Villacres v. California Department of Corrections & Rehabilitation et al

Filing 15

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 12/30/13 recommending that the complaint be dismissed for failure to state a cognizable claim. Referred to Judge Lawrence K. Karlton; 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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CHARLES D. VILLACRES,

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No. 2:13-cv-1112-LKK-CMK-P

Plaintiff,
vs.

FINDINGS AND RECOMMENDATIONS

CALIFORNIA DEPARTMENT OF
CORRECTIONS & REHABILITATION, et al.

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Defendants.
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/
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42
U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1).
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. See 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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

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the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

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This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,
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84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied

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if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon

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which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must

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allege with at least some degree of particularity overt acts by specific defendants which support

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the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.

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I. PLAINTIFF’S ALLEGATIONS
In his complaint, plaintiff claims he was egregiously denied a parole date by the

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defendants, in violation of his due process rights. He states that there is no evidence that

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provides a viable reason to deny him parole. The relief he is requesting is an immediate parole

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release date as well as damages.

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II. DISCUSSION
When a state prisoner challenges the legality of his custody and the relief he seeks

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is a determination that he is entitled to an earlier or immediate release, such a challenge is not

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cognizable under 42 U.S.C. § 1983 and the prisoner’s sole federal remedy is a petition for a writ

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of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Neal v. Shimoda,

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131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir.

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1995) (per curiam). Thus, where a § 1983 action seeking monetary damages or declaratory relief

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alleges constitutional violations which would necessarily imply the invalidity of the prisoner’s

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underlying conviction or sentence, or the result of a prison disciplinary hearing resulting in

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imposition of a sanction affecting the overall length of confinement, such a claim is not

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cognizable under § 1983 unless the conviction or sentence has first been invalidated on appeal,

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by habeas petition, or through some similar proceeding. See Heck v. Humphrey, 512 U.S. 477,

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483-84 (1994) (concluding that § 1983 claim not cognizable because allegations were akin to

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malicious prosecution action which includes as an element a finding that the criminal proceeding
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was concluded in plaintiff’s favor); Butterfield v. Bail, 120 F.3d 1023, 1024-25 (9th Cir. 1997)

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(concluding that § 1983 claim not cognizable because allegations of procedural defects were an

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attempt to challenge substantive result in parole hearing); cf. Neal, 131 F.3d at 824 (concluding

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that § 1983 claim was cognizable because challenge was to conditions for parole eligibility and

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not to any particular parole determination); cf. Wilkinson v. Dotson, 544 U.S. 74 (2005)

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(concluding that § 1983 action seeking changes in procedures for determining when an inmate is

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eligible for parole consideration not barred because changed procedures would hasten future

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parole consideration and not affect any earlier parole determination under the prior procedures).

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If a § 1983 complaint states claims which sound in habeas, the court should not

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convert the complaint into a habeas petition. See id.; Trimble, 49 F.3d at 586. Rather, such

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claims must be dismissed without prejudice and the complaint should proceed on any remaining

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cognizable § 1983 claims. See Balisok, 520 U.S. at 649; Heck, 512 U.S. at 487; Trimble, 49

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F.3d at 585.

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Here, plaintiff is challenging the Board of Parole Hearing’s decision to deny him a

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parole date. What he seeks is an immediate parole release date. He is thus challenging a specific

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parole determination, which is not cognizable in a § 1983 action. His sole remedy lies in a

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petition for writ of habeas corpus.

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III. CONCLUSION
Because it does not appear possible that the deficiencies identified herein can be

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cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of

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the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).

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Based on the foregoing, the undersigned recommends that the complaint be
dismissed for failure to state a cognizable claim.

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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 14 days

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after being served with these findings and recommendations, any party may file written
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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: December 30, 2013
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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