Holtry v. Rios et al
Filing
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FINDINGS and RECOMMENDATIONS Recommending that this 1 Action be Dismissed in its Entirety, without Prejudice, for Failure to State a Claim upon which Relief can be Granted signed by Magistrate Judge Gerald B. Cohn on 7/12/2012. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 8/15/2012. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ROBERT HOLTRY,
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Plaintiff,
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CASE NO. 1:10-cv-00488-LJO-GBC (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION
FOR FAILURE TO STATE A CLAIM
v.
H. A. RIOS JR., et al.,
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(Doc. 1)
Defendants.
THIRTY-DAY DEADLINE
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I.
Screening Requirement
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Plaintiff Robert Holtry is a federal prisoner proceeding pro se and in forma pauperis in this
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civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
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U.S. 388 (1971), which provides a remedy for violation of civil rights by federal actors. Plaintiff
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filed the complaint on March 18, 2010. Doc. 1.
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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 “fails to state a claim on which relief may be granted,” or that “seeks
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monetary relief against a defendant who is immune from such relief.” 28 U.S.C § 1915(e)(2)(B).
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In determining whether a complaint states a claim, the Court looks to the pleading standard
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under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain “a short and
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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
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“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it
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demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.
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Iqbal, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
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554, 555 (2007)). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state
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a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.
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at 570).
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II.
Summary of Complaint
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Plaintiff is a federal prisoner presently incarcerated at the United States Penitentiary in
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Atwater, California. The complaint names Defendants H.S. Rios, Jr. (Warden), J McFadden
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(Regional Director), Harley Lappin (Director), and the Federal Bureau of Prisons. Plaintiff alleges
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that he should receive time credits toward his federal sentence from the date that a federal detainer
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was placed upon him. Doc. 1 at 3. Plaintiff is requesting an order stating that, pursuant to 18 U.S.C.
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§ 3585(a), “at the time a federal detainer is placed on [an inmate, he] is formally and legally in
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federal custody for purposes of accruing credit for time incarcerated to be applied toward [his]
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federal sentence.” (Id. at 4.)
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III.
Habeas Corpus
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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). Where the action is brought
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to restore time credits, the effect is to shorten the term of confinement and the action would need to
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be brought by habeas corpus. Wilkinson v. Dotson, 544 U.S. 74, 79 (2005). A “prisoner’s [civil
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rights] action is barred (absent prior invalidation)-no matter the relief sought (damages or equitable
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relief), no matter the target of the prisoner’s suit ([government] conduct leading to conviction or
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internal prison proceedings)-if success in that action would necessarily demonstrate the invalidity
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of confinement or its duration.” Id. at 81-2.
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Plaintiff is clearly challenging the legality or duration of his federal custody. Plaintiff alleges
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he should be given time credit toward his federal sentence from the date that the federal detainer was
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placed on him. The relief requested is an order by the Court that, under 18 U.S.C. § 3585(a), time
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credit toward a prisoner’s federal sentence is to be given from the date a federal detainer is placed
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on the inmate. Since the success in this action would necessarily demonstrate the invalidity of his
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confinement or its duration, the sole remedy available to Plaintiff is a writ of habeas corpus. The
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Court should dismiss the complaint without prejudice.
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IV.
Conclusion and Recommendation
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Based on the foregoing, the Court finds that Plaintiff has failed to state a claim for relief
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under Bivens. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend ‘shall be
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freely given when justice so requires,’” Fed. R. Civ. Proc. 15(a), and “[l]eave to amend should be
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granted if it appears at all possible that the plaintiff can correct the defect,” Lopez v. Smith, 203 F.3d
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1122, 1130 (9th Cir. 2000) (internal citations omitted). However, the Court finds that the
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deficiencies outlined above are not capable of being cured by amendment, and therefore leave to
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amend should not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Noll v. Carlson, 809 F. 2d 1446,
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1448-49 (9th Cir. 1987).
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Accordingly, based on the foregoing, the Court HEREBY RECOMMENDS that this action
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be dismissed in its entirety, without prejudice, for failure to state a claim upon which relief can be
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granted.
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These findings and recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30)
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days after being served with these findings and recommendations, Plaintiff may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d
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1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
0jh02o
July 12, 2012
UNITED STATES MAGISTRATE JUDGE
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