Huckaby v. Kernan et al

Filing 8

ORDER Sua Sponte Dismissing Complaint for Failing to State a Claim Pursuant to 28 U.S.C.1915 (e)(2)and 1915 A(b), signed by District Judge Roger T. Benitez on 1/20/09. CASE CLOSED (Gil-Garcia, A)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. P ROCEDURAL HISTORY On June 20, 2008, Plaintiff, an inmate currently incarcerated at Kern Valley State Prison lo c a ted in Delano, California and proceeding pro se, filed a civil rights Complaint pursuant to 4 2 U.S.C. § 1983. Plaintiff did not prepay the $350 filing fee mandated by 28 U.S.C. § 1914(a) to commence a civil action; instead, he filed a Motion to Proceed In Forma Pauperis ("IFP") p u rs u a n t to 28 U.S.C. § 1915(a) [Doc. No. 2]. The Court granted Plaintiff's Motion to Proceed IFP on June 26, 2008 [Doc. No. 4].
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION

KEITH HUCKABY, CDCR #J-88489, P l a i n t if f , vs . SC O T T KERNAN; ANTHONY H E D G P E T H ; E. RODRIGUEZ, Defendants.

Civil No.

08-0865 RTB (JMA)

O R D E R SUA SPONTE DISMISSING C O M P L A I N T FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) and 1915A(b)

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O n November 25, 2008, this matter was reassigned to District Judge Roger T. Benitez for all further proceedings [Doc. No. 6]. II. S CREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) T h e Prison Litigation Reform Act ("PLRA") obligates the Court to review complaints file d by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or d e ta in e d in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations o f criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary p ro gra m ," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). U n d e r these provisions, the Court must sua sponte dismiss any IFP or prisoner complaint, or any p o rtio n thereof, which is frivolous, malicious, fails to state a claim, or which seeks damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 2 0 3 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 4 4 3 , 446 (9th Cir. 2000) (§ 1915A). B e fo re amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte d i sm i ss a l of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. An action is frivo lo u s if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 3 2 4 (1989). However 28 U.S.C. §§ 1915(e)(2) and 1915A now mandate that the court reviewing a n IFP or prisoner's suit make and rule on its own motion to dismiss before effecting service of th e Complaint by the U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). Id. at 1127 ("[S]ection 1 9 1 5 (e ) not only permits, but requires a district court to dismiss an in forma pauperis complaint th a t fails to state a claim."); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discu ssin g 28 U.S.C. § 1915A). "[W ]h e n determining whether a complaint states a claim, a court must accept as true all a lle ga tio n s of material fact and must construe those facts in the light most favorable to the p la in tiff. " Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) "p ara l lels the language of Federal Rule of Civil Procedure 12(b)(6)"). In addition, the Court's d u ty to liberally construe a pro se's pleadings, see Karim-Panahi v. Los Angeles Police Dept., -2-

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8 3 9 F.2d 621, 623 (9th Cir. 1988), is "particularly important in civil rights cases." Ferdik v. B o n z e le t, 963 F.2d 1258, 1261 (9th Cir. 1992). Se c tio n 1983 imposes two essential proof requirements upon a claimant: (1) that a person a c tin g under color of state law committed the conduct at issue, and (2) that the conduct deprived th e claimant of some right, privilege, or immunity protected by the Constitution or laws of the U n ited States. See 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled o n other grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986); Haygood v. Younger, 769 F .2 d 1350, 1354 (9th Cir. 1985) (en banc). In his Complaint, Plaintiff alleges that the CDCR has failed to adequately calculate his w o rkt im e credits and as a result, he has been denied a reduction to his "term of confinement." (S e e Compl. at 2-3.) However, to the extent Plaintiff seeks injunctive relief in the form of a court order gra n tin g him a reduction in his prison sentence see Compl. at 3, such relief is simply not availab le under 42 U.S.C. § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding th a t "when a state prisoner is challenging the very fact or duration of his physical imprisonment, a n d the relief he seeks is a determination that he is entitled to immediate release . . . his sole fed era l remedy is a writ of habeas corpus."). Plaintiff claims that his due process rights under the Fourteenth Amendment were violated when prison officials decided to limit his work time credits. (See Compl. at 2.) "The re q u ire m e n ts of procedural due process apply only to the deprivation of interests encompassed b y the Fourteenth Amendment's protection of liberty and property." Board of Regents v. Roth, 4 0 8 U.S. 564, 569 (1972). Accordingly, Plaintiff must be able to allege facts sufficient to show th a t he can identify "a liberty or property interest protected by the constitution" of which he was d e p r i v e d . Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000). The Ninth Circuit has c o n sis ten tly held that "the Due Process Clause of the Fourteenth Amendment `does not create a property or liberty interest in prison employment.'" Walker v. Gomez, 370 F.3d 969, 973 (9th C ir. 2004) (quoting Ingram v. Papalia, 804 F.2d 595, 596 (10th Cir. 1986). /// -3-

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P la i n t i f f relies on California Penal Code § 2933 which provides that a prisoner may o b tain worktime credits that could reduce his prison term. See Cal. Penal Code § 2933(a). H o w e ver, this penal code section also provides that "[w]orktime credit is a privilege, not a righ t." Id. Moreover, the Ninth Circuit has specifically held that "section 2933 does not create a constitutionally protected liberty interest." Kalka v. Vasquez, 867 F.2d 546, 547 (9th Cir. 1 9 8 9 ). Based on the facts alleged, Plaintiff is unable to demonstrate either a liberty or property interest in his prison employment or lost worktime credits arising directly under the Fourteenth A m e n d m e n t. Accordingly, Plaintiff's Complaint is dismissed for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b). See Lopez, 203 F.3d a t 1126-27; Resnick, 213 F.3d at 446, n.1.

III. C ONCLUSION AND ORDER G o o d cause appearing, IT IS HEREBY ORDERED that:

Plaintiff's Complaint [Doc. No. 1] is DISMISSED without prejudice for failing to state a claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b).
B e c a u se it does not appear "at all possible that the plaintiff can correct the defect(s)" of his p l e a d in g, further leave to amend is DENIED as futile. See Cahill v. Liberty Mut. Ins. Co., 80 F .3 d 336, 339 (9th Cir. 1996) (denial of a leave to amend is not an abuse of discretion where furthe r amendment would be futile). T h e Clerk shall close the file. D A T E D : January 20, 2009

H o n . Roger T. Benitez U n ite d States District Judge

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