United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
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.
In Forma Pauperis Application
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.
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).
Screening of Plaintiff's Complaint
Legal Standards for Screening Prisoner Civil Rights
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).
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,
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
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).
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.
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) preliminary
injunctive time line, with ...