Montano v. Cullen

Filing 5

ORDER OF DISMISSAL. Signed by Judge Thelton E. Henderson on 10/18/2011. (Attachments: # 1 Certificate of Service)(tmi, COURT STAFF) (Filed on 10/20/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C-11-3051 TEH (PR)

RAUL MONTANO,
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United States District Court
For the Northern District of California

Plaintiff,
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ORDER OF DISMISSAL

v.
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VINCENT S. CULLEN, Warden
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/

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(Doc. #3)

Defendant.

Plaintiff Raul Montano, presently serving a state prison

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sentence at San Quentin State Prison, has filed a pro se civil

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rights action pursuant to 42 U.S.C. § 1983.

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also seeks leave to proceed in forma pauperis, which the Court

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GRANTS in a separate order.

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initial screening pursuant to 28 U.S.C. § 1915A.

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Doc. #1.

Plaintiff

The action is now before the Court for

Federal courts must engage in a preliminary screening of

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cases in which prisoners seek redress from a governmental entity or

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officer or employee of a governmental entity.

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The court must identify cognizable claims or dismiss the complaint,

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or any portion of the complaint, if the complaint “is frivolous,

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28 U.S.C. § 1915A(a).

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malicious, or fails to state a claim upon which relief may be

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granted,” or “seeks monetary relief from a defendant who is immune

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from such relief.”

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litigants, however, must be liberally construed.

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627 F.3d 338, 341–42 (9th Cir. 2010); Balistreri v. Pacifica Police

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Dep’t., 901 F.2d 696, 699 (9th Cir. 1990).

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Id. § 1915A(b).

Pleadings filed by pro se
Hebbe v. Pliler,

To state a claim under 42 U.S.C. § 1983, a plaintiff must

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allege two essential elements:

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Constitution or laws of the United States was violated, and (2) that

(1) that a right secured by the

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the alleged violation was committed by a person acting under the

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color of state law.

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West v. Atkins, 487 U.S. 42, 48 (1988).

Here, Plaintiff filed a civil rights action claiming that

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the restitution fine imposed against him by the superior court and

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the ensuing deductions from his prison trust account violate the Ex

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Post Facto Clause of the United States Constitution.

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Plaintiff claims that “Assembly Bill 1505...signed on September 29,

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2006...and...effective January 1, 2007” and the resulting additional

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deductions from his prison trust account constitute a violation of

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the Ex Post Facto Clause.1

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Specifically,

See Doc. #1.

According to the Ninth Circuit, a post-conviction

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amendment to California Penal Code section 2085.5, which increased

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the percentage of restitution payments deductible from a prisoner’s

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wages to a maximum of 50% (from the previous limitation of 20%), and

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According to the California Department of Corrections and
Rehabilitation “Inmate Locator” website, Plaintiff was committed to
state custody on June 24, 2002, i.e., over four years before Assembly
Bill 1505 went into effect.

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permitted restitution payments, as well as prisoner wages, to be

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deducted from trust accounts, did not violate the Ex Post Facto

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Clause because it did not impose “additional punishment.”

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v. Kane, 482 F.3d 1154, 1155 (9th Cir. 2007).

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law of the circuit, Plaintiff’s allegations set forth in his

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Complaint are insufficient to state a cognizable claim for relief

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under 42 U.S.C. § 1983.

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prejudice.

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Quarles

Simply put, under the

The action, therefore, is DISMISSED with

The Clerk is directed to terminate any pending motions as
moot and close the file.

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IT IS SO ORDERED.
DATED

10/18/2011
THELTON E. HENDERSON
United States District Judge

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G:\PRO-SE\TEH\CR.11\Montano-11-3051-dismissal.wpd

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