Carr v. Rackley et al
Filing
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ORDER; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/24/16 ORDERING that Plaintiff's 4 request for leave to proceed in forma pauperis is GRANTED. It is RECOMMENDED that the complaint be dismissed without prejudice and this case closed. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MARION ALEXANDER CARR,
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No. 2:16-cv-1801 JAM CKD P
Plaintiff,
v.
ORDER &
R. J. RACKLEY, et al.,
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FINDINGS AND RECOMMENDATIONS
Defendants.
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I. Introduction
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983.
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The complaint was filed April 19, 2016 and transferred to the Eastern District of California on
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August 1, 2016. (ECF Nos. 1 & 6.) This proceeding was referred to this court by Local Rule 302
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pursuant to 28 U.S.C. § 636(b)(1).
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Plaintiff requests leave to proceed in forma pauperis. Since plaintiff has submitted a
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declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted
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II. Screening Standard
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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 upon which relief may be granted, or that seek
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monetary relief from a defendant who is immune from such relief. 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 (9th
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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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In order to avoid dismissal for failure to state a claim a complaint must contain more than
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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause
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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim
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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A
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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
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at 678. When considering whether a complaint states a claim upon which relief can be granted,
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the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007),
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and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416
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U.S. 232, 236 (1974).
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III. Discussion
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Plaintiff was convicted in 1977 for aiding and abetting murder based on his role as the
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“lookout man” for his co-defendant. (ECF No. 1 at 4, 28, 32.) He was sentenced to a prison term
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of seven years to life. (Id. at 1.) He is now 67 years old and has been in prison 39 years, having
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been denied parole 16 times. (Id. at 4-5.) Plaintiff claims that his punishment is excessive under
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the Eighth Amendment and violates other constitutional provisions and state laws. (Id. at 4-5.)
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Defendants are the Warden at Folsom State Prison and past members of the California Board of
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Prison Terms (“Board”), spanning three decades of parole decisions. (Id. at 6-19.) Plaintiff seeks
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relief in the form of damages and an order requiring the state Board of Parole Hearings to hold a
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new hearing for him within 90 days. (Id. at 46.)
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Court records indicate that, in April 2016, plaintiff filed a petition for writ of habeas
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corpus challenging the constitutionality of his continued confinement. Carr v. Rackley, No. 2:16-
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cv-1364 MCE KJN (E.D. Cal.). That case is currently pending. See also Carr v. Hill, No. 2:14-
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cv-1556 WBS CKD (E.D. Cal.) (habeas action challenging 2012 parole denial, dismissed October
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29, 2014); Carr v. Schwarzenegger, No. 2:06-cv-1502 MCE EFB (E.D. Cal.) (habeas action
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challenging repeated parole denials, dismissed September 28, 2007).
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State prisoners may challenge the constitutionality of state parole procedures in an action
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under §1983 seeking declaratory and injunctive relief. Wilkinson v. Dotson, 544 U.S. 74, 76
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(2005). In Wilkinson, the United States Supreme Court addressed the issue of whether an inmate
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could challenge a parole denial via § 1983 rather than habeas corpus. Id. at 74. The Court
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determined that an inmate may initiate a § 1983 action to seek invalidation of “state procedures
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used to deny parole eligibility ... and parole suitability,” but he may not seek “an injunction
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ordering his immediate or speedier release into the community.” Id. at 82. At most, an inmate
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can seek as a remedy “consideration of a new parole application” or “a new parole hearing,”
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which may or may not result in an actual grant of parole. Id.
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Here, plaintiff does not point to any Board procedures that potentially violate his federal
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due process rights. The violation of state regulations, rules and policies of the CDCR, or other
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state law is not sufficient to state a claim for relief under § 1983. To state a claim under § 1983,
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there must be a deprivation of federal constitutional or statutory rights. See Paul v. Davis, 424
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U.S. 693 (1976). Although the court may exercise supplemental jurisdiction over state law
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claims, plaintiff must first have a cognizable claim for relief under federal law. See 28 U.S.C. §
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1367.
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In Swarthout v. Cooke, 562 U.S. 216 (2011), the Supreme Court held that, even if a
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California prisoner has a state-created liberty interest in parole, the only federal due process to
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which a prisoner challenging the denial of parole is entitled is the minimal procedural due process
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protections set forth in Greenholtz v. Inmates of Nebraska Penal and Corrections Complex, 442
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U.S. 1, 16 (1979) (i.e., an opportunity to be heard and a statement of reasons for the denial). Id.
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at 220. Under Swarthout, “it is no federal concern...whether California’s ‘some evidence’ rule of
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judicial review (a procedure beyond what the Constitution demands) was correctly applied.” See
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id. at 220-21. Plaintiff does not allege that these minimal procedural due process protections
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were not met. While plaintiff alleges that the Board lacked “some evidence” of dangerousness in
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denying him parole, such allegations do not support a § 1983 claim after Swarthout.
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Moreover, to the extent plaintiff claims his ongoing confinement violates the Constitution,
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his claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). Heck holds that federal
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challenges, which, if successful, would necessarily imply the invalidity of incarceration or its
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duration, must be brought by way of petition for writ of habeas corpus, after exhausting
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appropriate avenues of relief. Muhammad v. Close, 540 U.S. 749, 750–751 (2004). Accordingly,
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“a state prisoner’s [section] 1983 action is barred (absent prior invalidation)—no matter the relief
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sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct
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leading to conviction or internal prison proceedings)—if success in that action would necessarily
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demonstrate the invalidity of confinement or its duration.” Wilkinson, 544 U.S at 81–82. See
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Butterfield v. Bail, 120 F3d 1023, 1024 (9th Cir. 1997) (“Few things implicate the validity of
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continued confinement more directly than the allegedly improper denial of parole.”).
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To the extent his § 1983 claims are not barred by the Heck doctrine, plaintiff fails to state
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a cognizable claim against any defendant. For these reasons, the complaint should be dismissed.
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As it appears amendment would be futile, the undersigned will recommend that this action be
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dismissed without leave to amend.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Plaintiff’s request for leave to proceed in forma pauperis is granted.
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IT IS HEREBY RECOMMENDED that the complaint be dismissed without prejudice and
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this case closed.
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These findings and recommendations are 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 fourteen days
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after being served with these findings and recommendations, plaintiff may file written objections
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with the court. Such a document should be captioned “Objections to Magistrate Judge's Findings
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and Recommendations.” Plaintiff is advised that failure to file objections within the specified
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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153
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(9th Cir. 1991).
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Dated: October 24, 2016
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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