(PC) Wieland v. Newsom ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PETER WIELAND, No. 2:23-cv-00257-DAD-CKD (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, IN PART 14 GAVIN NEWSOM, et al., (Doc. No. 3) 15 Defendants. 16 17 Plaintiff Peter Wieland is a state prisoner proceeding with counsel in this action. This 18 matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and 19 Local Rule 302. 20 On February 9, 2023, plaintiff filed the operative complaint, asserting state law claims 21 against the California governor and the Solano State Prison warden and seeking immediate 22 release on parole. (Doc. No. 1.) Specifically, in his complaint, plaintiff alleges that the 23 California Board of Parole Hearings found him suitable for parole in 2021. (Id. at ¶ 1.) However, 24 the governor allegedly reversed that decision on October 8, 2021. (Id.) Plaintiff claims that the 25 governor’s decision violated the California Constitution and state law, as it failed to consider the 26 availability of medical parole and because there is not sufficient evidence of plaintiff’s current 27 dangerousness to deny parole. (Id. at ¶¶ 4–7.) 28 ///// 1 On July 27, 2023, the assigned magistrate judge screened plaintiff’s complaint and issued 2 findings and recommendations recommending that this action be dismissed, without leave to 3 amend, due to plaintiff’s failure to state a cognizable claim upon which relief may be granted. 4 (Doc. No. 3.) Those findings and recommendations were served on plaintiff and contained notice 5 that any objections thereto were to be filed within fourteen (14) days from the date of service. 6 (Id. at 3.) On August 10, 2023, plaintiff filed objections to the findings and recommendations. 7 (Doc. No. 4.) 8 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has 9 conducted a de novo review of this case. Having carefully reviewed the entire file, including 10 plaintiff’s objections to the pending findings and recommendations, the undersigned will adopt 11 the findings and recommendations in part. 12 The magistrate judge found that plaintiff’s complaint failed to state a claim because 13 “[w]hen a state prisoner challenges the legality of his custody and the relief he seeks is the 14 determination of his entitlement to an earlier or immediate release, his sole federal remedy is a 15 writ of habeas corpus.” (Doc. No. 3 at 2) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). 16 As the magistrate judge correctly observed, plaintiff filed a civil action seeking his immediate 17 release from custody on parole, but no such remedy is available in this non-habeas action. (See 18 id.) 19 In his objections, plaintiff argues that he “has a right to challenge that Governor’s action 20 under Article 14 of the United States Constitution Section 1” and “[a]t the very least, [p]laintiff 21 should be granted the right to amend his complaint for violation of the Fourteenth Amendment 22 and the ensuing monetary damages . . . .” (Doc. No. 4 at 2.) It therefore appears that plaintiff is 23 seeking leave to amend his complaint to advance a due process challenge to the constitutional 24 validity of the governor’s decision under 42 U.S.C. § 1983 and to seek monetary damages. The 25 undersigned is skeptical that plaintiff will be able to state a cognizable claim by way of 26 amendment. He has named only two defendants in this action: the governor of the State of 27 California and the warden at his institution of confinement. There are no allegations advanced to 28 date indicating that the latter was involved in the decision to deny plaintiff parole and the former 1 | would appear to be entitled to Eleventh Amendment immunity as to any claim for money 2 | damages for actions taken in his official capacity. See Watts v. Pataki, No. 9:08-cv-00092, 2009 3 | WL 1765016, at *2 (N.D.N.Y. June 22, 2009) (“Plaintiff’s claims for damages against the state 4 | defendants in their official capacities are barred by the Eleventh Amendment.”) (citing Davis v. 5 | New York, 316 F.3d 93, 101 (2d Cir. 2002)). 6 The undersigned will adopt the recommendation that plaintiff's complaint be dismissed 7 | for failure to state aclaim. Nonetheless, out of an abundance of caution, the undersigned will 8 | grant plaintiff leave to file a first amended complaint within thirty (30) days from the date of 9 | service of this order. See Bush vy. Dep’t of Corr. & Rehab., No. 2:22-cv-02008-KJM-CKD, 2023 10 | WL 3687420, at *1 (E.D. Cal. May 26, 2023) (citing Wilkinson v. Dotson, 544 U.S. 74, 76 11 } (2005)). 12 Accordingly, 13 1. The findings and recommendations issued on July 27, 2023 (Doc. No. 3) are 14 adopted in part, as follows: 15 a. Plaintiff's complaint (Doc. No. 1) is dismissed; 16 b. Plaintiff is granted leave to file an amended complaint within thirty (30) 17 days from the date of service of this order; 18 2. Any failure on plaintiffs part to file an amended complaint within the time 19 provided will likely result in dismissal of this action due to his failure to comply 20 with a court order; and 21 3. This matter is referred back to the assigned magistrate judge for further 22 proceedings consistent with this order. 23 IT IS SO ORDERED. *" | Dated: _March 20, 2024 Da A. 2, axel 25 DALE A. DROZD UNITED STATES DISTRICT JUDGE 27 28