Herrera et al v. California State Superior Courts et al, No. 1:2017cv00386 - Document 10 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS recommending that Plaintiff's federal claims be dismissed for failure to state a claim upon which relief may be granted without leave to amend; the state law claims, if any, be dismissed without prejudice; plaintiff's motion for injunctive relief be denied re 9 Amended Complaint filed by Daniel Herrera.;referred to Judge Ishii, signed by Magistrate Judge Barbara A. McAuliffe on 06/15/18. Objections to F&R due by 7/5/2018 (Martin-Gill, S)
Download PDF
1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 DANIEL HERRERA, 10 11 12 Plaintiff, v. STUART SHERMAN, et al, 13 Defendants, 14 15 16 ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case NO. 1:17-cv-386-AWI-BAM FINDING AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM (ECF No. 9) FOURTEEN (14) DAY DEADLINE 17 Plaintiff Daniel Herrera (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on March 19 16, 2017. (ECF No. 1.) Plaintiff’s complaint was screened and Plaintiff was granted leave to 20 amend. (ECF No. 8.) Plaintiff’s First Amended Complaint (“FAC”) filed on February 16, 2018, is 21 currently before the Court for screening. (ECF No. 9.) 22 I. Screening Requirement and Standard 23 The Court is required to screen complaints brought by prisoners seeking relief against a 24 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 25 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or 26 malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief 27 from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(ii). 28 1 1 A complaint must contain “a short and plain statement of the claim showing that the pleader 2 is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 3 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 4 statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) 5 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While 6 a plaintiff’s allegations are taken as true, courts “are not required to indulge unwarranted 7 inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 8 marks and citation omitted). 9 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 10 liberally construed and to have any doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 11 1113, 1121-1123 (9th Cir. 2012), Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), but to survive 12 screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to 13 allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, 14 Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. United States Secret 15 Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 16 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 17 standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949; Moss, 572 F.3d at 969. Allegations in Plaintiff’s Complaint 18 II. 19 Plaintiff is housed at the California Substance Abuse Treatment Facility (“CSATF”) 20 located in Corcoran, California. Plaintiff brings suit against (1) S. Sherman, CSATF Warden; (2) 21 K. Clites, Case Records Officer; (3) S. Kane, Parole Representative (4) Scott Kernan, Secretary of 22 the California Department of Corrections and Rehabilitations (“CDCR”). 23 Plaintiff alleges that on November 9, 2016, California voters adopted Proposition 57 24 language as California Constitution Article I, Section 32, which purportedly mandates that all 25 persons convicted of nonviolent felony offenses be eligible for parole consideration after 26 completing their primary offense. Plaintiff contends that he “has been denied the benefit of having 27 his enhancements abrogated per Proposition 57 language that declared the enhancements and 28 2 1 consecutive sentences, including alternative sentences are to be excluded from the primary offense 2 term to be served.” (ECF No. 9, 3-4) Plaintiff alleges that Defendants Sherman, Clites, Kane, and 3 Kernan all refuse to enforce state constitutional language. 4 Plaintiff further alleges that he has been denied an adequate remedy to redress the continued 5 violations of his civil rights as all the appeals at the administrative level are being rejected or not 6 answered. Plaintiff asserts that he was and is entitled to have his term of imprisonment adjusted 7 to include abrogation of consecutive, alternative and enhancement terms which would cause his 8 term to be reduced. Plaintiff contends that this has been denied by Defendants Sherman, Clites, 9 Kane, and Kernan. Plaintiff also states that “California Constitution Article I, Section 32 created a 10 void judgment situation when the Plaintiff’s sentencing credits and remining [sic] term now require 11 an amended abstract of judgment, which this court may grant an injunction to facilitate.” (Id. at 5.) 12 Plaintiff purports to bring a cause of action for violation of the Eighth Amendment to the 13 14 15 16 17 18 19 20 21 22 23 24 25 26 United States Constitution, and seeks declaratory and injunctive relief. III. Discussion A. Linkage Requirement Most of Plaintiff’s allegations fail to assert the requisite causal link between the challenged conduct, a specific defendant, and a clearly identified constitutional violation. Under § 1983, Plaintiff must demonstrate that each named defendant personally participated in the deprivation of his rights. Ashcroft, 556 U.S. at 676–7; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff may not attribute liability to a group of defendants, but must “set forth specific facts as to each individual defendant's” deprivation of his rights. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Liability may not be imposed on supervisory personnel under the theory of respondeat superior, as each defendant is only liable for his or her own misconduct. Iqbal, 556 U.S. at 676–77; Ewing, 588 F.3d at 1235. Supervisors may only be held liable if they “participated in or directed the violations, or knew of the violations and failed to act 27 28 3 1 to prevent them.” Lemire v. Cal. Dept. of Corrections & Rehabilitation, 726 F.3d 1062, 1074–75 2 (9th Cir. 2013). 3 Plaintiff fails to link Defendants Sherman, Clites, Kane, and Kernan to any deprivation of 4 his rights. Plaintiff may not simply refer to their titles or duties and determine that they did not 5 follow the law. Instead, Plaintiff’s complaint must link each individually named defendant to an 6 alleged deprivation of his rights and state what he did or did not do. To the extent plaintiff is 7 alleging a claim under Proposition 57 against the named defendants, he does not explain how any 8 actions they took impacted a parole determination. Insofar as Plaintiff is attempting to bring suit 9 against Defendant Sherman, Clites, Kane, and Kernan in their supervisory roles, he may not do so. 10 Liability may not be imposed on supervisory personnel for the actions or omissions of their 11 subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676–77; Simmons v. 12 Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 13 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 14 B. Proposition 57 15 On November 8, 2016, the California voters approved The Public Safety and Rehabilitation 16 Act of 2016—Proposition (“Prop”) 57—and it took effect the next day. People v. Marquez, 11 17 Cal. App. 5th 816, 821, 217 Cal.Rptr.3d 814 (Cal. App. 2017); Cal. Const., Art. II, § 10(a). 18 Proposition 57 added Article 1, section 32 to the California Constitution. That section provides, in 19 relevant part, “Parole consideration: Any person convicted of a nonviolent felony offense and 20 sentenced to state prison shall be eligible for parole consideration after completing the full term of 21 his or her primary offense,” defined for these purposes as “the longest term of imprisonment 22 imposed by the court for any offense, excluding the imposition of an enhancement, consecutive 23 sentence, or alternative sentence.” (Cal. Const., art. I, § 32, subds. (a)(1), (a)(1)(A).) Proposition 24 57 only provides an inmate who has completed his base term with a hearing before the Board of 25 Parole Hearings (Cal. Const. Art. I, Sec. 32(a)). 26 This federal court appears to be the only district that has had cause to screen a section 1983 27 complaint with similar allegations. See Daniels v. Cal. Dep’t of Corr. & Rehab., No. 1:17-cv- 28 4 1 00232-AWI-BAM, 2018 WL 1726638 (E.D. Cal. April 9, 2017) (finding few California federal 2 courts have had cause to screen section 1983 complaint with largely identical allegations); Jones 3 v. Cal. State Superior Courts, No. 1:17-cv-00232-DAD-BAM (PC), 2018 WL 2287952, 2017 U.S. 4 Dist. LEXIS 166506 (E.D. Cal. Oct. 5, 2017) (finding that no federal court has addressed the issue 5 of Proposition 57 on screening); but cf Hemingway v. CDCR (Sacramento), No. 2:17-cv-0534- 6 JAM-CMK-P, 2017 U.S. Dist. LEXIS 212819 (E.D. Cal. Dec. 28, 2017) (Court noted that 7 Plaintiff’s complaint challenging the application of Proposition 57 had not been screened by the 8 court, but suggested that to the extent that the complaint challenged Plaintiff’s conviction it is not 9 cognizable under § 1983). California state court cases addressing application of Proposition 57 are 10 unpublished decisions (See Cal. Rules of Court 8.1115). They, nonetheless, uniformly state that 11 Proposition 57 creates a mechanism for parole consideration, not a vehicle for resentencing, and 12 does not entitle Plaintiff to seek relief in court in the first instance. Indeed, the plain language of 13 the Art. I, sec. 32 provides that a person is eligible for “parole consideration.” Any determination 14 as to appellant’s right to parole under Proposition 57 must be made, in the first instance, by the 15 appropriate agency. 16 Section 1983 provides a remedy only for violation of the Constitution or law or treaties of 17 the United States, not state law. Swarthout v. Cooke, 562 U.S. 216, 222, 131 S. Ct. 859, 863, 178 18 L.Ed.2d 732 (2011) (the responsibility for assuring that the constitutionally adequate procedures 19 governing California’s parole system are properly applied rests with California courts). “To the 20 extent that the violation of a state law amounts to the deprivation of a state-created interest that 21 reaches beyond that guaranteed by the federal Constitution, Section 1983 offers no redress.” 22 Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997). State courts “are the ultimate 23 expositors of state law.” Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 24 (1975). Plaintiff has not alleged that he qualifies for parole consideration under the requirements 25 of Proposition 57. 26 /// 27 /// 28 /// 5 1 C. A Section 1983 Lawsuit Cannot Challenge Duration 2 To the extent Plaintiff seeks to challenge the duration or fact of his sentence, his sole federal 3 remedy is a writ of habeas corpus, and a lawsuit under 42 U.S.C. § 1983 is inappropriate. Preiser 4 v. Rodriguez, 411 U.S. 475, 479 (1973) (“Release from penal custody is not an available remedy 5 under the Civil Rights Act”); Young v. Kenny, 907 F.2d 874, 875 (9th Cir. 1989) (“Where a state 6 prisoner challenges the fact or duration of his confinement, his sole federal remedy is a writ of 7 habeas corpus.”). 8 In a § 1983 lawsuit, Plaintiff is restricted to limited procedural challenges and cannot 9 proceed if he seeks to challenge the validity or duration of his sentence. Wilkinson v. Dotson, 544 10 U.S. 74, 81 (2005) (“§ 1983 remains available for procedural challenges where success in the 11 action would not necessarily spell immediate or speedier release for the prisoner . . . habeas 12 remedies do not displace § 1983 actions where success in the civil rights suit would not necessarily 13 vitiate the legality of (not previously invalidated) state confinement.”). Federal courts may order a 14 new parole suitability hearing only under very limited circumstances that are not alleged here. See 15 Swarthout, 562 U.S. at 219-20 (federal courts may not intervene in parole decision if minimum 16 procedural protections were provided, i.e., an opportunity to be heard and a statement of the 17 reasons why parole was denied). Thus, Plaintiff’s claims are not cognizable to the extent he is 18 seeking to order his immediate or speedier release. 19 D. Appeals Process 20 Plaintiff complains about the administrative appeals process at his institution. However, 21 Plaintiff may not pursue any claims against CDCR staff relating to the processing or review of his 22 administrative appeals. The existence of an inmate appeals process does not create a protected 23 liberty interest upon which Plaintiff may base a claim that he was denied a particular result or that 24 the appeals process was deficient. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. 25 Adams, 855 F.2d 639, 640 (9th Cir. 1988) 26 /// 27 /// 28 /// 6 1 E. State Law Claims 2 Pursuant to 28 U.S.C. § 1367(a), in any civil action in which the district court has original 3 jurisdiction, the district court “shall have supplemental jurisdiction over all other claims in the 4 action within such original jurisdiction that they form part of the same case or controversy under 5 Article III,” except as provided in subsections (b) and (c). The Supreme Court has cautioned that 6 “if the federal claims are dismissed before trial, ... the state claims should be dismissed as well.” 7 United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). Although the court may 8 exercise supplemental jurisdiction over state law claims, Plaintiff must first have a cognizable 9 claim for relief under federal law. See 28 U.S.C. § 1367. 10 In this instance, Plaintiff fails to state a claim for relief on his federal claims for violations 11 of 42 U.S.C. § 1983. As Plaintiff has failed to state any cognizable federal claims in this action, 12 the Court declines to exercise supplemental jurisdiction over Plaintiff’s state law causes of action. 13 See 28 U.S.C. § 1367(c)(3). 14 15 16 17 18 19 20 21 22 23 24 25 26 27 F. Eighth Amendment The Eighth Amendment to the United States Constitution imposes on the states an obligation to provide for the basic human needs of prison inmates. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). A prison official violates the Eighth Amendment’s proscription of cruel and unusual punishment where he or she deprives a prisoner of the minimal civilized measure of life’s necessities with a “sufficiently culpable state of mind.” Id. at 825, 834. To succeed on such an Eighth Amendment claim, a prisoner must show that (1) the defendant prison official’s conduct deprived him or her of the minimal civilized measure of life’s necessities and (2) that the defendant acted with deliberate indifference to the prisoner’s health or safety. Id. at 834. While “[t]he Constitution ‘does not mandate comfortable prisons,’ ... neither does it permit inhumane ones.” Id. (citation omitted); see also Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 2480, 125 L.Ed.2d 22 (1993). Here, Plaintiff asserts that the Defendants have subjected him to cruel and unusual punishment by denying him an adequate remedy for violation of his civil rights and rejecting his 28 7 1 appeals. However, Plaintiff does not state an Eighth Amendment cruel and unusual punishment 2 claim, because he has not alleged that prison officials deprived him of humane conditions of 3 confinement—only that they continued to confine him beyond when he believes he should have 4 been released under Proposition 57. See Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 5 128 L. Ed. 2d 811 (1994) (noting that the Eighth Amendment prohibits using excessive physical 6 force against prisoners and requires that officials provide humane conditions of confinement). 7 Plaintiff has not alleged that he has been deprived of the basic human needs of inmates. Without 8 more, the conditions Plaintiff is complaining of—ongoing confinement—are not sufficient to form 9 the basis of an Eighth Amendment claim. 10 IV. 11 For the reasons discussed above, Plaintiff’s first amended complaint fails to state a claim 12 upon which relief may be granted under section 1983. Despite being provided with the relevant 13 pleading and legal standards, Plaintiff has been unable to cure the deficiencies of his complaint by 14 amendment. Therefore, further leave to amend is not warranted in this action. Lopez v. Smith, 203 15 F.3d 1122, 1130 (9th Cir. 2000). Conclusion & Recommendation 16 Based on the foregoing, it is HEREBY RECOMMENDED that: 17 1. 18 Plaintiff’s federal claims be dismissed for failure to state a claim upon which relief may be granted without leave to amend; 19 2. The state law claims, if any, be dismissed without prejudice; 20 3. Plaintiff’s motion for injunctive relief be denied. 21 These Findings and Recommendations will be submitted to the United States District 22 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 23 fourteen (14) days after being served with these Findings and Recommendations, Plaintiffs may 24 file written objections with the Court. The document should be captioned “Objections to 25 Magistrate Judge’s Findings and Recommendations.” Plaintiffs are advised that failure to file 26 objections within the specified time may result in the waiver of the “right to challenge the 27 28 8 1 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 2 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 5 IT IS SO ORDERED. Dated: /s/ Barbara June 15, 2018 6 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9