1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 TORIANO G. HUDSON, SR., 11 Case No. 21-06747 EJD (PR) Plaintiff, 12 ORDER OF PARTIAL DISMISSAL AND OF SERVICE; DIRECTING v. 13 DEFENDANTS TO FILE
DISPOSITIVE MOTION OR 14 RON BROOMFIELD, et al., NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO 15 Defendants. CLERK
17 Plaintiff, a state prisoner at San Quentin State Prison (“SQSP”), filed the instant pro 18 se civil rights action pursuant to 42 U.S.C. § 1983, challenging the denial of early release 19 under Proposition 57. Dkt. No. 1. Plaintiff’s motion for leave to proceed in forma 20 pauperis will be addressed in a separate order. 21
22 DISCUSSION 23 A. Standard of Review 24 A federal court must conduct a preliminary screening in any case in which a 25 prisoner seeks redress from a governmental entity or officer or employee of a 26 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 27 1 upon which relief may be granted or seek monetary relief from a defendant who is immune 2 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 3 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 4 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 5 elements: (1) that a right secured by the Constitution or laws of the United States was 6 violated, and (2) that the alleged violation was committed by a person acting under the 7 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 8 B. Plaintiff’s Claims 9 Plaintiff claims that he is a non-violent offender whose only underlying offense is a 10 DUI, and that he is therefore eligible for parole consideration under Proposition 57.1 Dkt. 11 No. 1 at 4, 15. Plaintiff claims this is an Eighth Amendment violation because “illegal 12 sentence and enhancements show cruel and unusual punishment.” Id. at 3. Plaintiff names 13 the following as Defendants: Ron Broomfield, SQSP Warden; Kathleen Allison, CDCR 14 Secretary; and Governor Gavin Newsom. Id. at 2. Plaintiff seeks to be released, and that 15 his sentence be vacated or voided. Id. at 3. 16 With regards to the relief sought, Plaintiff cannot obtain the relief he seeks through 17 this § 1983 action. “‘Federal law opens two main avenues to relief on complaints related 18 to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the 19 Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983. Challenges to 20 the lawfulness of confinement or to particulars affecting its duration are the province of 21 habeas corpus.’” Hill v. McDonough, 547 U.S. 573, 579 (2006) (quoting Muhammad v. 22
23 1 California’s Proposition 57, approved by voters in November 2016, makes parole more available for certain felons convicted of nonviolent crimes. Specifically, Proposition 57 24 adds Article I, section 32 to the California Constitution. That section provides, in part, that “[a]ny person convicted of a nonviolent felony offense and sentenced to state prison shall 25 be eligible for parole consideration after completing the full term for his or her primary offense.” Cal. Const. art. I, § 32(a)(1). The state courts have “uniformly state[d] that 26 Proposition 57 creates a mechanism for parole consideration, not a vehicle for 1 Close, 540 U.S. 749, 750 (2004)). “An inmate’s challenge to the circumstances of his 2 confinement, however, may be brought under § 1983.” Id. 3 Habeas is the “exclusive remedy” for the prisoner who seeks “‘immediate or 4 speedier release’” from confinement. Skinner v. Switzer, 562 U.S. 521, 533-34 (2011) 5 (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)); see Calderon v. Ashmus, 523 U.S. 6 740, 747 (1998); Edwards v. Balisok, 520 U.S. 641, 648 (1997); Preiser v. Rodriguez, 411 7 U.S. 475, 500 (1973). A parole claim that affects the legality or duration of a prisoner’s 8 custody, and a determination of which may likely result in entitlement to an earlier release, 9 must be brought in habeas. See Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir. 1997); 10 Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990), cert. denied, 498 U.S. 1126 11 (1991); Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989); see also Ramirez v. 12 Galaza, 334 F.3d 850, 858-59 (9th Cir. 2003) (implying that claim, which if successful 13 would “necessarily” or “likely” accelerate the prisoner’s release on parole, must be 14 brought in a habeas petition). Accordingly, Plaintiff’s claim that his sentence violates the 15 Eighth Amendment, and therefore must be vacated or voided and that he is entitled to 16 immediate release, must be brought in habeas. 17 On the other hand, Plaintiff’s claim regarding the applicability of Proposition 57 18 entitling him to early parole consideration, liberally construed, states a due process claim. 19 See Cal. Penal Code § 3041(b); McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002), 20 overruled on other grounds by Swarthout v. Cooke, 562 U.S. 216 (2011). If Plaintiff is 21 successful in this action, he would only be entitled to a parole hearing that comports with 22 due process.2 This claim is cognizable against Defendants Broomfield and Allison, who 23 were involved in implementing the regulations. However, Plaintiff fails to state a claim 24 against Governor Newsom who has no connection to the implementation of the regulations 25
26 2 The state courts have “uniformly state[d] that Proposition 57 creates a mechanism for 1 that Plaintiff challenges. Accordingly, Plaintiff’s claim against Governor Newsom is 2 DISMISSED. 3 4 CONCLUSION 5 For the foregoing reasons, the Court orders as follows: 6 1. This action shall proceed on the due process claim against Defendants 7 Broomfield and Allison. The Eighth Amendment claim is DISMISSED without prejudice 8 to filing it in a habeas action. Defendant Gavin Newsom shall be DISMISSED from this 9 action as there are no cognizable claims against him. The Clerk shall terminate Defendant 10 Newsom from this action. 11 2. The following defendants shall be served: 12 a. Kathleen Allison, Director of the CDCR 13 b. Ron Broomfield, Warden of SQSP 14 Service on the listed defendant(s) shall proceed under the California Department of 15 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 16 prisoners in CDCR custody.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 TORIANO G. HUDSON, SR., 11 Case No. 21-06747 EJD (PR) Plaintiff, 12 ORDER OF PARTIAL DISMISSAL AND OF SERVICE; DIRECTING v. 13 DEFENDANTS TO FILE
DISPOSITIVE MOTION OR 14 RON BROOMFIELD, et al., NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO 15 Defendants. CLERK
17 Plaintiff, a state prisoner at San Quentin State Prison (“SQSP”), filed the instant pro 18 se civil rights action pursuant to 42 U.S.C. § 1983, challenging the denial of early release 19 under Proposition 57. Dkt. No. 1. Plaintiff’s motion for leave to proceed in forma 20 pauperis will be addressed in a separate order. 21
22 DISCUSSION 23 A. Standard of Review 24 A federal court must conduct a preliminary screening in any case in which a 25 prisoner seeks redress from a governmental entity or officer or employee of a 26 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 27 1 upon which relief may be granted or seek monetary relief from a defendant who is immune 2 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 3 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 4 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 5 elements: (1) that a right secured by the Constitution or laws of the United States was 6 violated, and (2) that the alleged violation was committed by a person acting under the 7 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 8 B. Plaintiff’s Claims 9 Plaintiff claims that he is a non-violent offender whose only underlying offense is a 10 DUI, and that he is therefore eligible for parole consideration under Proposition 57.1 Dkt. 11 No. 1 at 4, 15. Plaintiff claims this is an Eighth Amendment violation because “illegal 12 sentence and enhancements show cruel and unusual punishment.” Id. at 3. Plaintiff names 13 the following as Defendants: Ron Broomfield, SQSP Warden; Kathleen Allison, CDCR 14 Secretary; and Governor Gavin Newsom. Id. at 2. Plaintiff seeks to be released, and that 15 his sentence be vacated or voided. Id. at 3. 16 With regards to the relief sought, Plaintiff cannot obtain the relief he seeks through 17 this § 1983 action. “‘Federal law opens two main avenues to relief on complaints related 18 to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the 19 Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983. Challenges to 20 the lawfulness of confinement or to particulars affecting its duration are the province of 21 habeas corpus.’” Hill v. McDonough, 547 U.S. 573, 579 (2006) (quoting Muhammad v. 22
23 1 California’s Proposition 57, approved by voters in November 2016, makes parole more available for certain felons convicted of nonviolent crimes. Specifically, Proposition 57 24 adds Article I, section 32 to the California Constitution. That section provides, in part, that “[a]ny person convicted of a nonviolent felony offense and sentenced to state prison shall 25 be eligible for parole consideration after completing the full term for his or her primary offense.” Cal. Const. art. I, § 32(a)(1). The state courts have “uniformly state[d] that 26 Proposition 57 creates a mechanism for parole consideration, not a vehicle for 1 Close, 540 U.S. 749, 750 (2004)). “An inmate’s challenge to the circumstances of his 2 confinement, however, may be brought under § 1983.” Id. 3 Habeas is the “exclusive remedy” for the prisoner who seeks “‘immediate or 4 speedier release’” from confinement. Skinner v. Switzer, 562 U.S. 521, 533-34 (2011) 5 (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)); see Calderon v. Ashmus, 523 U.S. 6 740, 747 (1998); Edwards v. Balisok, 520 U.S. 641, 648 (1997); Preiser v. Rodriguez, 411 7 U.S. 475, 500 (1973). A parole claim that affects the legality or duration of a prisoner’s 8 custody, and a determination of which may likely result in entitlement to an earlier release, 9 must be brought in habeas. See Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir. 1997); 10 Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990), cert. denied, 498 U.S. 1126 11 (1991); Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989); see also Ramirez v. 12 Galaza, 334 F.3d 850, 858-59 (9th Cir. 2003) (implying that claim, which if successful 13 would “necessarily” or “likely” accelerate the prisoner’s release on parole, must be 14 brought in a habeas petition). Accordingly, Plaintiff’s claim that his sentence violates the 15 Eighth Amendment, and therefore must be vacated or voided and that he is entitled to 16 immediate release, must be brought in habeas. 17 On the other hand, Plaintiff’s claim regarding the applicability of Proposition 57 18 entitling him to early parole consideration, liberally construed, states a due process claim. 19 See Cal. Penal Code § 3041(b); McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002), 20 overruled on other grounds by Swarthout v. Cooke, 562 U.S. 216 (2011). If Plaintiff is 21 successful in this action, he would only be entitled to a parole hearing that comports with 22 due process.2 This claim is cognizable against Defendants Broomfield and Allison, who 23 were involved in implementing the regulations. However, Plaintiff fails to state a claim 24 against Governor Newsom who has no connection to the implementation of the regulations 25
26 2 The state courts have “uniformly state[d] that Proposition 57 creates a mechanism for 1 that Plaintiff challenges. Accordingly, Plaintiff’s claim against Governor Newsom is 2 DISMISSED. 3 4 CONCLUSION 5 For the foregoing reasons, the Court orders as follows: 6 1. This action shall proceed on the due process claim against Defendants 7 Broomfield and Allison. The Eighth Amendment claim is DISMISSED without prejudice 8 to filing it in a habeas action. Defendant Gavin Newsom shall be DISMISSED from this 9 action as there are no cognizable claims against him. The Clerk shall terminate Defendant 10 Newsom from this action. 11 2. The following defendants shall be served: 12 a. Kathleen Allison, Director of the CDCR 13 b. Ron Broomfield, Warden of SQSP 14 Service on the listed defendant(s) shall proceed under the California Department of 15 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 16 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 17 on CDCR via email the following documents: the operative complaint, and any 18 attachments thereto, Dkt. No. 1, this order of service, a CDCR Report of E-Service Waiver 19 form and a summons. The clerk also shall serve a copy of this order on the plaintiff. 20 No later than 40 days after service of this order via email on CDCR, CDCR shall 21 provide the court a completed CDCR Report of E-Service Waiver advising the court which 22 defendant(s) listed in this order will be waiving service of process without the need for 23 service by the United States Marshal Service (USMS) and which defendant(s) decline to 24 waive service or could not be reached. CDCR also shall provide a copy of the CDCR 25 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 26 days, shall file with the court a waiver of service of process for the defendant(s) who are 1 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for 2 each defendant who has not waived service according to the CDCR Report of E-Service 3 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205 4 forms and copies of this order, the summons and the operative complaint for service upon 5 each defendant who has not waived service. The clerk also shall provide to the USMS a 6 copy of the CDCR Report of E-Service Waiver. 7 3. No later than ninety-one (91) days from the date this order is filed, 8 Defendants shall file a motion for summary judgment or other dispositive motion with 9 respect to the claims in the complaint found to be cognizable above. 10 a. Any motion for summary judgment shall be supported by adequate 11 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 12 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 13 qualified immunity found, if material facts are in dispute. If any Defendant is of the 14 opinion that this case cannot be resolved by summary judgment, he shall so inform the 15 Court prior to the date the summary judgment motion is due. 16 b. In the event Defendants file a motion for summary judgment, the 17 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 18 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 19 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 20 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 21 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 22 motion is filed. 23 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 24 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 25 must come forward with evidence showing triable issues of material fact on every essential 26 element of his claim). Plaintiff is cautioned that failure to file an opposition to 1 || the granting of the motion, and granting of judgment against Plaintiff without a trial. See 2 || Ghazaliv. Moran, 46 F.3d 52, 53—54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 3 || F.3d 651,653 (9th Cir. 1994). 4 5. Defendants shall file a reply brief no later than fourteen (14) days after 5 || Plaintiffs opposition is filed. 6 6. The motion shall be deemed submitted as of the date the reply brief is due. 7 No hearing will be held on the motion unless the Court so orders at a later date. 8 7. All communications by the Plaintiff with the Court must be served on 9 || Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 10 || copy of the document to Defendants or Defendants’ counsel. ll 8. Discovery may be taken in accordance with the Federal Rules of Civil 12 || Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 13 || Rule 16-1 is required before the parties may conduct discovery. 14 9. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the 2 15 || court informed of any change of address and must comply with the court’s orders ina 16 || timely fashion. Failure to do so may result in the dismissal of this action for failure to i 17 prosecute pursuant to Federal Rule of Civil Procedure 41(b). Z 18 10. Extensions of time must be filed no later than the deadline sought to be 19 || extended and must be accompanied by a showing of good cause. 20 IT IS SO ORDERED. || Date: 12/27/2021 EDWARD J. DAVILA United States District Judge 23 24 25 Order of Partial Dismissal and of Svc PRO-SE\EJD\CR.21\06747Hudson_sve 26 27