Avila v. Brown

Filing 23

FINDINGS and RECOMMENDATIONS recommending that Plaintiff's action be dismissed for failure to state a cognizable claim for relief re 21 Amended Prisoner Civil Rights Complaint filed by Daniel Avila ; referred to Judge O'Neill,signed by Magistrate Judge Barbara A. McAuliffe on 7/6/18. Objections to F&R due 14-Day Deadline(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANIEL AVILA,
Plaintiff,

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vs.
JERRY BROWN, et al.,
Defendants.

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1:17-cv-01328-LJO-BAM (PC)
FINDINGS AND RECOMMENDATIONS
TO DISMISS ACTION FOR THE FAILURE
TO STATE A COGNIZABLE CLAIM
(Doc. 21)
FOURTEEN (14) DAY DEADLINE

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Plaintiff Daniel Avila is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States

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Magistrate Judge pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302.

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Currently before the Court for screening is Plaintiff’s second amended complaint, filed
on July 2, 2018. (Doc. 21.)

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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

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

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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 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, 129 S. Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge

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

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(internal quotation 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. Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially

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

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named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949

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(quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.

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2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere

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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at

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678, 129 S. Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.

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II.

Summary of Plaintiff’s Allegations

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Plaintiff names Governor Jerry Brown as the sole defendant in this action. Plaintiff

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asserts that the Los Angeles Superior Court judge who sentenced him to 148 years to life in

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prison, in a criminal matter, did not have jurisdiction to enter the judgment. Plaintiff seeks a

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declaration that there is a lack of jurisdiction to enforce his sentence.

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III.

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 writ of habeas corpus, 28 U.S.C. § 2254, and a complaint under … 42 U.S.C. §

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1983.” Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam). “Challenges to the validity

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of any confinement or to particulars affecting its duration are the province of habeas corpus;

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requests for relief turning on circumstances of confinement may be presented in a § 1983

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action.” Id. (internal citation omitted). Federal courts lack habeas jurisdiction over claims by

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state prisoners that are not within “the core of habeas corpus.” Nettles v. Grounds, 830 F.3d 922,

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934 (9th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 645 (2017). A prisoner’s claims are

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within the core of habeas corpus if they challenge the fact or duration of his conviction or

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sentence. Id. at 934. “[W]hen a prisoner’s claim would not ‘necessarily spell speedier release,’

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that claim does not lie at “the core of habeas corpus,’ and may be brought, if at all, under §

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1983.” Skinner v. Switzer, 562 U.S. 521, 534 n.13 (2011) (citing Wilkinson v. Dotson, 544 U.S.

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74, 82 (2005)); Nettles, 830 F.3d at 934.

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Here, Plaintiff is challenging the validity of his conviction, which impacts the duration of

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his sentence. His argument that he only challenges to halt the enforcement of his sentence due to

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lack of jurisdiction has no merit, and that therefore his cause of action may proceed in a § 1983

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civil rights action, has no merit.

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The proper avenue to seek the relief Plaintiff desires is by way of habeas corpus petition

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filed pursuant to 28 U.S.C. § 2254. Plaintiff is advised that the proper venue for challenging the

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execution of his sentence is the district court containing the sentencing court, while the proper

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venue to challenge the execution of his sentence is the district court containing the prison in

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which a petitioner is incarcerated. 28 U.S.C. § 2241(d). Accordingly, to the extent Plaintiff

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wishes to challenge the duration of his confinement, he must file a habeas corpus petition in the

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district court containing the sentencing court.

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Plaintiff has previously been granted leave to amend in this action, and was unable to

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cure the deficiencies identified in his pleadings. Now, he only asserts the cause of action

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discussed above. Further amendment is futile in this case, because the deficiencies here cannot

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be cured by amendment. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000); Schmier v.

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U.S. Court of Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) (recognizing

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“[f]utility of amendment” as a proper basis for dismissal without leave to amend); see also

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Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (a civil rights complaint seeking

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habeas relief should be dismissed without prejudice to filing as a petition for writ of habeas

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corpus).

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IV.

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For the reasons explained above, IT IS HEREBY RECOMMENDED that Plaintiff’s

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Conclusion and Order

action be dismissed for failure to state a cognizable claim for relief under 28 U.S.C. § 1915A.

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These Findings and Recommendation 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 Recommendation, Plaintiff may

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file written objections with the Court.

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Magistrate Judge’s Findings and Recommendation.” Plaintiff is 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.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

The document should be captioned “Objections to

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IT IS SO ORDERED.
Dated:

/s/ Barbara

July 9, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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