Espinoza v. Diaz et al

Filing 23

ORDER Denying 21 Plaintiff's Motion to Withdraw Consent; ORDER Directing Clerk of Court to Assign a District Judge; FINDINGS and RECOMMENDATIONS Recommending Dismissal of 11 Action for Failure to State a Claim upon Which Relief may be Granted signed by Magistrate Judge Stanley A. Boone on 02/13/2018. Referred to Judge O'Neill; Twenty-One Day Deadline. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSE J.R. ESPINOZA,

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Plaintiff,

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v.

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D. DIAZ, et al.,

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Defendants.

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Case No.: 1:17-cv-00338-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
TO WITHDRAW CONSENT
(ECF No. 21)
ORDER DIRECTING CLERK OF COURT
TO ASSIGN A DISTRICT JUDGE
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
ACTION FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF MAY BE
GRANTED
(ECF No. 11)
TWENTY-ONE- DAY DEADLINE

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I.

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Plaintiff Jose J.R. Espinoza is appearing pro se and in forma pauperis in this civil rights

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Introduction

action pursuant to 42 U.S.C. § 1983.

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The original complaint was filed in this action on March 3, 2017. (ECF No. 1.). Plaintiff

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challenged his custody status and argued he was serving an 85% sentence when he should have

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been serving a 50% sentence. On March 17, 2017, Plaintiff consented to the jurisdiction of a

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United States Magistrate Judge. (ECF No. 8.)

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On May 10, 2017, an order was entered finding that Plaintiff had failed to state a

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cognizable claim and informing him which aspects of his claims appeared to be cognizable only

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as a habeas corpus action. The Court further granted Plaintiff leave to file an amended complaint
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regarding his allegations that he was denied due process in being found to have a custody status

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of Medium A. (ECF No 10.)

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On June 12, 2017, Plaintiff filed a first amended complaint. (ECF No. 11.) On September

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11, 2017, the Court reviewed Plaintiff’s amended allegations and found that his sole avenue for

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relief lies in habeas corpus, and dismissed this action without prejudice for the failure to state a

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claim for relief that is cognizable under section 1983. (ECF No. 14.) Judgment was entered that

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same day. (ECF No. 15.) Plaintiff appealed. (ECF No. 16.)

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On January 19, 2018, the Ninth Circuit Court of Appeals vacated and remanded the

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action to this Court. (ECF No. 20.) Specifically, the Ninth Circuit reviewed de novo whether the

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undersigned validly entered judgment on behalf of the district court. The Ninth Circuit found that

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Plaintiff’s action was dismissed before the named defendants had been served, and that “all

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parties, including unserved defendants, must consent to proceed before the magistrate judge for

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jurisdiction to vest, Williams v King, 875 F.3d 500, 503-04 (9th Cir. 2017).” (Id. at 2.)

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Therefore, the undersigned’s September 11, 2017 order was vacated and remanded for further

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proceedings. The Ninth Circuit issued its mandate on February 12, 2018. (ECF No. 22.)

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In the meantime, Plaintiff filed a motion to withdraw consent to proceed before a United
States Magistrate Judge, on February 5, 2018. The Court will first address Plaintiff’s motion.

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II.

Motion to Withdraw Consent

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Plaintiff moves to withdraw consent to magistrate judge jurisdiction, and requests to

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proceed before a district judge. (ECF No. 21.) He attaches an election form stating that he does

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not consent to have a United States Magistrate Judge conduct all further proceedings in this case.

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(Id. at 2.) As noted above, on March 17, 2017, Plaintiff consented, under 28 U.S.C. § 636(c), to

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conduct all proceedings in this case before a United State Magistrate Judge, including dispositive

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matters and entry of final judgment.

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Reference to a magistrate judge following a party’s consent can be vacated upon a

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showing of extraordinary circumstances by the party. 28 U.S.C. § 636(c)(4). Plaintiff has not

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presented extraordinary circumstances suggesting his consent to Magistrate Judge jurisdiction

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should be vacated. Therefore, Plaintiff’s request to withdraw his consent will be denied.
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However, by this order, the Court will direct that this matter be randomly assigned to a

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United States District Judge, and as discussed below, the undersigned will issue findings and

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recommendations to the District Judge, as the unserved defendants in this case have not yet

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consented, declined, or withheld consent to Magistrate Judge jurisdiction.
Accordingly, the Court now turns to Plaintiff’s first amended complaint, filed on June 12,

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2017, which is currently before the Court for screening.

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II.

Screening Requirement

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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

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legally “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or

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that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §

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1915(e)(2)(B).

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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 not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate

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that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d

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1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be

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facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer

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that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss

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v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts

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that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility

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standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

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III.

Allegations

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Plaintiff is in the custody of the California Department of Corrections and Rehabilitation

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and is currently housed at the California City Correctional Facility, in California City. Plaintiff

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was convicted of one count of assault with a vehicle on March 5, 2007. (Am. Compl. (“AC”),

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ECF No. 11, at 4.)

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On July 19, 2016, Defendant Diaz called Plaintiff into his office to sign a 72 hour prior

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notice of committee. (AC 4.) Defendant Diaz informed Plaintiff that he would be conducting a

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Medium B custody review and Plaintiff would remain at Medium A custody due to the March 5,

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2007 allegations that Plaintiff slashed and stabbed victim Pedro Polanco in the head with a large

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screwdriver and that Polanco had received four puncture wounds on the top of his head. (AC 4-

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5.) Plaintiff told Defendant Diaz that he had been found not guilty of that charge and the jury

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found that those events had not taken place. (AC 6.) Plaintiff contended that he had only been

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found guilty of one count of assault with a vehicle which is a non-violent offense. (AC 6.)

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Defendant Diaz responded that just because the jury found Plaintiff not guilty did not mean that

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the event did not happen and Plaintiff would remain on Medium A custody. (AC 6.)

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On July 20, 2016, Defendant Diaz and Ortis conducted Plaintiff’s annual and Medium B

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custody review. (AC 7, 10.) Defendant Diaz and Ortis received and reviewed Plaintiff’s current

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and prior commitments. (AC 7-8, 10.) Defendant Diaz and Ortis “erroneously” determined that

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on March 5, 2007, Plaintiff had slashed and stabbed Polanco in the head with a large screwdriver

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and Polanco had received 4 puncture wounds in the top of his head. (AC 8, 10.) Based on those

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allegations, Plaintiff was denied a change in custody level to Medium B. (AC 8, 10.)

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Plaintiff also alleges this denied him the ability to seek a further reduction in custody and

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the benefit of receiving the relief mandated on June 5, 2015, under the order of Plata. Plaintiff

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attaches a memo from the Prison Law Office informing inmates that under an order from a three-

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judge panel everyone classified as a Minimum A or Minimum B custody inmate and eligible to
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earn 1-for-1 time credits would begin earning 2-for-1 time credits retroactive to January 1, 2015;

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and a memorandum on the subject directed to CDCR personnel. (Attached as Exhibit C, AC 68-

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85.) Plaintiff alleges that the reduction in his custody level would have reduced his custody

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points from 19 to 0 making him eligible to receive the relief. (AC 9.)
Plaintiff tried to explain to Defendant Diaz and Ortis that they were using facts that had

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been adjudicated and found to be untrue to determine Plaintiff’s custody level. (AC 9, 10-11.)

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Defendant Diaz and Ortis insisted on using this inaccurate information to determine Plaintiff’s

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custody level. (AC 9-10, 11.)

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Plaintiff filed an administrative grievance on August 16, 2016, grieving the denial of the

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Medium B custody determination. (AC 12-13.) On September 14, 2016, Defendant Rodriguez

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conducted a first level review interview with Plaintiff. (AC 14.) Defendant Rodriguez reviewed

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Plaintiff’s current and prior commitments. (AC 14.) During the interview, Plaintiff asked

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Defendant Rodriguez to look at the Strategic Offender System, which she did. (AC 14.) Plaintiff

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pointed out that the Board of Prison Hearing (“BPH”) used the same erroneous and inaccurate

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information on July 28, 2015 to deny him parole. (AC 15.) Plaintiff then told Defendant

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Rodriquez that he had contested this information to the BPH and they corrected and removed this

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information. (AC 15.) Plaintiff then showed Defendant Rodriguez that the facts alleged had been

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changed in the BPH from an aggravating factor to a mitigating factor. (AC 16.) Defendant

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Rodriguez told Plaintiff that she could see the change and would check with Case Records. (AC

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16.) Defendant Rodriguez chose to not correct the inaccurate information. (AC 17.)
On September 27, 2016, Defendant Lundy reviewed Plaintiff’s appeal at the first level

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and denied Plaintiff’s appeal. (AC 17-18.)

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On September 30, 2016, Plaintiff submitted his appeal to the second level. (AC 18.)

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Defendant Barela conducted a second level review and concluded that Plaintiff had attacked

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Polanco by stabbing him in the head with a screwdriver. (AC 19.) Defendant Anti concluded at

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second level review that there was no basis to modify the first level appeal. (AC 19.)

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Plaintiff submitted the appeal to the third level on November 8, 2016. (AC 20.)

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Defendant Dominguez conducted a third level review and similarly concluded that Plaintiff had

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attacked Polanco by stabbing him in the head with a screwdriver. (AC 20-21.) Defendant

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Hemenway reviewed the appeal on January 25, 2017, and denied the appeal. (AR 21.)

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Plaintiff brings this action against Defendants Rodriguez, Ortis, Barela, Dominguez,

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Lundy, and Hemenway alleging violations of equal protection and due process. (AC 23.)

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Plaintiff seeks declaratory and injunctive relief, and monetary damages. (AC 24-27.)

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IV.

Discussion

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“Federal law opens two main avenues to relief on complaints related to imprisonment: a

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petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of

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1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983.” Muhammad v. Close, 540 U.S. 749,

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750 (2004). “Challenges to the validity of any confinement or to particulars affecting its duration

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are the province of habeas corpus; requests for relief turning on circumstances of confinement

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may be presented in a § 1983 action.” Muhammad, 540 U.S. at 750 (internal citations omitted).

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The Supreme Court “has long held that habeas is the exclusive vehicle for claims brought by

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state prisoners that fall within the core of habeas, and such claims may not be brought in a §

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1983 action.” Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016), cert. denied, 137 S. Ct. 645

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(2017). A habeas corpus petition is the correct method for a prisoner to challenge the “legality or

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duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser

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v. Rodriguez, 411 U.S. 475, 485 (1973)); Advisory Committee Notes to Rule 1 of the Rules

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Governing Section 2254 Cases. ). In Nettles, the Ninth Circuit held that “a § 1983 action is the

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exclusive vehicle for claims brought by state prisoners that are not within the core of habeas

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corpus.” Nettles, 830 F.3d at 927.

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In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that “in order to

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recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm

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caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983

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plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged

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by executive order, declared invalid by a state tribunal authorized to make such determination, or
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called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.”

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Id. at 486-87. “[W]hen a state prisoner seeks damages in a § 1983 suit, the district court must

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consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of

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his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can

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demonstrate that the conviction or sentence has already been invalidated.” Id. at 487.

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In Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme Court considered whether a

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prisoner could bring a claim for damages under section 1983 where he was alleging that a

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hearing officer in his disciplinary hearing denied his due process rights by concealing

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exculpatory witness statements and refused to ask specific questions of witnesses which

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intentionally denied him the right to present evidence in his defense. Id. at 644. The plaintiff

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sought damages for the denial of good time credits based on being found guilty of the rule

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violation. Id. The Court found that the defect complained of in the complaint would, if

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established, necessarily imply the invalidity of the deprivation of his good-time credits and his

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claims for injunctive relief and damages were not cognizable under section 1983. Id. at 647-48.

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In Wilkinson v. Dotson, 544 U.S. 74 (2005), two inmates brought an action under section

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1983 challenging state parole procedures that were alleged to violate the Constitution. Id. at 76.

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Habeas corpus relief is the only avenue when a prisoner seeks to invalidate the duration of his

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confinement either directly through an injunction compelling earlier release, or indirectly

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through a judicial determination that necessarily implies the invalidity of the State’s custody. Id.

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Therefore, “a state prisoner’s § 1983 action is barred (absent prior invalidation)—no matter the

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relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state

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conduct leading to conviction or internal prison proceedings)—if success in that action would

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necessarily demonstrate the invalidity of confinement or its duration.” Id. at 81-82. The Court

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found that, if the plaintiffs succeeded in the action, at most they would receive new eligibility

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review or consideration of a new parole application. Id. at 82. Because the claims did not

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necessarily mean speedier release neither was at the core of habeas corpus and the claims could

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proceed in a section 1983 action. Id.

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In the instant action, Plaintiff alleges that his custody level has been improperly

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determined to be Medium A and seeks to have his custody level changed to Medium B. Plaintiff

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states that if his custody level was correct he would be eligible to receive time credits at 2-to-1.

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(AC 9.) Because success on the merits of this action would necessarily demonstrate the invalidity

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of the duration of Plaintiff’s confinement, his sole avenue for relief lies in habeas corpus.

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Dotson, 544 U.S. at 82. Accordingly, Plaintiff fails to state a cognizable claim for relief under

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section 1983.
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Conclusion and Recommendation

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Based upon the allegations in Plaintiff’s original complaint and first amended complaint,

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the Court finds that Plaintiff’s claims are not cognizable under section 1983, and must be brought

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in habeas corpus. See Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court

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may deny leave to amend when amendment would be futile.”) Further leave to amend is not

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warranted, as the defect cannot be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130

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(9th. Cir. 2000); Noll v. Carlson, 809 F.2d 1446-1449 (9th Cir. 1987).

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Based on the foregoing, it is HEREBY ORDERED that Plaintiff’s motion to withdraw

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consent to proceed before a United States Magistrate Judge, filed on February 5, 2018 (ECF No.

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21), is denied.
Further, the Clerk of the Court is HEREBY DIRECTED to randomly assign a district

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judge to this action.
Finally, for the reasons explained above, IT IS HEREBY RECOMMENDED that this

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action be dismissed for Plaintiff’s failure to state a claim for which relief may be granted.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-

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one (21) days after being served with these Findings and Recommendations, Plaintiff may file

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written objections with the Court. The document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.”

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Plaintiff is advised that failure to file objections within the specified time may result in

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the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

February 13, 2018
UNITED STATES MAGISTRATE JUDGE

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