1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARLTON DWAYNE FIELDS, No. 2:18-cv-3207 AC 12 Plaintiff, 13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 SCOTT KERNAN, 15 Defendant. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 19 I. Application to Proceed In Forma Pauperis 20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 21 § 1915(a). ECF No. 2. Accordingly, the request to proceed in forma pauperis will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 II. Statutory Screening of Prisoner Complaints 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 7 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 8 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 9 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 12 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 13 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 14 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 15 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 16 Franklin, 745 F.2d at 1227-28 (citations omitted). 17 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 18 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 19 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 20 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 21 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 22 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 23 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 24 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 25 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 26 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 27 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 28 //// 1 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 2 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 3 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 4 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 5 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 6 content that allows the court to draw the reasonable inference that the defendant is liable for the 7 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 8 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 9 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 10 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 11 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 12 III. Complaint 13 Plaintiff brings claims under the due process and equal protection clauses of the 14 Fourteenth Amendment, and for cruel and unusual punishment in violation of the Eighth 15 Amendment, against the former Director of the California Department of Corrections and 16 Rehabilitation. The complaint alleges that plaintiff, who was convicted of several serious 17 offenses including mayhem, has been denied access to early parole consideration under 18 Proposition 57.1 Plaintiff seeks damages and injunctive relief. 19 IV. Failure to State a Claim 20 Plaintiff cannot maintain a due process claim based on denial of early parole 21 consideration, because he has no protected property interest in parole. There is no right under the 22 U.S. Constitution to be conditionally released before the expiration of a valid sentence. 23 Swarthout v. Cooke, 562 U.S. 216, 220 (2011); see also Greenholtz v. Inmates of Neb. Penal & 24 Corr. Complex, 442 U.S. 1, 7 (1979) (there is no federal constitutional right to parole). It follows

25 1 Proposition 57 added Article 1, Section 32 to the California Constitution. It states in relevant 26 part: “Parole consideration: Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term of his or her 27 primary offense,” defined for these purposes as "the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or 28 alternative sentence.” Cal. Const., art. I, § 32, subds. (a)(1), (a)(1)(A). 1 that there is no constitutional right to parole consideration. See Fernandez v. Nevada, No. 3:06- 2 CV-00628 LRH-RA, 2008 U.S. Dist. LEXIS 131876, 2009 WL 700662, at *10 (D. Nev. Mar. 13, 3 2009). And where there is no liberty interest in parole eligibility or parole, there can be no due 4 process violation. See id. 5 The questions whether Proposition 57 is being improperly construed, and whether its 6 provisions should extend to those convicted of mayhem (or a combination of violent and non- 7 violent crimes), are questions of California law. Accordingly, they are not reviewable by this 8 court. See 42 U.S.C. § 1983 (only deprivation of rights secured by federal law is actionable under 9 Section 1983); see also Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (state law issue 10 cannot be transformed into federal law issue by merely invoking due process). Plaintiff’s due 11 process claim therefore is not cognizable. 12 Plaintiff’s equal protection claim also fails as a matter of law, because it does not violate 13 equal protection for a parole eligibility scheme to distinguish among categories of offenses or 14 offenders. Such distinctions need be supported only by a rational basis. City of Cleburne, Tex. v. 15 Cleburne Living Ctr., 473 U.S. 432, 440 (1985) (legislation is presumed to be valid and will be 16 sustained if the classification drawn by the statute is rationally related to a legitimate state 17 interest). There is a rational basis for statutory differences reflecting the alleged “seriousness” of 18 the crimes. See Aguilera-Montero v. Mukasey, 548 F.3d 1248, 1254 (9th Cir. 2008). 19 Finally, the facts do not and cannot support a substantive Eighth Amendment challenge to 20 plaintiff’s sentence. Plaintiff cites no authority suggesting that the Eighth Amendment is 21 implicated by the denial of parole, and the court is aware of none. Moreover, as the Eighth 22 Amendment does not bar a life sentence for crimes significantly less serious than mayhem, see, 23 e.g., Lockyer v. Andrade, 538 U.S. 63, 76 (2003) (upholding consecutive terms of 25 years to life 24 for recidivist convicted of petty theft), there would be no Eighth Amendment violation based on a 25 parole denial even if the result were life incarceration. 26 V. Leave to Amend is Not Appropriate 27 For all the reasons explained above, the undersigned finds that the complaint fails to state 28 cognizable civil rights claims under 42 U.S.C. § 1983 and that any amendment of the complaint 1 would be futile. “A district court may deny leave to amend when amendment would be futile.” 2 Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013); accord Lopez v. Smith, 203 F.3d 1122, 3 1129 (9th Cir. 2000) (“Courts are not required to grant leave to amend if a complaint lacks merit 4 entirely.”). Because plaintiff cannot state a claim as a matter of law, the undersigned 5 recommends that this action be dismissed for failure to state a claim upon which relief may be 6 granted. See 28 U.S.C. § 1915A(b)(1). 7 VI. Plain Language Summary of this Order for a Pro Se Litigant 8 Your request to proceed in forma pauperis is granted and you are not required to pay the 9 entire filing fee immediately. 10 It is being recommended that your complaint be dismissed without leave to amend. You 11 do not have any federal constitutional rights to early parole consideration under Proposition 57, 12 and so you cannot bring a lawsuit against the Director of CDCR on that basis. 13 CONCLUSION 14 In accordance with the above, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 16 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 17 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 18 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 19 Director of the California Department of Corrections and Rehabilitation filed concurrently 20 herewith. 21 3. The Clerk of the Court shall randomly assign a district judge to this action. 22 IT IS FURTHER RECOMMENDED that this action be DISMISSED without prejudice 23 for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915A(b)(1). 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 26 after being served with these findings and recommendations, plaintiff may file written objections 27 with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 28 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 1 || time may waive the right to appeal the District Court’s order. Martinez v. Yist 951 F.2d 1153 2 || (9th Cir. 1991). 3 || DATED: April 6, 2021 ' 1/ ~ 4 ALLISON CLAIRE. 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28