Woolfolk v. Brown et al
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 11/22/11 ORDERING that 2 Motion to Proceed IFP is GRANTED; it is RECOMMENDED that this action be dismissed without prejudice. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 21 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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RANDY WOOLFOLK,
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Plaintiff,
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vs.
EDMUND G. BROWN, et al.,
Defendants.
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No. 2:11-cv-2713 GEB KJN P
ORDER AND
FINDINGS AND RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief
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pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to
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28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1)
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and Local Rule 302.
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Plaintiff has submitted a declaration that makes the showing required by
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28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis is granted.
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The court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner 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.
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28 U.S.C. § 1915A(b)(1),(2).
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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 when 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), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.
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2000) (“a judge may dismiss [in forma pauperis] claims which are based on indisputably
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meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at
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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)). In order to survive dismissal for failure to state a claim, a complaint must contain more
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than “a formulaic recitation of the elements of a cause of action;” it must contain factual
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allegations sufficient “to raise a right to relief above the speculative level.” Id. However,
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“[s]pecific facts are not necessary; the statement [of facts] need only ‘give the defendant fair
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notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551
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U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal
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quotations marks omitted). In reviewing a complaint under this standard, the court must accept
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as true the allegations of the complaint in question, id., and construe the pleading in the light
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most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
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Plaintiff does not provide a statement of his claim; rather, plaintiff states that “a
full description of the case is therein Exhibit (B).” Exhibit B contains copies of plaintiff’s
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administrative appeals and decisions. In one request, plaintiff states: “I received a remittitur, and
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costs are not awarded, so why are you holding me?” (Dkt. no. 1 at 14.) Plaintiff also states that
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“he will continue to file this appeal because his release date is close, and he wants money to start
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his life and be able to afford a place of his own once he is paroled.” (Dkt. No. 1 at 19.) It
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appears that plaintiff believes that the April 2, 2002 remittitur from the Court of Appeal
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somehow entitled plaintiff to release from custody, or the payment of money. Plaintiff is
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misinformed.
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First, the remittitur at issue here appears to be a “remittitur of record.” This is
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defined as “[t]he action of sending the transcript of a case back from an appellate court to a trial
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court; the notice for doing so.” Black’s Law Dictionary 1298 (7th ed. 1999). The remittitur, as
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written, provides no relief to either party.
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Second, the remittitur noted that no costs were awarded in this proceeding, which
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is consistent with the underlying January 30, 2002 decision by the Court of Appeal. This
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statement does not entitle either party to any monetary relief.
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Third, the remittitur issued by the Court of Appeal also noted that the January 30,
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2002 decision had become final. (Id.) The January 30, 2002 decision by the California Court of
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Appeal, Fifth Appellate District, affirmed plaintiff’s criminal conviction for which plaintiff is
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presently incarcerated. (Dkt. No. 1 at 6-12.) Thus, neither the remittitur nor the 2002 decision
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by the Court of Appeal reduced plaintiff’s fourteen-year prison sentence, or affected the
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underlying conviction in any way.
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In any event, the remittitur relied upon by plaintiff in filing the instant action does
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not entitle plaintiff to relief under 42 U.S.C. § 1983. Therefore, the instant complaint is legally
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frivolous.
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To the extent plaintiff seeks release from prison, plaintiff may only proceed by
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filing a petition for writ of habeas corpus. Civil rights complaints filed pursuant to 42 U.S.C.
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§ 1983 challenge conditions of confinement. Challenges to the fact or duration of a prisoner’s
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sentence may only be raised in a petition for writ of habeas corpus, filed pursuant to 28 U.S.C.
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§ 2254. The United States Court of Appeals for the Ninth Circuit has authorized courts to
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construe actions challenging the fact or duration of a prisoner’s confinement as habeas corpus
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actions in appropriate circumstances. See Tucker v. Carlson, 925 F. 2d 330 (9th Cir. 1991)
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(complaint should have been construed as petition for writ of habeas corpus). However, in this
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case, a petition for writ of habeas corpus filed at this late date would likely be time-barred as well
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as successive. On April 24, 1996, the Antiterrorism and Effective Death Penalty Act
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(“AEDPA”) was enacted. Section 2244(d)(1) of Title 8 of the United States Code provides for a
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one year statute of limitations period. Here, plaintiff was convicted on December 7, 2000, and
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sentenced to fourteen years in state prison.1 Over ten years have passed; thus, any new attempt to
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challenge the 2000 conviction, absent rare exceptions, is likely barred by the statute of
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limitations.
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Finally, plaintiff previously challenged his 2000 conviction in an application for
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writ of habeas corpus filed in Woolfolk v. Lamarque, 1:02-cv-6463 AWI WMW HC (E.D. Cal.)
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(Fresno Division).2 The previous application was filed on November 25, 2002, and was denied
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on the merits on October 28, 2004. Before plaintiff can proceed with a second application for
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writ of habeas corpus, he must move in the United States Court of Appeals for the Ninth Circuit
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for an order authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3).
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Therefore, the court will not construe plaintiff’s filing as a petition for writ of
habeas corpus.
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Accordingly, this action should be dismissed without prejudice.
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This information was obtained from the Kern County Superior Court website,
http://www.co.kern.ca.us/courts/crimcal/crim_index_case_detail.asp (accessed October 25,
2011).
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A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman,
803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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In accordance with the above, IT IS HEREBY ORDERED that plaintiff’s request
for leave to proceed in forma pauperis is granted;3 and
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IT IS 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 twenty-
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one 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: November 22, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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Because the complaint is dismissed without leave to amend, the court has not imposed
the $350.00 filing fee. Plaintiff is cautioned, however, that should he continue to attempt to
litigate these noncognizable claims, the court will require payment of the $350.00 filing fee from
plaintiff’s inmate trust account. 28 U.S.C. §§ 1914(a), 1915(b)(1).
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