# (PC) Barnes v. Director, CA Department of Corrections

> District Court, E.D. California · July 1, 2020

URL: https://www.frixlaw.com/law-library/cases/10020239

## Case

- **Court:** District Court, E.D. California
- **Decided:** July 1, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10020239

## How later opinions describe it (automated extraction)

- concluding that the 28 //// 1 “serious questions” version of the sliding scale test for preliminary injunctions remains viable 2 after Winter

## Opinion text

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7 UNITED STATES DISTRICT COURT
8 FOR THE EASTERN DISTRICT OF CALIFORNIA
9
10 ANTOINE DESHAWN BARNES, No. 2:20-cv-0861 DB P
11 Plaintiff,
12 v. ORDER AND FINDINGS AND
RECOMMENDATIONS
13 DIRECTOR, CALIFORNIA
DEPARTMENT OF CORRECTIONS, et
14 al.,
15 Defendants.
16
17 Plaintiff is a county jail inmate proceeding pro se with a civil rights action pursuant to 42
18 U.S.C. § 1983. Plaintiff alleges that he is being denied the benefit of custody credits because the
19 California Department of Corrections and Rehabilitation (CDCR) is closed to intake. Presently
20 before the court is plaintiff’s motion to proceed in forma pauperis (ECF No. 2), motion for
21 immediate release (ECF No. 5), and his complaint for screening (ECF No. 1). For the reasons set
22 forth below, the court will recommend that plaintiff’s motion to proceed in forma pauperis be
23 denied as moot, that his motion for immediate release be denied, and the complaint be dismissed
24 without leave to amend.
25 IN FORMA PAUPERIS
26 Plaintiff has submitted an affidavit and prison trust account statement that make the
27 showing required by 28 U.S.C. § 1915(a). (See ECF No. 2.) Nevertheless, because the
28 ////
1 undersigned recommends dismissal of this action without leave to amend, the court further
2 recommends that plaintiff’s request to proceed in forma pauperis be denied as moot.
3 SCREENING
4 I. Legal Standards
5 The court is required to screen complaints brought by prisoners seeking relief against a
6 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. §
7 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims
8 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be
9 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28
10 U.S.C. § 1915A(b)(1) & (2).
11 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
12 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
13 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
14 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
15 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully
16 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227.
17 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain
18 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
19 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic
20 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
21 However, in order to survive dismissal for failure to state a claim a complaint must
22 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain
23 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic,
24 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the
25 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.
26 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all
27 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
28 ////
1 The Civil Rights Act under which this action was filed provides as follows:
2 Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the deprivation
3 of any rights, privileges, or immunities secured by the Constitution .
. . shall be liable to the party injured in an action at law, suit in equity,
4 or other proper proceeding for redress.
5 42 U.S.C. § 1983. Here, the defendants must act under color of federal law. Bivens, 403 U.S. at
6 389. The statute requires that there be an actual connection or link between the
7 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See
8 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362
9 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the
10 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or
11 omits to perform an act which he is legally required to do that causes the deprivation of which
12 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
13 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of
14 their employees under a theory of respondeat superior and, therefore, when a named defendant
15 holds a supervisorial position, the causal link between him and the claimed constitutional
16 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);
17 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations
18 concerning the involvement of official personnel in civil rights violations are not sufficient. See
19 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
20 II. Allegations in the Complaint
21 Plaintiff alleges the judge presiding over his case in the Hanford Superior Court, “awarded
22 [him] halftime day for day credits” upon his placement in CDCR. (ECF No. 1 at 3.) He claims
23 that he is being held hostage in the Hanford County Jail rather than being held in a CDCR
24 institution where his credits would be calculated differently. (Id.) Plaintiff alleges the
25 deprivation of day-for-day credits amounts to a violation of his rights under the Eighth
26 Amendment. Plaintiff has identified CDCR and CDCR Secretary Ralph Diaz as defendants in
27 this action. (Id. at 1.) Plaintiff seeks monetary compensation for each day he has been held in jail
28 rather than in CDCR custody and immediate release. (Id. at 3, 6.)
1 III. Does Plaintiff State a Claim under § 1983?
2 A. Plaintiff Cannot Challenge the Duration of Confinement in a § 1983 Action
3 “Federal law opens two main avenues to relief on complaints related to imprisonment: a
4 petition for writ of habeas corpus, 28 U.S.C. § 2254, and a complaint under . . . 42 U.S.C. §
5 1983.” Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam). “Challenges to the validity
6 of any confinement or to particulars affecting its duration are the province of habeas corpus;
7 request for relief turning on the circumstances of confinement may be presented in a § 1983
8 action.” Id. (internal citation omitted). Here, plaintiff’s claim relates to the length of his
9 confinement. Accordingly, his sole federal remedy is by way of a writ of habeas corpus. Preiser
10 v. Rodriguez, 411 U.S. 574, 489 (1973) (“Release from custody is not an available remedy under
11 the Civil Rights Act”); Young v. Kenny, 907 F.2d 874, 875 (9th Cir. 1989) (“Where prisoner
12 challenges the fact or duration of his confinement, his sole federal remedy is a writ of habeas
13 corpus.”).
14 “[T]o the extent plaintiff challenges his credit calculation and overall length of
15 confinement, such a claim fails in a § 1983 case as a matter of law, unless he was able to have the
16 credit determination overturned through a habeas action first.” Clinton v. Calif. Dep’t of Corr.,
17 No. 05-cv-1600 LKK CMK P, 2013 WL 5718739 at *10 (E.D. Cal. Oct. 18, 2013), reversed in
18 part on other grounds by Clinton v. Cooper, 781 Fed.Appx. 582 (9th Cir. 2019). Additionally, the
19 court notes that plaintiff does not have an interest in transfer to any specific prison, even where he
20 alleges that such a transfer would afford him credit earning opportunities. Jimenez v. Ruelas, 308
21 Fed.Appx. 155 (9th Cir. 2009).
22 B. Plaintiff has Alleged Only a State Law Violation
23 Federal habeas challenges to CDCR’s awarding and calculation of custody credits are
24 regularly rejected as non-cognizable by the district courts. See, e.g., Grandberry v. Soto, 2016
25 WL 8732426 at *4 (C.D. Cal. June 15, 2016); McClellan v. Valenzuela, 2016 WL 7374580 at
26 *10 (E.D. Cal. Dec. 19, 2016); Jones v. Director of Corrections, 2017 WL 2839623 at *5 (S.D.
27 Cal. June 30, 2017). While a state sentencing error may entitle a petitioner to federal habeas
28 relief, if the error is “‘so arbitrary or capricious as to constitute an independent due process or
1 Eighth Amendment violation.’” Richmond v. Lewis, 506 U.S. 40, 50 (1992) holding modified by
2 Brown v. Sanders, 546 U.S. 212 (2006) (citation omitted). “Absent a showing of fundamental
3 unfairness, a state court’s misapplication of its own sentencing laws does not justify federal
4 habeas relief.” Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). The allegations in the
5 complaint do not show such an error.
6 Plaintiff’s allegations are not cognizable as either a civil rights action or petition for writ
7 of habeas corpus. Therefore, the court finds that leave to amend should not be granted. “A
8 district court may deny leave to amend when amendment would be futile.” Hartmann v. CDCR,
9 707 F.3d 1114, 1130 (9th Cir. 2013); accord Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000)
10 (“Courts are not required to grant leave to amend if a complaint lacks merit entirely”).
11 MOTION FOR IMMEDIATE RELEASE
12 Plaintiff filed a motion seeking his immediate release from custody. (ECF No. 5.)
13 Plaintiff’s claims he should be released immediately because CDCR is closed for intake due to a
14 state of emergency and the CDCR director is not giving him halftime credits. The court construes
15 plaintiff’s motion for release as a motion for injunctive relief.
16 I. Legal Standards
17 A party requesting preliminary injunctive relief must show that “he is likely to succeed on
18 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
19 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.
20 Natural Res. Def. Council, 555 U.S. 7, 20 (2008). The propriety of a request for injunctive relief
21 hinges on a significant threat of irreparable injury that must be imminent in nature. Caribbean
22 Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988).
23 Alternatively, under the so-called sliding scale approach, as long as the plaintiff
24 demonstrates the requisite likelihood of irreparable harm and can show that an injunction is in the
25 public interest, a preliminary injunction may issue so long as serious questions going to the merits
26 of the case are raised and the balance of hardships tips sharply in plaintiff’s favor. Alliance for
27 the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-36 (9th Cir. 2011) (concluding that the
28 ////
1 “serious questions” version of the sliding scale test for preliminary injunctions remains viable
2 after Winter).
3 The principle purpose of preliminary injunctive relief is to preserve the court’s power to
4 render a meaningful decision after a trial on the merits. See 9 Charles Alan Wright & Arthur R.
5 Miller, Federal Practice and Procedure § 2947 (3d ed. 2014). Implicit in this required showing is
6 that the relief awarded is only temporary and there will be a full hearing on the merits of the
7 claims raised in the injunction when the action is brought to trial. Preliminary injunctive relief is
8 not appropriate until the court finds that the plaintiff’s complaint presents cognizable claims. See
9 Zepeda v. United States Immigration Serv., 753 F.2d 719, 727 (9th Cir. 1985) (“A federal court
10 may issue an injunction if it has personal jurisdiction over the parties and subject matter
11 jurisdiction over the claims . . . .”).
12 In cases brought by prisoners involving conditions of confinement, any preliminary
13 injunction must be narrowly drawn, extend no further than necessary to correct the harm the court
14 finds requires preliminary relief, and be the least intrusive means necessary to correct the harm.”
15 18 U.S.C. § 3626(a)(2). Further, an injunction against individuals not parties to an action is
16 strongly disfavored. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110
17 (1969) (“It is elementary that one is not bound by a judgment . . . resulting from litigation in
18 which he is not designated as a party . . . .”).1
19 Further, preliminary injunctive relief is not appropriate until the court finds that the
20 plaintiff’s complaint presents cognizable claims. See Zepeda v. United States Immigration Serv.,
21 753 F.2d 719, 727 (9th Cir. 1985) (“A federal court may issue an injunction if it has personal
22 /////
23

24 1 However, the fact that injunctive relief is sought from one not a party to litigation does not
automatically preclude the court from acting. The All Writs Act, 28 U.S.C. § 16519(a) permits
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the court to issue writs “necessary or appropriate in aid of their jurisdictions and agreeable to the
usages and principles of law.” The All Writs Act is meant to aid the court in the exercise and
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preservation of its jurisdiction. Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1289 (9th Cir.
27 1979). The United States Supreme Court has authorized the use of the All Writs Act in
appropriate circumstances against persons or entities not a party to the underlying litigation.
28 United States v. New York Telephone Co., 434 U.S. 159, 174 (1977).
wOAOe COU VVOVED PRINCE MVUVUTOCII Ye POU Vite OY ON

1 || jurisdiction over the parties and subject matter jurisdiction over the claim; [however] it may not
2 || attempt to determine the rights of persons not before the court.”).
3 II. Analysis
4 As set forth above, the complaint should be dismissed without leave to amend. Therefore,
5 || the court finds plaintiff cannot show he is likely to succeed on the merits. Accordingly, it will
6 || recommend that plaintiff's request for immediate release be denied.
7 CONCLUSION
8 For the reasons set forth above, the Clerk of the Court is ORDERED to randomly assign
9 | this action to a district judge.
10 IT IS HEREBY RECOMMENDED that:
11 1. Plaintiffs motion to proceed in forma pauperis (ECF No. 2) be denied;
12 2. Plaintiff's complaint (ECF No. 1) be dismissed without leave to amend; and
13 3. Plaintiffs motion for immediate release (ECF No. 5) be denied.
14 These findings and recommendations will be submitted to the United States District Judge
15 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within thirty days after
16 | being served with these findings and recommendations, plaintiff may file written objections with
17 | the court. The document should be captioned “Objections to Magistrate Judge's Findings and
18 | Recommendations.” Plaintiff is advised that failure to file objections within the specified time
19 | may result in waiver of the right to appeal the district court’s order. Martinez v. YIst, 951 F.2d
20 | 1153 (9th Cir. 1991).
21
Dated: July 1, 2020

24 BORAH BARNES
25 UNITED STATES MAGISTRATE JUDGE
26
27 pp:12
38 DB: 1/Orders/Prisoner/Civil. Rights/bamn086L.scrn+

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10020239. Public record. Not legal advice.