(PC) Davis v. Sherman

• Court: District Court, E.D. California
• Decided: November 18, 2019
• Docket: 1:18-cv-01628
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MATTHEW ANDREW DAVIS, Case No. 1:18-cv-01628-LJO-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATION 13 v. RECOMMENDING DISMISSAL OF THIS ACTION 14 STEWARD SHERMAN, et al., (ECF No. 15) 15 Defendants. FOURTEEN (14) DAY DEADLINE 16

17 I. Background 18 Plaintiff Matthew Andrew Davis is a state prisoner proceeding pro se and in 19 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.1 20 On September 25, 2019, the Court found that Plaintiff’s first amended 21 complaint failed to comply with Federal Rule of Civil Procedure 8 and failed to 22 state any cognizable claim for relief. (ECF No. 15.) The Court granted Plaintiff 23 thirty days, running from the date of service of the order, to file either a second 24 amended complaint or a notice of voluntary dismissal. (Id. at 16.) Plaintiff was 25

26 1 As noted in the Court’s December 28, 2018 screening order, Plaintiff asserts that he is visually impaired and requires large print documents in order to be able to 27 read. As an accommodation, the Court is providing this order in large print. 28 1 expressly warned that, if he failed to comply with the Court’s order, the Court 2 would recommend to the District Judge that this action be dismissed for failure to 3 prosecute and failure to obey a court order. (Id. at 16.) The allotted time period for 4 Plaintiff to file either a second amended complaint or a notice of voluntary 5 dismissal expired on October 28, 2019, and Plaintiff has not complied with the 6 Court’s order or otherwise communicated with the Court. Accordingly, the Court 7 recommends dismissal of this action for the reasons discussed below. 8 II. Failure to State a Claim 9 A. Screening Requirement and Standard 10 The Court is required to screen complaints brought by prisoners seeking 11 relief against a governmental entity or officer or employee of a governmental entity. 12 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the 13 prisoner has raised claims that are legally “frivolous or malicious,” that “fail[] to 14 state a claim on which relief may be granted,” or that “seek[] monetary relief 15 against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); 16 see also 28 U.S.C. § 1915A(b). 17 A complaint must contain “a short and plain statement of the claim showing 18 that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual 19 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of 20 action, supported by mere conclusory statements, do not suffice.” Ashcroft v. 21 Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 22 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant 23 personally participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 24 297 F.3d 930, 934 (9th Cir. 2002). 25 Prisoners proceeding pro se in civil rights actions are entitled to have their 26 pleadings liberally construed and to have any doubt resolved in their favor. 27 Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To 28 survive screening, Plaintiff’s claims must be facially plausible, which requires 1 sufficient factual detail to allow the Court to reasonably infer that each named 2 defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. 3 U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that 4 a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely 5 consistent with’ a defendant’s liability” falls short of satisfying the plausibility 6 standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 7 B. Summary of Plaintiff’s Allegations 8 Plaintiff is currently housed at California Substance Abuse Treatment 9 Facility and State Prison, Corcoran, where he alleges that many of the events at 10 issue in this action took place. Plaintiff names the following defendants: (1) 11 Steward Sherman; (2) CCRA Appeals Coordinator A. Hernandez; (3) SSA C. 12 Ramos; (4) Rhonda Dotta Skipper, an employee of the Board of Prison Hearing; (5) 13 Tara Doetzeh, an employee of the Board of Prison Hearing; (6) CCI Counselor F. 14 Torres; (7) Fisher, who is employed as a Stanislaus County Superior Court District 15 Attorney; (8) Dina Petrushenko, who is employed as a Stanislaus County Superior 16 Court District Attorney; (9) Stanislaus County Superior Court Judge Joseph 17 Richard; (10) Sweena Pune, who is employed as a Stanislaus County Superior 18 Court Public Defender; (11) Molly Petchenik, a litigation assistant with the Prison 19 Legal Office; (12) Carol Foster, an attorney with the Central California Appellate 20 Program; (13) Stanislaus County Superior Court Judge Stacy P. Speiller; (14) 21 Gabby Sergi, a litigation assistant under Sarah Norman at the Prison Law Office; 22 and (15) Rosen Bien Galvan & Grunfeld2. 23 Plaintiff alleges as follows:

24 My counselor Torres failed to discharge her duty of initiating due 25 process toward entering my eligibility for parole release to a mental 26 2 Plaintiff does not identify Rosen Bien Galvan & Grunfeld as a defendant in the 27 first amended complaint’s caption or list of defendants. However, the Court will 28 screen the allegations made against Rosen Bien Galvan & Grunfeld. 1 health hospital pursuant to § 2960, § 2962(e)(2)(A)-(O), § 2670, or § 2680. The 60 days for this to be done ended – because she stated she 2 did not know how to perform her job. D.W. Fisher added charges. At 3 my next Board review, and Rhonda Dotta Skipper, along with Tara Doetzeh – failed to order my MDO release to a mental health hospital, 4 charging me with the D.A.s allegation that I had a pocket kniffe (sic) 5 when arrested. They violated my 5th Amendment right against double jeopardy. They further violate[d] my right to adequate placement into 6 a mental health hospital – 8th Amendment constitutional right. 7 Therefore F. Torres – the CCI counselor, A. Hernandez – CCRA, C. Ramos SSA, Rhonda Dotta Skipper – Board staff, Tara Doetzeh – 8 Board staff and D.A. Fisher worked in concert denying me acces[s] to 9 the courts with dil[a]tory appeal prevention tactics, which is the 10 proximate cause of me not being placed in a mental health hospital, resulting in a denial of my right to a granted privilege to release from 11 prison – pursuant to California Constitution Article I, (7) (5th and 14th 12 Amendment of U.S. Constitution. The Defendants are thus li[a]ble for my loss of an integral part of my mental health care. 13

14 (ECF No. 11, at 2-3.) Additionally, Plaintiff alleges that:

15 In Exhibit 38, S. Smith assured me that I would have a representative 16 (sic) to speak for me at my Board hearing. Instead the new counselor (sic) called me to the office and told me the hearing was over and I had 17 been denied. Further appeals with staff complaints got ripped up, 18 Exhibit A21. I wrote the Prison Law Office received no help from Gaby or Molly Petchenik, who claim to be my attornys (sic) for 19 Coleman and ADA rights. Exhibits 33 and 34. Entering the Superior 20 Coort (sic) of Stanislaus – Jooge Speiller denied my right to MDO placement as well. As Judge Richard had. Carol Foster was appointed 21 as appellate defender for me, but refused to represent me. Exhibit A- 22 38. I wrote Rusen Bien Galvin & Grunfeld – they refused to represent me. Exhibit A-41, 42, and 43. Since the judges[’] authority has been 23 abused, and the defendants have fail[e]d to discharge their duties my 24 civil injury has a second consequential damage within the meaning of 25 false imprisonment. Such a continuance of wrongful reconviction tactics, are actionable civil injurys (sic) – which cause me to bring suit, 26 pursuant to Logan v. Burge U.S.D.C. (N.D. Ill.) Case No. 1:09-cv- 27 05471.

28 1 (ECF No. 11, at 3-4.) 2 Plaintiff seeks nominal, compensatory, and punitive damages in the total 3 amount of $6,600,000.00. (Id. at 4.) 4 C. Discussion 5 1. Federal Rule of Civil Procedure 8 6 Pursuant to Rule 8(a), a complaint must contain “a short and plain statement 7 of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 8 “Such a statement must simply give the defendant fair notice of what the plaintiff’s 9 claim is and the grounds upon which it rests.” Swierkiewicz v. Sorema N.A., 534 10 U.S. 506, 512 (2002) (citation and internal quotation marks omitted). 11 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 12 elements of a cause of action, supported by mere conclusory statements, do not 13 suffice.” Iqbal, 556 U.S. at 678 (citation omitted). This is because, while factual 14 allegations are accepted as true, legal conclusions are not. Id.; see also Twombly, 15 550 U.S. at 556-57; Moss, 572 F.3d at 969. Therefore, Plaintiff must set forth 16 “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 17 on its face. A claim has facial plausibility when the plaintiff pleads factual content 18 that allows the court to draw the reasonable inference that the defendant is liable for 19 the misconduct alleged.” Iqbal, 556 U.S. at 678 (citations and internal quotation 20 marks omitted). 21 In this case, while Plaintiff’s complaint is short, it is not a plain statement of 22 his claims. Most of Plaintiff’s allegations are vague and conclusory statements 23 unsupported by any facts. Instead, Plaintiff has appended 49 pages of exhibits to 24 his 6-page complaint, apparently anticipating that the Court would cull through the 25 exhibits to ferret out the facts in support of his conclusory allegations. However, 26 Plaintiff must state all of his factual allegations in the body of his complaint. As 27 currently pled, Plaintiff’s complaint does not contain enough factual content to 28 /// 1 allow the Court to draw the reasonable inference that any named Defendant is liable 2 for the misconduct alleged against them. Iqbal, 556 U.S. at 678. 3 2. Linkage Requirement 4 The Civil Rights Act under which this action was filed provides:

5 Every person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of 6 any rights, privileges, or immunities secured by the Constitution ... shall be liable to the party injured in an action at law, suit in equity, or 7 other proper proceeding for redress. 8 9 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or 10 link between the actions of the defendants and the deprivation alleged to have been 11 suffered by Plaintiff. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S. Ct. 12 2018, 56 L.Ed. 2d 611 (1978); Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 13 L.Ed. 2d 561 (1976). The Ninth Circuit has held that “[a] person ‘subjects another 14 to the deprivation of a constitutional right, within the meaning of section 1983, if he 15 does an affirmative act, participates in another's affirmative acts or omits to perform 16 an act which he is legally required to do that causes the deprivation of which 17 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 18 Here, Plaintiff fails to adequately link Defendants Sherman, Petrushenko, and 19 Pune to any constitutional deprivation suffered by Plaintiff. While Defendant 20 Sherman is named in the caption of Plaintiff’s first amended complaint and 21 Defendants Petrushenko and Pune are named in both the caption and the list of 22 Defendants on page 6 of Plaintiff’s first amended complaint, the first amended 23 complaint does not contain any factual allegations asserting what Defendants 24 Sherman, Petrushenko, and/or Pune did, or did not do, that violated Plaintiff’s 25 constitutional rights. Therefore, Plaintiff has failed to allege any cognizable claim 26 against Defendants Sherman, Petrushenko, and Pune. 27 To the extent Plaintiff seeks to hold any Defendant liable based solely upon 28 1 their supervisory role, he may not do so. Liability may not be imposed on 2 supervisory personnel for the actions or omissions of their subordinates under the 3 theory of respondeat superior. Iqbal, 556 U.S. at 676–77; Simmons v. Navajo 4 Cnty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir.2010); Ewing v. City of Stockton, 5 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th 6 Cir.2002). 7 Supervisors may be held liable only if they “participated in or directed the 8 violations, or knew of the violations and failed to act to prevent them.” Taylor v. 9 List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 10 1205–06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). 11 Supervisory liability may also exist without any personal participation if the official 12 implemented “a policy so deficient that the policy itself is a repudiation of 13 constitutional rights and is the moving force of the constitutional violation.” 14 Redman v. Cnty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and 15 quotations marks omitted), abrogated on other grounds by Farmer v. Brennan, 511 16 U.S. 825 (1970). 17 Here, since Plaintiff has failed to attribute any of the alleged unconstitutional 18 conduct to any specific individual Defendant, the Court cannot determine if 19 Plaintiff is attempting to hold any supervisory Defendant liable based solely upon 20 the conduct of their subordinates. Nevertheless, to the extent that Plaintiff is 21 attempting to impose liability on any supervisory Defendant based on a respondeat 22 superior theory of liability, this theory of liability is not cognizable under § 1983. 23 3. “Person” Within the Meaning of § 1983 24 “Under Section 1983, a ‘person’ acting under color of law may be sued for 25 violations of the U.S. Constitution or federal laws. The term ‘persons’ under 26 section 1983 encompasses state and local officials sued in their individual 27 capacities, private individuals and entities which acted under color of state law, and 28 local governmental entities.” Garcia v. City of Merced, 637 F. Supp. 2d 731, 760 1 (E.D. Cal. 2008) (internal citation omitted). “The traditional definition of acting 2 under color of state law requires that the defendant in a § 1983 action have 3 exercised power possessed by virtue of state law and made possible only because 4 the wrongdoer is clothed with the authority of state law.” West v. Atkins, 487 U.S. 5 42, 49 (1988). 6 In this case, Plaintiff alleges in his first amended complaint that he “wrote the 7 Prison Law Office received no help from Gaby, or Molly Petchenik, who claim to 8 be my attornys (sic) for Coleman and ADA rights.” (ECF No. 11, at 3.) Plaintiff 9 also asserts that Defendants Foster, who “was appointed as appellate defender for 10 me,” and Rosen Bien Galvan & Grunfeld have refused to represent him. (Id.) 11 However, it is well-settled that an attorney, whether retained or appointed, does not 12 act under color of state law when representing a private client in civil litigation or a 13 criminal defendant. Polk Cnty. v. Dodson, 454 U.S. 312, 318 (1981) (“[A] lawyer 14 representing a client is not, by virtue of being an officer of the court, a state actor 15 ‘under color of state law’ within the meaning of § 1983.”); Briley v. California, 564 16 F.2d 849, 855 (9th Cir. 1977) (“[A] privately-retained attorney does not act under 17 color of state law for purposes of actions brought under the Civil Rights Act.”); 18 Szijarto v. Legeman, 466 F.2d 864, 864 (9th Cir. 1972) (holding that “an attorney, 19 whether retained or appointed, does not act ‘under color of’ state law.”). Therefore, 20 Plaintiff has failed to sufficiently plead that Defendants Sergi, Petchenik, Foster, 21 and Rosen Bien Galvan & Grunfeld acted under the color of state law when they 22 refused to provide Plaintiff with help or refused to represent Plaintiff. 23 Consequently, Plaintiff has not stated any cognizable § 1983 claims against 24 Defendants Sergi, Petchenik, Foster, and Rosen Bien Galvan & Grunfeld. 25 4. Judicial Immunity 26 “Judges and those performing judge-like functions are absolutely immune 27 from damage liability for acts performed in their official capacities.” Ashelman v. 28 Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). Additionally, judicial immunity 1 extends to preclude prospective injunctive relief against a state court judge for acts 2 or omissions made in that judge’s official capacity. 42 U.S.C. § 1983 (“[I]n any 3 action brought against a judicial officer for an act or omission taken in such 4 officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory 5 decree was violated or declaratory relief was unavailable.”) Therefore, “judicial 6 immunity is an immunity from suit, not just from ultimate assessment of damages. 7 Accordingly, judicial immunity is not overcome by allegations of bad faith or 8 malice[.]” Mireles v. Waco, 502 U.S. 9, 11 (1991) (internal citation omitted). 9 Instead, the law is clear that judicial immunity is overcome in only two 10 circumstances: (1) “a judge is not immune from liability for nonjudicial actions, 11 i.e., actions not taken in the judge’s judicial capacity[;]” and (2) “a judge is not 12 immune for actions, though judicial in nature, taken in the complete absence of all 13 jurisdiction.” Id. at 12. 14 In his first amended complaint, Plaintiff asserts that “Jooge (sic) Speiller 15 denied my right to MDO Placement as well. As Judge Richard had.” (ECF No. 11, 16 at 3.) Additionally, Plaintiff attached a copy of Defendant Speiller’s order denying 17 Plaintiff’s state petition for writ of habeas corpus on the grounds that there was 18 some evidence to support the Board of Parole’s decision to deny Plaintiff parole 19 and that Plaintiff’s allegation that Penal Code section 5068 had been violated was 20 too conclusory to warrant relief. (ECF No. 11, at 44-45.) Therefore, it is clear that 21 Defendants Speiller’s and Richard’s actions were taken in their judicial capacity. 22 See Stump v. Sparkman, 435 U.S. 349, 362 (discussing factors a court must 23 consider in deciding if an act by a judge is a “judicial” act). Further, Plaintiff has 24 failed to allege any facts demonstrating that Defendants Speiller’s and Richard’s 25 actions were taken in the complete absence of all jurisdiction. Therefore, 26 Defendants Speiller and Richard are absolutely judicially immune from Plaintiff’s § 27 1983 action. 28 /// 1 5. Absolute Immunity for Parole Board Officials 2 In his first amended complaint, Plaintiff alleges that Defendants Skipper and 3 Doetzeh, employed as Board of Prison Hearings staff, “failed to order [his] MDO 4 release to a mental health hospital, charging him with the D.A.[’]s allegation that 5 [Plaintiff] had a pocket kniffe (sic) when arrested.” (ECF No. 13, at 2.) However, 6 “parole board officials are entitled to absolute immunity from liability for damages 7 for their actions taken when processing parole applications.” Bermudez v. Duenas, 8 936 F.2d 1064, 1066 (9th Cir. 1991); Sellars v. Procunier, 641 F.2d 1295, 1302-03 9 (9th Cir. 1981). Therefore, Defendants Skipper and Doetzeh are absolutely 10 immune from § 1983 liability based on a claim that the Defendants denied Plaintiff 11 parole to a mental health hospital. 12 6. Favorable Termination Rule 13 As a general matter, prisoners may not challenge the fact or duration of their 14 confinement in a § 1983 action. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). 15 Often referred to as the favorable termination rule or Heck bar, this exception to § 16 1983’s otherwise broad scope applies whenever state prisoners “seek to invalidate 17 the duration of their confinement – either directly through an injunction compelling 18 speedier release or indirectly through a judicial determination that necessarily 19 implies the unlawfulness of the State’s custody.” Id. at 81 (italics in original); see 20 Heck v. Humphrey, 512 U.S. 477, 481-82, 487 (1994). Thus, “a state prisoner’s § 21 1983 action is barred (absent prior invalidation) – no matter the relief sought 22 (damages or equitable relief), no matter the target of the prisoner’s suit (state 23 conduct leading to conviction or internal prison proceedings) – if success in that 24 action would necessarily demonstrate the invalidity of confinement or its duration.” 25 Id. at 81-82. Further, “[t]he California Supreme Court has not distinguished 26 between the application of Heck to § 1983 claims and the application of analogous 27 California law to state-law claims.” Hooper v. County of San Diego, 629 F.3d 28 1127, 1134 (9th Cir. 2011) (citing Yount v. City of Sacramento, 43 Cal.4th 885, 1 902 (2008)). Therefore, Plaintiff’s continuing confinement will bar his § 1983 and 2 state law claims if prevailing on those civil claims “would necessarily imply or 3 demonstrate the invalidity of the earlier conviction or sentence[.]” Beets v. County 4 of Los Angeles, 669 F.3d 1038, 1042 (9th Cir. 2012) (internal punctuation omitted). 5 Here, Plaintiff seeks to bring § 1983 claims contending: (1) that Defendant 6 Torres “failed to discharge her duty of initiating due process towards entering my 7 eligibility for parole release to a mental health hospital[;]” (2) Defendant Fisher 8 added charges at Plaintiff’s next parole board review, which violated Plaintiff’s 9 rights to double jeopardy and to adequate placement in a mental health hospital; and 10 (3) Defendants Torres, Hernandez, Ramos, Skipper, Doetzeh, and Fisher “worked 11 in concert denying me access to the courts with dil[a]tory appeal prevention tactics, 12 which is the proximate cause of me not being placed into a mental health hospital, 13 resulting in a denial of my right to a granted privilege to release (sic) from prison – 14 pursuant to California Constitution Article I, (7) [] 5th and 14th amendment of the 15 U.S. Constitution.” (ECF No. 13, at 2-3.) These claims are challenging the 16 duration of Plaintiff’s confinement in prison. With regards to the first claim, 17 although Plaintiff phrases his claim in terms of parole eligibility, Plaintiff is already 18 eligible for nonviolent parole pursuant to California Proposition 57. Further, while 19 Plaintiff has phrased his claims in terms of parole eligibility, double jeopardy, and 20 denial of the right to access the courts, it is clear that what Plaintiff is really 21 challenging is the merits of the Board of Parole Hearings’ August 16, 2018 decision 22 to deny Plaintiff Proposition 57 nonviolent parole. (ECF No. 11, at 22-24, 26.) 23 However, “[f]ew things implicate the validity of continued confinement more 24 directly than the allegedly improper denial of parole. This is true whether that 25 denial is alleged to be improper based upon procedural defects in the parole hearing 26 or upon allegations that parole was improperly denied on the merits.” Butterfield v. 27 Bail, 120 F.3d 1023, 1024 (9th Cir. 1997). Therefore, since Plaintiff’s three claims 28 necessarily implicates the validity of his continuing confinement, his three claims 1 are only cognizable if the August 2018 parole denial decision has been reversed or 2 invalidated. Heck, 512 U.S. 481, 486-87 (stating that “in order to recover damages 3 for allegedly unconstitutional conviction or imprisonment … a § 1983 plaintiff 4 must prove that the conviction or sentence has been reversed on direct appeal, 5 expunged by executive order, declared invalid by a state tribunal authorized to 6 make such determination, or called into question by a federal court’s issuance of a 7 writ of habeas corpus[]”). Here, Plaintiff has failed to allege any facts 8 demonstrating that the August 2018 decision to deny Plaintiff parole has been 9 reversed, expunged, or called into question by a state or federal court’s issuance of 10 a writ of habeas corpus. Therefore, the Court determines that the three claims 11 stated above are barred by the favorable termination rule announced in Heck. 12 7. Habeas Action 13 To the extent that Plaintiff is attempting to challenge the validity of his 14 continuing incarceration, the exclusive method for asserting that challenging is by 15 filing a petition for writ of habeas corpus. It has long been established that state 16 prisoners cannot challenge the fact or duration of their confinement in a § 1983 17 action, and that their sole remedy lies in habeas corpus relief. Wilkinson, 544 U.S. 18 at 78 (“[A] prison in state custody cannot use a § 1983 action to challenge the fact 19 or duration of his confinement. He must seek federal habeas corpus relief (or 20 appropriate state relief) instead.”). In this case, since it is not clear that Plaintiff is 21 seeking habeas corpus relief, the Court declines to convert Plaintiff’s § 1983 action 22 into a habeas petition. Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 23 1995) (“When the intent to bring a habeas petition is not clear, … the district court 24 should not convert a defective section 1983 claim into a habeas petition.”). 25 8. Ex Post Facto 26 In his first amended complaint, Plaintiff asserts that “[t]he Defendants have 27 violated U.S. Const. Article I § 9, and § 10 which forbids application of ex post 28 facto laws.” (ECF No. 13, at 3.) “A change in law violates the Ex Post Facto 1 Clause of the Federal Constitution when it ‘inflicts a greater punishment[] than the 2 law annexed to the crime, when committed.’” Gilman v. Brown, 814 F.3d 1007, 3 1014 (9th Cir. 2016). However, Plaintiff’s Ex Post Facto allegations are conclusory 4 and are not supported by any facts demonstrating how the “Defendants” have 5 violated the Ex Post Facto Clause. Therefore, Plaintiff has not stated a cognizable 6 claim for violation of the Ex Post Facto clause against any defendant. 7 9. Denial of Access to the Courts 8 In his first amended complaint, Plaintiff states: “Denial of Access to the 9 Court. Appea[l]s coorduwators (sic) ripped by appeal appart (sic), forced me to 10 remove vital evidence threatening they[] cancel[] my appeal between the first and 11 second level, preventing ex[h]austion.” (ECF No. 13, at 2.) 12 Prisoners have a “fundamental constitutional right of access to the courts.” 13 Bounds v. Smith, 430 U.S. 817, 828 (1977). The right of access is grounded in the 14 First and Fourteenth Amendments. Silva v. Di Vittorio, 658 F.3d 1090, 1101–02 15 (“Under the First Amendment, a prisoner has both a right to meaningful access to 16 the courts and a broader right to petition the government for a redress of his 17 grievances.”); Cornett v. Donovan, 51 F.3d 894, 897 (9th Cir. 1995) (“The right of 18 access is grounded in the Due Process and Equal Protection Clauses.”). 19 Claims for denial of access to the courts may arise from the frustration or 20 hindrance of “a litigating opportunity yet to be gained” (forward-looking access 21 claim) or from the loss of a meritorious suit that cannot now be tried (backward- 22 looking claim). Christopher v. Harbury, 536 U.S. 403, 412-15 (2002). In order to 23 allege a violation of the right to access the courts, an inmate must demonstrate that 24 he suffered an actual injury by pleading facts showing “actual prejudice with 25 respect to contemplated or existing [non-frivolous] litigation, such as the inability 26 to meet a filing deadline or to present a claim.” Lewis v. Casey, 518 U.S. 343, 348 27 (1996). The injury requirement is not “satisfied by just any type of frustrated legal 28 claim.” Id. at 354–55. It is only satisfied if an inmate is denied access with regard 1 to direct criminal appeals, habeas corpus petitions, and civil actions brought 2 pursuant to 42 U.S.C. § 1983. Id. “Failure to show that a ‘nonfrivolous legal claim 3 ha[s] been frustrated’ is fatal” to a denial of access to the courts claim. Alvarez v. 4 Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008). 5 Here, Plaintiff has not identified who the “appeals coordinators” are, or, put 6 another way, which of the named Defendants allegedly interfered with his right to 7 access the courts. Further, Plaintiff has failed to allege facts showing that he 8 suffered actual prejudice with respect to any contemplated or existing non-frivolous 9 direct criminal appeal, habeas corpus petition, or civil rights action brought 10 pursuant to 42 U.S.C. § 1983 as a result of the appeals coordinators’ actions. 11 Therefore, Plaintiff has not stated a cognizable claim for a denial of his 12 constitutional right to access the courts. 13 To the extent Plaintiff is challenging how his appeals or grievances have 14 been processed, Plaintiff fails to state a cognizable claim. “The Fourteenth 15 Amendment’s Due Process Clause protects persons against deprivations of life, 16 liberty, or property; and those who seek to invoke its procedural protection must 17 establish that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 18 221 (2005). Plaintiff does not a have protected liberty interest in the processing his 19 appeals, and therefore, he cannot pursue a claim for denial of due process with 20 respect to the handling or resolution of his appeals. Ramirez v. Galaza, 334 F.3d 21 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 22 1988)). Accordingly, Plaintiff cannot state a cognizable claim based on the handling 23 of his inmate appeals. 24 10. No Constitutional Right to Parole 25 To the extent Plaintiff is challenging lack of counsel at his Parole hearing or 26 challenging the decision of the Parole Board, Petitioner can show no constitutional 27 violation. There is no constitutional right to counsel at parole consideration 28 hearings. See Dorado v. Kerr, 454 F.2d 892, 896-97 (9th Cir.), cert. denied, 409 1 U.S. 934 (1972). Further, Plaintiff does not have a section 1983 claim for actions 2 of the parole board. There is no right under the Federal Constitution to be 3 conditionally released [on parole] before the expiration of a valid sentence, and the 4 States are under no duty to offer parole to their prisoners. Swarthout v. Cooke, 562 5 U.S. 216, 131 S. Ct. 859, 862 (2011) (per curiam). 6 11. State Law Claims 7 California’s Government Claims Act requires that a tort claim against a 8 public entity or its employees be presented to the California Victim Compensation 9 and Government Claims Board (prior to July 1, 2016) or the Department of General 10 Services’ Government Claims Program (July 1, 2016 and after) no more than six 11 months after the cause of action accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2, 12 945.4, 950-950.2. Presentation of a timely written claim and action on, or rejection 13 of, the claim are conditions precedent to suit. DiCampli-Mintz v. County of Santa 14 Clara, 55 Cal.4th 983, 989-90 (2012); see also Mangold v. Cal. Pub. Utils. 15 Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). Therefore, in order to state a tort 16 claim against a public employee, a plaintiff must allege compliance with 17 California’s Government Claims Act. DiCampli-Mintz, 55 Cal.4th at 990; see also 18 Mangold, 67 F.3d at 1477. 19 Here, to the extent that Plaintiff is attempting to bring any state law claims, 20 Plaintiff has failed to allege that he complied with California’s Government Claims 21 Act. Accordingly, Plaintiff has failed to state any cognizable state law claims. 22 III. Failure to Prosecute and Failure to Obey a Court Order 23 A. Legal Standard 24 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these 25 Rules or with any order of the Court may be grounds for imposition by the Court of 26 any and all sanctions . . . within the inherent power of the Court.” District courts 27 have the inherent power to control their dockets and “[i]n the exercise of that power 28 they may impose sanctions including, where appropriate, . . . dismissal.” 1 Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may 2 dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 3 failure to obey a court order, or failure to comply with local rules. See, e.g., 4 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance 5 with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 6 (dismissal for failure to comply with an order requiring amendment of complaint); 7 Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) (dismissal for 8 failure to comply with court order). 9 In determining whether to dismiss an action, the Court must consider several 10 factors: (1) the public’s interest in expeditious resolution of litigation; (2) the 11 Court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) 12 the public policy favoring disposition of cases on their merits; and (5) the 13 availability of less drastic sanctions. Henderson v. Duncan, 779 F.2d 1421, 1423 14 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 15 B. Discussion 16 Here, the instant action has been pending since November 2018, and 17 Plaintiff’s second amended complaint is overdue. The Court cannot hold this case 18 in abeyance awaiting compliance by Plaintiff. Thus, the Court finds that both the 19 first and second factors weigh in favor of dismissal. 20 The third factor, risk of prejudice to the defendants, also weighs in favor of 21 dismissal, since a presumption of injury arises from the occurrence of unreasonable 22 delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 23 1976). The fourth factor usually weighs against dismissal because public policy 24 favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 25 2002). However, “this factor lends little support to a party whose responsibility it is 26 to move a case toward disposition on the merits but whose conduct impedes 27 progress in that direction,” which is the case here. In re Phenylpropanolamine 28 (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 1 Finally, the Court’s warning to a party that failure to obey the Court’s order 2 will result in dismissal satisfies the “considerations of the alternatives” requirement. 3 Ferdik, 963 F.2d at 1262; Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. 4 The Court’s September 25, 2019 order expressly warned Plaintiff that his failure to 5 comply with that order would result in a recommendation to dismiss this action for 6 failure to prosecute and failure to obey a court order. (ECF No. 15, at 16.) Thus, 7 Plaintiff had adequate warning that dismissal could result from his noncompliance. 8 Additionally, at this stage in the proceedings, there is little available to the 9 Court which would constitute a satisfactory lesser sanction while also protecting the 10 Court from further unnecessary expenditure of its scarce resources. Plaintiff is 11 proceeding in forma pauperis in this action, making monetary sanctions of little 12 use, and the preclusion of evidence or witnesses is likely to have no effect given 13 that Plaintiff has ceased litigating his case. 14 IV. Conclusion and Recommendation 15 Accordingly, for the reasons explained above, it is HEREBY 16 RECOMMENDED that the instant action be dismissed, with prejudice, based on 17 Plaintiff’s failure to state any cognizable claim upon which relief may be granted, 18 failure to obey the Court’s September 25, 2019 screening order, and failure to 19 prosecute this action. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 These Findings and Recommendation will be submitted to the United States 2 District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 3 636(b)(l). Within fourteen (14) days after being served with these Findings and 4 Recommendation, Plaintiff may file written objections with the Court. The 5 document should be captioned “Objections to Magistrate Judge’s Findings and 6 Recommendation.” Plaintiff is advised that failure to file objections within the 7 specified time may result in the waiver of the “right to challenge the magistrate’s 8 factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 9 2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 IT IS SO ORDERED. 11

12 Dated: November 18, 2019 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 13

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