(PC) Harris v. Newsom et al

Filing 12

ORDER signed by Magistrate Judge Dennis M. Cota on 7/19/2021 DISMISSING plaintiff's original complaint with leave to amend. Plaintiff shall file a first amended complaint within 30 days. (Yin, K)

Case 2:20-cv-01031-DMC Document 12 Filed 07/19/21 Page 1 of 11
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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARREN HARRIS,

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No. 2:20-CV-1031-DMC-P

Plaintiff,
v.

ORDER

GAVIN NEWSOM, et al.,
Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42
U.S.C. § 1983. Pending before the Court is Plaintiff’s original complaint, ECF No. 1.

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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). This

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means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d

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1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the

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complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it
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rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege

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

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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

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Plaintiff, an inmate at California Medical Facility (CMF), names the following
defendants: (1) Gavin Newsom, Governor of California; (2) Ralph Diaz, California Department

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of Corrections and Rehabilitation (CDCR) Secretary; and (3) Daniel E. Cueva, CMF Warden.

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ECF No. 1, pg. 2.

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Plaintiff alleges that the Defendants excluded him from consideration for early

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parole. Id. at 10. Plaintiff claims that in doing so, the Defendants exhibited deliberate indifference

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to his state rights in violation of the Eighth Amendment. See id. at 3. According to Plaintiff, a

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case records analyst determined him eligible for parole review according to California

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Proposition 57. Id. at 7. Yet, the Board of Parole Hearing (BPH) allegedly exhibited deliberate

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indifference to his right to release and refused to render a decision in his case. Id. at 10. Plaintiff

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asserts that the Board violated its procedural regulations and California law in denying him

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proper parole review and release. See id. at 12.

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The specific allegations by Plaintiff are unclear, but generally, he claims denial of

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proper review and release procedure. See id. at 11-12. Plaintiff alleges that Defendant Diaz

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excluded all nonviolent three-strike offenders from early parole consideration, including himself,

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it would seem. Id. at 18. Plaintiff claims to have complained to the BPH, Diaz, Cueva, and

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Newsom on numerous occasions to no avail. Id. at 12. Plaintiff claims that each defendant

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participated in a “concerted action” and conspired to deprive him of his rights but does not

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specify how each defendant participated. Id. at 18. Further, Plaintiff alleges that he was at a high

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risk of contracting COVID-19, and as such, failure to grant review amounted to cruel and unusual

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punishment. Id. at 16-17. Plaintiff also claims that the BPH acted in violation of his due process

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rights. Id. at 10.

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Plaintiff seeks specific performance in the form of immediate-release to parole as

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well as compensatory and punitive damages. ECF No. 1, pg. 6. Plaintiff requests $500 per day

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from January 9, 2019, to May 20, 2020. Id.

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II. DISCUSSION

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As currently set forth, Plaintiff fails to state a claim upon which relief can be
granted. Plaintiff seeks relief under the Eighth Amendment against each of the named Defendants

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for deliberate indifference as well as cruel and unusual punishment. Plaintiff also seeks relief

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under the Fourteenth Amendment against the BPH for due process violations. Plaintiff’s claims

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against Defendants Diaz and Cueva are not cognizable because they fail to identify specific

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conduct by the Defendants that is causally related to the deprivation of a constitutional right.

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Plaintiff’s claims against Governor Newsom and the BPH fail because they have Eleventh

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Amendment immunity as a state official and state agency, respectively. Further, the due process

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claim fails for failure to allege a causal link. Finally, assuming the facts here give rise to any

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claim for relief, that relief would be in the form of a habeas corpus claim, rather than the instant

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civil rights action.

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A.

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Eighth Amendment: Cruel and Unusual Punishment
The treatment a prisoner receives in prison and the conditions under which the

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prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel

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and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan,

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511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts

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of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102

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(1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v.

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Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with

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“food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy,

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801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when
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two requirements are met: (1) objectively, the official’s act or omission must be so serious such

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that it results in the denial of the minimal civilized measure of life’s necessities; and (2)

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subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of

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inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison

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official must have a “sufficiently culpable mind.” See id.

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To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual

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connection or link between the actions of the named defendants and the alleged deprivations. See

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Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A

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person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of

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§ 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform

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an act which he is legally required to do that causes the deprivation of which complaint is made.”

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations

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concerning the involvement of official personnel in civil rights violations are not sufficient. See

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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth

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specific facts as to each individual defendant’s causal role in the alleged constitutional

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deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

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Here, Plaintiff’s claims are vague, conclusory, and lack specificity. Plaintiff

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alleges a “combination of unlawful events” and a “chain conspiracy” in which “each defendant is

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responsible for a distinct act.” See ECF No. 1, pg. 18. Plaintiff alludes to the distinct actions taken

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by each of the Defendants but does not specify what each of those actions are attributable to

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specific Defendants. See id. Plaintiff must identify the affirmative actions taken by each

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Defendant in support of his claims. With regard to Defendant Diaz, Plaintiff alleges that he

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excluded all non-violent three-strike offenders from early parole consideration. See id. However,

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Plaintiff’s allegations against Diaz fail to identify any specific conduct. With regard to Defendant

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Cueva, Plaintiff generally claims that he was involved in the denial of proper review and release

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procedure and involved in a conspiracy to deprive him of his due process rights. See id. at 11-12,

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18. Similarly, Plaintiff has failed to identify specific conduct on behalf of Defendant Cueva

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causally related to the deprivation of a constitutional right. Accordingly, Plaintiff’s claims against
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Diaz and Cueva are insufficient to support an Eighth Amendment claim. See Monell, 436 U.S.

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658; Johnson, 588 F.2d at 743.

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Plaintiff further alleges that, due to suffering three recent strokes, he is at a high

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risk of contracting COVID-19, and accordingly, the deprivation of parole review was cruel and

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unusual punishment. See ECF No. 1, pg. 16-17. However, the condition of Plaintiff’s health does

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not alter the Eighth Amendment analysis. Regardless of his condition, to claim cruel and unusual

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punishment, Plaintiff must point to a specific act or omission by a prison official taken to inflict

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harm. See Farmer, 511 U.S. at 834. Because Plaintiff has not met this burden, Plaintiff does not

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have a cognizable Eighth Amendment claim. Plaintiff will be given leave to amend his complaint

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and is advised to plead facts that identify the specific conduct taken by Defendants Diaz and

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Cueva, which resulted in a deprivation of his constitutional rights.

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B.

Eleventh Amendment: Immunity
The Eleventh Amendment prohibits federal courts from hearing suits brought

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against a state both by its own citizens, as well as by citizens of other states. See Brooks v.

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Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991). This prohibition

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extends to suits against states themselves, and to suits against state agencies. See Lucas v. Dep’t

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of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); Taylor v. List, 880 F.2d 1040, 1045 (9th

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Cir. 1989). A state’s agency responsible for incarceration and correction of prisoners is a state

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agency for purposes of the Eleventh Amendment. See Alabama v. Pugh, 438 U.S. 781, 782

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(1978) (per curiam); Hale v. Arizona, 993 F.2d 1387, 1398-99 (9th Cir. 1993) (en banc).

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The Eleventh Amendment also bars actions seeking damages from state officials

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acting in their official capacities. See Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 1995); Pena

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v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992) (per curiam). The Eleventh Amendment does not,

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however, bar suits against state officials acting in their personal capacities. See id. Under the

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doctrine of Ex Parte Young, 209 U.S. 123 (1908), the Eleventh Amendment does not bar suits for

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prospective declaratory or injunctive relief against state officials in their official capacities. See

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Armstrong v. Wilson, 124 F.3d 1019, 1025 (9th Cir. 1997). The Eleventh Amendment also does

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not bar suits against cities and counties. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690

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n.54 (1978).

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Plaintiff alleges that Governor Newsom participated in “concerted action” with the

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other defendants to deprive him of his rights. See ECF No. 1, pg. 18. Plaintiff does not have a

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cognizable claim against Governor Newsom. The Eleventh Amendment bars suits against

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Governor Newsom in his official capacity as Governor. See Eaglesmith, 73 F.3d at 859. Because

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Plaintiff’s allegations are against Newsom in his official capacity as Governor, overseeing the

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CDCR, Plaintiff’s allegations are barred by the Eleventh Amendment. Further, Plaintiff has not

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identified specific conduct by Newsom that is causally related to the deprivation of his rights. See

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Monell, 436 U.S. 658; Johnson, 588 F.2d at 743.
Plaintiff also alleges that the Board of Parole Hearing exhibited deliberate

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indifference to his due process rights when it refused to render a decision in his case. See ECF

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No. 1, pg. 10. For the same reasons, Plaintiff does not have a cognizable claim against the BPH.

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The Eleventh Amendment bars suits brought against state agencies. See Lucas, 66 F.3d at 248.

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The BPH is a state agency for purposes of the Eleventh Amendment and immune from damages

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suits. See Johnson v. Lizarraga, No. 2:16-cv-0253 JAM AC P, 2017 U.S. Dist. LEXIS 144333, at

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*4-5 (E.D. Cal. Sept. 6, 2017). Accordingly, the Eleventh Amendment bars Plaintiff’s claims

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against the BPH. Additionally, Plaintiff is barred from stating a claim against specific members of

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the BPH. Because “. . . parole board officials perform functionally comparable to tasks to judges

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when they decide to grant, deny, or revoke parole,” parole board officials are entitled to absolute

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immunity from suits by prisoners for actions taken when processing parole applications. See

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Sellars v. Procunier, 641 F.2d 1295, 1302-03 (9th Cir. 1981); see also Bermudez v. Duenas, 936

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F.2d 1064, 1066 (9th Cir. 1991) (per curiam).

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C.

Fourteenth Amendment: Due Process
The Due Process Clause protects prisoners from being deprived of life, liberty, or

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property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to

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state a claim of deprivation of due process, a plaintiff must allege the existence of a liberty or

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property interest for which the protection is sought. See Ingraham v. Wright, 430 U.S. 651, 672
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(1977); Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). Due process protects against the

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deprivation of property where there is a legitimate claim of entitlement to the property. See Bd.

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of Regents, 408 U.S. at 577. Protected property interests are created, and their dimensions are

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defined, by existing rules that stem from an independent source – such as state law – and which

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secure certain benefits and support claims of entitlement to those benefits. See id.

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Liberty interests can arise both from the Constitution and from state law. See

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Hewitt v. Helms, 459 U.S. 460, 466 (1983); Meachum v. Fano, 427 U.S. 215, 224-27 (1976);

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Smith v. Sumner, 994 F.2d 1401, 1405 (9th Cir. 1993). In determining whether the Constitution

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itself protects a liberty interest, the court should consider whether the practice in question “. . . is

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within the normal limits or range of custody which the conviction has authorized the State to

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impose.” Wolff, 418 U.S. at 557-58; Smith, 994 F.2d at 1405. Applying this standard, the

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Supreme Court has concluded that the Constitution itself provides no liberty interest in good-time

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credits, see Wolff, 418 U.S. at 557; in remaining in the general population, see Sandin v. Conner,

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515 U.S. 472, 485-86 (1995); in not losing privileges, see Baxter v. Palmigiano, 425 U.S. 308,

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323 (1976); in staying at a particular institution, see Meachum, 427 U.S. at 225-27; or in

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remaining in a prison in a particular state, see Olim v. Wakinekona, 461 U.S. 238, 245-47 (1983).

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In determining whether state law confers a liberty interest, the Supreme Court has

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adopted an approach in which the existence of a liberty interest is determined by focusing on the

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nature of the deprivation. See Sandin v. Connor, 515 U.S. 472, 481-84 (1995). In doing so, the

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Court has held that state law creates a liberty interest deserving of protection only where the

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deprivation in question: (1) restrains the inmate’s freedom in a manner not expected from the

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sentence; and (2) “imposes atypical and significant hardship on the inmate in relation to the

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ordinary incidents of prison life.” Id. at 483-84. Prisoners in California have a liberty interest in

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the procedures used in prison disciplinary hearings where a successful claim would not

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necessarily shorten the prisoner’s sentence. See Ramirez v. Galaza, 334 F.3d 850, 853, 859 (9th

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Cir. 2003) (concluding that a due process challenge to a prison disciplinary hearing which did not

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result in the loss of good-time credits was cognizable under § 1983); see also Wilkinson v.

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Dotson, 544 U.S. 74, 82 (2005) (concluding that claims which did not seek earlier or immediate
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release from prison were cognizable under § 1983). However, a due process claim challenging the

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loss of good-time credits as a result of an adverse prison disciplinary finding is not cognizable

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under § 1983 and must be raised by way of habeas corpus. See Blueford v. Prunty, 108 F.3d 251,

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255 (9th Cir. 1997).

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There is no liberty interest in being released on parole guaranteed by the

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Constitution. See Vitek v. Jones, 445 U.S. 480, 488 (1980). A state’s substantive parole scheme,

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however, can give rise to a constitutional liberty interest if it uses mandatory language and creates

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a presumption that parole release will be granted. See Miller v. Or. Bd. Of Parole & Post-Prison

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Supervision, 642 F.3d 711, 714 (9th Cir. 2011). A plaintiff may bring a claim for his

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constitutional liberty interest, based on a state’s substantive parole scheme, under the Fourteenth

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Amendment. Id.
Here, Plaintiff claims that the BPH violated his due process rights when, by

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showing deliberate indifference to his parole eligibility, it denied him actual release from prison.

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See ECF No. 1, pg. 10. Plaintiff alleges that state law creates the presumption of parole, giving

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rise to a constitutionally protected liberty interest. See id. at 10-14. Construing the complaint

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liberally, and without performing a substantive analysis of Proposition 57, the Court recognizes

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that Plaintiff has demonstrated a state-created liberty interest in being considered for release on

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parole. However, the claim still fails for failure to allege a specific causal link to the Defendants.

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In his complaint, Plaintiff only makes mention of a due process violation in reference to the BPH.

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However, as discussed, the BPH is immune from suits as a state agency. Plaintiff further fails to

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identify specific conduct by any other defendant that is causally related to the alleged due process

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violation. Upon leave to amend, Plaintiff is advised to identify the specific conduct by the

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Defendants that are grounds for relief.
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Relief Sought
Plaintiff’s claim is also defective because the relief sought is not relief that can be

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granted under § 1983. Plaintiff seeks immediate release from prison. See ECF No. 1, pg. 6.

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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, by

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habeas petition, or through some similar proceeding. See Heck v. Humphrey, 512 U.S. 477, 483-

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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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The Supreme Court has held that the district courts should avoid recharacterizing a

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pro se litigant’s civil rights claim which sounds in habeas as a habeas claim where doing so would

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disadvantage the litigant. See Castro v. United States, 540 U.S. 375, 382-83 (2003); see also

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United States v. Seesing, 234 F.3d 456, 464 (9th Cir. 2000). Thus, while the district court may

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recharacterize a civil rights claims as a habeas claim, before doing so the court must “notify the

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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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Here, under § 1983, Plaintiff is not entitled to the relief sought. Plaintiff will be

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given leave to amend to cure the defects in his complaint. Plaintiff may either: (1) amend his

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complaint to request relief related to parole procedures as opposed to any particular parole

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decision (i.e., release); or (2) withdraw his civil complaint and file a writ of habeas corpus.

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III. CONCLUSION

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Because it is possible that some of the deficiencies identified in this order may be

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cured by amending the complaint, Plaintiff is entitled to leave to amend prior to dismissal of the

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

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is informed that, as a general rule, an amended complaint supersedes the original complaint. See

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to

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amend, all claims alleged in the original complaint which are not alleged in the amended

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complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if

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Plaintiff amends the complaint, the Court cannot refer to the prior pleading in order to make

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Plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be

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complete in itself without reference to any prior pleading. See id.

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If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the

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conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how

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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Because some of the defects identified in this order cannot be cured by

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amendment, Plaintiff is not entitled to leave to amend as to such claims. Plaintiff, therefore, now

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has the following choices: (1) Plaintiff may file an amended complaint which does not allege the

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claims identified herein as incurable, in which case such claims will be deemed abandoned and
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the Court will address the remaining claims; or (2) Plaintiff may file an amended complaint which

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continues to allege claims identified as incurable, in which case the Court will issue findings and

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recommendations that such claims be dismissed from this action, as well as such other orders

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and/or findings and recommendations as may be necessary to address the remaining claims.

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Finally, Plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the Court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s original complaint is dismissed with leave to amend; and

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2.

Plaintiff shall file a first amended complaint within 30 days of the date of

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service of this order.

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Dated: July 19, 2021

____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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