Larry Sermeno v. Glover

Filing 8

ORDER DIRECTING Clerk of Court to Randomly Assign a District Judge to this Action; FINDINGS and RECOMMENDATIONS Recommending Dismissal of 1 Complaint, without Prejudice signed by Magistrate Judge Stanley A. Boone on 4/30/2018. Referred to Judge Anthony W. Ishii. Objections to F&R due within Twenty-one (21) Days. The new case number is 1:18-cv-00544-AWI-SAB(PC). (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LARRY SERMENO,

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Plaintiff,
v.
J. CLOVER,
Defendant.

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Case No.: 1:18-cv-00544-SAB (PC)
ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN A DISTRICT JUDGE TO
THIS ACTION
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
COMPLAINT, WITHOUT PREJUDICE
[ECF No. 1]

Plaintiff Larry Sermeno is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s complaint, filed April 23, 2018.

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I.

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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 legally

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

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

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1915(e)(2)(B).
A complaint must contain “a short and plain statement of the claim showing that the pleader is

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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 statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally

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participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002).
Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally

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construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121

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

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

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defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service,

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572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not

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sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying

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

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II.

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COMPLAINT ALLEGATIONS
On or about December 11, 2017, Case Records Supervisor, J. Glover granted Plaintiff’s inmate

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appeal, in part, to obtain a copy of his sentencing transcript to verify that his criminal sentence needs

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to be recalculated by the California Department of Corrections and Rehabilitation (CDCR). A letter

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was attached to the Butte County Superior Court for Case Number CM035385 for sentencing

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transcripts. Plaintiff has not received any response from the Superior Court. As a result, Plaintiff has

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been deprived of a proper sentence calculation at halftime credit earning which would result in his

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immediate release from custody or “have little to no time left on parole.” (Compl. at 5.)

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III.

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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. § 1983.”

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

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

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relief turning on circumstances of confinement may be presented in a § 1983 action.” Id. (internal

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citation omitted). Federal courts lack habeas jurisdiction over claims by state prisoners that are not

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within “the core of habeas corpus.” Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir. 2016) (en banc),

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cert. denied, 137 S.Ct. 645 (2017). A prisoner’s claims are within the core of habeas corpus if they

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challenge the fact or duration of his conviction or sentence. Id. at 934. “[W]hen a prisoner’s claim

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would not ‘necessarily spell speedier release,’ that claim does not lie at “the core of habeas corpus,’

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and may be brought, if at all, under § 1983.” Skinner v. Switzer, 562 U.S. 521, 534 n.13 (2011)

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(citing Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)); Nettles, 830 F.3d at 934.

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It is clear from Plaintiff’s allegations that his claim affects the duration of his sentence. As

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such, the proper avenue to seek such relief is by way of habeas corpus petition filed pursuant to 28

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U.S.C. § 2254. Plaintiff is advised that the proper venue for challenging the execution of his sentence

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is the district court containing the sentencing court, while the proper venue to challenge the execution

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of his sentence is the district court containing the prison in which Petitioner is incarcerated. 28 U.S.C.

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§ 2241(d). Accordingly, to the extent Plaintiff wishes to challenge the duration of his confinement he

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must file a habeas corpus petition in the district court containing the sentencing court. Therefore,

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Plaintiff’s complaint must be dismissed. Although the Court would generally grant Plaintiff leave to

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amend in light of his pro se status, amendment is futile in this instance because the deficiencies cannot

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

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Court of Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) (recognizing “[f]utility of

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amendment” as a proper basis for dismissal without leave to amend); see also Trimble v. City of Santa

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Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (a civil rights complaint seeking habeas relief should be

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dismissed without prejudice to filing as a petition for writ of habeas corpus).
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IV.

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RECOMMENDATIONS

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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The instant action be dismissed for failure to state a cognizable claim under 42

U.S.C. § 1983;

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The Clerk of Court be directed to terminate this action; and

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3.

The Office of the Clerk is directed to randomly assign this action to a District

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Judge.
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 28 U.S.C. § 636(b)(l). Within twenty-one (21)

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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 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-

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39 (9th Cir. 2014) (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:

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April 30, 2018
UNITED STATES MAGISTRATE JUDGE

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