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Lesaundra Jenkins v. Kelly Bernatene

August 28, 2012

LESAUNDRA JENKINS,
PLAINTIFF,
v.
KELLY BERNATENE, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

(ECF No. 9)

ORDER DISMISSING PLAINTIFF'S ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM CLERK TO CLOSE FILE DISMISSAL IS SUBJECT TO 28 U.S.C. § 1915(g) SECOND SCREENING ORDER

I. PROCEDURAL HISTORY

Plaintiff LeSaundra Jenkins is a state prisoner incarcerated at the Valley State Prison for Women in Chowchilla, California, ("VSP") proceeding pro se and in forma pauperis in this civil rights action filed on June 7, 2012 pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) Plaintiff has consented to Magistrate Judge jurisdiction. (Consent, ECF No. 5.)

On July 13, 2012, Plaintiffs's Complaint was dismissed for failure to state a claim with leave to amend. (Order Dismiss. Compl., ECF No. 8.) On August 16, 2012, Plaintiff filed a First Amended Complaint (First Am. Compl., ECF No. 9) which is now before the Court for screening.

II. SCREENING REQUIREMENT

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, malicious," or 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).

Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990), quoting 42 U.S.C. § 1983. Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

III. SUMMARY OF FIRST AMENDED COMPLAINT

Plaintiff claims the trial judge in her underlying criminal matter*fn1 made an error in the sentencing documentation and that Defendants acknowledged the error but refused to refer it to the trial court for correction, violating her Fifth, Eighth and Fourteenth Amendment rights.*fn2 (First Am. Compl. at 3-5.)

She was sentenced on November 8, 2000 to life in prison with the possibility of parole on count one which, at least on the face of it charged Cal. Penal Code § 209(b)(1) "kidnaping", with sentencing on count two Cal. Penal Code § 211 "burglary" stayed by the trial court. (Id. at 49-50, 59.)

Plaintiff claims that her original felony complaint/information charged count one as "burglary" and count two as "kidnaping"; that the trial court improperly allowed the complaint/information to be amended by the district attorney to reverse these counts; that the life sentence imposed on count one is erroneous because count one should properly have charged "burglary" carrying a maximum 5 year term; resulting in sentencing error and a continuing illegal detention (as she has been incarcerated for more than 5 years). (Id. at 3-5, 146-55.)

Upon discovering the sentencing error, she requested and was granted a Computation Review (Haygood) hearing on July 25, 2011, which constituted her second level prison appeal.*fn3 (Id. 3-4.)

Plaintiff alleges the Haygood hearing officer, non-party B. Hinson, VSP Case Records Manager, found error and granted the second level appeal based thereon, but failed to refer the error to state court for correction.

She contends her subsequent third level (Director's) appeal was improperly denied. (Id. at 3-5.)

She names as Defendants (1) Kelly Bernatene, CDC Correctional Case Records Analyst, (2) M. Fortes, CDC Correctional Case Records Manager, (3) M. Cates, CDC Secretary, (4) K. Pool, CDC Appeal Examiner, (5) D. Foston, CDC Chief of Appeals, (6) Pamela Webster, CDC Correctional Case Records Analyst, (7) Sandra Woodyard, CDC Correctional Case Records Administrator. (Id. at 2-3.)

She seeks monetary compensation, and that "due process be performed". (Id. at 5.)

IV. ANALYSIS

A. Pleading Requirements ...


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