(PC) Lowe v. Superior Court of California San Joaquin County Stockton California, No. 2:2016cv01176 - Document 11 (E.D. Cal. 2017)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 12/07/17 RECOMMENDING that plaintiff's complaint be dismissed without prejudice, for failure to state a claim upon which relief can be granted. Referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)

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(PC) Lowe v. Superior Court of California San Joaquin County Stockton California Doc. 11 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FLOYD LOWE, 12 13 14 No. 2:16-cv-1176-GEB-CMK-P Plaintiff, vs. FINDINGS AND RECOMMENDATION 15 SUPERIOR COURT OF CALIFORNIA SAN JOAQUIN COUNTY STOCKTON CALIFORNIA, 16 Defendant. 17 18 19 20 / Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1). The court is required to screen complaints brought by prisoners seeking relief 21 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 22 § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or 23 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 24 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 25 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 26 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 1 Dockets.Justia.com 1 This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 2 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied 3 if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon 4 which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must 5 allege with at least some degree of particularity overt acts by specific defendants which support 6 the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 7 impossible for the court to conduct the screening required by law when the allegations are vague 8 and conclusory. 9 10 11 I. PLAINTIFF’S ALLEGATIONS Plaintiff alleges his Fifth, Eighth and Fourteenth Amendment rights have been 12 violated by the state court’s refusal to reverse his conviction or re-sentence him. He is requesting 13 his freedom and punitive damages. 14 15 16 II. DISCUSSION It appears that the claims raised in plaintiff complaint claims sound in habeas and 17 are not cognizable as a § 1983 action. When a state prisoner challenges the legality of his 18 custody and the relief he seeks is a determination that he is entitled to an earlier or immediate 19 release, such a challenge is not cognizable under 42 U.S.C. § 1983 and the prisoner’s sole federal 20 remedy is a petition for a writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 21 (1973); see also Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa 22 Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (per curiam). Thus, where a § 1983 action seeking 23 monetary damages or declaratory relief alleges constitutional violations which would necessarily 24 imply the invalidity of the prisoner’s underlying conviction or sentence, or the result of a prison 25 disciplinary hearing resulting in imposition of a sanction affecting the overall length of 26 confinement, such a claim is not cognizable under § 1983 unless the conviction or sentence has 2 1 first been invalidated on appeal, by habeas petition, or through some similar proceeding. See 2 Heck v. Humphrey, 512 U.S. 477, 483-84 (1994) (concluding that § 1983 claim not cognizable 3 because allegations were akin to malicious prosecution action which includes as an element a 4 finding that the criminal proceeding was concluded in plaintiff’s favor); Butterfield v. Bail, 120 5 F.3d 1023, 1024-25 (9th Cir. 1997) (concluding that § 1983 claim not cognizable because 6 allegations of procedural defects were an attempt to challenge substantive result in parole 7 hearing); cf. Neal, 131 F.3d at 824 (concluding that § 1983 claim was cognizable because 8 challenge was to conditions for parole eligibility and not to any particular parole determination); 9 cf. Wilkinson v. Dotson, 544 U.S. 74 (2005) (concluding that § 1983 action seeking changes in 10 procedures for determining when an inmate is eligible for parole consideration not barred 11 because changed procedures would hasten future parole consideration and not affect any earlier 12 parole determination under the prior procedures). 13 Here, it is clear that plaintiff is challenging his conviction, and the relief he is 14 requesting is to be released from prison. Such a claim is not cognizable in § 1983 unless the 15 underlying conviction or sentence has first been invalidated on appeal, by habeas petition, or 16 through some similar proceeding. See Heck, 512 U.S. at 483-84. It is also clear from the 17 complaint that no court has invalidated plaintiff’s sentence or conviction, as that is what he is 18 requesting in this action. As such, plaintiff’s complaint fails to state a claim for which relief may 19 be granted, and must be dismissed. 20 The Ninth Circuit recently addressed the issue of a pro se litigant filing the 21 incorrect action to address his claim. “[A] district court may construe a petition for habeas 22 corpus to plead a cause of action under § 1983 after notifying and obtaining informed consent 23 from the prisoner.” Nettles, 830 F.3d at 936. “‘If the complaint is amendable to conversion on its 24 face, meaning that it names the correct defendants and seeks the correct relief, the court may 25 recharacterize the petition so long as it warns the pro se litigant of the consequences of the 26 conversion and provides an opportunity for the litigant to withdraw or amend his or her 3 1 complaint.’” Id. (quoting Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005)). However, the 2 Court recognized that following enactment of the PLRA, “‘a habeas corpus action and a prisoner 3 civil rights suit differ in a variety of respects—such as the proper defendant, filing fees, the 4 means of collecting them, and restrictions on future filings—that may make recharacterization 5 impossible or, if possible, disadvantageous to the prisoner compared to a dismissal without 6 prejudice of his petition for habeas corpus.’” Id. at 935-36 (quoting Robinson v. Sherrod, 631 7 F.3d 839, 841 (7th Cir. 2011)). Based on these differences, the court is not inclined to 8 recharacterize plaintiff’s civil rights complaint as a habeas petition in this instance. 9 10 III. CONCLUSION 11 Because it does not appear possible that the deficiencies identified herein can be 12 cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of 13 the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). 14 15 Based on the foregoing, the undersigned recommends that plaintiff’s complaint be dismissed, without prejudice, for failure to state a claim upon which relief can be granted. 16 These findings and recommendations are submitted to the United States District 17 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court. Responses to objections shall be filed within 14 days after service of 20 objections. Failure to file objections within the specified time may waive the right to appeal. 21 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 23 24 25 DATED: December 7, 2017 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 26 4

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