(PC) Bush v. Dept. of Corrections & Rehabilitation

Opinion

CRAIG A. BUSH, No. 2:22-cv-2008 CKD (PC) Plaintiff, v. ORDER AND DEPARTMENT OF CORRECTIONS & FINDINGS AND RECOMMENDATIONS REHABILITATION, et al., Defendants.

Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). On March 3, 2023, plaintiff’s complaint was dismissed with leave to amend. Plaintiff has now filed an amended complaint. The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). In order to avoid dismissal for failure to state a claim a complaint must contain more than “naked assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). As he did in his original complaint, plaintiff alleges that he has been unlawfully denied parole and seeks forms of relief which are mostly predicated on a finding that he is being unlawfully incarcerated. As plaintiff was informed when the court dismissed plaintiff’s original complaint, release from prison must be sought in a petition for a writ of habeas corpus and not a § 1983 action. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Plaintiff also seeks remand for a further parole hearing. At a parole hearing in California, a potential parolee has a right under the Due Process Clause to certain protections which include “an opportunity to be heard” and to be “provided a statement of the reasons why parole was denied.” Swarthout v. Cooke, 562 U.S. 216, 220 (2011). Nothing before the court suggests that plaintiff was denied these protections. For these reasons, plaintiff’s amended complaint fails to state a claim upon which relief can be granted. As granting leave to amend a second time appears futile, the court will not grant leave to amend. In accordance with the above, IT IS HEREBY ORDERED the Clerk of the Court assign a district court judge to this case. ///// ///// ///// IT IS HEREBY RECOMMENDED that: 1. Plaintiff's amended complaint (ECF No. 10) be dismissed for failure to state a claim upon which relief can be granted; and 2. This case be closed. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within the specified time waives the night to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). Dated: April 4, 2023 fed) / dha ANG fe □□□ -AGeo UNITED STATES MAGISTRATE JUDGE 1 bush2008. is