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Blair v. California Dep't of Corrections

August 20, 2008

BILLY WAYNE BLAIR, JR, PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION THAT THIS ACTION BE DISMISSED FOR FAILURE TO STATE A CLAIM (Doc. 2)

I. Screening Requirement

Plaintiff Billy Wayne Blair Jr. ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on November 5, 2007.

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). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

II. Summary of Plaintiff's Complaint

Plaintiff is currently housed at the California Substance Abuse Treatment Facility in Corcoran. Plaintiff alleges a violation of the Ex Post Facto Clause and the Due Process Clause of the United States Constitution. Plaintiff names the California Department of Corrections, Jim Tilton, Ken Clark and N. Grannis as defendants. Plaintiff seeks injunctive relief and his immediate release from prison.

Plaintiff alleges that defendant Tilton erroneously approved plaintiff's commitment and/or failed to correct and/or modify plaintiff's commitment order and disposition. Plaintiff alleges that defendant Grannis violated plaintiff's due process rights by failing to consider his administrative appeal. Plaintiff alleges that defendant Clark is the warden and retains custody over the plaintiff.

A. Writ of Habeas Corpus

Plaintiff requests that he immediately be released. Plaintiff states that defendant Clark currently retains custody of plaintiff, and that defendant Tilton erroneously approved plaintiff's commitment.

When a prisoner challenges the legality or duration of his custody, or raises a constitutional challenge which could entitle him to an earlier release, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991).

If plaintiff wishes to challenge his conviction and/or custody duration, his sole remedy is a petition for writ of habeas corpus, and not a section 1983 claim. Plaintiff fails to state a cognizable claim as against defendants Clark or Tilton

B. Ex Post Facto Clause

Plaintiff alleges that a registration requirement attached as a condition of his parole violates the Ex Post Facto Clause because it was not imposed during his sentencing. Plaintiff ...


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