United States District Court, E.D. California
JOSE J.R. ESPINOZA, Plaintiff,
D. DIAZ, et al., Defendants.
ORDER DISMISSING CERTAIN CLAIMS WITHOUT LEAVE TO
AMEND AND GRANTING PLAINTIFF LEAVE TO FILE AN AMENDED
COMPLAINT (ECF NO. 1)
Jose J.R. Espinoza is appearing pro se and in forma pauperis
in this civil rights action pursuant to 42 U.S.C. §
1983. On March 13, 2017, Plaintiff consented to the
jurisdiction of the magistrate judge. Currently before the
Court is Plaintiff's complaint, filed March 8, 2017.
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 on
which relief may be granted, ” or that “seek
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B).
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief. . .
.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations
are not required, but “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Moreover, Plaintiff must demonstrate that each defendant
personally participated in the deprivation of Plaintiff's
rights. Jones v. Williams, 297 F.3d 930, 934 (9th
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor. Wilhelm v. Rotman,
680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To
survive screening, Plaintiff's claims must be facially
plausible, which requires sufficient factual detail to allow
the Court to reasonably infer that each named defendant is
liable for the misconduct alleged. Iqbal, 556 U.S.
at 678-79; Moss v. U.S. Secret Service, 572 F.3d
962, 969 (9th Cir. 2009). The “sheer possibility that a
defendant has acted unlawfully” is not sufficient, and
“facts that are ‘merely consistent with' a
defendant's liability” falls short of satisfying
the plausibility standard. Iqbal, 556 U.S. at 678;
Moss, 572 F.3d at 969.
is in the custody of the California Department of Corrections
and Rehabilitation (“CDCR”) and is housed at the
California Correctional Facility in California City.
Plaintiff was convicted in 2007 of assault with a deadly
weapon, an automobile. (Compl. 5, 19.) At trial, the jury
found Plaintiff not guilty of attempted murder and attempted
voluntary manslaughter. (Compl. 5, 20, 21.) Plaintiff
contends that the criminal conviction was adjudicated as a
nonviolent felony. (Compl. 5.)
alleges that prison officials have made an adverse
determination that his conviction was for a violent felony
based upon inadequate records being maintained by CDCR.
(Compl. 5.) Due to the determination that Plaintiff was
convicted of a violent felony, Plaintiff has been denied the
right to have a lower security custody, reduction of his 80
percent credit earning status, and longer duration of
custody. (Compl. 5.)
March 2, 2010, upon review of Plaintiff's conviction, the
classification committee determined that Plaintiff rammed his
vehicle into the victim's car and then attacked the
victim through the sunroof of the vehicle with a screwdriver.
(Compl. 10.) Based upon the circumstances of Plaintiff's
conviction, Plaintiff was determined to have a custody status
of Medium A. (Compl. 10.) The classification was affirmed on
March 4, 2010 when the classification staff representative
determined that Plaintiff rammed his vehicle into the
victim's car and forced her into oncoming traffic.
(Compl. 10.) Plaintiff continued his attack until the victim
drove to the police station. (Compl. 10.)
19, 2016, Plaintiff appeared before the classification
committee for his annual review. (Compl. 22.) The committee
determined that Plaintiff did not meet the criteria for
Medium B custody. (Compl. 23.)
filed an appeal after the committee members denied him Medium
B custody. (AR 10.) Plaintiff has filed inmate appeals and
his custody status has not been corrected. (Compl. 6.)
Plaintiff contends that the named defendants have failed in
their duty to conduct an independent review of the records
concerning his conviction and correct his custody. Plaintiff
contends that he was actually sentenced pursuant to
California Penal Code section 2933 and not California Penal
Code Section 2933.1. (Compl. 5-6.) Plaintiff states that he
should actually be serving a 50 percent credit earning
sentence for his criminal conviction and not an 85 percent
sentence. (Compl. 6.)
action, Plaintiff is challenging his custody status and
arguing that he is serving an 85 percent sentence when he
should be serving a 50 percent sentence. A habeas corpus
petition is the correct method for a prisoner to challenge
the “legality or duration” of his confinement.
Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991)
(quoting Preiser v. Rodriguez, 411 U.S. 475, 485
(1973)); Advisory Committee Notes to Rule 1 of the Rules
Governing Section 2254 Cases. In contrast, a civil rights
action pursuant to 42 U.S.C. § 1983 is the proper method
for a prisoner to challenge the conditions of that
confinement. McCarth ...