Bettencourt v. Ivey et al

Filing 4

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 10/2/2017 ORDERING a district judge be assigned to this case and RECOMMENDING this action be dismissed without prejudice to the refiling of a habeas petition. Assigned and referred to Judge Garland E. Burrell, Jr. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY RAY BETTENCOURT,

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Plaintiff,

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No. 2:17-cv-1504 DB P

v.

ORDER AND

WILLIAM T. IVEY, et al.,

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FINDINGS AND RECOMMENDATIONS

Defendants.

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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.

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§ 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This

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proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
For the reasons set forth below, the undersigned declines to rule on plaintiff’s motion to

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proceed in forma pauperis and will instead recommend that this action be dismissed without

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prejudice.

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I.

Screening Requirement
The in forma pauperis statute provides, “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

Pleading Standard
Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or

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immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp.

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Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights conferred

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elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a

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right secured by the Constitution or laws of the United States was violated and (2) that the alleged

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violation was committed by a person acting under the color of state law. See West v. Atkins, 487

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U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual

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matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. Facial

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plausibility demands more than the mere possibility that a defendant committed misconduct and,

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while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.

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III.

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Plaintiff’s Allegations
Plaintiff is a state prisoner housed at Mule Creek State Prison in Ione, California. He

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brings this action against Gorden Spencer, a prosecutor in Merced County; William T. Ivey, a

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Merced County Superior Court judge; Donald Spector, the Prison Law Office CEO at San

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Quentin State Prison; the “Legal Affairs Office”; Dan Shamburge of the Livingston, California

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Police Department; the Commissioner of the Board of Parole Hearing; and the Warden of

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California State Prison in Corcoran, California.

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Plaintiff’s allegations may be fairly summarized as follows:

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Plaintiff was convicted in 1992 of first-degree murder and sentenced to life in prison

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without the possibility of parole. Plaintiff’s claims in this case appear related to this conviction.
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He takes issue with the investigation conducted by a state investigator, the sufficiency of evidence

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used to convict him, and the trial judge’s allegedly improper communications with the jury.

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Plaintiff seeks a commutation of his sentence and/or a parole hearing.
IV.

Discussion

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Plaintiff seeks a reduction of his sentence based on certain constitutional errors he

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contends occurred during his criminal trial. State prisoners, however, may not challenge the fact

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or duration of their confinement in a § 1983 action; their sole remedy lies in habeas corpus relief.

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Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). A habeas corpus action is the proper mechanism for

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a prisoner to challenge the fact or duration of his confinement, but a civil rights action is the

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proper mechanism for challenging the conditions of his confinement. Crawford v. Bell, 599 F.2d

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890, 891-92 (9th Cir. 1979); Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1990). Since plaintiff

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is challenging the fact or duration of his confinement, he must bring his claims in a petition for a

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writ of habeas corpus. For this reason, plaintiff’s civil rights complaint must be dismissed.

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V.

Conclusion

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Accordingly, IT IS HEREBY ORDERED that a district judge be assigned to this case; and

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IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice to the

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refiling of a habeas petition.

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These findings and recommendations will be 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, any party may file written

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objections with the court and serve a copy on all parties. The document should be captioned

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“Objections to Magistrate Judge's Findings and Recommendations.” Any response to the

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objections shall be filed and served within seven days after service of the objections. The parties

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are advised that failure to file objections within the specified time may result in waiver of the

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right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: October 2, 2017

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/DLB7;
DB/Inbox/Substantive/bett1504.scrn

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