Humes v. Sacramento County et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 5/24/2018 RECOMMENDING this action be dismissed without leave to amend for failure to state a claim. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JON HUMES,
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No. 2:18-CV-0694-MCE-CMK-P
Plaintiff,
vs.
FINDINGS AND RECOMMENDATIONS
SACRAMENTO COUNTY, et al.,
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
Plaintiff names Sacramento County and the “Safe Team” as the only defendants.
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Plaintiff complains that his constitutional rights are being violated by the continuing requirement
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to register as a sex offender. According to plaintiff:
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I was arrested on 01-06-2013 by the sex offender registration team
when I went in to show them my sex crime expungement. My birthday is
December 26. I had to register 5 days before or 5 days after by birthday.
But them registration clowns leave for their 2 or 3 week Christmas
vacation on December 20th! And don’t come back until January 6th! So
there was no way possible for me to ever register 5 days before or 5 days
after my birthday! Oh yeah. They had a huge laugh as they arrested me on
01-06-13! They also laughed at my granted PC 1203.4! “You still gotta
register! And you’re still under arrest! BA HA HA HA!!!” They said!
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Plaintiff adds: “I was arrested, convicted, and jailed for many months even tho [sic] I’d done
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nothing wrong!” Plaintiff specifically alleges violation of his Fourteenth Amendment right to
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due process and seeks $100,000,000.00 in damages.
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II. DISCUSSION
Plaintiff appears to claim that defendants are liable because they are improperly
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enforcing the sex offender registration requirement on plaintiff even though his sex offense
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conviction has been expunged. According to plaintiff, he has been arrested and convicted for
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failing to register as a sex offender.
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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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Here, plaintiff alleges that he has been prosecuted and convicted for failing to
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register as a sex offender. While plaintiff claims that his underlying sex offense has been
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expunged, plaintiff does not allege that any convictions he suffered for failing to register have
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been overturned or expunged. Therefore, success on plaintiff’s current civil rights claim that the
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sex offender registration requirement is being improperly enforced against him would necessarily
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imply the invalidity of any convictions resulting from plaintiff’s failure to register as a sex
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offender. Because there is no indication that any such convictions have been overturned or
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expunged, plaintiff’s claim is not cognizable.
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The Supreme Court has held that the district courts should avoid recharacterizing
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a pro se litigant’s civil rights claim which sounds in habeas as a habeas claim where doing so
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would disadvantage the litigant. See Castro v. United States, 540 U.S. 375, 382-83 (2003); see
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also United States v. Seesing, 234 F.3d 456, 464 (9th Cir. 2000). Thus, while the district court
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may recharacterize a civil rights claims as a habeas claim, before doing so the court must “notify
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the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this
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recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on
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‘second or successive motions, and provide the litigant an opportunity to withdraw the motion or
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to amend it so that it contains all the § 2255 claims he believes he has.” Id. at 383.
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In this case, the court finds that plaintiff’s civil rights complaint is not amendable
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to recharacterization as a habeas corpus action. Specifically, plaintiff’s current pleading does not
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set forth any of the specifics of plaintiff’s allegedly improper convictions for failure to register as
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a sex offender, such as the dates of such convictions, or whether any such convictions have been
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challenged on direct review. Moreover, if plaintiff’s civil rights complaint were to be
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recharacterized as a habeas corpus action, neither Sacramento County nor the “Safe Team”
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would be the proper respondent.
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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 this action be dismissed
without leave to amend for failure to state a 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: May 24, 2018
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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