Downs v. California Board of Prison Terms et al

Filing 37

ORDER GRANTING Leave to File Second Amended Complaint; ORDER DISMISSING 36 Action Without Prejudice, for Failure to State a Claim upon which Relief may be Granted under Section 1983; ORDER DENYING Pending Motions as MOOT signed by Magistrate Judge Gerald B. Cohn on 5/10/2011. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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GREGORY DOWNS,

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Plaintiff,

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CASE NO. 1:09-cv-00714-GBC (PC)

v.

ORDER GRANTING LEAVE TO FILE SECOND
AMENDED COMPLAINT
(Docs. 31, 32).

CALIFORNIA BOARD OF PRISON TERMS, ORDER DISMISSING ACTION WITHOUT
et al.,
PREJUDICE, FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF MAY BE
Defendants.
GRANTED UNDER SECTION 1983
(Docs. 1, 33)

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ORDER DENYING PENDING MOTIONS AS
MOOT
/ (Doc. 26)

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I.

Procedural Background

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Plaintiff Gregory Downs (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights
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action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on April 22, 2009. (Doc. 1). On
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September 11, 2009, the Court screened the complaint and dismissed the complaint with leave to
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amend. (Doc. 13). Plaintiff filed the first amended complaint on April 5, 2010. (Doc. 22). On July
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20, 2010, and October 29, 2010, Plaintiff filed motions to file an amended complaint (Docs. 30, 32)
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and on November 18, 2010, Plaintiff’s second amended complaint was submitted and lodged. (Doc.
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33). The Court will grant Plaintiff’s request to amend the complaint and screen Plaintiff’s second
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amended complaint submitted on November 18, 2010. (Doc. 33).
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II.

Rule 15(a)

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Under Rule 15(a) of the Federal Rules of Civil Procedure, Plaintiff may amend his pleading

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once as a matter of course at any time before a responsive pleading is served. Additional

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amendments before a responsive pleading is served can only be done by motion seeking leave of the

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court to amend, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a).

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Therefore, the Court will grant Plaintiff’s motions to amend and permit Plaintiff’s second amended

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complaint to be filed. (Docs. 30, 32).

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III.

Screening Order of Second Amended Complaint filed November 18, 2010

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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When a prisoner challenges the legality or duration of his custody, or raises a constitutional

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challenge which could entitle him to an earlier release, his sole federal remedy is a writ of habeas

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corpus. Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 1245-48 (2005); Preiser v. Rodriguez,

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411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 (9th Cir. 1990). Moreover, when seeking relief

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for an allegedly unconstitutional conviction or imprisonment, “a § 1983 plaintiff must prove that the

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conviction or sentence has been reversed on direct appeal, expunged by executive order, declared

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invalid by a state tribunal authorized to make such determination, or called into question by a federal

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court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck v. Humphrey, 512 U.S. 477,

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487-88 (1994). “A claim . . . bearing that relationship to a conviction or sentence that has not been

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so invalidated is not cognizable under § 1983.” Id. at 488.

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Plaintiff, who is incarcerated at Centinela State Prison in Imperial California, brings this civil

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rights action against numerous members of the Board of Prison terms, prison officials, attorneys, and

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Kern County Superior Court Judge John I. Kelly. As relief, Plaintiff seeks injunctive relief in

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the form of ordering defendants Matthew L. Cate (Secretary of the California Department of

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Correction and Rehabilitation ), Susan Fisher (Chair of the California Board of Prison Terms)

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“and all persons acting in concert with them” to reinterpret how prison sentences for certain life

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time sentences are calculated by not categorizing terms of seven years to life the same as fifteen

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years to life sentences. (Doc. 33 at 27). In the Court’s order on September 11, 2009, the Court

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instructed Plaintiff that he needed to amend his complaint to comply with Rule 18 of the Federal

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Rules of Civil Procedure, since Plaintiff included several unrelated claims and defendants in the

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same action. (Doc. 13). Plaintiff has failed to correct these shortcoming in this current

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amendment. Plaintiff asserts that various defendants were responsible for erroneously sentencing

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him to fifteen years to life and continue to violate his rights by refusing to correct the sentencing

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error. (Doc. 33 at 24).

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Plaintiff’s other claims are difficult to decipher. (Doc. 33 at 25). Plaintiff states that

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Linda Lake from the Ombudsman Office in Corcoran failed to investigate the issue of a

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misplaced appeal and Dr. Kuberski did not read information in Plaintiff’s central file. Also Dr.

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Luckerman violated Plaintiff’s rights by using a report prepared by Dr. Kuberski to present to the

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California Prison Board, presumably, this claim is regarding sentencing. (Doc. 33 at 25).

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Plaintiff also asserts that Susan Fisher of the California Board of Prison Terms and Rufus Morris

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(Sacramento Deputy District Attorney) had a “clandestine meeting” to postpone Plaintiff’s

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hearing before the California Board of Prison Terms. (Doc. 33 at 25). Additionally, Kristen

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Preslar (Quality Control Unit), Lori Manier (Legal Unit) and Daniel G. Moeller (Staff Counsel)

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“refused to intervene and produce a copy of the transcripts to enable the plaintiff to have an

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understanding of the December 17, 2004, clandestine meeting . . . .” (Doc. 33 at 26). Plaintiff

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asserts that Linn Austin, Archie Biggers and Rufus Morris of the California Board of Prison

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Terms violated Plaintiff’s rights by refusing to enforce rule “BPT 1082" to allow Plaintiff to

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obtain documents to present before the Board of Prison Terms. (Doc. 33 at 26). Plaintiff also

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asserts that Leon R. Harris III violated Plaintiff’s rights in representing Plaintiff before the Board

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of Prison Terms and failing to obtain the documentation that Plaintiff wanted to present.

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Plaintiff asserts that James Skidmore II and that Patrick Sparks, were both appointed to represent
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Plaintiff before the Board of Prison Terms and both failed to obtain exculpatory evidence and

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Sparks also participated in the “clandestine meeting” on December 17, 2004, with Susan Fisher.

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(Doc. 33 at 26-27). Finally, Plaintiff states that Kern County Superior Court Judge John Kelly

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violated Plaintiff’s rights by transferring Plaintiff’s state habeas case to Sacramento. (Doc. 33 at

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27).

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The arguments in Plaintiff’s second amended complaint largely stem from a dispute

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regarding the representation he received and the exculpatory documentation that he was not

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allowed to present in a hearing to determine the length of his sentence. (Doc. 33). Additionally,

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the relief he requests is an injunction ordering reassessment of his prison sentence. (Doc. 33).

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Plaintiff may not at this time bring a civil rights action arising from these events. Plaintiff’s

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remedy regarding his sentence is to file a petition for writ of habeas corpus.

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Accordingly, after screening Plaintiff’s second amended complaint filed on November,

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18, 2010, the Court HEREBY ORDERS that this action be DISMISSED, without prejudice, for

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failure to state a claim upon which relief may be granted under section 1983. (Docs. 1, 33).

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Since this action is dismissed, all pending motions in this action are DENIED as moot.

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IT IS SO ORDERED.

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Dated:
0jh02o

May 10, 2011
UNITED STATES MAGISTRATE JUDGE

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