United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A
DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF COMPLAINT, WITHOUT PREJUDICE [ECF
Larry Sermeno is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
before the Court is Plaintiff's complaint, filed April
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.
names Michael Ramsey (District Attorney in Butte County) and
Xavier Becerra (Attorney General of California), as
Ramsey has a custom, usage, procedure, policy and/or practice
to allow a blanket mandate for his deputy district attorneys
to charge under California Penal Code section 667.5 in
addition to charging under California Criminal Procedure
Rules of Pleading section 969f, “charging a serious
December 15, 2011, a deputy charged Plaintiff with a
violation of sections 667.5 and 969f, which lead to the clerk
of the court to limit his credit earnings under California
Penal Code section 2933. Plaintiff was charged as a serious
felon but the great bodily injury enhancement included a
notation to California Penal Code 667.5 which is void. The
great bodily injury enhancement requires direct injury
(personal infliction) and section 667.5 is for proximate
causation. Section 667.5 is also for prior prison terms to
enhance a new offense and requires the state procedures to be
followed to enable the district attorney to properly charge.
Plaintiff has no prior three strike felonies. Plaintiff
accepted a plea deal that specifically stated section 667.5
was no applicable and the case was not a new offense with
prior offenses. The mistake by the district attorney's
office has limited Plaintiff's credits when it should
have been California Penal Code section 4019, and California
Penal Code section 2933.1 is not applicable to
contends his sentence has been unlawful since early 2015.
Prison officials refused to calculate Plaintiff's
sentence term at 50% and continue to refuse based on the
defect in the notation to section 667.5(c)(8) for the great
bodily injury enhancement and abstract of judgment. Plaintiff
submits that once the error is corrected, he will be entitled
to discharge or “near” discharge from prison.
law opens two main avenues to relief on complaints related to
imprisonment: a petition for writ of habeas corpus, 28 U.S.C.
§ 2254, and a complaint under … 42 U.S.C. §
1983.” Muhammad v. Close, 540 U.S. 749, 750
(2004) (per curiam). “Challenges to the validity of any
confinement or to particulars affecting its duration are the
province of habeas corpus; requests for relief turning on
circumstances of confinement may be presented in a §
1983 action.” Id. (internal citation omitted).
Federal courts lack habeas jurisdiction over claims by state
prisoners that are not within “the core of habeas
corpus.” Nettles v. Grounds, 830 F.3d 922, 934
(9th Cir. 2016) (en banc), cert. denied, 137 S.Ct. 645
(2017). A prisoner's claims are within the core of habeas
corpus if they challenge the fact or duration of his
conviction or sentence. Id. at 934. “[W]hen a
prisoner's claim would not ‘necessarily spell
speedier release, ' that claim does not lie at “the
core of habeas corpus, ' and may be brought, if at all,
under § 1983.” Skinner v. Switzer, 562
U.S. 521, 534 n.13 (2011) (citing Wilkinson v.
Dotson, 544 U.S. 74, 82 (2005)); Nettles, 830
F.3d at 934.
clear from Plaintiff's allegations that his claim affects
the duration of his sentence. As such, the proper avenue to
seek such relief is by way of habeas corpus petition filed
pursuant to 28 U.S.C. § 2254. Plaintiff is advised that
the proper venue for challenging the execution of his
sentence is the district court containing the sentencing
court, while the proper venue to challenge the execution of
his sentence is the district court containing the prison in
which Petitioner is incarcerated. 28 U.S.C. § 2241(d).
Accordingly, to the extent Plaintiff wishes to challenge the
duration of his confinement he must file a habeas corpus
petition in the district court containing the sentencing
court. Therefore, Plaintiff's complaint must be
dismissed. Although the Court would generally grant Plaintiff
leave to amend in light of his pro se status, amendment is
futile in this instance because the deficiencies cannot be
cured by amendment. See Lopez v. Smith, 203 F.3d
1122, 1127 (9th Cir. 2000); Schmier v. U.S. Court of
Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th
Cir. 2002) (recognizing ...