Joe Robert Collier v. James Hill, Warden, Kathleen Allison, Secretary and A. May, Reviewing Authority

• Court: District Court, S.D. California
• Decided: May 27, 2026
• Docket: 3:26-cv-02573
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOE ROBERT COLLIER, Case No.: 26-cv-02573-AJB-MMP CDCR #AP-8482, 12 ORDER: Plaintiff, 13 vs. 1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS, JAMES HILL, Warden, KATHLEEN 15 ALLISON, Secretary and A. MAY, 2) DENYING MOTION FOR 16 Reviewing Authority, APPOINTMENT OF COUNSEL, and 17 Defendants. 3) DISMISSING COMPLAINT FOR 18 FAILURE TO STATE A CLAIM 19 20 Plaintiff Joe Robert Collier, a state prisoner proceeding pro se, has filed a civil rights 21 Complaint pursuant to 42 U.S.C. § 1983, along with a Motion to proceed in forma pauperis 22 (“IFP”) and a Motion for appointment of counsel. (Doc. Nos. 1–3.) 23 I. Motion to Proceed IFP 24 All parties instituting any civil action, suit or proceeding in a district court of the 25 United States, except an application for writ of habeas corpus, must pay a filing fee of 26 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55, 27 although the administrative fee does not apply to persons granted leave to proceepd IFP. 28 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 1 Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). A prisoner 4 seeking leave to proceed IFP must submit a “certified copy of the trust fund account 5 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 6 the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 7 (9th Cir. 2005). From the certified trust account statement, the Court assesses an initial 8 payment of 20% of (a) the average monthly deposits in the account for the past six months, 9 or (b) the average monthly balance in the account for the past six months, whichever is 10 greater, unless the prisoner has insufficient assets. See 28 U.S.C. § 1915(b)(1) & (4); Bruce 11 v. Samuels, 577 U.S. 82, 84 (2016). Prisoners who proceed IFP must pay any remaining 12 balance in “increments” or “installments,” regardless of whether their action is ultimately 13 dismissed. 28 U.S.C. § 1915(b)(1) & (2); Bruce, 577 U.S. at 84. 14 In support of his IFP motion, Plaintiff has submitted a copy of his trust account 15 statement attested to by a California Department of Corrections and Rehabilitation 16 (“CDCR”) trust account official. (Doc. No. 4 at 4.) The document shows he had an average 17 monthly balance of $14.68 and average monthly deposits of $13.12, with an available 18 balance of $7.17. (Id.) The Court GRANTS Plaintiff’s motion to proceed IFP and assesses 19 a $2.93 initial partial filing fee. Plaintiff remains obligated to pay the $347.07 balance of 20 the filing fee required by 28 U.S.C. § 1914 pursuant to the installment payment provisions 21 of 28 U.S.C. § 1915(b)(1). 22 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 23 A. Standard of Review 24 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 25 Answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must sua 26 sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, 27 malicious, fails to state a claim, or seeks damages from defendants who are immune. Lopez 28 v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (28 U.S.C. § 1915(e)(2)); 1 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (28 U.S.C. § 1915A(b)). 2 “The standard for determining whether a plaintiff has failed to state a claim upon 3 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 4 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 5 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 6 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 7 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule 8 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 9 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 10 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether 11 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires 12 the reviewing court to draw on its judicial experience and common sense.” Id. 13 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 14 acting under color of state law, violate federal constitutional or statutory rights.” 15 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, a 16 plaintiff must show both (1) deprivation of a right secured by the Constitution and laws of 17 the United States, and (2) that the deprivation was committed by a person acting under 18 color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 19 B. Allegations in the Complaint 20 Plaintiff claims that the CDCR has violated his federal due process rights by 21 adopting a regulation inconsistent with California Proposition 57 (“Prop 57”), which 22 provides that any person convicted of a nonviolent offense is eligible for parole 23 consideration after completing the full term of their primary commitment offense. (Doc. 24 No. 1 at 9–10, 18.) On February 10, 2011, Plaintiff was convicted in Santa Clara County 25 Superior Court of first-degree residential burglary by entering a residence with intent to 26 commit theft while another person other than an accomplice was present, and is serving a 27 sentence of 40 years to life, consisting of 25 years to life for the burglary conviction 28 1 enhanced under California’s three strikes law, plus a five-year enhancement for each of 2 three prior felony convictions. (Id. at 13–14.) 3 Plaintiff alleges that while housed at the R.J. Donovan Correctional Facility (“RJD”) 4 in San Diego, California, he filed a CDCR grievance requesting parole consideration on 5 the basis that he had served the full six-year primary term on his burglary offense, which 6 he argued did not constitute a violent crime under Prop 57 because it did not involve a 7 verbal threat, physical force, or injury to another person. (Id. at 19–20, 24.) The grievance 8 was denied on June 9, 2025, on basis that the CDCR, consistent with California Penal Code 9 § 667.5, considers his burglary offense a violent crime “due to a person being present 10 during the burglary.” (Id.) Plaintiff argues that he was denied a state created liberty interest 11 in parole consideration protected by federal due process because “[i]n order for a 12 conviction to qualify as a violent crime it must involve the same conduct as defined by 13 federal law, that is physical force capable of causing physical pain or injury to another 14 person. Johnson v. United States, 559 U.S. 133, 140 (2010).” (Id. at 14.) 15 The Complaint names as Defendants RJD Warden James Hill, former Secretary of 16 the CDCR Kathleen Allison, and Reviewing Authority A. May who denied the grievance. 17 (Id. at 2.) Plaintiff claims his right to federal due process was violated by the denial of his 18 grievance, and requests immediate parole consideration and monetary damages for ten 19 years of illegal incarceration. (Id. at 7, 12, 24.) 20 C. Discussion 21 The Fourteenth Amendment’s Due Process Clause protects against deprivations of 22 life, liberty, or property. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Federal due 23 process does not provide any right “to be conditionally released before the expiration of a 24 valid sentence, and the States are under no duty to offer parole to their prisoners.” 25 Swarthout v. Cooke, 562 U.S. 216, 220 (2011). Nevertheless, “[s]tates may under certain 26 circumstances create liberty interests which are protected by the Due Process Clause.” 27 Sandin v. Conner, 515 U.S. 472, 483–84 (1995). California law creates a liberty interest in 28 parole protected by the Fourteenth Amendment. Cooke, 562 U.S. at 219 (citing Board of 1 Pardons v. Allen, 482 U.S. 369, 373–81 (1987); Greenholtz v. Inmates of Neb. Penal and 2 Correctional Complex, 442 U.S. 1, 12 (1979)). 3 Prop 57 amended the California Constitution to provide that: “Any person convicted 4 of a nonviolent felony offense and sentenced to state prison shall be eligible for parole 5 consideration after completing the full term for [their] primary offense.” Cal. Const. art. I, 6 § 32(a)(1). The “full term for the primary offense” refers to “the longest term of 7 imprisonment imposed by the court for any offense, excluding the imposition of an 8 enhancement, consecutive sentence, or alternative sentence.” Cal. Const., art. I, 9 § 32(a)(1)(A). It also provides that the CDCR “shall adopt regulations in furtherance of 10 these provisions, and the Secretary of the [CDCR] shall certify that these regulations 11 protect and enhance public safety.” Cal. Const., art. I, § 32(b). 12 The Supreme Court has found that similar mandatory language and the structure of 13 a state parole statute analogous to Prop 57 created a liberty interest protected by the 14 Fourteenth Amendment. Greenholtz, 442 U.S. at 12; Cooke, 562 U.S. at 220–21 (holding 15 that the protected interest is procedural, not substantive, and the procedures necessary to 16 protect that interest “are minimal.”) Although the Supreme Court has also found that “a 17 state prisoner’s § 1983 action is barred (absent prior invalidation)—no matter the relief 18 sought (damages or equitable relief), no matter the target of the prisoner’s suit (state 19 conduct leading to conviction or internal prison proceedings)—if success in that action 20 would necessarily demonstrate the invalidity of confinement or its duration,” it has 21 recognized that a claim such as the one Plaintiff presents here, which, if successful, would 22 lead only to parole consideration, can be cognizable in a § 1983 action. Wilkinson v. 23 Dotson, 544 U.S. 74, 81–82 (2005); see also Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 24 1997) (concluding that § 1983 claim was cognizable because “[t]he only benefit that a 25 victory in this case would provide [prisoners], beside the possibility of monetary damages, 26 is [eligibility for parole consideration].”) California courts have “uniformly state[d] that 27 Proposition 57 creates a mechanism for parole consideration, not a vehicle for 28 resentencing.” Daniels v. California Department of Corrections and Rehabilitation, 2018 1 WL 489155, at *3 (E.D. Cal. Jan. 19, 2018). Thus, if Plaintiff were to prevail on his claim, 2 it would not necessarily result in a speedier release from prison, but would merely provide 3 him with earlier parole consideration, and would not compel a grant of parole but merely 4 a hearing. See also Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016) (en banc) (noting 5 that “the parole board must consider all relevant, reliable information” in determining 6 parole suitability, and may deny parole “on the basis of any of the grounds presently 7 available to it.”) (citations and quote marks omitted). 8 Accordingly, Plaintiff has plausibly alleged that Prop 57 created a liberty interest 9 protected by the Fourteenth Amendment’s Due Process Clause in receiving parole 10 consideration for non-violent offenders who have served the full term of their primary 11 offense. However, for the following reasons, Plaintiff has not plausibly alleged he was 12 denied due process by the determination of Reviewing Authority May, under the 13 supervision of RJD Warden Hill, based on a regulation promulgated by the CDCR and 14 certified by former CDCR Secretary Allison, that Prop 57 does not apply to him because 15 his burglary offense is a violent crime. 16 The CDCR has promulgated a regulation pursuant to Prop 57 defining a violent 17 felony as “a crime or enhancement as defined in subdivision (c) of Section 667.5 of the 18 Penal Code.” Cal. Code Regs, tit. 15, § 3490(c) (2019). That section of the California Penal 19 Code provides that “for purposes of this section, ‘violent felony’ means any of the 20 following: . . . (21) any burglary of the first degree, as defined in subdivision (a) of Section 21 460, wherein it is charged and proved that another person, other than an accomplice, was 22 present in the residence during the commission of the burglary.” Cal. Penal Code 23 § 667.5(c)(21). Prop 57 has been interpreted by the California courts to exclude from parole 24 consideration inmates with violent felony convictions “as defined in Penal Code 667.5(c).” 25 In re Hicks, 97 Cal. App. 5th 348, 410 (2023). 26 Plaintiff’s § 1983 claim is based on the denial of an inmate grievance pursuant to the 27 CDCR regulation, which treats his offense as violent under Penal Code § 667.5(c)(21) 28 because someone other than an accomplice was in the residence during the burglary. 1 However, “[a prison] grievance procedure is a procedural right only, it does not confer any 2 substantive right upon the inmates. Hence, it does not give rise to a protected liberty interest 3 requiring the procedural protections envisioned by the fourteenth amendment.” Buckley v. 4 Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see also Ramirez v. Galaza, 334 F.3d 850, 860 5 (9th Cir. 2003) (“[I]nmates lack a separate constitutional entitlement to a specific prison 6 grievance procedure.”) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (“The 7 Supreme Court has also held that to obtain a protectable right an individual must have a 8 legitimate claim of entitlement to it, [but] there is no legitimate claim of entitlement to a 9 grievance procedure.”) (citations and internal quotations marks omitted)). 10 Thus, actions in denying Plaintiff’s inmate grievance cannot serve as the basis for 11 liability in a § 1983 action. Adams, 855 F.2d at 640; see also George v. Smith, 507 F.3d 12 605, 609–10 (7th Cir. 2007) (“Only persons who cause or participate in the violations are 13 responsible [under § 1983]. Ruling against a prisoner on an administrative complaint does 14 not cause or contribute to the violation. A guard who stands and watches while another 15 guard beats a prisoner violates the Constitution; a guard who rejects an administrative 16 complaint about a completed act of misconduct does not.”) (citations omitted). Plaintiff 17 therefore cannot seek relief from Defendant May merely for denying his grievance based 18 on the CDCR regulation which treats his commitment offense as a violent crime. Even if 19 he could, he does not plausibly allege he was denied federal due process because his 20 reliance on Johnson v. United States to argue that the CDCR regulation violates due process 21 because it did not adopt the federal definition of a violent crime is unavailing, as that case 22 defined a violent crime for purposes of the federal Armed Career Criminal Act, not a state 23 statute. See Johnson, 559 U.S. at 138–42 (holding that Florida felony offense of battery 24 was not a violent crime under the ACCA because it does not have as an element the use of 25 physical force against another person). 26 Nor has Plaintiff identified a basis for seeking relief against former CDCR Secretary 27 Allison based on her responsibility under the California Constitution with respect to the 28 adoption of the regulation. See Cal. Const., art. I, § 32(b) (providing that the CDCR “shall 1 adopt regulations in furtherance of these provisions, and the Secretary of the [CDCR] shall 2 certify that these regulations protect and enhance public safety.”) As noted above, the 3 CDCR promulgated a regulation defining a violent felony as “a crime or enhancement as 4 defined in subdivision (c) of Section 667.5 of the Penal Code.” Cal. Code Regs., tit. 15, 5 § 3490(c). That section of the California Penal Code provides that “for purposes of this 6 section, ‘violent felony’ means any of the following: . . . (21) any burglary of the first 7 degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that 8 another person, other than an accomplice, was present in the residence during the 9 commission of the burglary.” Cal. Penal Code § 667.5(c)(21). Plaintiff fails to plausibly 10 allege that former Secretary Allison’s certification that California Code of Regulations, tit. 11 15, § 3490(c) deprived him of a protected liberty interest in parole consideration for 12 nonviolent offenders merely because the regulation did not adopt his view that his burglary 13 offence should be considered nonviolent since it did not involve a verbal threat, physical 14 force, or injury to another person. 15 Likewise, Plaintiff provides no allegations against RJD Warden Hill, other than he 16 “is the authorized person having custody of Petitioner.” (Doc. No. 1 at 2.) “In order for a 17 person acting under color of state law to be liable under section 1983 there must be a 18 showing of personal participation in the alleged rights deprivation: there is no respondeat 19 superior liability under section 1983.” Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 20 Supervisors may only be held liable if they were “personally involved in the constitutional 21 violation or a sufficient causal connection exists between the supervisor’s unlawful conduct 22 and the constitutional violation.” Lemire v. Cal. Dept. of Corrections & Rehabilitation, 726 23 F.3d 1062, 1074–75 (9th Cir. 2013). At most, the Complaint alleges Warden Hill failed to 24 supervise Defendant May, who, as set forth above, could not have caused a constitutional 25 violation merely by denying Plaintiff’s grievance. 26 Finally, to the extent that under a liberal reading of the Complaint Plaintiff seeks to 27 hold the CDCR liable for promulgation of California Code of Regulations, tit. 15, § 3490(c) 28 or its application to him, he has failed to state a claim because states and state agencies are 1 generally immune from suit in federal court and are not “persons” within the meaning of 2 42 U.S.C. § 1983. Howlett By & Through Howlett v. Rose, 496 U.S. 356, 365 (1990) (citing 3 Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989)); Christman v. Micheletti, 4 302 F. App’x 742, 743 (9th Cir. 2008) (affirming dismissal because CDCR not a “person” 5 under section 1983). In any case, Plaintiff cannot state a § 1983 claim based merely on a 6 challenge to a prison regulation. See Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 7 2009) (allegations of violations of state prison regulations fail to plead a constitutional 8 claim); Lovell v. Poway Unified School Dist., 90 F.3d 367, 370 (9th Cir. 1996) (“To the 9 extent that the violation of a state law amounts to the deprivation of a state-created interest 10 that reaches beyond that guaranteed by the federal Constitution, Section 1983 offers no 11 redress.”). 12 In sum, Plaintiff has not, and clearly cannot, plausibly allege he was denied a 13 federally protected liberty interest in Prop 57 parole consideration for nonviolent offenders 14 for the simple reason that he is not a nonviolent offender. Prop 57 does not apply to him 15 since his primary commitment offense, first-degree burglary where another person other 16 than an accomplice was present, has been determined by state law and CDCR regulations 17 to be a violent crime for the purposes of Prop 57. Plaintiff has failed to plausibly allege he 18 was not afforded procedural or substantive due process in that determination merely 19 because he disagrees with the result. See Swarthout, 562 U.S. at 220 (holding that federal 20 review of a California inmate’s challenge to parole consideration is limited to whether he 21 received the minimal procedural protections afforded by the Due Process Clause, not 22 whether the state reached the correct result on the merits); Styre v. Adams, 645 F.3d 1106, 23 1108 (9th Cir. 2011) (“[N]o substantive due process right [is] created by California’s parole 24 scheme.”). 25 Accordingly, the Court finds that Plaintiff’s Complaint fails to state a claim for relief 26 and is subject to sua sponte dismissal in its entirety pursuant to 28 U.S.C. §§ 1915(e)(2) & 27 1915A(b). Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. Because it is clear 28 Plaintiff is unable to state a § 1983 upon which relief may be granted, the dismissal is 1 without further leave to amend. See Schmier v. U.S. Court of Appeals for the Ninth Circuit, 2 279 F.3d 817, 824 (9th Cir. 2002) (recognizing futility of amendment as a proper basis for 3 dismissal without leave to amend); Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) 4 (“A district court should not dismiss a pro se complaint without leave to amend unless it is 5 absolutely clear that the deficiencies of the complaint could not be cured by amendment.”) 6 (internal quotation marks omitted). 7 III. Motion to appoint counsel 8 Plaintiff requests appointment of counsel on the basis that his claim is meritorious. 9 (Doc. No. 3 at 1.) There is no constitutional right to counsel in a civil case, and the decision 10 to appoint counsel under 28 U.S.C. § 1915(e)(1) is within “the sound discretion of the trial 11 court and is granted only in exceptional circumstances.” Agyeman v. Corr. Corp. of 12 America, 390 F.3d 1101, 1103 (9th Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 13 Cir. 1991) (only “exceptional circumstances” support discretionary appointment). 14 Exceptional circumstances exist where there is cumulative showing of both a likelihood of 15 success on the merits and an inability to articulate claims in light of their legal complexity. 16 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 17 Plaintiff’s Complaint demonstrates that he is fully capable of legibly articulating the 18 facts and circumstances relevant to his claim and he has not shown a likelihood of success 19 on the merits. Accordingly, the Court DENIES Plaintiff’s motion for appointment of 20 counsel. 21 IV. Conclusion and Orders 22 For the reasons explained, the Court: 23 1. GRANTS Plaintiff’s Motion to proceed IFP (Doc. No. 2). 24 2. DENIES Plaintiff’s Motion to appoint counsel (Doc. No. 3). 25 3. DIRECTS the Secretary of the CDCR, or his designee, to collect from 26 Plaintiff’s prison trust account the $2.93 initial partial filing fee and collect the $347.07 27 balance of the filing $350 filing fee owed in this case by garnishing monthly payments 28 from his account in an amount equal to twenty percent (20%) of the preceding month’s 1 ||income and forwarding those payments to the Clerk of the Court each time the amount in 2 ||the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). 3 4. DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail 4 Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation, 5 Box 942883, Sacramento, California, 94283-0001. 6 5. DISMISSES Plaintiff's Complaint for failing to state a claim upon which 7 ||relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)G) & 1915A(b)(1) without 8 || leave to amend. The Clerk of Court will enter a final judgment of dismissal accordingly. 9 IT IS SO ORDERED. 10 Dated: May 27, 2026

12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11