Lowe v. Superior Court of California San Joaquin County Stockton California

Filing 11

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 12/07/17 RECOMMENDING that plaintiff's complaint be dismissed without prejudice, for failure to state a claim upon which relief can be granted. Referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, 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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FLOYD LOWE,

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No. 2:16-cv-1176-GEB-CMK-P

Plaintiff,
vs.

FINDINGS AND RECOMMENDATION

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SUPERIOR COURT OF CALIFORNIA
SAN JOAQUIN COUNTY
STOCKTON CALIFORNIA,

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Defendant.

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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
Plaintiff alleges his Fifth, Eighth and Fourteenth Amendment rights have been

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violated by the state court’s refusal to reverse his conviction or re-sentence him. He is requesting

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his freedom and punitive damages.

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II. DISCUSSION
It appears that the claims raised in plaintiff complaint claims sound in habeas and

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are not cognizable as a § 1983 action. When a state prisoner challenges the legality of his

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custody and the relief he seeks is a determination that he is entitled to an earlier or immediate

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release, such a challenge is not cognizable under 42 U.S.C. § 1983 and the prisoner’s sole federal

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remedy is a petition for a writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500

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(1973); see also Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa

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Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (per curiam). Thus, where a § 1983 action seeking

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monetary damages or declaratory relief alleges constitutional violations which would necessarily

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imply the invalidity of the prisoner’s underlying conviction or sentence, or the result of a prison

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disciplinary hearing resulting in imposition of a sanction affecting the overall length of

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confinement, such a claim is not cognizable under § 1983 unless the conviction or sentence has
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first been invalidated on appeal, by habeas petition, or through some similar proceeding. See

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Heck v. Humphrey, 512 U.S. 477, 483-84 (1994) (concluding that § 1983 claim not cognizable

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because allegations were akin to malicious prosecution action which includes as an element a

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finding that the criminal proceeding was concluded in plaintiff’s favor); Butterfield v. Bail, 120

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F.3d 1023, 1024-25 (9th Cir. 1997) (concluding that § 1983 claim not cognizable because

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allegations of procedural defects were an attempt to challenge substantive result in parole

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hearing); cf. Neal, 131 F.3d at 824 (concluding that § 1983 claim was cognizable because

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challenge was to conditions for parole eligibility and not to any particular parole determination);

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cf. Wilkinson v. Dotson, 544 U.S. 74 (2005) (concluding that § 1983 action seeking changes in

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procedures for determining when an inmate is eligible for parole consideration not barred

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because changed procedures would hasten future parole consideration and not affect any earlier

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parole determination under the prior procedures).

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Here, it is clear that plaintiff is challenging his conviction, and the relief he is

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requesting is to be released from prison. Such a claim is not cognizable in § 1983 unless the

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underlying conviction or sentence has first been invalidated on appeal, by habeas petition, or

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through some similar proceeding. See Heck, 512 U.S. at 483-84. It is also clear from the

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complaint that no court has invalidated plaintiff’s sentence or conviction, as that is what he is

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requesting in this action. As such, plaintiff’s complaint fails to state a claim for which relief may

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be granted, and must be dismissed.

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The Ninth Circuit recently addressed the issue of a pro se litigant filing the

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incorrect action to address his claim. “[A] district court may construe a petition for habeas

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corpus to plead a cause of action under § 1983 after notifying and obtaining informed consent

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from the prisoner.” Nettles, 830 F.3d at 936. “‘If the complaint is amendable to conversion on its

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face, meaning that it names the correct defendants and seeks the correct relief, the court may

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recharacterize the petition so long as it warns the pro se litigant of the consequences of the

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conversion and provides an opportunity for the litigant to withdraw or amend his or her
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complaint.’” Id. (quoting Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005)). However, the

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Court recognized that following enactment of the PLRA, “‘a habeas corpus action and a prisoner

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civil rights suit differ in a variety of respects—such as the proper defendant, filing fees, the

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means of collecting them, and restrictions on future filings—that may make recharacterization

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impossible or, if possible, disadvantageous to the prisoner compared to a dismissal without

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prejudice of his petition for habeas corpus.’” Id. at 935-36 (quoting Robinson v. Sherrod, 631

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F.3d 839, 841 (7th Cir. 2011)). Based on these differences, the court is not inclined to

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recharacterize plaintiff’s civil rights complaint as a habeas petition in this instance.

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III. CONCLUSION

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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 plaintiff’s complaint be
dismissed, without prejudice, for failure to state a claim upon which relief can be granted.

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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 7, 2017
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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