(PC) Larry Sermeno v. Glover, No. 1:2018cv00544 - Document 8 (E.D. Cal. 2018)

Court Description: ORDER DIRECTING Clerk of Court to Randomly Assign a District Judge to this Action; FINDINGS and RECOMMENDATIONS Recommending Dismissal of 1 Complaint, without Prejudice signed by Magistrate Judge Stanley A. Boone on 4/30/2018. Referred to Judge Anthony W. Ishii. Objections to F&R due within Twenty-one (21) Days. The new case number is 1:18-cv-00544-AWI-SAB(PC). (Sant Agata, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY SERMENO, 12 13 14 15 Plaintiff, v. J. CLOVER, Defendant. 16 17 18 19 20 ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:18-cv-00544-SAB (PC) ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF COMPLAINT, WITHOUT PREJUDICE [ECF No. 1] Plaintiff Larry Sermeno is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s complaint, filed April 23, 2018. 21 I. 22 SCREENING REQUIREMENT 23 The Court is required to screen complaints brought by prisoners seeking relief against a 24 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 25 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 26 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that 27 “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 28 1 1 1915(e)(2)(B). A complaint must contain “a short and plain statement of the claim showing that the pleader is 2 3 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 4 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 5 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 6 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally 7 participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 8 2002). Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 9 10 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 11 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, 12 which requires sufficient factual detail to allow the Court to reasonably infer that each named 13 defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 14 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not 15 sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying 16 the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 17 II. 18 COMPLAINT ALLEGATIONS On or about December 11, 2017, Case Records Supervisor, J. Glover granted Plaintiff’s inmate 19 20 appeal, in part, to obtain a copy of his sentencing transcript to verify that his criminal sentence needs 21 to be recalculated by the California Department of Corrections and Rehabilitation (CDCR). A letter 22 was attached to the Butte County Superior Court for Case Number CM035385 for sentencing 23 transcripts. Plaintiff has not received any response from the Superior Court. As a result, Plaintiff has 24 been deprived of a proper sentence calculation at halftime credit earning which would result in his 25 immediate release from custody or “have little to no time left on parole.” (Compl. at 5.) 26 /// 27 /// 28 /// 2 1 III. 2 DISCUSSION 3 “Federal law opens two main avenues to relief on complaints related to imprisonment: a 4 petition for writ of habeas corpus, 28 U.S.C. § 2254, and a complaint under … 42 U.S.C. § 1983.” 5 Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam). “Challenges to the validity of any 6 confinement or to particulars affecting its duration are the province of habeas corpus; requests for 7 relief turning on circumstances of confinement may be presented in a § 1983 action.” Id. (internal 8 citation omitted). Federal courts lack habeas jurisdiction over claims by state prisoners that are not 9 within “the core of habeas corpus.” Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir. 2016) (en banc), 10 cert. denied, 137 S.Ct. 645 (2017). A prisoner’s claims are within the core of habeas corpus if they 11 challenge the fact or duration of his conviction or sentence. Id. at 934. “[W]hen a prisoner’s claim 12 would not ‘necessarily spell speedier release,’ that claim does not lie at “the core of habeas corpus,’ 13 and may be brought, if at all, under § 1983.” Skinner v. Switzer, 562 U.S. 521, 534 n.13 (2011) 14 (citing Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)); Nettles, 830 F.3d at 934. 15 It is clear from Plaintiff’s allegations that his claim affects the duration of his sentence. As 16 such, the proper avenue to seek such relief is by way of habeas corpus petition filed pursuant to 28 17 U.S.C. § 2254. Plaintiff is advised that the proper venue for challenging the execution of his sentence 18 is the district court containing the sentencing court, while the proper venue to challenge the execution 19 of his sentence is the district court containing the prison in which Petitioner is incarcerated. 28 U.S.C. 20 § 2241(d). Accordingly, to the extent Plaintiff wishes to challenge the duration of his confinement he 21 must file a habeas corpus petition in the district court containing the sentencing court. Therefore, 22 Plaintiff’s complaint must be dismissed. Although the Court would generally grant Plaintiff leave to 23 amend in light of his pro se status, amendment is futile in this instance because the deficiencies cannot 24 be cured by amendment. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000); Schmier v. U.S. 25 Court of Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) (recognizing “[f]utility of 26 amendment” as a proper basis for dismissal without leave to amend); see also Trimble v. City of Santa 27 Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (a civil rights complaint seeking habeas relief should be 28 dismissed without prejudice to filing as a petition for writ of habeas corpus). 3 1 IV. 2 RECOMMENDATIONS 3 Based on the foregoing, it is HEREBY RECOMMENDED that: 4 1. 5 The instant action be dismissed for failure to state a cognizable claim under 42 U.S.C. § 1983; 6 2. The Clerk of Court be directed to terminate this action; and 7 3. The Office of the Clerk is directed to randomly assign this action to a District 8 Judge. These Findings and Recommendations will be submitted to the United States District Judge 9 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) 11 days after being served with these Findings and Recommendations, Plaintiff may file written 12 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 13 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 14 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838- 15 39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991. 16 17 IT IS SO ORDERED. 18 Dated: 19 April 30, 2018 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 4