# (PC) Eleson v. Lizarraga

> District Court, E.D. California · September 3, 2019

URL: https://www.frixlaw.com/law-library/cases/10013651

## Case

- **Court:** District Court, E.D. California
- **Decided:** September 3, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 ERIC RICHARD ELESON, No. 2:19-cv-0112 KJN P
12 Plaintiff,
13 v. ORDER
14 JOE A. LIZARRAGA, et al.,
15 Defendants.
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17 I. Introduction
18 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.
19 § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This
20 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
21 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a).
22 Accordingly, the request to proceed in forma pauperis will be granted.
23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C.
24 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in
25 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct
26 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and
27 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly
28 payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account.
1 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time
2 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.
3 § 1915(b)(2).
4 As set forth below, the undersigned finds that plaintiff’s complaint fails to state a
5 cognizable claim for relief and must be dismissed. However, leave to amend is granted.
6 II. Screening Standards
7 The court is required to screen complaints brought by prisoners seeking relief against a
8 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
9 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
10 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
11 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
12 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
13 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
14 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an
15 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
16 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully
17 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th
18 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.
19 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably
20 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at
21 1227.
22 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain
23 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
24 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic
25 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
26 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a
27 formulaic recitation of the elements of a cause of action;” it must contain factual allegations
28 sufficient “to raise a right to relief above the speculative level.” Id. at 555. However, “[s]pecific
1 facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what
2 the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93
3 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted).
4 In reviewing a complaint under this standard, the court must accept as true the allegations of the
5 complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most
6 favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other
7 grounds, Davis v. Scherer, 468 U.S. 183 (1984).
8 III. Plaintiff’s Complaint
9 Named as defendants are Joe A. Lizarraga, Warden, Mule Creek State Prison (“MCSP”),
10 and Ralph Diaz, Secretary of the California Department of Corrections and Rehabilitation
11 (“CDCR”). Plaintiff avers that he is not challenging his conviction. (ECF No. 1 at 8, 9.)
12 Plaintiff alleges that defendants are improperly calculating his sentencing credits, that he must
13 first serve his life sentence before he serves the time imposed for the sentencing enhancements,
14 and that they are improperly characterizing his offense as a violent offense rather than a
15 nonviolent offense. Plaintiff argues such allegations are violations of his right to due process,
16 equal protection, and the Ex Post Facto Clause, and constitute double jeopardy. Plaintiff claims
17 defendants committed fraud, violated their oaths of office, and “Canons 1, 2, 3.” (ECF No. 1 at
18 4.) Plaintiff asks the court to order the CDCR to correct the calculation of the terms of plaintiff’s
19 sentence, and award money damages and costs to plaintiff. (ECF No. 1 at 13.)
20 IV. Background
21 Plaintiff was convicted in 1995 of three counts of violating California Penal Code
22 § 288(a), lewd and lascivious acts with a child under 14 years of age and sentenced to three
23 consecutive terms of 25 years-to-life. (ECF No. 7 at 78.) Based on prior convictions or prior
24 prison terms, plaintiff sustained two enhancements for violation of California Penal Code
25 § 667(a), and his consecutive life sentence was enhanced by an additional ten years. (ECF No. 7
26 at 78.) Plaintiff’s conviction requires registration under California Penal Code § 290. Id.
27 For purposes of Proposition 57, violent felonies are defined in California Penal Code
28 § 667.5(c). See People v. Harris, 2017 WL 423084 at *2 (Cal. App. 2017). Under California
1 Penal Code § 667.5(c)(6), plaintiff’s conviction is considered a violent felony. Inmates
2 “[i]ncarcerated for life with the possibility of parole, serving a term for a violent felony as defined
3 in PC 667.5(c), and/or required to register pursuant to PC 290,” are ineligible for the nonviolent
4 parole process provided under Proposition 57. Cal. Code Regs. tit. 15, § 3490.
5 V. Proposition 57
6 Proposition 57 changed California parole eligibility and credit earning rules by adding
7 section 32 to article I of the California Constitution, which provides:
8 (a) The following provisions are hereby enacted to enhance public
safety, improve rehabilitation, and avoid the release of prisoners by
9 federal court order, notwithstanding anything in this article or any
other provision of law:
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(1) Parole Consideration: Any person convicted of a nonviolent
11 felony offense and sentenced to state prison shall be eligible for
parole consideration after completing the full term for his or her
12 primary offense.
13 (A) For purposes of this section only, the full term for the primary
offense means the longest term of imprisonment imposed by the
14 court for any offense, excluding the imposition of an enhancement,
consecutive sentence, or alternative sentence.
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(2) Credit Earning: The Department of Corrections and
16 Rehabilitation shall have authority to award credits earned for good
behavior and approved rehabilitative or educational achievements.
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(b) The Department of Corrections and Rehabilitation shall adopt
18 regulations in furtherance of these provisions, and the Secretary of
the Department of Corrections and Rehabilitation shall certify that
19 these regulations protect and enhance public safety.
20 Cal. Const., art. I, § 32. The “full term for the primary offense” is defined as “the longest term of
21 imprisonment imposed by the court for any offense, excluding the imposition of an enhancement,
22 consecutive sentence, or alternative sentence.” Id., § 32(a)(1)(A). An indeterminate life sentence
23 under the Three Strikes law is considered an “alternative sentence,” see In re Edwards, 26 Cal.
24 App. 5th 1181, 1187, 237 Cal. Rptr. 3d 673 (Cal. App. Sept. 7, 2018), and thus is not a primary
25 offense term that must be served before a prisoner is eligible for parole consideration under
26 Proposition 57. Therefore, a Three Strikes indeterminate sentence must be “put aside” for
27 purposes of determining the full term of a prisoner’s primary offense. Id. at 1192.
28 ////
1 “California state court cases addressing application of Proposition 57 are unpublished
2 decisions . . . [which] uniformly state that Proposition 57 creates a mechanism for parole
3 consideration, not a vehicle for resentencing.” Herrera v. California State Superior Courts, 2018
4 WL 400320 (E.D. Cal. Jan. 12, 2018). Inmates with third strike indeterminate sentences are
5 excluded from parole consideration. Cal. Code Regs. tit. 15, §§ 3490 & 3491(b)(1).
6 VI. Discussion
7 A. Claims Not Within Core of Habeas Corpus
8 Initially, the court reviews whether plaintiff’s claims are properly raised in a civil rights
9 action. As a general rule, a claim that challenges the fact or duration of a prisoner’s confinement
10 should be raised in a habeas corpus petition under 28 U.S.C. § 2254, while a claim that challenges
11 the conditions of confinement should be raised in a civil rights action. Muhammad v. Close, 540
12 U.S. 749, 750 (2004) (per curiam). Federal courts lack habeas jurisdiction over claims by state
13 prisoners that are not within “the core of habeas corpus.” Nettles v. [Warden] Grounds, 830 F.3d
14 922, 927, 934 (9th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 645 (2017). A prisoner’s claims
15 are within the core of habeas corpus if they challenge the fact or duration of his conviction or
16 sentence. Id. at 934. “[W]hen a prisoner’s claim would not ‘necessarily spell speedier release,’
17 that claim does not lie at ‘the core of habeas corpus,’ and may be brought, if at all, under § 1983.”
18 Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011); Preiser v. Rodriguez, 411 U.S. 475, 487
19 (1973).
20 In Nettles, the Ninth Circuit addressed the limits of a federal court’s habeas jurisdiction
21 when a prisoner is serving an indeterminate life sentence. 830 F.3d at 925-27. Nettles was
22 serving a life sentence with the possibility of parole in a California state prison and brought a
23 habeas petition challenging a prison disciplinary that resulted in the loss of good-time credits.
24 830 F.3d at 925-27. The Ninth Circuit Court of Appeals found that, even if Nettles succeeded on
25 his claim, the expungement of the disciplinary violation and restoration of credits to his sentence
26 would not necessarily lead to a grant of parole and, therefore, his claim did not fall within the
27 “core of habeas corpus” and was “not cognizable.” Id. at 934-35.
28 ////
1 Here, plaintiff is serving an indeterminate life sentence. Even if plaintiff is correct that he
2 is being denied additional credits, such finding would not necessarily lead to his immediate or
3 earlier release from prison. Id. at 935; Travers v. People of the State of California, 2018 WL
4 707546, at *3 (N.D. Cal. Feb. 5, 2018) (rejecting claim for Proposition 57 relief because it “falls
5 outside the core of habeas corpus”). Thus, plaintiff’s claim to enforce his rights under
6 Proposition 57 must be brought in a civil rights action, not through a petition for writ of habeas
7 corpus.
8 B. Lack of Linkage
9 Plaintiff’s allegations fail to assert the requisite causal link between the challenged
10 conduct, a specific defendant, and a clearly identified constitutional violation. Under § 1983,
11 plaintiff must demonstrate that each named defendant personally participated in the deprivation of
12 his rights. Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009); Starr v. Baca, 652 F.3d 1202, 1208
13 (9th Cir. 2011). Liability may not be imposed on supervisory personnel under the theory of
14 respondeat superior, as each defendant is only liable for his or her own misconduct. Iqbal, 556
15 U.S. at 676-77. Supervisors may only be held liable if they “participated in or directed the
16 violations, or knew of the violations and failed to act to prevent them.” Lemire v. Cal. Dept. of
17 Corrections & Rehabilitation, 726 F.3d 1062, 1074-75 (9th Cir. 2013).
18 C. Sentencing Claims
19 The gravamen of plaintiff’s claims is that the state courts misinterpreted state law when
20 they determined he was not entitled to certain sentencing credits afforded under Proposition 57, or
21 allegedly mischaracterized the nature of his conviction for the purpose of applying such credits.
22 Section 1983 provides a remedy only for violation of the Constitution or law or treaties of the
23 United States. See Swarthout v. Cooke, 562 U.S. 216, 222 (2011) (the responsibility for assuring
24 that the constitutionally adequate procedures governing California’s parole system are properly
25 applied rests with California courts). Such sentencing credit claims are solely based on alleged
26 violations of state law. An error of state law is not a denial of due process. Swarthout, 562 U.S.
27 at 222 (citing Engle v. Isaac, 456 U.S. 107, 121 n.21 (1982), see also Estelle v. McGuire, 502
28 U.S. 62, 67-68 (1991) (“it is not the province of a federal habeas court to reexamine state-court
1 determinations on state-law questions.”)). Rather, state courts “are the ultimate expositors of
2 state law.” Mullaney v. Wilbur, 421 U.S. 684, 691 (1975).
3 For these reasons, the undersigned finds that plaintiff has not stated a potentially colorable
4 claim under § 1983. While it is unlikely that plaintiff can cure the pleading defects discussed
5 above, plaintiff is granted one opportunity to file an amended complaint. However, plaintiff is
6 reminded that “[t]he violation of state regulations, rules and policies of the CDCR, or other state
7 law is not sufficient to state a claim for relief under § 1983.” Herrera, 2018 WL 400320, at *4.
8 D. Failure to State a Constitutional Claim
9 In cases where prisoners have filed federal civil rights complaints challenging the
10 constitutionality of the application of Proposition 57 to their cases, federal district courts have
11 found that the prisoners failed to state cognizable § 1983 claims because the essence of such
12 claims concerned alleged violations of state law. See, e.g., Stewart v. Borders, 2019 WL
13 3766557, *5 (C.D. Cal. Aug. 9, 2019) (collecting cases). “Although it mentions Due Process,
14 Equal Protection, and the Bill of Rights, the crux of the Complaint is that Defendants’ actions
15 violated the plain language of California law . . . , not that they deprived Plaintiff of due process
16 or otherwise infringed his federal constitutional rights.” Stewart, 2019 WL 3766557 at *5.
17 Plaintiff cannot “transform a state-law issue into a federal one” simply by labeling it a due
18 process violation. See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997) (prisoner “may not .
19 . . transform a state-law issue into a federal one merely by asserting a violation of due process.”)
20 Here, plaintiff alleges, in conclusory fashion, violations of his right to due process, equal
21 protection, and the Ex Post Facto Clause, and such violations constitute double jeopardy. But
22 because the crux of his claims are alleged violations of state law, his complaint fails to state a
23 constitutional claim for the same reasons set forth in Stewart. See Langford, 110 F.3d at 1389.
24 E. Claims Three and Four
25 Although plaintiff did not name any state court judges as defendants, in his third and
26 fourth claims for relief, plaintiff alleges “fraud by the court,” and violations of 18 U.S.C. § 1001
27 and their oaths of office, ostensibly by the judges who failed to render reasoned decisions in
28 addressing plaintiff’s claims in state court. Plaintiff confirmed in his first claim that his third and
1 fourth claims for relief were “for judges.” (ECF No. 1 at 4.)
2 First, as a private citizen, plaintiff lacks standing to enforce a federal criminal law. See
3 Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“a private citizen lacks a judicially
4 cognizable interest in the prosecution or nonprosecution of another”); see also Abou-Hussein v.
5 Gates, D. D.C. 2009, 657 F.Supp.2d 77, affirmed 2010 WL 2574084, cert. denied 562 U.S. 1201
6 (2011) (statute prohibiting fraud or false statements (18 U.S.C. § 1001) does not create a private
7 right of action).
8 Second, there is no private right of action for plaintiff to enforce an alleged violation of
9 the oath of office. See Smith v. United States, 2013 WL 2154004, at *1 (D. Mass. May 15, 2013)
10 (explaining that 5 U.S.C. §§ 3331 and 3332 do not “give rise to a private right of action in a civil
11 context”); Gudgel v. Cty. of Okanogan, 2012 WL 3637431, at *4 (E.D. Wash. Aug. 22, 2012)
12 (recognizing that there is no private right of action under 5 U.S.C. § 3331). Similarly, numerous
13 courts in other jurisdictions have found that there is no private right of action against an office
14 holder for an alleged violation of an oath of office. See, e.g., Nelson v. Williams, 2014 WL
15 5464159, at *5 (D. Minn. Oct. 27, 2014) (holding no private cause of action to enforce a
16 Minnesota oath of office); Scheiner v. Bloomberg, 2009 WL 691449, *3 (S.D. N.Y. Mar. 17,
17 2009) (“Courts have held that there is no private cause of action for an official’s alleged violation
18 of an oath of office.”); Mechler v. Hodges, 2005 WL 1406102, at *7 (S.D. Ohio June 15, 2005)
19 (same); Conner v. Tate, 130 F. Supp. 2d 1370, 1380 (N.D. Ga. 2001) (same).1
20 Third, claims against state court judges based on conduct undertaken in their judicial
21 capacities are barred by the doctrine of absolute judicial immunity. See Swift v. California, 384
22 F.3d 1184, 1188 (9th Cir. 2004) (“It is well established that state judges are entitled to absolute
23 immunity for their judicial acts.”) (citing Pierson v. Ray, 386 U.S. 547 (1967)); see also
24 Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (“Judges and those performing judge-like
25 functions are absolutely immune from damage liability for acts performed in their official
26 capacities.”). This immunity is an immunity from suit, not just from an assessment of damages.
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1 Plaintiff’s allegations that defendants Lizarraga and Diaz also violated their oaths of office,
28 such claims fail for the same reason.
1 See Mireles v. Waco, 502 U.S. 9, 11 (1991). “Accordingly, judicial immunity is not overcome by
2 allegations of bad faith or malice[.]” Id. Judicial immunity applies “however erroneous the act
3 may have been, and however injurious in its consequences it may have proved to the plaintiff.”
4 Moore v. Brewster, 96 F.3d 1240, 1243-44 (9th Cir. 1996), superseded by statute on other
5 grounds as recognized in Kenner v. United States, 689 F. App’x 558, 559 (9th Cir.), cert. denied,
6 138 S. Ct. 221 (2017). That is, even if judges act incorrectly or with improper motive, they are
7 immune from suit for acts performed pursuant to their official functions. Pierson, 386 U.S. at 554
8 (“[I]mmunity applies even when the judge is accused of acting maliciously and corruptly.”).
9 The actions of the state court judges in ruling on plaintiff’s state court filings were solely
10 within their judicial functions. Therefore, to the extent plaintiff intended to name state court
11 judges as defendants herein, his third and fourth claims are dismissed with prejudice.
12 Finally, a federal district court is a court of original jurisdiction and does not have
13 appellate jurisdiction over a decision from a state court. See District of Columbia Court of
14 Appeals v. Feldman, 460 U.S. 462, 482-86 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413,
15 415-16 (1923) (district courts may not exercise appellate jurisdiction over state courts). The
16 Rooker-Feldman doctrine bars federal district courts “from exercising subject matter jurisdiction
17 over a suit that is a de facto appeal from a state court judgment.” Kougasian v. TMSL, Inc., 359
18 F.3d 1136, 1139 (9th Cir. 2004) (citation omitted). Thus, to the extent plaintiff sought this
19 court’s review of the state court decisions, such request fails for lack of jurisdiction.
20 VII. Leave to Amend
21 As noted above, it is unclear whether plaintiff can amend his complaint to state a
22 cognizable federal civil rights claim under§ 1983. But in an abundance of caution, plaintiff is
23 granted leave to amend.
24 If plaintiff chooses to amend the complaint, plaintiff is informed that the court cannot
25 refer to a prior pleading in order to make plaintiff’s amended complaint complete. Local Rule
26 220 requires that an amended complaint be complete in itself without reference to any prior
27 pleading. This requirement exists because, as a general rule, an amended complaint supersedes
28 the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an
1 | amended complaint, the original pleading no longer serves any function in the case. Therefore, in
2 | an amended complaint, as in an original complaint, each claim and the involvement of each
3 | defendant must be sufficiently alleged.
4 In accordance with the above, IT IS HEREBY ORDERED that:
5 1. Plaintiff’s request for leave to proceed in forma pauperis is granted.
6 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff
7 | is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.
8 | §$ 1915(b)C1). All fees shall be collected and paid in accordance with this court’s order to the
9 | Director of the California Department of Corrections and Rehabilitation filed concurrently
10 | herewith.
11 3. Plaintiff’s complaint is dismissed.
12 4. Within thirty days from the date of this order, plaintiff shall complete the attached
13 | Notice of Amendment and submit the following documents to the court:
14 a. The completed Notice of Amendment; and
15 b. An original and one copy of the Amended Complaint.
16 | Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the
17 | Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must
18 | also bear the docket number assigned to this case and must be labeled “Amended Complaint.”
19 Failure to file an amended complaint in accordance with this order may result in the
20 | dismissal of this action.
21 | Dated: August 30, 2019
22 Arse A Abar
23 KENDALL J. NE
UNITED STATES MAGISTRATE JUDGE
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 ERIC RICHARD ELESON, No. 2:19-cv-0112 KJN P
12 Plaintiff,
13 v. NOTICE OF AMENDMENT
14 JOE A. LIZARRAGA, et al.,
15 Defendants.
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17 Plaintiff hereby submits the following document in compliance with the court’s order
18 filed______________.
19 _____________ Amended Complaint
DATED:
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Plaintiff
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10013651. Public record. Not legal advice.