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Arendt v. Kernan

United States District Court, N.D. California

May 22, 2018

MICHAEL L. ARENDT, Plaintiff,
v.
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.

         INTRODUCTION

         Plaintiff 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.

         Defendant 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.

         DISCUSSION

         A. Standard of Review

         A 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).

         A “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).

         B. Legal Claims

         Plaintiff 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.

         His 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.

         CONCLUSION

         For the foregoing reasons, the Court orders as follows:

         1. The 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 ...


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