(PC) Bush v. Dept. of Corrections & Rehabilitation ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CRAIG A. BUSH, No. 2:22-cv-2008 KJM CKD P 12 Plaintiff, 13 v. ORDER 14 DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 19 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On April 4, 2023, the magistrate judge filed findings and recommendations, which were 21 served on plaintiff and which contained notice to plaintiff that any objections to the findings and 22 recommendations were to be filed within fourteen days. Plaintiff has filed objections to the 23 findings and recommendations. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 25 court has conducted a de novo review of this case. Having reviewed the file, the court adopts the 26 findings and recommendations in part. 27 The magistrate judge found plaintiff failed to state a claim because “release from prison 28 must be sought in a petition for a writ of habeas corpus and not a § 1983 action.” F. & R. at 2, 1 ECF No. 11 (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). In Preiser, the Supreme 2 Court held “when a state prisoner is challenging the very fact or duration of his physical 3 imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or 4 a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.” 5 411 U.S. at 500. 6 In his objections, plaintiff argues he “is not seeking release from this court, he is seeking a 7 rehearing due to a constitutional violation.” Objs. at 2, ECF No. 12. As the magistrate judge 8 notes, the first amended complaint does appear to challenge the duration of plaintiff’s 9 confinement as excessive. First Am. Compl. (FAC) at 3, ECF No. 10. At the same time, the 10 complaint also appears to challenge the decisions of the Parole Board for violating his due 11 process rights. Id. at 3, 6. In Wilkinson v. Dotson, the Supreme Court affirmed the Sixth 12 Circuit’s judgment and held prisoners could challenge the constitutional validity of the state 13 parole-eligibility proceedings and parole suitability proceedings under section 1983. 544 U.S. 74, 14 76 (2005). Here, after construing plaintiff’s pro se filing liberally, Erickson v. Pardus, 551 U.S. 15 89, 94 (2007), the court finds plaintiff is challenging the parole suitability and eligibility 16 proceedings for violating his due process rights, see FAC at 6; Objs. at 2–3. Accordingly, 17 plaintiff could bring this action under section 1983. 18 However, as the magistrate judge notes, there is nothing in the record suggesting plaintiff 19 was denied due process. See F. & R. at 2. Plaintiff is correct that Federal Rule of Civil Procedure 20 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled 21 to relief.” Fed. R. Civ. P. 8; see Objs. at 2. However, as the magistrate judge notes, this rule 22 demands “more than ‘naked assertions,’ ‘labels and conclusions,’ or ‘a formulaic recitation of the 23 elements of a cause of action.’” F. & R. at 1–2 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 24 544, 555–557 (2007)). There must be “sufficient factual matter” that make the claim at least 25 plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Here, plaintiff does not explain how his 26 due process rights or any other rights were violated. See generally FAC. Rather, he concludes 27 defendants violated his constitutional rights “by denying [him] suitability when facts in the 28 records showed suitability.” Id. at 3. Even under a liberal construction of the pleading, the court 1 | finds plaintiff has failed to state a claim. But because the court finds plaintiff may be able to cure 2 || the deficiencies in his complaint, it grants leave to amend. Akhtar v. Mesa, 698 F.3d 1202, 1212 3 | (Oth Cir. 2012) (“A district court should not dismiss a pro se complaint without leave to amend 4 || unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by 5 || amendment.’”). 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. The findings and recommendations filed April 4, 2023, are adopted in part; 8 2. Plaintiff's amended complaint is dismissed for failure to state a claim upon which 9 | relief can be granted, with leave to amend; 10 3. Plaintiff's amended complaint, if any shall be filed within thirty days of the date of 11 | service of this order; and 12 4. This matter is referred back to the assigned magistrate judge for all further pretrial 13 || proceedings consistent with this order. 14 | DATED: May 25, 2023. 16 CHIEF ED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28