(PC) Soto v. California Department of Corrections and Rehabilitation et al, No. 2:2007cv00155 - Document 6 (E.D. Cal. 2007)
Court Description: FINDINGS and RECOMMENDATIONS signed by Judge Craig M. Kellison on 1/26/07 RECOMMENDING that this action be dismissed and the Clerk be directed to enter judgment and close this file. Objections to F&Rs due within 20 days. (Engbretson, K.)
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(PC) Soto v. California Department of Corrections and Rehabilitation et al Case 2:07-cv-00155-GEB-CMK Document 6 Doc. 6 Filed 01/30/2007 Page 1 of 4 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM SOTO, 12 13 14 15 No. CIV S-07-0155-GEB-CMK-P Plaintiff, vs. FINDINGS AND RECOMMENDATIONS CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., 16 Defendants. 17 / 18 Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant 19 to 42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1), filed on January 20 24, 2007. 21 The court is required to screen complaints brought by prisoners seeking relief 22 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 23 § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or 24 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 25 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 26 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 1 Dockets.Justia.com Case 2:07-cv-00155-GEB-CMK Document 6 Filed 01/30/2007 Page 2 of 4 1 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 2 This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 3 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are 4 satisfied if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds 5 upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff 6 must allege with at least some degree of particularity overt acts by specific defendants which 7 support the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it 8 is impossible for the court to conduct the screening required by law when the allegations are 9 vague and conclusory. 10 Plaintiff names as defendants the California Department of Corrections and 11 Rehabilitation, the California Board of Prison Terms, and McGeorge School of Law. Plaintiff 12 claims that his Fourteenth Amendment rights are being violated because counsel appointed to 13 represent parolees under a settlement agreement entered in Valdivia v. Schwarzenegger, CIV S- 14 94-0671-LKK-GGH, are students at McGeorge School of Law and not licensed attorneys. 15 In Valdivia, the district court held that California’s parole revocation system 16 violated the due process clause of the Fourteenth Amendment by “allowing a delay of up to 17 forty-five days or more before providing the parolee an opportunity to be heard regarding the 18 reliability of the probable cause determination.” 206 F. Supp. 2d 1068, 1078 (E.D. Cal. 2002). 19 The plaintiffs in Valdivia are a class of: (1) parolees in custody as alleged parole violators, and 20 who are awaiting revocation of their state parole; (2) parolees in custody, having been found in 21 violation of parole and sentenced to prison custody; and (3) parolees who are at large. With 22 respect to the provisions for appointment of counsel, the settlement agreement references 23 “counsel,” whereas the attached Remedial Plan Policy Outline references “attorney.” 24 /// 25 /// 26 /// 2 Case 2:07-cv-00155-GEB-CMK 1 Document 6 Filed 01/30/2007 Page 3 of 4 In Jacobson v. Schwarzenegger, 357 F. Supp. 2d 1198 (C.D. Cal. 2004), 2 Magistrate Judge McMahon in the Central District commented on the appointment of counsel 3 provisions in the Valdivia settlement. In particular, Judge McMahon set out the following 4 history: 5 6 7 8 9 10 On June 28, 2004, Judge Karlton held a hearing [in Valdivia] concerning a possible delay in implementing the attorney appointment provisions of the Stipulated Order. On July 7, 2004, Judge Karlton issued a Joint Stipulation and Order indicating that: (1) the delay initially had been caused by the defendants’ inability to obtain approval for a contract with the McGeorge School of Law Institute for Administrative Justice (“IAJ”) to operate the panel of attorneys who would be appointed to represent persons accused of parole violations; (2) the defendants represented to the court and counsel that the contract had been executed and that the IAJ had made substantial progress in developing policies and procedures; and (3) the IAJ had assured the defendants and the plaintiffs’ counsel that all deadlines in the Stipulated Order . . . would be met. 11 Jacobson, 357 F. Supp. 2d at 1208. 12 13 Thus, it is clear that the settlement in Valdivia contemplated the involvement of McGeorge 14 School of Law in the process of appointing counsel to parolees. It is also clear that the scope of 15 McGeorge School of Law’s involvement is governed by a contract with state agencies. 16 By reference to the Fourteenth Amendment, it appears that plaintiff is asserting 17 that his right to due process is being violated by the appointment of certified law students instead 18 of attorneys licensed by the state bar. In California, the practice of law by certified law students 19 is permitted under California Rule of Court 983.2. Participating law students must have been 20 certified by the California State Bar. With respect to activities permitted by certified law 21 students, the rule allows for appearances before any public agency, such as the Board of Prison 22 Terms. In addition, the rule requires all activities to be supervised by a licensed attorney. 23 The gravamen of plaintiff’s claim is that due process requires that he be appointed 24 a licensed attorney instead of a certified law student. The court notes initially that plaintiff does 25 not specifically allege that he is entitled to appointment of counsel under the Valdivia settlement 26 or that, if he is, that a licensed attorney was not in fact appointed to represent him. In any event, 3 Case 2:07-cv-00155-GEB-CMK Document 6 Filed 01/30/2007 Page 4 of 4 1 plaintiff’s complaint fails to state a due process claim. Specifically, because the applicable 2 California Rule of Court requires that certified law students be supervised at every step of the 3 way by a licensed attorney, assuming that plaintiff is entitled to counsel and that a certified law 4 student was appointed, he is necessarily being represented by a licensed attorney via supervision 5 of the certified law student. 6 Because it does not appear possible that the deficiencies identified herein can be 7 cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of 8 the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). 9 10 Based on the foregoing, the undersigned recommends that this action be dismissed and that the Clerk of the Court be directed to enter judgment and close this file. 11 These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days 13 after being served with these findings and recommendations, any party may file written 14 objections with the court. The document should be captioned “Objections to Magistrate Judge's 15 Findings and Recommendations.” Failure to file objections within the specified time may waive 16 the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 DATED: January 26, 2007. 18 19 20 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 4
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