Honesto v. Schwartzenegger et al

Filing 17

ORDER DISMISSING Plaintiff's Action With Prejudice for Failure to State a Claim, signed by Magistrate Judge Gerald B. Cohn on 7/14/2011. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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PEDRO J. HONESTO,

CASE NO. 1:10-cv-01177-GBC (PC)

Plaintiff,

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ORDER DISMISSING PLAINTIFF’S
ACTION WITH PREJUDICE FOR FAILURE
TO STATE A CLAIM

v.
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A. SCHWARZENEGGER, et al.,

(ECF No. 16)

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Defendants.

/ CLERK TO CLOSE CASE

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SCREENING ORDER
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I.

PROCEDURAL HISTORY

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Plaintiff Pedro J. Honesto (“Plaintiff”) is a state prisoner proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this
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action on June 22, 2010 and consented to Magistrate Judge jurisdiction on July 29, 2010.
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(ECF Nos. 1 & 9.) No other parties have appeared. Plaintiff’s complaint was dismissed
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with leave to amend for failure to state a claim. (ECF Nos. 1 & 15.) Plaintiff filed a First
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Amended Complaint on June 23, 2011. (ECF No. 16.)
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Plaintiff’s First Amended Complaint is now before the Court for screening. For the
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reasons set forth below, the Court finds that Plaintiff has failed to state any claims upon
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which relief may be granted.
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II.

SCREENING REQUIREMENTS

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The Court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set

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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its

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face.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual

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allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.

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III.

Plaintiff appears to be alleging violations of his due process rights. Plaintiff names

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SUMMARY OF COMPLAINT

the following individuals as Defendants: A. Schwarzenegger, J. Hartley, and Does.

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Plaintiff’s statement of the case contains almost no allegations of constitutional

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violations. Plaintiff states that Defendant Hartley is responsible for establishing minimum

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eligibility release dates (MERD) for prisoners, including Plaintiff, with indeterminate release

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dates. Plaintiff goes on about the “some evidence” standard used for the hearings. He

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then details events that occurred in 2011, which are not part of this action. Plaintiff finally

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states that he was not advised of his right to counsel during this process, specifically for

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the interviews conducted by correctional counselors and psychiatric doctors and that he

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has a right to counsel during this process.
Plaintiff seeks declaratory and injunctive relief.

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IV.

ANALYSIS
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to
the deprivation of any rights, privileges, or immunities secured
by the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.

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42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal
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Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir.
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1997) (internal quotations omitted).
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A.

Due Process Claim

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Again, it is very difficult for the Court to determine what Plaintiff is alleging as he
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talks in generalities and procedures and not specifics. It appears that he is asserting that
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his rights of due process were violated in relation to his unsuitability hearing and
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subsequent interviews.1

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The Due Process Clause of the Fourteenth Amendment to the United States
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Constitution prohibits state action that “deprive[s] a person of life, liberty or property without
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due process of law.” U.S. Const. amend. XIV, § 2. A person alleging a due process
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violation must first demonstrate that he or she was deprived of a protected liberty or
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property interest, and then show that the procedures attendant upon the deprivation were
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not constitutionally sufficient. Ky. Dep’t. Of Corrs. v. Thompson, 490 U.S. 454, 459-60
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(1989); McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002). A protected liberty
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interest may arise from either the Due Process Clause itself or from state laws. Bd. of
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Pardons v. Allen, 482 U.S. 369, 373 (1987). In the context of parole, the United States
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Constitution does not, in and of itself, create a protected liberty interest in the receipt of a
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parole date, even one that has already been set. Jago v. Van Curen, 454 U.S. 14, 17-21
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(1981). If a state’s statutory parole scheme uses mandatory language, however, it
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W ilkinson v. Dotson, 544 U.S. 74, 82 (2005) (concluding that § 1983 claim s were cognizable
because granting declaratory and injunctive relief that would render invalid state procedures used to deny
parole eligibility and suitability would “[not] necessarily spell speedier release”).

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“‘creates a presumption that parole release will be granted’ when or unless certain

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designated findings are made, thereby giving rise to a constitutional liberty interest.”

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McQuillan, 306 F.3d at 901 (quoting Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 12

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(1979)).

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California state prisoners serving indeterminate prison sentences “may serve up to

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life in prison, but they become eligible for parole consideration after serving minimum years

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of confinement.” In re Dannenberg, 104 P.3d 783, 791 (2005). California’s statutory

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scheme governing parole eligibility for indeterminately sentenced prisoners provides,

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generally, that a release date will be granted unless the Board determines that “the gravity

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of the current convicted offense or offenses, or the timing and gravity of current or past

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convicted offense or offense, is such that consideration of the public safety requires a more

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lengthy period of incarceration.” Cal.Penal Code § 3041(b). California state prisoners

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whose sentences carry the possibility of parole, therefore, have a clearly established,

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constitutionally protected liberty interest in the receipt of a parole release date. Allen, 482

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U.S. at 377-78 (quoting Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 12 (1979)); see

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also Irons v. Carey, 505 F.3d 846, 850-51 (9th Cir. 2007) (citing Sass v. Cal. Bd. of Prison

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Terms, 461 F.3d 1123, 1128 (9th Cir.2006)); Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir.

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2003); McQuillion, 306 F.3d at 903.

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Despite the existence of this liberty interest, it is well established that inmates are

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not guaranteed the “full panoply of rights” during a parole suitability hearing as are normally

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afforded to criminal defendants under the Due Process Clause. See Pedro v. Or. Parole

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Bd., 825 F.2d 1396, 1398-99 (9th Cir. 1987). Nonetheless, inmates are afforded limited

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procedural protections. The Supreme Court has held that a parole board, at minimum,

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must give an inmate an opportunity to be heard and a decision informing him of the

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reasons he did not qualify for parole. Hayward v. Marshall, 603 F.3d 546, 560 (9th Cir.

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2010) (citing Greenholtz, 442 U.S. at 16). In addition, as a matter of state constitutional

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law, denial of parole to California inmates must be supported by “some evidence”

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demonstrating that the inmate poses an unreasonable risk of danger to society. Hayward,
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603 F.3d at 562 (citing In re Rosenkrantz, 59 P.3d 174 (2002)); see also In re Lawrence,

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190 P.3d 535, 539 (recognizing the denial of parole must be supported by “some evidence”

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that an inmate “poses a current risk to public safety”); In re Shaputis, 190 P.3d 573, 584-

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585 (2008) (same). “California’s ‘some evidence’ requirement is a component of the liberty

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interest created by the parole system of [the] state,” Cooke v. Solis, 606 F.3d 1206, 1213

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(9th Cir. 2010), making compliance with this evidentiary standard mandated by the federal

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Due Process Clause. Pearson v. Muntz, 606 F.3d 606, 609 (9th Cir. 2010).

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Again the only allegation that the Court can parse out from Plaintiff’s statement of

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the case is that he was not advised of his right to counsel for the suitability hearings. In its

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previous Screening Order, Plaintiff was notified that there is not a federal constitutional

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right to counsel in a parole suitability hearing. Gomez v. California Bd. Of Pardons, 2010

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WL 539409, *1 (N.D. Cal. Feb. 9, 2010) (citing Bonin v. Calderon, 59 F.3d 815, 841-42 (9th

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Cir.1995) (denial of state-created procedural right not cognizable on habeas corpus review

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unless there is deprivation of substantive right protected by federal constitution)).

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Plaintiff apparently ignored the Court’s guidance and again fails to give any

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description of the hearing, whether he was given an opportunity to be heard and notice of

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why he was deemed unsuitable for parole. As currently pleaded, Plaintiff again fails to

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state a due process claim. Plaintiff was previously notified of the relevant legal standards

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and the deficiencies in his previous complaint. His Amended Complaint contains different

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facts and dates, but no allegations that are materially different than those contained in his

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previous complaint. Because Plaintiff’s Amended Complaint again fails to state a claim

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against any named Defendant, the Court will dismiss this claim without further leave to

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amend

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B.

Habeas Claim

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Again, it appears that Plaintiff is arguing about his release date. As the Court

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previously reminded Plaintiff, when a prisoner challenges the legality or duration of his

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custody, or raises a constitutional challenge which could entitle him to an earlier release,

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his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475,
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498-500 (1973); Young v. Kenny, 907 F.2d 874, 875-76 (9th Cir. 1990), cert. denied 11

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S.Ct. 1090 (1991). Thus, this claim again fails and the Court will dismiss this claim without

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further leave to amend

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V.

CONCLUSION AND ORDER

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The Court finds that Plaintiff’s First Amended Complaint fails to state any Section

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1983 claims upon which relief may be granted against the named Defendants. Under Rule

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15(a) of the Federal Rules of Civil Procedure, leave to amend “shall be freely given when

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justice so requires.” In addition, “[l]eave to amend should be granted if it appears at all

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possible that the plaintiff can correct the defect.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th

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Cir. 2000) (internal citations omitted). However, in this action, Plaintiff filed two complaints

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and received substantial guidance from the Court in its Screening Order. (ECF Nos. 1, 15,

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& 16.) Even after receiving the Court’s guidance, Plaintiff failed to make alterations or to

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include additional facts to address the noted deficiencies. Because of this, the Court finds

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that the deficiencies outlined above are not capable of being cured by amendment, and

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therefore orders that further leave to amend not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

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Accordingly, based on the foregoing, the Court HEREBY ORDERS that this action

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be DISMISSED in its entirety, WITH PREJUDICE, for failure to state a claim upon which

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relief may be granted.

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IT IS SO ORDERED.

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Dated:
1j0bbc

July 14, 2011
UNITED STATES MAGISTRATE JUDGE

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