(PC) Harris v. Brown ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARREN HARRIS, No. 2:19-cv-0311 KJM CKD P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 GAVIN NEWSOM, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. On October 11, 2019, the court screened plaintiff’s amended complaint as the court is 19 required to do under 28 U.S.C. § 1915A(a). The court found as follows: 20 Plaintiff complains that he has been denied an early parole hearing as provided for in article 1, section 32 of California’s Constitution 21 which became law in 2016. This section provides for early parole consideration for persons convicted of “a nonviolent felony offense” 22 that meet other criteria as well. According to plaintiff, he stands convicted of robbery. 23 Section 32(b) directs the Secretary of the California Department of 24 Corrections and Rehabilitation to “adopt regulations in furtherance of” the other provisions of section 32. In response to this directive, 25 the Secretary promulgated, among other regulations, Cal. Code Regs. tit 15 § 3495. In § 3495, subsection(b), “violent felony” is identified 26 as any crime listed in subdivision (c) of section 667.5 of the California Penal Code. “Any Robbery” appears on that list. This 27 being the case, the provisions in article 1, section 32 of California’s Constitution granting early consideration for parole do not apply to 28 plaintiff. 1 On page 7 of his amended complaint, plaintiff asserts “[i]n 1988, plaintiff was convicted of a non-violent robbery.” To the extent 2 plaintiff challenges the Secretary’s definition of “violent felony” for purposes of article I, section 32, his claim arises under California 3 law1 and this court does not have jurisdiction. See 28 U.S.C. § 1330 et seq. Plaintiff is free to raise such a claim in a California court. 4 There are no facts in plaintiff’s complaint which amount to a claim arising under federal law. 5 In light of the foregoing, the court will recommend that plaintiff’s 6 amended complaint be dismissed for failure to state a claim upon which relief can be granted. Leave to amend will not be granted a 7 second time, as that appears futile. 8 On August 18, 2020 the district court found as follows with respect to the court’s October 9 11, 2019 findings and recommendations: 10 The magistrate judge is correct that plaintiff does not have a claim under Article 1, Section 32 of the California Constitution. However, 11 plaintiff appears to attempt pleading several other claims under the United States Constitution. See Am. Compl., ECF No. 17, at 8 12 (referencing “procedural due process,” “plaintiff’s liberty interest,” and whether “deprivation procedures were constitutionally 13 sufficient”); id. at 13 (referencing the Fourteenth Amendment and alleging defendants violated the prohibition against “cruel or unusual 14 punishment” by “excessive incarceration”). The magistrate judge does not address those claims in the Findings and Recommendations; 15 therefore the court REFERS the matter back to the magistrate judge for the limited purpose of addressing those claims. 16 17 As the district court judge notes, plaintiff’s amended complaint includes references to the 18 Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. However, as the 19 court found in the October 11, 2019 findings and recommendations, there are no facts which 20 support any claim arising under either Amendment or any other federal law. 21 Plaintiff has no right to parole consideration under the Eighth Amendment or any other 22 federal law. Swarthout v. Cooke, 562 U.S. 216, 220 (2011). To the extent a state law provides 23 for parole for a particular inmate, a liberty interest protected by the Due Process Clause of the 24 Fourteenth Amendment is created. Id. at 219-220. Here, there are no facts indicating plaintiff 25 ///// 26 27 1 In In re Edwards, 26 Cal. App. 5th 1181, 1189 (2d. Dist. 2018) the California Court of Appeal identifies principles of California law applicable in determining whether regulations adopted 28 pursuant to article I, section 32 are valid under California law. MAIS 2 LDU VY EINSTEIN MUO OPI Vee PY VI 1 | has aright to early parole consideration under Article 1, Section 32 of the California Constitution. 2 | This being the case, he presents no protected liberty interest. 3 As suggested above, it appears plaintiff's primary complaint is the Secretary’s definition 4 | of “violent felony” for purposes of Article I, Section 32. Again, there are no facts before the 5 | court indicating the definition violates any aspect of federal law.” If plaintiff believes the 6 | definition violates some aspect of California law, he should seek relief in a California court. 7 In accordance with the above, IT IS HEREBY RECOMMENDED that: 8 1. Plaintiff's amended complaint be dismissed for failure to state a claim upon which 9 | relief can be granted; and 10 2. This case be closed. 11 These findings and recommendations are submitted to the United States District Judge 12 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 13 | after being served with these findings and recommendations, plaintiff may file written objections 14 | with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 15 | and Recommendations.” Plaintiff is advised that failure to file objections within the specified 16 | time waives the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th 17 | Cir. 1991). 18 | Dated: August 20, 2020 dp. A. fe 19 CAROLYN K DELANEY 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 | 1 harr0311.frs3 25 26 27 || 7 In California, robbery is “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or 28 | fear.” Cal. Penal Code § 211.