1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KENYON D. BROWN, Case No. 1:20-cv-01396-SKO (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS

TO DISMISS ACTION FOR FAILURE TO

13 v. STATE A FEDERAL CLAIM

14 NORTH KERN STATE PRISON, et al., 21-DAY DEADLINE

15 Defendants. Clerk of the Court to Assign a District Judge

16 17 Kenyon D. Brown alleges the defendants unlawfully denied him parole consideration 18 under California Proposition 57 (2016). (Doc. 33.) The Court finds that Plaintiff’s second 19 complaint fails to state a cognizable claim under federal law. Given that Plaintiff has received an 20 opportunity to amend his complaint, and his second amended complaint suffers from the same 21 deficiencies as his prior complaint, the Court finds that further amendment would be futile. See 22 Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012). The Court therefore recommends that 23 this action be dismissed. 24 I. SCREENING REQUIREMENT 25 The Court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 27 The Court must dismiss a complaint or portion thereof if the complaint is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant 1 who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if 2 it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal 3 theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 4 II. PLEADING REQUIREMENTS 5 A. Federal Rule of Civil Procedure 8(a) 6 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 7 exceptions.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513 (2002). A complaint must contain 8 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 9 Civ. Pro. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 10 plaintiff's claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 11 quotation marks and citation omitted). 12 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 13 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 14 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 15 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 16 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as 17 true, but legal conclusions are not. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 18 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 19 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 20 liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal 21 theories. Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation 22 of a civil rights complaint may not supply essential elements of the claim that were not initially 23 pled,” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal 24 quotation marks and citation omitted), and courts “are not required to indulge unwarranted 25 inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 26 marks and citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not 27 sufficient to state a cognizable claim, and “facts that are merely consistent with a defendant’s 1 B. Linkage and Causation 2 Section 1983 provides a cause of action for the violation of constitutional or other federal 3 rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under 4 section 1983, a plaintiff must show a causal connection or link between the actions of the 5 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 6 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 7 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 8 act, participates in another’s affirmative acts, or omits to perform an act which he is legally 9 required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 10 F.2d 740, 743 (9th Cir. 1978) (citation omitted). 11 III. PLAINTIFF’S ALLEGATIONS 12 Plaintiff alleges regulations of the California Department of Corrections and 13 Rehabilitation (CDCR) improperly exclude inmates with violent felony offenses from early- 14 parole consideration under California Proposition 57 (2016). (Doc. 33 at 2-5.) He alleges the 15 exclusion violates California Constitution article I, section 32(a)(1). (Id.) 16 IV. DISCUSSION 17 A. Due Process 18 The Fourteenth Amendment protects persons from deprivations of life, liberty, or property 19 without due process of law. U.S. Const. amend. XIV. Protected liberty interests may arise both 20 from the Constitution itself or from state law. Wilkinson v. Austin, 545 U.S. 209, 221 (2005) 21 (citations omitted). “A state may create a liberty interest through statutes, prison regulations, and 22 policies.” Chappell v. Mandeville, 706 F.3d 1052, 1063 (9th Cir. 2013) (citation omitted). 23 When a protected liberty interest is implicated, the Due Process Clause provides certain 24 procedural guarantees before the state may interfere with that interest. See Bd. of Regents of State 25 Colleges v. Roth, 408 U.S. 564, 569-70 (1972). The amount of process or specific procedures 26 required vary by context and the particular interest at stake. See Mathews v. Eldridge, 424 U.S. 27 319, 335 (1976). 1 “[T]he Ninth Circuit [has] held that California law creates a liberty interest in parole.” 2 Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (citing Cooke v. Solis, 606 F.3d 1206, 1213 (9th 3 Cir. 2010)). “The procedures required” for parole determinations, however, “are minimal.” Id. at 4 220. To satisfy the Due Process Clause, a prisoner facing a parole determination must be 5 “allowed an opportunity to be heard;” and, if parole is denied, he must be “provided a statement 6 of the reasons” for the denial. Id. “The Constitution . . . does not require more.” Id. (internal 7 quotation marks and citation omitted). 8 Plaintiff fails to state a cognizable due process claim. He alleges CDCR’s implementing 9 regulations for Proposition 57 (2016) violate California Constitution article I, section 32(a)(1). 10 (See Doc. 33 at 3-5.) However, “section 32 does not create a constitutionally-protected liberty 11 interest.” Jones v. Diaz, No. 4:19-cv-07814-JSW, 2020 WL 10816217, at *6 (N.D. Cal. 2020); 12 see also Herrera v. California State Superior Cts., No. 1:17-cv-386-AWI-BAM, 2018 WL 13 400320, at *4 (E.D. Cal. 2018). In other words, Plaintiff’s claim that CDCR regulations 14 unlawfully exclude him from parole consideration under Proposition 57 is a matter of state law; it 15 does not implicate the Fourteenth Amendment or other federal law. See id.; Williams v. California 16 Dep’t of Corr., No. 1:19-cv-00250-LJO-GSA, 2019 WL 6918206, at *5 (E.D. Cal. 2019); 17 Rodriguez v. Anderson, No. 5:18-cv-1181-AGA-GR, 2019 WL 6194993, at *5 (C.D. Cal. 2019). 18 B. Supplement Jurisdiction 19 “[I]n any civil action of which the district courts have original jurisdiction, the district 20 courts shall have supplemental jurisdiction over all other claims that are so related to claims in the 21 action within such original jurisdiction that they form part of the same case or controversy.” 28 22 U.S.C. § 1367(a). However, courts “may decline to exercise supplemental jurisdiction over a 23 claim” if it “has dismissed all claims over which it has original jurisdiction.” Id. § 1367(c)(3). 24 As described above, Plaintiff alleges the implementing regulations for Proposition 57 25 violate the California Constitution. (See Doc. 33 at 3-5.) Because Plaintiff fails to state a 26 cognizable claim under federal law, the Court declines to exercise supplemental jurisdiction over 27 his state-law claims. 1 V. CONCLUSION, RECOMMENDATION, AND ORDER 2 For the reasons set forth above, Plaintiff’s second amended complaint (Doc. 33) fails to 3 state a cognizable claim under federal law. Given that Plaintiff has received an opportunity to 4 amend his complaint and his second amended complaint suffers from the same deficiencies as his 5 prior complaint, the Court finds that further amendment would be futile. See Akhtar v. Mesa, 698 6 F.3d 1202, 1212-13 (9th Cir. 2012). Accordingly, the Court RECOMMENDS that this action be 7 dismissed. The Court DIRECTS the Clerk of the Court to assign a district judge to this action. 8 These Findings and Recommendations will be submitted to the United States District 9 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 21 days of the date of 10 service of these Findings and Recommendations, Plaintiff may file written objections with the 11 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 12 Recommendations.” Plaintiff’s failure to file objections within the specified time may result in 13 waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 14 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15

IT IS SO ORDERED.

16

17 Dated: January 20, 2022 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE

18

19 20 21 22 23 24 25 26 27