1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ANTOINE DESHAWN BARNES, No. 2:20-cv-0861 DB P 11 Plaintiff, 12 v. ORDER AND FINDINGS AND RECOMMENDATIONS 13 DIRECTOR, CALIFORNIA DEPARTMENT OF CORRECTIONS, et 14 al., 15 Defendants. 16 17 Plaintiff is a county jail inmate proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Plaintiff alleges that he is being denied the benefit of custody credits because the 19 California Department of Corrections and Rehabilitation (CDCR) is closed to intake. Presently 20 before the court is plaintiff’s motion to proceed in forma pauperis (ECF No. 2), motion for 21 immediate release (ECF No. 5), and his complaint for screening (ECF No. 1). For the reasons set 22 forth below, the court will recommend that plaintiff’s motion to proceed in forma pauperis be 23 denied as moot, that his motion for immediate release be denied, and the complaint be dismissed 24 without leave to amend. 25 IN FORMA PAUPERIS 26 Plaintiff has submitted an affidavit and prison trust account statement that make the 27 showing required by 28 U.S.C. § 1915(a). (See ECF No. 2.) Nevertheless, because the 28 //// 1 undersigned recommends dismissal of this action without leave to amend, the court further 2 recommends that plaintiff’s request to proceed in forma pauperis be denied as moot. 3 SCREENING 4 I. Legal Standards 5 The court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 7 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 8 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 9 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 10 U.S.C. § 1915A(b)(1) & (2). 11 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 12 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 13 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 14 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 15 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 16 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. 17 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 18 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 19 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 20 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 21 However, in order to survive dismissal for failure to state a claim a complaint must 22 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 23 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 24 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 25 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 26 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 27 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 28 //// 1 The Civil Rights Act under which this action was filed provides as follows: 2 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 3 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 4 or other proper proceeding for redress. 5 42 U.S.C. § 1983. Here, the defendants must act under color of federal law. Bivens, 403 U.S. at 6 389. The statute requires that there be an actual connection or link between the 7 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 8 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 9 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 10 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 11 omits to perform an act which he is legally required to do that causes the deprivation of which 12 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 13 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 14 their employees under a theory of respondeat superior and, therefore, when a named defendant 15 holds a supervisorial position, the causal link between him and the claimed constitutional 16 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 17 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 18 concerning the involvement of official personnel in civil rights violations are not sufficient. See 19 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 20 II. Allegations in the Complaint 21 Plaintiff alleges the judge presiding over his case in the Hanford Superior Court, “awarded 22 [him] halftime day for day credits” upon his placement in CDCR. (ECF No. 1 at 3.) He claims 23 that he is being held hostage in the Hanford County Jail rather than being held in a CDCR 24 institution where his credits would be calculated differently. (Id.) Plaintiff alleges the 25 deprivation of day-for-day credits amounts to a violation of his rights under the Eighth 26 Amendment. Plaintiff has identified CDCR and CDCR Secretary Ralph Diaz as defendants in 27 this action. (Id. at 1.) Plaintiff seeks monetary compensation for each day he has been held in jail 28 rather than in CDCR custody and immediate release. (Id. at 3, 6.) 1 III. Does Plaintiff State a Claim under § 1983? 2 A. Plaintiff Cannot Challenge the Duration of Confinement in a § 1983 Action 3 “Federal law opens two main avenues to relief on complaints related to imprisonment: a 4 petition for writ of habeas corpus, 28 U.S.C. §
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ANTOINE DESHAWN BARNES, No. 2:20-cv-0861 DB P 11 Plaintiff, 12 v. ORDER AND FINDINGS AND RECOMMENDATIONS 13 DIRECTOR, CALIFORNIA DEPARTMENT OF CORRECTIONS, et 14 al., 15 Defendants. 16 17 Plaintiff is a county jail inmate proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Plaintiff alleges that he is being denied the benefit of custody credits because the 19 California Department of Corrections and Rehabilitation (CDCR) is closed to intake. Presently 20 before the court is plaintiff’s motion to proceed in forma pauperis (ECF No. 2), motion for 21 immediate release (ECF No. 5), and his complaint for screening (ECF No. 1). For the reasons set 22 forth below, the court will recommend that plaintiff’s motion to proceed in forma pauperis be 23 denied as moot, that his motion for immediate release be denied, and the complaint be dismissed 24 without leave to amend. 25 IN FORMA PAUPERIS 26 Plaintiff has submitted an affidavit and prison trust account statement that make the 27 showing required by 28 U.S.C. § 1915(a). (See ECF No. 2.) Nevertheless, because the 28 //// 1 undersigned recommends dismissal of this action without leave to amend, the court further 2 recommends that plaintiff’s request to proceed in forma pauperis be denied as moot. 3 SCREENING 4 I. Legal Standards 5 The court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 7 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 8 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 9 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 10 U.S.C. § 1915A(b)(1) & (2). 11 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 12 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 13 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 14 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 15 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 16 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. 17 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 18 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 19 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 20 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 21 However, in order to survive dismissal for failure to state a claim a complaint must 22 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 23 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 24 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 25 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 26 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 27 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 28 //// 1 The Civil Rights Act under which this action was filed provides as follows: 2 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 3 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 4 or other proper proceeding for redress. 5 42 U.S.C. § 1983. Here, the defendants must act under color of federal law. Bivens, 403 U.S. at 6 389. The statute requires that there be an actual connection or link between the 7 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 8 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 9 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 10 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 11 omits to perform an act which he is legally required to do that causes the deprivation of which 12 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 13 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 14 their employees under a theory of respondeat superior and, therefore, when a named defendant 15 holds a supervisorial position, the causal link between him and the claimed constitutional 16 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 17 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 18 concerning the involvement of official personnel in civil rights violations are not sufficient. See 19 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 20 II. Allegations in the Complaint 21 Plaintiff alleges the judge presiding over his case in the Hanford Superior Court, “awarded 22 [him] halftime day for day credits” upon his placement in CDCR. (ECF No. 1 at 3.) He claims 23 that he is being held hostage in the Hanford County Jail rather than being held in a CDCR 24 institution where his credits would be calculated differently. (Id.) Plaintiff alleges the 25 deprivation of day-for-day credits amounts to a violation of his rights under the Eighth 26 Amendment. Plaintiff has identified CDCR and CDCR Secretary Ralph Diaz as defendants in 27 this action. (Id. at 1.) Plaintiff seeks monetary compensation for each day he has been held in jail 28 rather than in CDCR custody and immediate release. (Id. at 3, 6.) 1 III. Does Plaintiff State a Claim under § 1983? 2 A. Plaintiff Cannot Challenge the Duration of Confinement in a § 1983 Action 3 “Federal law opens two main avenues to relief on complaints related to imprisonment: a 4 petition for writ of habeas corpus, 28 U.S.C. § 2254, and a complaint under . . . 42 U.S.C. § 5 1983.” Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam). “Challenges to the validity 6 of any confinement or to particulars affecting its duration are the province of habeas corpus; 7 request for relief turning on the circumstances of confinement may be presented in a § 1983 8 action.” Id. (internal citation omitted). Here, plaintiff’s claim relates to the length of his 9 confinement. Accordingly, his sole federal remedy is by way of a writ of habeas corpus. Preiser 10 v. Rodriguez, 411 U.S. 574, 489 (1973) (“Release from custody is not an available remedy under 11 the Civil Rights Act”); Young v. Kenny, 907 F.2d 874, 875 (9th Cir. 1989) (“Where prisoner 12 challenges the fact or duration of his confinement, his sole federal remedy is a writ of habeas 13 corpus.”). 14 “[T]o the extent plaintiff challenges his credit calculation and overall length of 15 confinement, such a claim fails in a § 1983 case as a matter of law, unless he was able to have the 16 credit determination overturned through a habeas action first.” Clinton v. Calif. Dep’t of Corr., 17 No. 05-cv-1600 LKK CMK P, 2013 WL 5718739 at *10 (E.D. Cal. Oct. 18, 2013), reversed in 18 part on other grounds by Clinton v. Cooper, 781 Fed.Appx. 582 (9th Cir. 2019). Additionally, the 19 court notes that plaintiff does not have an interest in transfer to any specific prison, even where he 20 alleges that such a transfer would afford him credit earning opportunities. Jimenez v. Ruelas, 308 21 Fed.Appx. 155 (9th Cir. 2009). 22 B. Plaintiff has Alleged Only a State Law Violation 23 Federal habeas challenges to CDCR’s awarding and calculation of custody credits are 24 regularly rejected as non-cognizable by the district courts. See, e.g., Grandberry v. Soto, 2016 25 WL 8732426 at *4 (C.D. Cal. June 15, 2016); McClellan v. Valenzuela, 2016 WL 7374580 at 26 *10 (E.D. Cal. Dec. 19, 2016); Jones v. Director of Corrections, 2017 WL 2839623 at *5 (S.D. 27 Cal. June 30, 2017). While a state sentencing error may entitle a petitioner to federal habeas 28 relief, if the error is “‘so arbitrary or capricious as to constitute an independent due process or 1 Eighth Amendment violation.’” Richmond v. Lewis, 506 U.S. 40, 50 (1992) holding modified by 2 Brown v. Sanders, 546 U.S. 212 (2006) (citation omitted). “Absent a showing of fundamental 3 unfairness, a state court’s misapplication of its own sentencing laws does not justify federal 4 habeas relief.” Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). The allegations in the 5 complaint do not show such an error. 6 Plaintiff’s allegations are not cognizable as either a civil rights action or petition for writ 7 of habeas corpus. Therefore, the court finds that leave to amend should not be granted. “A 8 district court may deny leave to amend when amendment would be futile.” Hartmann v. CDCR, 9 707 F.3d 1114, 1130 (9th Cir. 2013); accord Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) 10 (“Courts are not required to grant leave to amend if a complaint lacks merit entirely”). 11 MOTION FOR IMMEDIATE RELEASE 12 Plaintiff filed a motion seeking his immediate release from custody. (ECF No. 5.) 13 Plaintiff’s claims he should be released immediately because CDCR is closed for intake due to a 14 state of emergency and the CDCR director is not giving him halftime credits. The court construes 15 plaintiff’s motion for release as a motion for injunctive relief. 16 I. Legal Standards 17 A party requesting preliminary injunctive relief must show that “he is likely to succeed on 18 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 19 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. 20 Natural Res. Def. Council, 555 U.S. 7, 20 (2008). The propriety of a request for injunctive relief 21 hinges on a significant threat of irreparable injury that must be imminent in nature. Caribbean 22 Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). 23 Alternatively, under the so-called sliding scale approach, as long as the plaintiff 24 demonstrates the requisite likelihood of irreparable harm and can show that an injunction is in the 25 public interest, a preliminary injunction may issue so long as serious questions going to the merits 26 of the case are raised and the balance of hardships tips sharply in plaintiff’s favor. Alliance for 27 the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-36 (9th Cir. 2011) (concluding that the 28 //// 1 “serious questions” version of the sliding scale test for preliminary injunctions remains viable 2 after Winter). 3 The principle purpose of preliminary injunctive relief is to preserve the court’s power to 4 render a meaningful decision after a trial on the merits. See 9 Charles Alan Wright & Arthur R. 5 Miller, Federal Practice and Procedure § 2947 (3d ed. 2014). Implicit in this required showing is 6 that the relief awarded is only temporary and there will be a full hearing on the merits of the 7 claims raised in the injunction when the action is brought to trial. Preliminary injunctive relief is 8 not appropriate until the court finds that the plaintiff’s complaint presents cognizable claims. See 9 Zepeda v. United States Immigration Serv., 753 F.2d 719, 727 (9th Cir. 1985) (“A federal court 10 may issue an injunction if it has personal jurisdiction over the parties and subject matter 11 jurisdiction over the claims . . . .”). 12 In cases brought by prisoners involving conditions of confinement, any preliminary 13 injunction must be narrowly drawn, extend no further than necessary to correct the harm the court 14 finds requires preliminary relief, and be the least intrusive means necessary to correct the harm.” 15 18 U.S.C. § 3626(a)(2). Further, an injunction against individuals not parties to an action is 16 strongly disfavored. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 17 (1969) (“It is elementary that one is not bound by a judgment . . . resulting from litigation in 18 which he is not designated as a party . . . .”).1 19 Further, preliminary injunctive relief is not appropriate until the court finds that the 20 plaintiff’s complaint presents cognizable claims. See Zepeda v. United States Immigration Serv., 21 753 F.2d 719, 727 (9th Cir. 1985) (“A federal court may issue an injunction if it has personal 22 ///// 23
24 1 However, the fact that injunctive relief is sought from one not a party to litigation does not automatically preclude the court from acting. The All Writs Act, 28 U.S.C. § 16519(a) permits 25 the court to issue writs “necessary or appropriate in aid of their jurisdictions and agreeable to the usages and principles of law.” The All Writs Act is meant to aid the court in the exercise and 26 preservation of its jurisdiction. Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1289 (9th Cir. 27 1979). The United States Supreme Court has authorized the use of the All Writs Act in appropriate circumstances against persons or entities not a party to the underlying litigation. 28 United States v. New York Telephone Co., 434 U.S. 159, 174 (1977). wOAOe COU VVOVED PRINCE MVUVUTOCII Ye POU Vite OY ON
1 || jurisdiction over the parties and subject matter jurisdiction over the claim; [however] it may not 2 || attempt to determine the rights of persons not before the court.”). 3 II. Analysis 4 As set forth above, the complaint should be dismissed without leave to amend. Therefore, 5 || the court finds plaintiff cannot show he is likely to succeed on the merits. Accordingly, it will 6 || recommend that plaintiff's request for immediate release be denied. 7 CONCLUSION 8 For the reasons set forth above, the Clerk of the Court is ORDERED to randomly assign 9 | this action to a district judge. 10 IT IS HEREBY RECOMMENDED that: 11 1. Plaintiffs motion to proceed in forma pauperis (ECF No. 2) be denied; 12 2. Plaintiff's complaint (ECF No. 1) be dismissed without leave to amend; and 13 3. Plaintiffs motion for immediate release (ECF No. 5) be denied. 14 These findings and recommendations will be submitted to the United States District Judge 15 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within thirty days after 16 | being served with these findings and recommendations, plaintiff may file written objections with 17 | the court. The document should be captioned “Objections to Magistrate Judge's Findings and 18 | Recommendations.” Plaintiff is advised that failure to file objections within the specified time 19 | may result in waiver of the right to appeal the district court’s order. Martinez v. YIst, 951 F.2d 20 | 1153 (9th Cir. 1991). 21 Dated: July 1, 2020
24 BORAH BARNES 25 UNITED STATES MAGISTRATE JUDGE 26 27 pp:12 38 DB: 1/Orders/Prisoner/Civil. Rights/bamn086L.scrn+