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Eleson v. Lizarraga

United States District Court, E.D. California

August 30, 2019

ERIC RICHARD ELESON, Plaintiff,
v.
JOE A. LIZARRAGA, et al., Defendants.

          ORDER

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

         Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

         Plaintiff is required to 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).

         As set forth below, the undersigned finds that plaintiff's complaint fails to state a cognizable claim for relief and must be dismissed. However, leave to amend is granted.

         II. Screening Standards

         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). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 1227.

         Rule 8(a)(2) 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)). In order to survive dismissal for failure to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555. However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

         III. Plaintiff's Complaint

         Named as defendants are Joe A. Lizarraga, Warden, Mule Creek State Prison (“MCSP”), and Ralph Diaz, Secretary of the California Department of Corrections and Rehabilitation (“CDCR”). Plaintiff avers that he is not challenging his conviction. (ECF No. 1 at 8, 9.) Plaintiff alleges that defendants are improperly calculating his sentencing credits, that he must first serve his life sentence before he serves the time imposed for the sentencing enhancements, and that they are improperly characterizing his offense as a violent offense rather than a nonviolent offense. Plaintiff argues such allegations are violations of his right to due process, equal protection, and the Ex Post Facto Clause, and constitute double jeopardy. Plaintiff claims defendants committed fraud, violated their oaths of office, and “Canons 1, 2, 3.” (ECF No. 1 at 4.) Plaintiff asks the court to order the CDCR to correct the calculation of the terms of plaintiff's sentence, and award money damages and costs to plaintiff. (ECF No. 1 at 13.)

         IV. Background

         Plaintiff was convicted in 1995 of three counts of violating California Penal Code § 288(a), lewd and lascivious acts with a child under 14 years of age and sentenced to three consecutive terms of 25 years-to-life. (ECF No. 7 at 78.) Based on prior convictions or prior prison terms, plaintiff sustained two enhancements for violation of California Penal Code § 667(a), and his consecutive life sentence was enhanced by an additional ten years. (ECF No. 7 at 78.) Plaintiff's conviction requires registration under California Penal Code § 290. Id.

         For purposes of Proposition 57, violent felonies are defined in California Penal Code § 667.5(c). See People v. Harris, 2017 WL 423084 at *2 (Cal.App. 2017). Under California Penal Code § 667.5(c)(6), plaintiff's conviction is considered a violent felony. Inmates “[i]ncarcerated for life with the possibility of parole, serving a term for a violent felony as defined in PC 667.5(c), and/or required to register pursuant to PC 290, ” are ineligible for the nonviolent parole process provided under Proposition 57. Cal. Code Regs. tit. 15, § 3490.

         V. Proposition 57

         Proposition 57 changed California parole eligibility and credit earning rules by adding section 32 to article I of the California Constitution, which provides:

(a) The following provisions are hereby enacted to enhance public safety, improve rehabilitation, and avoid the release of prisoners by federal court order, notwithstanding anything ...

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