(PC) Murillo v. Covello ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CIXTO CRUZ MURILLO, No. 2:24-cv-1593 AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 PATRICK COVELLO, et al., 15 Defendants. 16 17 Plaintiff is a state inmate who filed this civil rights action pursuant to 42 U.S.C. § 1983 18 without a lawyer. He has requested leave to proceed without paying the full filing fee for this 19 action, under 28 U.S.C. § 1915. Plaintiff has submitted a declaration showing that he cannot 20 afford to pay the entire filing fee. See 28 U.S.C. § 1915(a)(2). Accordingly, plaintiff’s motion to 21 proceed in forma pauperis is granted.1 22 I. Statutory Screening of Prisoner Complaints 23 The court is required to screen complaints brought by prisoners seeking relief against “a 24 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). A 25 1 This means that plaintiff is allowed to pay the $350.00 filing fee in monthly installments that 26 are taken from the inmate’s trust account rather than in one lump sum. 28 U.S.C. §§ 1914(a). As part of this order, the prison is required to remove an initial partial filing fee from plaintiff’s trust 27 account. See 28 U.S.C. § 1915(b)(1). A separate order directed to CDCR requires monthly payments of twenty percent of the prior month’s income to be taken from plaintiff’s trust account. 28 These payments will be taken until the $350 filing fee is paid in full. See 28 U.S.C. § 1915(b)(2). 1 claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. 2 Williams, 490 U.S. 319, 325 (1989). The court may dismiss a claim as frivolous if it is based on 3 an indisputably meritless legal theory or factual contentions that are baseless. Neitzke, 490 U.S. 4 at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an 5 arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). 6 In order to avoid dismissal for failure to state a claim a complaint must contain more than 7 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 8 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 9 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 10 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim upon which the 11 court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial 12 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 13 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. When 14 considering whether a complaint states a claim, the court must accept the allegations as true, 15 Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and construe the complaint in the light most 16 favorable to the plaintiff, Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 17 II. Factual Allegations of the Complaint 18 Plaintiff appears to allege that he is being illegally incarcerated because the administration 19 at Mule Creek State Prison failed to process his early release on parole and that he should have 20 been released on September 14, 2022. ECF No. 1 at 3, 7, 11-12. It also appears that he may be 21 attempting to claim that defendants illegally took a blood sample in order to sabotage his release 22 with DNA evidence, and that he is being subjected to illegal enhancements to his sentence. Id. at 23 6-7, 11-12. 24 III. Failure to State a Claim 25 Having conducted the screening required by 28 U.S.C. § 1915A, the court finds that the 26 complaint does not state a valid claim for relief under § 1983. State prisoners may not attack the 27 validity of the fact of their confinement in a section 1983 action and “habeas corpus is the 28 appropriate remedy” for such claims. Preiser v. Rodriguez, 411 U.S. 475, 490 (1973); Nettles v. 1 Grounds, 830 F.3d 922, 933 (9th Cir. 2016) (en banc) (“habeas corpus is the exclusive remedy to 2 attack the legality of the conviction or sentence”). Accordingly, plaintiff’s claim that prison 3 administration is refusing to release him on parole fails to state a claim. The court further 4 declines to offer plaintiff the option to convert his complaint to a habeas petition because it 5 appears his claims have not been exhausted. See 28 U.S.C. § 2254(b)(1) (a petition for writ of 6 habeas corpus “shall not be granted unless it appears that the applicant has exhausted the 7 remedies available in the courts of the State; or there is an absence of available State corrective 8 process” or circumstances render the process ineffective). A search of the California Supreme 9 Court’s case information website shows that while plaintiff has filed two habeas petitions in that 10 court, the more recent petition was filed in 2014, well before the prison allegedly refused to 11 release him.2 Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985) (the exhaustion 12 requirement is met by providing the highest state court with a full and fair opportunity to consider 13 all claims before presenting them to the federal court). 14 IV. No Leave to Amend 15 Leave to amend should be granted if it appears possible that the defects in the complaint 16 could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 17 (9th Cir. 2000) (en banc). However, if, after careful consideration, it is clear that a complaint 18 cannot be cured by amendment, the court may dismiss without leave to amend. Cato v. United 19 States, 70 F.3d 1103, 1105-06 (9th Cir. 1995). 20 The undersigned finds that, as set forth above, the complaint fails to state a claim upon 21 which relief may be granted and that given the nature of the claims, amendment would be futile. 22 The complaint should therefore be dismissed without leave to amend. 23 V. Plain Language Summary of this Order for a Pro Se Litigant 24 It is being recommended that your complaint be dismissed without leave to amend 25 because you cannot challenge a failure to release you on parole in a complaint filed under § 1983, 26 2 California Supreme Court Case Summary, Case No. S216210, 27 https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=206776 9&doc_no=S216210&request_token=NiIwLSEnXkg%2BWyAtSCJNTEtJUDw0UDxTIiM%2B 28 TztTMCAgCg%3D%3D [https://perma.cc/9PVR-JZG4]. 1 | you must file a habeas petition after you exhaust your state court remedies. 2 CONCLUSION 3 In accordance with the above, IT IS HEREBY ORDERED that: 4 1. Plaintiffs request for leave to proceed in forma pauperis (ECF Nos. 5) is GRANTED. 5 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 6 || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 7 || § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 8 || appropriate agency filed concurrently herewith. 9 3. The Clerk of the Court shall randomly assign a United States District Judge to this 10 | action. 11 IT IS FURTHER RECOMMENDED that the complaint be dismissed without leave to 12 || amend for failure to state a claim. 13 These findings and recommendations are submitted to the United States District Judge 14 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).. Within twenty-one days 15 | after being served with these findings and recommendations, plaintiff may file written objections 16 || with the court. Such a document should be captioned “Objections to Magistrate Judges Findings 17 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified 18 || time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 19 | (9th Cir. 1991). 20 | DATED: November 19, 2024 “ 21 Atlun—Clone ALLISON CLAIRE 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28