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Donald Green v. the State of California Board of

January 23, 2012

DONALD GREEN,
PLAINTIFF,
v.
THE STATE OF CALIFORNIA BOARD OF PAROLE HEARINGS; MATTHEW CATE,
DEFENDANTS.



The opinion of the court was delivered by: Honorable Janis L. SammartinoUnited States District Judge

ORDER (1) ADOPTING REPORT AND RECOMMENDATION AND (2) GRANTING MOTION TO DISMISS (ECF Nos. 9, 16)

Presently before the Court is Respondent Matthew Cate's*fn1 ("Respondent") motion to dismiss Petitioner Donald Green's ("Petitioner") petition for writ of habeas corpus. (Mot. to Dismiss, ECF No. 9) Also before the Court are Magistrate Judge Jan M. Adler's Report and Recommendation ("R&R") recommending the Court grant Respondent's motion and dismiss the petition without prejudice to Petitioner bringing his claim under 42 U.S.C. § 1983, (R&R, ECF No. 16), and Petitioner's objections to the R&R, (Obj., ECF No. 21).*fn2

Magistrate Judge Adler's R&R contains a thorough and accurate recitation of the procedural history and facts underlying Plaintiff's petition for writ of habeas corpus. (R&R 1--3, ECF No. 16) This Order incorporates by reference the facts as set forth in the R&R.

LEGAL STANDARD

1. Review of the Report and Recommendation

Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth a district court's duties regarding a magistrate judge's R&R. The district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(c); see also United States v. Raddatz, 447 U.S. 667, 673--76 (1980). However, in the absence of a timely objection, "the Court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72 advisory committee's note (citing Campbell v. U.S. Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974)).

2. Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require 'detailed factual allegations,' . . . it [does] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, - US - , 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 557).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "'merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 1950 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id. Moreover, "for a complaint to be dismissed because the allegations give rise to an affirmative defense[,] the defense clearly must appear on the face of the pleading." McCalden v. Ca. Library Ass'n, 955 F.2d 1214, 1219 (9th Cir. 1990).

Where a motion to dismiss is granted, "leave to amend should be granted 'unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber, 806 F.2d at 1401.

ANALYSIS

1. Summary of the R&R's Conclusions

Magistrate Judge Adler found dismissal appropriate on two bases: (1) "The Petition . . . fails to state a cognizable habeas claim because it does not address the fact or duration of Petitioner's incarceration, but only the conditions thereof," (R&R 4, ECF No. 16); and (2) the Petition "fails to state a proper claim for federal habeas relief" because it does not allege a violation of a federal constitutional right, (id. at 6).

As to the first basis, Magistrate Judge Adler reasoned that "a prisoner challenging conditions of prison life that do not include the fact or duration of confinement must bring the claim under 42 U.S.C. ยง 1983." (R&R 3, ECF No. 16) Petitioner's claim, according to Magistrate Judge Adler, "is a challenge to the prison condition of the scheduling of his next parole consideration hearing," not a ...


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