 Order grants Plaintiff’s application to proceed informa pauperis.
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(ECF No. 8.) It did not screen the case. Thus, Plaintiff’s Motion for Reconsideration is
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DENIED.
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VI.
CONCLUSION AND ORDER
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The Court finds that Plaintiff’s Complaint fails to state any Section 1983 claims upon
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which relief may be granted. The Court will provide Plaintiff time to file an amended
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complaint to address the potentially correctable deficiencies noted above. See Noll v.
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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). In his Amended Complaint, Plaintiff must
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demonstrate that the alleged incident or incidents resulted in a deprivation of his
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constitutional rights. Iqbal, 129 S.Ct. at 1948-49. Plaintiff must set forth “sufficient factual
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matter . . . to ‘state a claim that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949 (quoting
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Twombly, 550 U.S. at 555). Plaintiff must also demonstrate that each defendant personally
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participated in the deprivation of his rights. Jones, 297 F.3d at 934.
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Plaintiff should note that although he has been given the opportunity to amend, it
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is not for the purposes of adding new defendants or claims. Plaintiff should focus the
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amended complaint on claims and defendants discussed herein.
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Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint
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be complete in itself without reference to any prior pleading. As a general rule, an
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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55,
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57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer
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serves any function in the case. Therefore, in an amended complaint, as in an original
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complaint, each claim and the involvement of each defendant must be sufficiently alleged.
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The amended complaint should be clearly and boldly titled “First Amended Complaint,”
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refer to the appropriate case number, and be an original signed under penalty of perjury.
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Based on the foregoing, it is HEREBY ORDERED that:
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Plaintiff’s Complaint is dismissed for failure to state a claim, with leave to file
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an amended complaint within thirty (30) days from the date of service of this
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order;
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Plaintiff shall caption the amended complaint “First Amended Complaint” and
refer to the case number 1:10-cv-1177-GBC (PC);
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3.
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If Plaintiff fails to comply with this order, this action will be dismissed for
failure to state a claim upon which relief may be granted; and
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4.
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Plaintiff’s Motion for Reconsideration is DENIED.
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IT IS SO ORDERED.
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Dated:
1j0bbc
June 10, 2011
UNITED STATES MAGISTRATE JUDGE
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