United States District Court, N.D. California
MICHAEL L. ARENDT, Plaintiff,
SCOTT KERNAN, Defendant.
ORDER OF SERVICE; ORDER DIRECTING DEFENDANT TO FILE A
DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION;
INSTRUCTIONS TO CLERK
RICHARD SEEBORG UNITED STATES DISTRICT JUDGE.
alleges in this 42 U.S.C. § 1983 suit that his jailors
and the Governor have violated his due process rights by
failing to adhere to the terms of the law created by
Proposition 57. When liberally construed, plaintiff has
stated claims for relief against defendant Kernan only.
is directed to file a dispositive motion or notice regarding
such motion relative to the claims raised in the complaint or
before August 27, 2018. The Court further
directs defendant to adhere to the notice provisions detailed
in Sections 2.a and 10 of the conclusion of this order.
Standard of Review
federal court must conduct a preliminary screening in any
case in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity.
See 28 U.S.C. § 1915A(a). In its review, a
court must identify any cognizable claims and dismiss any
claims that are frivolous, malicious, fail to state a claim
upon which relief may be granted or seek monetary relief from
a defendant who is immune from such relief. See Id.
§ 1915A(b)(1), (2). Pro se pleadings must be liberally
construed. See Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
“complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (quoting
Twombly, 550 U.S. at 556). Furthermore, a court
“is not required to accept legal conclusions cast in
the form of factual allegations if those conclusions cannot
reasonably be drawn from the facts alleged.” Clegg
v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.
1994). To state a claim under 42 U.S.C. § 1983, a
plaintiff must allege two essential elements: (1) that a
right secured by the Constitution or laws of the United
States was violated, and (2) that the alleged violation was
committed by a person acting under the color of state law.
See West v. Atkins, 487 U.S. 42, 48 (1988).
alleges that (i) the Governor; (ii) Scott Kernan, the
Secretary of the California Department of Corrections and
Rehabilitation (“CDCR”); and (iii) the CDCR have
violated his due process rights by failing to properly
implement the provisions of Proposition 57. When liberally
construed, plaintiff has stated a due process claim against
Kernan, who issued the regulations that allegedly resulted in
the mismatch between plaintiff's parole consideration
date and his earliest possible release date.
claims against Governor Brown are DISMISSED. He alleges Brown
committed fraud, oppression, and false advertisement in his
public statements about the implementation of Proposition 57.
Whatever the merits of these claims, they are state law
claims, which are not actionable under section 1983.
Furthermore, plaintiff fails to allege facts connecting Brown
to the implementation of regulations that resulted in an
alleged due process violation. Plaintiff's claims against
the CDCR are DISMISSED as duplicative of his claims against
its Secretary, defendant Kernan.
foregoing reasons, the Court orders as follows:
Clerk of the Court shall issue summons and the United States
Marshal shall serve, without prepayment of fees, a copy of
the operative complaint in this matter (Dkt. No. 1), all
attachments thereto, and a copy of this order upon Scott
Kernan at the CDCR. The Clerk shall also mail courtesy ...