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Hayes v. Newsom

United States District Court, E.D. California

June 26, 2019

HENRY CEPHUS HAYES, aka Henry Moses Mitchell, Jr., Plaintiff,
v.
GAVIN NEWSOM, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff is a state prisoner at Pelican Bay State Prison under the authority of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff proceeds pro se with a complaint filed pursuant to 42 U.S.C. § 1983, and a request for leave to proceed in forma pauperis filed pursuant to 28 U.S.C. § 1915. This action is referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). For the following reasons, plaintiff's request to proceed in forma pauperis is granted but the undersigned recommends this action be dismissed for failure to state a cognizable claim.

         II. In Forma Pauperis Application

         Plaintiff has submitted an affidavit and prison trust account statement that make the showing required by 28 U.S.C. § 1915(a). See ECF No. 2. Accordingly, plaintiff's request to proceed in forma pauperis will be granted.

         Plaintiff must still pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

         III. Screening of Plaintiff's Complaint

         A. Legal Standards for Screening Prisoner Civil Rights Complaints

         The 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).

         Rule 8 of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly at 555). To survive dismissal for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.'” Iqbal at 678 (quoting Twombly at 570). “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.

         “A document filed pro se is ‘to be liberally construed,' and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal quotation marks omitted)). See also Fed.R.Civ.P. 8(e) (“Pleadings shall be so construed as to do justice.”). Additionally, a pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies cannot be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

         B. Plaintiff's Allegations

         This action is premised on the alleged failure of former Governor Edmund G. Brown, Jr. (named as a defendant herein) to acknowledge receipt of plaintiff's December 27, 2017 application for commutation of his sentence or refer plaintiff's application to the Board of Parole Hearings (BPH) for investigation and hearing. Plaintiff's application seeks commutation of his sentence of life-without-possibility-of-parole to a sentence of 15-years-to-life, based on plaintiff's alleged innocence of the 1999 crimes. See ECF No. 1 at 15-32. Plaintiff contends that he complied with all of the requirements for submitting a proper application to the Governor - including providing notice and copies to the prosecuting attorney (defendant Los Angeles District Attorney Jackie Lacey) and executive director of the California Board of Parole Hearings (BPH) (defendant Jennifer Shaffer) - but “no response was provided, ” id. at 3; neither “plaintiff nor his counsel received any response from Defendant Brown, ” id. at 5; Brown “fail[ed] to acknowledge attorney letters, ” id. at 9; and Brown did not “entertain the application after receiving written request for interview by attorneys. Nor acknowledge plaintiff from plaintiff's last correspondence letter. Nothing was done.” Id. at 11.

         Plaintiff speculates that defendants Lacey and the Los Angeles Superior Court “weighed in on the clemency in violation of Article II, section 3 of the State of California Constitution [Separation of Powers].” Id. at 3-4. The complaint also names current California Governor Gavin Newsom as a defendant and argues that he “should be required to instruct his Legal Affairs Secretary to make such determinations [on plaintiff's commutation application] within 90 days under 18 U.S.C. §3626(a)(2)[1] preliminary injunctive time line, with ...


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