The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis is granted.
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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) ("a judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless."); Franklin, 745 F.2d at 1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Plaintiff does not provide a statement of his claim; rather, plaintiff states that "a full description of the case is therein Exhibit (B)." Exhibit B contains copies of plaintiff's administrative appeals and decisions. In one request, plaintiff states: "I received a remittitur, and costs are not awarded, so why are you holding me?" (Dkt. no. 1 at 14.) Plaintiff also states that "he will continue to file this appeal because his release date is close, and he wants money to start his life and be able to afford a place of his own once he is paroled." (Dkt. No. 1 at 19.) It appears that plaintiff believes that the April 2, 2002 remittitur from the Court of Appeal somehow entitled plaintiff to release from custody, or the payment of money. Plaintiff is misinformed.
First, the remittitur at issue here appears to be a "remittitur of record." This is defined as "[t]he action of sending the transcript of a case back from an appellate court to a trial court; the notice for doing so." Black's Law Dictionary 1298 (7th ed. 1999). The remittitur, as written, provides no relief to either party.
Second, the remittitur noted that no costs were awarded in this proceeding, which is consistent with the underlying January 30, 2002 decision by the Court of Appeal. This statement does not entitle either party to any monetary relief.
Third, the remittitur issued by the Court of Appeal also noted that the January 30, 2002 decision had become final. (Id.) The January 30, 2002 decision by the California Court of Appeal, Fifth Appellate District, affirmed plaintiff's criminal conviction for which plaintiff is presently incarcerated. (Dkt. No. 1 at 6-12.) Thus, neither the remittitur nor the 2002 decision by the Court of Appeal reduced plaintiff's fourteen-year prison sentence, or affected the underlying conviction in any way.
In any event, the remittitur relied upon by plaintiff in filing the instant action does not entitle plaintiff to relief under 42 U.S.C. § 1983. Therefore, the instant complaint is legally frivolous.
To the extent plaintiff seeks release from prison, plaintiff may only proceed by filing a petition for writ of habeas corpus. Civil rights complaints filed pursuant to 42 U.S.C. § 1983 challenge conditions of confinement. Challenges to the fact or duration of a prisoner's sentence may only be raised in a petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. The United States Court of Appeals for the Ninth Circuit has authorized courts to construe actions challenging the fact or duration of a prisoner's confinement as habeas corpus actions in appropriate circumstances. See Tucker v. Carlson, 925 F. 2d 330 (9th Cir. 1991) (complaint should have been construed as petition for writ of habeas corpus). However, in this case, a petition for writ of habeas corpus filed at this late date would likely be time-barred as well as successive. On April 24, 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA") was enacted. Section 2244(d)(1) of Title 8 of the United States Code provides for a one year statute of limitations ...