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Hardaway v. State

February 20, 2009


The opinion of the court was delivered by: George Foley, Jr. United States Magistrate Judge


Plaintiff is a state prisoner without counsel seeking relief for alleged civil rights violations. See 42 U.S.C. § 1983. He seeks leave to proceed in forma pauperis (#2). This proceeding was referred to this Court by Local Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1).

Plaintiff's declaration makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). Pursuant to 28 U.S.C. § 1915(b)(1), Plaintiff must pay the $350 filing fee. See 28 U.S.C. § 1914(a). An initial partial payment is assessed pursuant to Section 1915(b)(1). After viewing Plaintiff's financial affidavit, Plaintiff's current account balance is $0.00. Plaintiff's average six month balance is $0.00, and Plaintiff's average monthly deposits are $0.00. Plaintiff is not required to make an initial partial payment at this time. However, Plaintiff must make monthly payments of 20 percent of the preceding month's income credited to his trust account. 28 U.S.C. § 1915(b)(2). The agency having custody of Plaintiff shall forward payments from Plaintiff's account to the Clerk of the Court each time the amount in the account exceeds $10 until the filing fee is paid.

This Court must examine the complaint in "a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of it, if it is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). What is more, the Court cannot require defendants to reply to such complaints without first determining that the plaintiff has a reasonable possibility of prevailing on the merits of his claims. 42 U.S.C. § 1997e(g).


In his Complaint (#1), Plaintiff alleges that evidence from his trial was excluded in 1999. Plaintiff alleges that Defendants State of California and Arnold Schwarzenegger violated Plaintiff's right to have a clemency hearing. Plaintiff alleges that his right to be free from conspiracy, discrimination, fraud, harassment, intimidation, and retaliation has been violated by Defendants. Plaintiff alleges that Defendant State of California has allowed its black citizens to be wrongly convicted, to be denied due process of law, and to be placed in slavery.


I. Screening the Complaint

In reviewing the complaint to determine if it states a claim for relief, the court will construe plaintiff's pleading liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The court will not dismiss a complaint without first identifying the deficiencies and giving plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000); Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). But before the undertaking to determine whether the complaint may have merit, the court may insist upon compliance with its rules. See McNeil v. United States, 508 U.S. 106, 113 (1993) (federal rules apply to all litigants, including prisoners lacking access to counsel); see also Crawford-El v. Britton, 523 U.S. 574, 598 (1998) (encouraging "firm application" of federal rules in prisoner cases).

II. Habeas Corpus

Although Plaintiff purports to sue Defendants for alleged civil rights violations, Plaintiff's allegations do not allege a proper claim under § 1983. The exclusive federal remedy for a state prisoner seeking release from confinement is habeas corpus, with its attendant requirement of exhaustion of state remedies, even though such claims may be related to § 1983. Presier v. Rodriguez, 411 U.S. 475, 499 n. 14, 93 S.Ct. 1827, 1841 n. 14, 36 L.Ed.2d 439 (1973). The proper approach to determine whether a plaintiff has a remedy in regard to his right to a fair trial lies in habeas corpus assuming the record shows exhaustion of state remedies. See Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 682 (9th Cir. 1984). The Court finds that Plaintiff's allegations that evidence was excluded during his trial falls under habeas corpus. Plaintiff is therefore advised to file a petition for habeas corpus while providing a showing that he has exhausted his state remedies.

III. Clemency Hearing

There is no constitutional right to a clemency hearing. See Woratzeck v. Stewart, 118 F.3d 648, 652-53 (9th Cir. 1997); see also Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 464, 101 S.Ct. 2460, 2464, 69 L.Ed.2d 158 (1981) ("Unlike probation, pardon and commutation decisions have not traditionally been the business of the courts; as such, they are rarely, if ever, appropriate subjects for judicial review.... [A]n inmate has no 'constitutional or inherent right' to commutation of his sentence."); see Joubert v. Nebraska Bd. of Pardons, 87 F.3d 966, 968 (8th Cir. 1996) ("It is well-established that prisoners have no constitutional or fundamental right to clemency."), cert denied, 518 U.S. 1035, 117 S.Ct. 1, 135 L.Ed.2d 1097 (1996). Since there is no constitutional right to clemency, the Court finds that ...

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