The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
By Order filed on October 18, 2010, the warden was afforded an opportunity to be heard on the question of whether petitioner, convicted of attempted murder, pursuant to a plea of guilty, and personal use of a firearm and sentenced in 1995 to a 18-year-to-life term, qualifies as a class member of the Gilman v. Fisher, CIV-S-05-0830 LKK GGH, class action. Petitioner who purported to have filed a petition under 28 U.S.C. § 2254 has not therein challenged the basis for a particular parole denial decision but rather the fact that the denial was for a ten-year period, seeking to implicate the application of Marsy's Law*fn1 to him as ex post facto and a violation of the Eighth Amendment. See Order, filed on October 18, 2010 and the petition. In the response, the Attorney-General's Office took the position that the warden was not a party to the Gilman class, nor would he be a proper party in a separate civil action challenging the application of parole procedures to petitioner as plaintiff. See Response, filed on November 1, 2010. Of course, the question the court put to respondent was not whether respondent was a Gilman class member, but whether petitioner herein would be considered one.
As the court noted in its prior order, petitioner, in failing to attack the substance of the underlying parole decision denying parole, has not framed claims pursuant to 28 U.S.C. § 2254; rather by challenging the constitutionality of state procedures denying parole eligibility or suitability could only possibly proceed, as plaintiff, pursuant to 42 U.S.C. § 1983. See Order, filed on October 18, 2010, pp. 2-3, with citations. However, as was further observed, a plaintiff may not as a member plaintiff of a class action for equitable relief from prison conditions maintain a separate, individual suit for equitable relief involving the same subject matter of the class action. See Crawford v. Bell, 599 F.2d 890, 892-93 (9th Cir.1979); see also McNeil v. Guthrie, 945 F.2d 1163,1165 (10th Cir. 1991) ("Individual suits for injunctive and equitable relief from alleged unconstitutional prison conditions cannot be brought where there is an existing class action ."); Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th Cir.1988) (en banc) ("To allow individual suits would interfere with the orderly administration of the class action and risk inconsistent adjudications."). See Order, filed on October 18, 2010, pp. 3-4.
The court explained in the preceding order that if petitioner did qualify as a member of the Gilman class, the petition would be dismissed and petitioner would proceed as a member of that class. See Order, filed on October 18, 2010, p. 4. Otherwise, the undersigned also stated, the petition would be dismissed and petitioner would be granted leave to file, as plaintiff, an individual civil rights action under § 1983 to challenge the constitutionality of the application of Marsy's Law to him. See id.
The parameters of the Gilman class, as is made clear in the Order
certifying the class (attached as an exhibit to respondent's
response), include petitioner. Order, filed on
March 4, 2009, in Gilman v. Fisher, CIV-S-05-0830 LKK GGH,*fn2
Docket # 10-2 of the instant action, Exhibit 2 to Response.
What is at issue in the suit are: "the procedures used in determining
suitability for parole: the factors considered, the explanations
given, and the frequency of the hearings." Id., p. 8 [emphasis in
original]. The "frequency of the hearings" is precisely what is at
issue in the instant putative petition.
The Gilman class is made up of:
California state prisoners who: "(i) have been sentenced to a term that includes life; (ii) are serving sentences that include the possibility of parole; (iii) are eligible for parole; and (iv) have been denied parole on one or more occasions."
Petitioner herein has consented to the jurisdiction of the undersigned (see Docket # 9, filed on October 22, 2010), and although respondent was afforded the opportunity to address the question of whether or not petitioner should be deemed to be a class member, respondent has apparently elected not to do so; therefore, respondent has not made an appearance in this action such that the question of whether or not respondent might consent to or decline the jurisdiction of the undersigned has been rendered irrelevant. In light of the evidence that petitioner, as plaintiff, qualifies as a member of the Gilman class action, the petition must be dismissed.
Petitioner has moved for appointment of counsel. However, the dismissal of the instant petition renders his request moot.
Accordingly, IT IS ORDERED that:
1. The petition is dismissed and petitioner proceeds as a class member in the Gilman v. Fisher, CIV-S-05-0830 LKK GGH, class action; and
2. Petitioner's motion for appointment of counsel, filed on November 15, 2010 (docket # ...