-SMS (PC) Tillman v. Board of Prison Terms, No. 1:2011cv00138 - Document 11 (E.D. Cal. 2011)

Court Description: ORDER VACATING 9 Findings and Recommendations and DISMISSING 1 Complaint, without Prejudice, for Failure to State a Claim; ORDER COUNTING DISMISSAL AS A STRIKE signed by District Judge Lawrence J. O'Neill on 4/21/2011. CASE CLOSED. (Sant Agata, S)

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-SMS (PC) Tillman v. Board of Prison Terms Doc. 11 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ANTHONY B. TILLMAN, 10 Plaintiff, 11 12 CASE NO. 1:11-cv-00138-LJO-SMS PC ORDER VACATING FINDINGS AND RECOMMENDATIONS AND DISMISSING COMPLAINT, WITHOUT PREJUDICE, FOR FAILURE TO STATE A CLAIM v. BOARD OF PRISON TERMS, (ECF Nos. 9, 10) 13 Defendant. ORDER COUNTING DISMISSAL AS A STRIKE UNDER 28 U.S.C. § 1915(G) 14 / 15 16 I. Screening Requirement 17 Plaintiff Anthony B. Tillman (“Plaintiff”) is a state prisoner proceeding pro se in this civil 18 rights action pursuant to 42 U.S.C. § 1983. A complaint and application to proceed in forma 19 pauperis were filed on January 26, 2011, however the documents were not signed. Fed. R. Civ. P. 20 11(a). On order was issued on January 28, 2011, directing Plaintiff to file a signed complaint and 21 application to proceed in forma pauperis within twenty one days. (ECF No. 3.) Plaintiff failed to 22 file a signed complaint and on April 7, 2011, findings and recommendations issued recommending 23 that the action be dismissed for failure to comply with a court order. (ECF No. 9.) On April 19, 24 2011, Plaintiff filed a signed document entitled objections to findings and recommendations which 25 the Court construes as Plaintiff’s first amended complaint. (ECF No. 10.) 26 The Court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 28 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 1 Dockets.Justia.com 1 “frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks 2 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 3 In determining whether a complaint states a claim, the Court looks to the pleading standard 4 under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain “a short and 5 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 6 “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it 7 demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. 8 Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 9 (2007)). 10 II. Complaint Allegations 11 Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and 12 is incarcerated at Old Folsom State Prison. In 1985, Plaintiff was convicted of multiple offenses, 13 including kidnaping and robbery with a firearm enhancement, and sentenced to nineteen years to life 14 in prison. (Obj. 1, ECF No. 10.) Plaintiff alleges that he should have been released in 2004, and has 15 exceeded his sentence by seven years in violation of the Eighth Amendment. (Id. at 1-2.) The Parole 16 Board failed to consider the circumstances of his commitment offenses and set forth come evidence 17 of current danger to the public at his parole hearing on November 22, 2010. Plaintiff argues that he 18 is suitable for probation and seeks seven million dollars. (Id. at 3.) 19 III. Discussion 20 When a prisoner is challenging the legality or duration of his custody and the relief he seeks 21 is immediate or speedier release, his sole federal remedy is habeas corpus. Preiser v. Rodriguez, 411 22 U.S. 475, 500 (1973). A “prisoner’s § 1983 action is barred (absent prior invalidation)-no matter 23 the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state 24 conduct leading to conviction or internal prison proceedings)-if success in that action would 25 necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 26 U.S. 74, 81-82 (2005). 27 Plaintiff is clearly challenging the legality or duration of his custody. Plaintiff alleges that 28 the Parole Board denied his probation and he should have been released in 2004. Since the success 2 1 in this action would necessarily demonstrate the invalidity of his confinement or its duration, the sole 2 remedy available to Plaintiff is a writ of habeas corpus. Therefore Plaintiff has failed to state a 3 cognizable claim under section 1983 and the action shall be dismissed without prejudice. 4 IV. Conclusion and Order 5 Plaintiff’s complaint fails to state a claim upon which relief may be granted under section 6 1983. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend ‘shall be freely 7 given when justice so requires,’” Fed. R. Civ. P. 15(a), and “[l]eave to amend should be granted if 8 it appears at all possible that the plaintiff can correct the defect,” Lopez v. Smith, 203 F.3d 1122, 9 1130 (9th Cir. 2000) (internal citations omitted). However, the Court finds that the deficiencies 10 outlined above are not capable of being cured by amendment, and therefore leave to amend should 11 not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Noll v. Carlson, 809 F. 2d 1446, 1448-49 (9th Cir. 12 1987). 13 It is HEREBY ORDERED that: 14 1. The findings and recommendations issued April 7, 2011, is VACATED; 15 2. This action is dismissed, without prejudice, for failure to state a claim under section 16 1983, 17 3. The Clerk’s Office shall enter judgment; 18 4. All pending motions are terminated; and 19 5. This dismissal counts as a strike under 28 U.S.C. § 1915(g). 20 21 IT IS SO ORDERED. 22 Dated: b9ed48 April 21, 2011 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 3

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