Henry v. Allbritton

Filing 10

ORDER OF DISMISSAL. Signed by Judge Charles R. Breyer on 6/30/2016. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 6/30/2016)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CHARLES D. HENRY, F00408,
Plaintiff(s),

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vs.

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STEVE ALLBRITTON,

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Defendant(s).

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No. C 16-2638 CRB (PR)
ORDER OF DISMISSAL

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Plaintiff, a prisoner at San Quentin State Prison (SQSP), has filed a pro se

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complaint under 42 U.S.C. § 1983 alleging that SQSP Associate Warden Steve

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Allbritton violated his federal constitutional right to due process by improperly

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denying him an opportunity to begin the process of recalling his prison

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commitment for “exceptional behavior” pursuant to section 3076(a) of title 15 of

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the California Code of Regulations. Plaintiff contends that he qualifies for the

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recall of his prison commitment under section 3076(a)(1).

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DISCUSSION
A.

Standard of Review
Federal courts must engage in a preliminary screening of cases in which

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prisoners seek redress from a governmental entity or officer or employee of a

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governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable

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claims or dismiss the complaint, or any portion of the complaint, if the complaint

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“is frivolous, 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 from such

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relief.” Id. § 1915A(b). Pro se pleadings must be liberally construed. Balistreri

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

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

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elements: (1) that a right secured by the Constitution or laws of the United States

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was violated, and (2) that the alleged violation was committed by a person acting

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under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

Legal Claims
In the context of parole, the Supreme Court has held that although there is

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no constitutional or inherent right of a convicted person to be conditionally

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released before the expiration of a valid sentence, see Greenholtz v. Inmates of

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Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979), a state’s statutory parole

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scheme, if it uses mandatory language, may create a presumption that parole

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release will be granted when or unless certain designated findings are made, and

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thereby give rise to a constitutionally protected liberty interest, see Board of

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Pardons v. Allen, 482 U.S. 369, 376-78 (1987) (Montana parole statute providing

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that board “shall” release prisoner, subject to certain restrictions, creates due

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process liberty interest in release on parole); Greenholtz, 442 U.S. at 11-12

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(Nebraska parole statute providing that board “shall” release prisoner, subject to

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certain restrictions, creates due process liberty interest in release on parole). In

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such a case, a prisoner gains a legitimate expectation in parole that cannot be

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denied without adequate procedural due process protections. See Allen, 482 U.S.

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at 373-81; Greenholtz, 442 U.S. at 11-16.

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The same rationale applies to the process of recalling a prison commitment

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on account of a prisoner’s “exceptional behavior,” as California law provides. It

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is not a constitutional right, but if California’s statutory/regulatory scheme uses

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mandatory language that creates a legitimate expectation that a prisoner’s

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commitment will be recalled if certain substantive predicates are met, the

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statutory scheme may create a protected liberty interest that cannot be denied

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without adequate procedural due process protections. See Allen, 482 U.S. at

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373-81; Greenholtz, 442 U.S. at 11-16.

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The regulation plaintiff relies on, California Code of Regulations title 15,

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section 3076(a), provides that the Secretary of the California Department of

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Corrections and Rehabilitation, or designee, “may recommend at any time to the

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sentencing court the recall of an inmate’s commitment pursuant to Penal Code

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section 1170(d)” for one or more of the following reasons:

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(1) It is evident from the inmate’s exceptional behavior that is so
extraordinary beyond simply complying with all regulations and
procedures during incarceration that they have changed as a person
and would be a positive asset to the community.

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Cal. Code Regs. tit. 15, § 3076(a).1 According to plaintiff, he qualifies for the

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recall of his commitment under § 3076(a) and defendant violated his right to due
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process by recommending otherwise to the Secretary and thereby denying him an
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opportunity to begin the recall process in the sentencing court.
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Unfortunately for plaintiff, the regulation upon which he relies does not
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create a liberty interest triggering federally enforceable procedural rights.
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California Penal Code section 1170(d) authorizes a court, at any time
upon recommendation of the Secretary of the California Department of
Corrections and Rehabilitation or Board of Parole Hearings, to recall a sentence
and commitment.
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Section 3076(a) does not contain “substantive predicates” governing official

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discretion and does not employ “explicitly mandatory language” specifying the

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outcome that must be reached upon finding that substantive predicates have been

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met. See Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 462-63

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(1989); accord Allen, 482 U.S. at 373-81; Greenholtz, 442 U.S. at 11-16. Put

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simply, section 3076 provides “no private cause of action” under the Due Process

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Clause. Larson v. Runnels, No. CIV S-07-0806 FCD DAD P, 2007 WL

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4557103, at *3 (E.D. Cal. Dec. 21, 2007).
In addition, it is well-established under California law that the recall of a

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prisoner’s commitment pursuant to Penal Code section 1170(d) is “permissive,

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not mandatory,” People v. Delson, 161 Cal. App. 3d 56, 62 (1984), and that

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section 1170(d) does not confer any right on a defendant to seek the recall of his

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commitment. See People v. Pritchett, 20 Cal. App. 4th 190, 193-94 (1993). Not

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surprising, federal courts presented with the issue consistently have held that

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there is no basis for finding that section 1170(d) gives rise to a liberty interest

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enforceable as a matter of federal due process. See Harris v. Valenzuela, No. CV

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14-7692-R (MAN), 2014 WL 4988150, at *5 (C.D. Cal. Oct. 7, 2014) (citing

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cases).

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CONCLUSION
For the foregoing reasons, the complaint is DISMISSED for failure to
state claim under the authority of 28 U.S.C. § 1915A(b).
The clerk shall enter judgment in accordance with this order, terminate all

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pending motions as moot, and close the file.

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SO ORDERED.

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DATED: June 30, 2016

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CHARLES R. BREYER
United States District Judge
G:\PRO-SE\CRB\CR.16\Henry, C.16-2638.dismissal.wpd

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