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).
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1989), superseded by statute as stated in Lopez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).
only named defendant is High Desert State Prison
(“HDSP”) Warden Spearman. Plaintiff alleges that
defendant Spearman has refused to grant plaintiff a hearing
pursuant to California Proposition 57 in violation of
plaintiff’s right to equal protection and due process.
Plaintiff alleges that he is eligible for a hearing pursuant
to Proposition 57. Plaintiff alleges that defendant Spearman
is “holding his own regulations, ” and violating
plaintiff’s right to a hearing pursuant to Proposition
57 and the Constitution. As relief, plaintiff requests that
the California Department of Corrections and Rehabilitation
(“CDCR”) be compelled to adhere to the law of the
land and cease their underground policies.
2016, California voters approved Proposition 57 which, in
pertinent part, requires that “[a]ny person convicted
of a nonviolent felony offense and sentenced to state prison
shall be eligible for parole consideration after completing
the full term for his or her primary offense.” Cal.
Const. Art. I, § 32(a)(1). The implementing regulations
define a “violent felony” as “a crime or
enhancement as defined in subdivision (c) of section 667.5 of
the Penal Code.” Cal. Code Regs. tit. 15, § 3490
Proposition 57, the “full term for the primary
offense” is defined as “the longest term of
imprisonment imposed by the court for any offense, excluding
the imposition of an enhancement, consecutive sentence, or
alternative sentence.” Id., §
32(a)(1)(A). An indeterminate life sentence under the Three
Strikes law is considered an “alternative sentence,
” see In re Edwards, 26 Cal.App. 5th 1181,
1187 (Cal.App. 2018), and, therefore, is not a primary
offense term that must be served before a prisoner is
eligible for parole consideration under Proposition 57.
Accordingly, a Three Strikes indeterminate sentence must be
put aside” for purposes of determining the full term of
a prisoner’s primary offense. Id. at 1192.
following the California Court of Appeal decision in In
re Edwards, 26 Cal.App. 5th 1181 (Cal.App. 2018)
(finding that inmates serving Three Strike sentences for
nonviolent offenses are constitutionally entitled to parole
consideration under Proposition 57), CDCR enacted emergency
regulations to accord parole consideration to nonviolent
offenders indeterminately sentenced pursuant to the Three
Strikes Law. See Proposed Regulations, Cal. Code
Regs. tit. 15, §§ 3495-97. These regulations were
given temporary emergency effect on January 1, 2019, pending
CDCR also promulgated regulations establishing a screening
process for inmates who would be referred for parole
consideration under Proposition 57. See Cal. Code Regs.
tit. 15, § 3492 (2019); see also In re McGhee,
34 Cal.App. 5th 902');">34 Cal.App. 5th 902, 907 (2019). “However, in April
2019, the California Court of Appeal, applying principles of
administrative law, held that the CDCR regulation
establishing the screening process was invalid and ordered
that the plaintiff in that case, an inmate whom prison
officials had refused to refer to the Parole Board for parole
consideration under Proposition 57, be referred within 60
days.” Stewart v. Borders, 2019 WL 3766557 at
*3 (C.D. Cal. 2019) (citing In re McGhee, 34
Cal.App. 5th at 839.) “In July 2019, the CDCR released
an ‘Implementation Plan for the McGhee
Decision.’” Id. “According to the
CDCR's Implementation Plan, effective July 9, 2019, the
CDCR will no longer apply behavior based public screening
criteria to eligible nonviolent offenders and all
indeterminately-sentenced nonviolent offenders who are
eligible for parole consideration under Proposition 57 will
be referred to the Parole Board for a parole hearing 180 days
prior to their Nonviolent Parole Eligible Date, unless they
have previously been scheduled for a parole hearing or will
be eligible for a parole hearing within the next 12 months
under any other provision of law” Id.
instant action, plaintiff does not explain or describe the
regulations defendant Spearman allegedly created based on
which defendant denied plaintiff’s request for a
hearing pursuant to Proposition 57. As discussed above,
effective July 9, 2019, CDCR began applying new regulations
in response to the opinion of the California Court of Appeal
in In re McGhee. If plaintiff is challenging the
regulations applied by CDCR prior to July 9, 2019, his claim
that defendant Spearman wrongly denied him a hearing pursuant
to Proposition 57 appears moot.
event, in similar cases in which prisoners have filed Section
1983 complaints challenging the constitutionality of
CDCR's application of Proposition 57 to their cases,
federal courts have found that the prisoner-plaintiffs failed
to allege a cognizable claim under Section 1983 because the
crux of their complaints concerned an alleged violation of
state law. See, e.g., Russell v.
Diaz, 2019 WL 2613592, at *3 (E.D. Cal. 2019);
Herrera v. California State Superior Courts, 2018 WL
400320 (E.D. Cal. 2018); Daniels v. California Department
of Corrections and Rehabilitation, 2018 WL 489155 (E.D.
Cal. 2018); see also Galen v. Cty. of Los Angeles,
477 F.3d 652, 662 (9th Cir. 2007) (“Section 1983
requires [plaintiff] to demonstrate a violation of federal
law, not state law.”). Plaintiff’s complaint
fails for the same reason. Although it mentions Due Process
and Equal Protection, the crux of the complaint is that
defendant Spearman’s actions violated California law,
not that he deprived plaintiff of due ...