United States District Court, E.D. California
ROBERT G. RUSSELL, Plaintiff,
RALPH DIAZ, Defendant.
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se and in forma pauperis
with this civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff challenges the failure of the
California Department of Corrections and Rehabilitation
(CDCR) to resentence him as a nonviolent third-striker under
California's Three Strikes Law. By order filed May 28,
2019, this court dismissed plaintiff's original complaint
with leave to file an amended complaint. ECF No. 13.
Plaintiff timely filed a proposed First Amended Complaint
(FAC), ECF No. 16, which this court now screens pursuant to
28 U.S.C. § 1915A. For the reasons set forth below, the
undersigned recommends the dismissal of this action for
failure to state a cognizable claim.
Screening of Plaintiff's First Amended Complaint
plaintiff was previously informed in greater detail, ECF No.
13 at 2-3, this 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 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). A claim is legally
frivolous when it lacks an arguable basis either in law or in
fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989);
Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir.
Plaintiff's Factual Allegations
FAC, though much shorter, is premised on the same factual
allegations set forth in plaintiff's original complaint.
As summarized by this court in screening plaintiff's
original complaint, the relevant facts are as follows, ECF
No. 13 at 3-5 (emphasis added):
Plaintiff generally challenges CDCR “regulations”
which exclude nonviolent third-strikers from the benefits of
Proposition 57. Plaintiff argues that the California courts
have ruled that nonviolent third-strikers would no longer be
excluded from parole consideration under Proposition 57.
Plaintiff commenced this action after presenting his
allegations in a petition for writ of habeas corpus that, on
April 2, 2018, was dismissed without prejudice to pursuing a
civil rights action under Section 1983. See Russell v.
Fox, No. 2:18-cv-01112 CRB (PR) (N. D. Cal. April 2,
2018). The order of dismissal in that case states that in
December 2011, following a conviction for several vehicular
offenses, including drunk driving and striking a pedestrian
with his car, “the court found that petitioner had six
prior strike convictions and six prior serious felony
convictions and, on December 2, 2011, sentenced him to 50
years to life in state prison pursuant to California's
Three Strikes Law.” (Id., ECF No. 8 at 1.) The
district court found that, to the extent plaintiff was
seeking a release date under Proposition 57, the claim must
be dismissed as noncognizable in habeas; to the extent that
plaintiff was seeking parole consideration, it “must be
brought in a civil rights action under 42 U.S.C. § 1983,
if it may be brought in federal court at all.”
(Id., ECF No. 8 at 3 (citing Nettles v.
Grounds, 830 F.3d 922, 932, 934-35 (9th Cir. 2016) (en
banc) (claim that would not necessarily lead to immediate or
speedier release from custody falls outside the core of
In the instant civil rights case, plaintiff asserts that he
has “completed the longest term of his primary offense,
” that his third strike was nonviolent, and that he
therefore meets the threshold requirements for obtaining a
parole consideration hearing under Proposition 57.
Plaintiff seeks an order of this court directing Secretary
[Diaz] to recalculate plaintiff's sentence
without the “alternative sentence” he received as
a third-striker; to schedule a parole consideration hearing;
to set a parole release date within 60 days; and, upon
plaintiff's release, to compensate plaintiff $500 damages
for each day since November 9, 2016 that he was allegedly
wrongfully held. See ECF No. 1.
Attached to plaintiff's motion for appointment of
counsel, . . . are copies of plaintiff's relevant inmate
appeal and the CDCR decisions exhausting that appeal.
See ECF No. 11 at 9-18; see also ECF No. 1
at 3 (plaintiff indicates that he exhausted his
administrative remedies). See Cal. Code Regs. tit.
15, § 3490 et seq. See Cal. Code Regs. tit. 15, §
3491(g) (“Eligibility reviews under this section
[nonviolent offenders] are subject to the department's
inmate appeal process in accordance with article 8 of chapter
1 of this division.”). Review of the appeal
demonstrates that, at final Third Level Review, CDCR
denied plaintiff's request to be considered for parole
under Proposition 57 because his third-strike sentence for a
term of life with the possibility of parole excludes him from
the definition of “nonviolent offender” under
Cal. Code Regs. tit. 15, § 3490. See ECF No. 11
at 18. ...