Herrera et al v. California State Superior Courts et al

Filing 10

FINDINGS and RECOMMENDATIONS recommending that Plaintiff's federal claims be dismissed for failure to state a claim upon which relief may be granted without leave to amend; the state law claims, if any, be dismissed without prejudice; plaintiff's motion for injunctive relief be denied re 9 Amended Complaint filed by Daniel Herrera.;referred to Judge Ishii, signed by Magistrate Judge Barbara A. McAuliffe on 06/15/18. Objections to F&R due by 7/5/2018 (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANIEL HERRERA,

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Plaintiff,
v.
STUART SHERMAN, et al,

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Defendants,

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Case NO. 1:17-cv-386-AWI-BAM
FINDING AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION
FOR FAILURE TO STATE A CLAIM
(ECF No. 9)
FOURTEEN (14) DAY DEADLINE

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Plaintiff Daniel Herrera (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on March

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16, 2017. (ECF No. 1.) Plaintiff’s complaint was screened and Plaintiff was granted leave to

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amend. (ECF No. 8.) Plaintiff’s First Amended Complaint (“FAC”) filed on February 16, 2018, is

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currently before the Court for screening. (ECF No. 9.)

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I.

Screening Requirement and Standard

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

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief

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from a defendant who is immune from such relief. 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 pleader

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is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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

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statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009)

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(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While

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a plaintiff’s allegations are taken as true, courts “are not required to indulge unwarranted

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inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation

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marks and citation omitted).

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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, 1121-1123 (9th Cir. 2012), Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), but to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to

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allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged,

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Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. United States Secret

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Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully

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is not sufficient, and mere consistency with liability falls short of satisfying the plausibility

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standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949; Moss, 572 F.3d at 969.
Allegations in Plaintiff’s Complaint

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II.

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Plaintiff is housed at the California Substance Abuse Treatment Facility (“CSATF”)

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located in Corcoran, California. Plaintiff brings suit against (1) S. Sherman, CSATF Warden; (2)

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K. Clites, Case Records Officer; (3) S. Kane, Parole Representative (4) Scott Kernan, Secretary of

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the California Department of Corrections and Rehabilitations (“CDCR”).

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Plaintiff alleges that on November 9, 2016, California voters adopted Proposition 57

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language as California Constitution Article I, Section 32, which purportedly mandates that all

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persons convicted of nonviolent felony offenses be eligible for parole consideration after

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completing their primary offense. Plaintiff contends that he “has been denied the benefit of having

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his enhancements abrogated per Proposition 57 language that declared the enhancements and

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consecutive sentences, including alternative sentences are to be excluded from the primary offense

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term to be served.” (ECF No. 9, 3-4) Plaintiff alleges that Defendants Sherman, Clites, Kane, and

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Kernan all refuse to enforce state constitutional language.

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Plaintiff further alleges that he has been denied an adequate remedy to redress the continued

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violations of his civil rights as all the appeals at the administrative level are being rejected or not

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answered. Plaintiff asserts that he was and is entitled to have his term of imprisonment adjusted

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to include abrogation of consecutive, alternative and enhancement terms which would cause his

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term to be reduced. Plaintiff contends that this has been denied by Defendants Sherman, Clites,

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Kane, and Kernan. Plaintiff also states that “California Constitution Article I, Section 32 created a

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void judgment situation when the Plaintiff’s sentencing credits and remining [sic] term now require

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an amended abstract of judgment, which this court may grant an injunction to facilitate.” (Id. at 5.)

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Plaintiff purports to bring a cause of action for violation of the Eighth Amendment to the

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United States Constitution, and seeks declaratory and injunctive relief.
III.

Discussion
A. Linkage Requirement

Most of Plaintiff’s allegations fail to assert the requisite causal link between the challenged
conduct, a specific defendant, and a clearly identified constitutional violation. Under § 1983,
Plaintiff must demonstrate that each named defendant personally participated in the deprivation of
his rights. Ashcroft, 556 U.S. at 676–7; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir.
2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff may not attribute liability to
a group of defendants, but must “set forth specific facts as to each individual defendant's”
deprivation of his rights. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); see also Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989). Liability may not be imposed on supervisory personnel
under the theory of respondeat superior, as each defendant is only liable for his or her own
misconduct. Iqbal, 556 U.S. at 676–77; Ewing, 588 F.3d at 1235. Supervisors may only be held
liable if they “participated in or directed the violations, or knew of the violations and failed to act

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to prevent them.” Lemire v. Cal. Dept. of Corrections & Rehabilitation, 726 F.3d 1062, 1074–75

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(9th Cir. 2013).

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Plaintiff fails to link Defendants Sherman, Clites, Kane, and Kernan to any deprivation of

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his rights. Plaintiff may not simply refer to their titles or duties and determine that they did not

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follow the law. Instead, Plaintiff’s complaint must link each individually named defendant to an

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alleged deprivation of his rights and state what he did or did not do. To the extent plaintiff is

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alleging a claim under Proposition 57 against the named defendants, he does not explain how any

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actions they took impacted a parole determination. Insofar as Plaintiff is attempting to bring suit

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against Defendant Sherman, Clites, Kane, and Kernan in their supervisory roles, he may not do so.

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Liability may not be imposed on supervisory personnel for the actions or omissions of their

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subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676–77; Simmons v.

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Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d

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1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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B. Proposition 57

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On November 8, 2016, the California voters approved The Public Safety and Rehabilitation

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Act of 2016—Proposition (“Prop”) 57—and it took effect the next day. People v. Marquez, 11

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Cal. App. 5th 816, 821, 217 Cal.Rptr.3d 814 (Cal. App. 2017); Cal. Const., Art. II, § 10(a).

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Proposition 57 added Article 1, section 32 to the California Constitution. That section provides, in

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relevant part, “Parole consideration: Any person convicted of a nonviolent felony offense and

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sentenced to state prison shall be eligible for parole consideration after completing the full term of

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his or her primary offense,” defined for these purposes as “the longest term of imprisonment

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imposed by the court for any offense, excluding the imposition of an enhancement, consecutive

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sentence, or alternative sentence.” (Cal. Const., art. I, § 32, subds. (a)(1), (a)(1)(A).) Proposition

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57 only provides an inmate who has completed his base term with a hearing before the Board of

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Parole Hearings (Cal. Const. Art. I, Sec. 32(a)).

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This federal court appears to be the only district that has had cause to screen a section 1983

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complaint with similar allegations. See Daniels v. Cal. Dep’t of Corr. & Rehab., No. 1:17-cv-

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00232-AWI-BAM, 2018 WL 1726638 (E.D. Cal. April 9, 2017) (finding few California federal

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courts have had cause to screen section 1983 complaint with largely identical allegations); Jones

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v. Cal. State Superior Courts, No. 1:17-cv-00232-DAD-BAM (PC), 2018 WL 2287952, 2017 U.S.

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Dist. LEXIS 166506 (E.D. Cal. Oct. 5, 2017) (finding that no federal court has addressed the issue

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of Proposition 57 on screening); but cf Hemingway v. CDCR (Sacramento), No. 2:17-cv-0534-

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JAM-CMK-P, 2017 U.S. Dist. LEXIS 212819 (E.D. Cal. Dec. 28, 2017) (Court noted that

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Plaintiff’s complaint challenging the application of Proposition 57 had not been screened by the

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court, but suggested that to the extent that the complaint challenged Plaintiff’s conviction it is not

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cognizable under § 1983). California state court cases addressing application of Proposition 57 are

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unpublished decisions (See Cal. Rules of Court 8.1115). They, nonetheless, uniformly state that

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Proposition 57 creates a mechanism for parole consideration, not a vehicle for resentencing, and

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does not entitle Plaintiff to seek relief in court in the first instance. Indeed, the plain language of

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the Art. I, sec. 32 provides that a person is eligible for “parole consideration.” Any determination

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as to appellant’s right to parole under Proposition 57 must be made, in the first instance, by the

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appropriate agency.

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Section 1983 provides a remedy only for violation of the Constitution or law or treaties of

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the United States, not state law. Swarthout v. Cooke, 562 U.S. 216, 222, 131 S. Ct. 859, 863, 178

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L.Ed.2d 732 (2011) (the responsibility for assuring that the constitutionally adequate procedures

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governing California’s parole system are properly applied rests with California courts). “To the

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extent that the violation of a state law amounts to the deprivation of a state-created interest that

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reaches beyond that guaranteed by the federal Constitution, Section 1983 offers no redress.”

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Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997). State courts “are the ultimate

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expositors of state law.” Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508

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(1975). Plaintiff has not alleged that he qualifies for parole consideration under the requirements

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of Proposition 57.

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C. A Section 1983 Lawsuit Cannot Challenge Duration

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To the extent Plaintiff seeks to challenge the duration or fact of his sentence, his sole federal

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remedy is a writ of habeas corpus, and a lawsuit under 42 U.S.C. § 1983 is inappropriate. Preiser

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v. Rodriguez, 411 U.S. 475, 479 (1973) (“Release from penal custody is not an available remedy

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under the Civil Rights Act”); Young v. Kenny, 907 F.2d 874, 875 (9th Cir. 1989) (“Where a state

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prisoner challenges the fact or duration of his confinement, his sole federal remedy is a writ of

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habeas corpus.”).

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In a § 1983 lawsuit, Plaintiff is restricted to limited procedural challenges and cannot

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proceed if he seeks to challenge the validity or duration of his sentence. Wilkinson v. Dotson, 544

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U.S. 74, 81 (2005) (Ҥ 1983 remains available for procedural challenges where success in the

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action would not necessarily spell immediate or speedier release for the prisoner . . . habeas

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remedies do not displace § 1983 actions where success in the civil rights suit would not necessarily

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vitiate the legality of (not previously invalidated) state confinement.”). Federal courts may order a

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new parole suitability hearing only under very limited circumstances that are not alleged here. See

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Swarthout, 562 U.S. at 219-20 (federal courts may not intervene in parole decision if minimum

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procedural protections were provided, i.e., an opportunity to be heard and a statement of the

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reasons why parole was denied). Thus, Plaintiff’s claims are not cognizable to the extent he is

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seeking to order his immediate or speedier release.

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D. Appeals Process

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Plaintiff complains about the administrative appeals process at his institution. However,

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Plaintiff may not pursue any claims against CDCR staff relating to the processing or review of his

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administrative appeals. The existence of an inmate appeals process does not create a protected

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liberty interest upon which Plaintiff may base a claim that he was denied a particular result or that

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the appeals process was deficient. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v.

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Adams, 855 F.2d 639, 640 (9th Cir. 1988)

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E. State Law Claims

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Pursuant to 28 U.S.C. § 1367(a), in any civil action in which the district court has original

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jurisdiction, the district court “shall have supplemental jurisdiction over all other claims in the

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action within such original jurisdiction that they form part of the same case or controversy under

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Article III,” except as provided in subsections (b) and (c). The Supreme Court has cautioned that

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“if the federal claims are dismissed before trial, ... the state claims should be dismissed as well.”

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United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). Although the court may

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exercise supplemental jurisdiction over state law claims, Plaintiff must first have a cognizable

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claim for relief under federal law. See 28 U.S.C. § 1367.

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In this instance, Plaintiff fails to state a claim for relief on his federal claims for violations

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of 42 U.S.C. § 1983. As Plaintiff has failed to state any cognizable federal claims in this action,

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the Court declines to exercise supplemental jurisdiction over Plaintiff’s state law causes of action.

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See 28 U.S.C. § 1367(c)(3).

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F. Eighth Amendment
The Eighth Amendment to the United States Constitution imposes on the states an
obligation to provide for the basic human needs of prison inmates. Farmer v. Brennan, 511 U.S.
825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). A prison official violates the Eighth Amendment’s
proscription of cruel and unusual punishment where he or she deprives a prisoner of the minimal
civilized measure of life’s necessities with a “sufficiently culpable state of mind.” Id. at 825, 834.
To succeed on such an Eighth Amendment claim, a prisoner must show that (1) the defendant
prison official’s conduct deprived him or her of the minimal civilized measure of life’s necessities
and (2) that the defendant acted with deliberate indifference to the prisoner’s health or safety. Id.
at 834. While “[t]he Constitution ‘does not mandate comfortable prisons,’ ... neither does it permit
inhumane ones.” Id. (citation omitted); see also Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475,
2480, 125 L.Ed.2d 22 (1993).
Here, Plaintiff asserts that the Defendants have subjected him to cruel and unusual
punishment by denying him an adequate remedy for violation of his civil rights and rejecting his

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appeals. However, Plaintiff does not state an Eighth Amendment cruel and unusual punishment

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claim, because he has not alleged that prison officials deprived him of humane conditions of

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confinement—only that they continued to confine him beyond when he believes he should have

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been released under Proposition 57. See Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970,

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128 L. Ed. 2d 811 (1994) (noting that the Eighth Amendment prohibits using excessive physical

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force against prisoners and requires that officials provide humane conditions of confinement).

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Plaintiff has not alleged that he has been deprived of the basic human needs of inmates. Without

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more, the conditions Plaintiff is complaining of—ongoing confinement—are not sufficient to form

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the basis of an Eighth Amendment claim.

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IV.

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For the reasons discussed above, Plaintiff’s first amended complaint fails to state a claim

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upon which relief may be granted under section 1983. Despite being provided with the relevant

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pleading and legal standards, Plaintiff has been unable to cure the deficiencies of his complaint by

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amendment. Therefore, further leave to amend is not warranted in this action. Lopez v. Smith, 203

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F.3d 1122, 1130 (9th Cir. 2000).

Conclusion & Recommendation

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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Plaintiff’s federal claims be dismissed for failure to state a claim upon which relief
may be granted without leave to amend;

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2.

The state law claims, if any, be dismissed without prejudice;

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3.

Plaintiff’s motion for injunctive relief be denied.

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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 Title 28 U.S.C. § 636(b)(l). Within

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fourteen (14) days after being served with these Findings and Recommendations, Plaintiffs may

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

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Magistrate Judge’s Findings and Recommendations.” Plaintiffs are advised that failure to file

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objections within the specified time may result in the waiver of the “right to challenge the

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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (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.
Dated:

/s/ Barbara

June 15, 2018

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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