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Russell v. Diaz

United States District Court, E.D. California

June 25, 2019

ROBERT G. RUSSELL, Plaintiff,
v.
RALPH DIAZ, Defendant.

          FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983.[1] 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.

         III. Screening of Plaintiff's First Amended Complaint (FAC)

         A. Legal Standards

         As 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. 1984).

         B. Plaintiff's Factual Allegations

         The 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 habeas corpus)).
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][2] 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. ...

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