Givens v. Governor of the State of California et al

Filing 12

ORDER ; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 3/21/12 ORDERING that Plaintiffs motion to proceed in forma pauperis 10 is GRANTED; and Plaintiffs motion for leave to use the courts electronic filing system, CMECF, 8 is GRANTED. It is RECOMMENDED that this action be dismissed without prejudice. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRANCOIS P. GIVENS,

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Plaintiff,

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No. CIV S-11-1880 MCE DAD P

vs.
GOVERNOR OF THE STATE
OF CALIFORNIA et al.,

ORDER AND

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Defendants.
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FINDINGS AND RECOMMENDATIONS
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Plaintiff is a parolee at-large proceeding pro se. Plaintiff seeks relief pursuant to

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42 U.S.C. § 1983 and has filed an application to proceed in forma pauperis under 28 U.S.C.

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§ 1915. This proceeding was referred to the undersigned magistrate judge in accordance with

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Local Rule 302 and 28 U.S.C. § 636(b)(1).

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Plaintiff has submitted an in forma pauperis application that makes the showing

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required by 28 U.S.C. § 1915(a)(1). Accordingly, plaintiff will be granted leave to proceed in

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forma pauperis.

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SCREENING REQUIREMENT

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The court must dismiss a complaint or portion thereof if the plaintiff has raised

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

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granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

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U.S.C. § 1915(e)(2)(B)(I)-(iii).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and

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plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

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(1957)). However, in order to survive dismissal for failure to state a claim a complaint must

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contain more than “a formulaic recitation of the elements of a cause of action;” it must contain

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factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic,

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550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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The Civil Rights Act under which this action was filed provides as follows:

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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. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See
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Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the

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actions of their employees under a theory of respondeat superior and, therefore, when a named

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defendant holds a supervisorial position, the causal link between him and the claimed

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constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862

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(9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory

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allegations concerning the involvement of official personnel in civil rights violations are not

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sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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PLAINTIFF’S COMPLAINT
In the present case, plaintiff has identified the Governor of the State of California,

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Matthew Cate, and various parole administrative officials as the defendants. In his complaint,

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plaintiff alleges that he was on parole when the defendants informed him that he would have to

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complete a 52-week domestic violence class before they would release him from parole. Plaintiff

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contends that he attempted to challenge this special condition of parole through the

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administrative appeals process, but the defendants failed to properly process his appeal. Plaintiff

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claims that he eventually completed the 52-week class and satisfied the special condition, but the

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defendants still have not discharged him from parole. In terms of relief, plaintiff requests

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declaratory relief and monetary damages. (Compl. at 1-30.)

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DISCUSSION
A civil rights action is the proper mechanism for a prisoner seeking to challenge

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the conditions of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991). In contrast,

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habeas corpus proceedings are the proper mechanism for a prisoner seeking to challenge the fact
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or duration of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Here, plaintiff

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claims that the defendants improperly imposed on him a special condition of parole, and although

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he has satisfied the condition, that the defendants have still not discharged him from parole.

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Based on plaintiff’s allegations, the court cannot allow him to proceed in this civil

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rights action because he has not alleged that his current parole sentence has been overturned or

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otherwise invalidated. See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (“a state prisoner’s §

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1983 action is barred (absent prior invalidation) - no matter the relief sought (damages or

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equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or

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internal prison proceedings) - if success in that action would necessarily demonstrate the

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invalidity of confinement or its duration.”); Heck v. Humphrey, 512 U.S. 477 (1994) (a state

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prisoner may not recover damages under § 1983 for allegedly unconstitutional imprisonment, or

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for any other harm caused by “actions whose unlawfulness would render the imprisonment

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invalid,” unless he can prove that the conviction or other basis for confinement has been reversed

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on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to

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make such a determination, or called into question by a federal court’s issuance of a writ of

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habeas corpus); Cordell v. Tilton, 515 F. Supp. 2d 1114, 1122 & 1131-33 (S.D. Cal. 2007)

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(§ 1983 claims alleging that parole supervisors imposed and enforced unconstitutional conditions

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on parolee could only be properly brought in habeas action); Fisher v. Fresno Police Dep’t, No.

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1:11cv01580 LJO DLB, 2011 WL 4629225 at *3-4 (E.D. Cal. Oct. 3, 2011) (plaintiff’s sole

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federal remedy for challenging parole conditions as arbitrary and capricious is with a petition for

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writ of habeas corpus); Thornton v. Schwarzenegger, Civil No. 10cv01583, 2011 WL 2173652 at

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*8-14 (S.D. Cal. June 1, 2011) (§ 1983 challenge to parole conditions falls within the recognized

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scope of federal habeas corpus relief).

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Here, plaintiff’s allegations necessarily implicate the validity of his parole status.

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Accordingly, a writ of habeas corpus is the sole remedy by which plaintiff may attack the

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conditions of his parole in federal court. Moreover, plaintiff may pursue that remedy only after
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he has exhausted all of his constitutional claims by fairly presenting them to the highest state

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court.

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OTHER MATTERS

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Also pending before the court is plaintiff’s motion for leave to use the court’s

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electronic filing system, CM-ECF. See Local Rule 133(b). The court previously instructed

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plaintiff that before the court would rule on his motion, he had to file a declaration signed under

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penalty of perjury stating that he has investigated this court’s electronic filing requirements, has

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all necessary hardware and software, and will comply with all requirements concerning electronic

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filing in this court. Plaintiff has since filed a declaration stating as much. Accordingly, the court

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will grant plaintiff’s motion to file electronically and direct him to register to file electronically

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forthwith.

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CONCLUSION

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IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 10) is granted; and

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2. Plaintiff’s motion for leave to use the court’s electronic filing system, CM-

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ECF, (Doc. No. 8) is granted.

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IT IS HEREBY RECOMMENDED that this action be dismissed without
prejudice.

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These findings and recommendations are 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 fourteen

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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 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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DATED: March 21, 2012.

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DAD:9
give1880.56

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