United States District Court, E.D. California
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
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).
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.
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).
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.
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. §
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1989), superseded by statute as stated in Lopez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.
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).
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
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.
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,
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