discussing “under color of 27 state law”
How later courts described this case
- discussing “under color of 27 state law”
- “an ‘amended complaint supersedes the 19 original, the latter being treated thereafter as non-existent.’” (internal citation omitted)
Written by the judges who cited it.
The opinion
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6 UNITED STATES DISTRICT COURT
7 EASTERN DISTRICT OF CALIFORNIA
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9 DARRYL JOHNSON, 1:20-cv-00119-GSA-PC
10 Plaintiff, ORDER DISMISSING COMPLAINT FOR
FAILURE TO STATE A CLAIM, WITH
11 vs. LEAVE TO AMEND
(ECF No. 1.)
12 CALIFORNIA DEPARTMENT OF
CORRECTIONS AND THIRTY-DAY DEADLINE TO FILE
13 REHABILITATION, et al., FIRST AMENDED COMPLAINT
14 Defendants.
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18 I. BACKGROUND
19 Darryl Johnson (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
20 with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint
21 commencing this case on January 23, 2000. (ECF No. 1.)
22 The Complaint is now before the court for screening. 28 U.S.C. § 1915.
23 II. SCREENING REQUIREMENT
24 The Court is required to screen complaints brought by prisoners seeking relief against a
25 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
26 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
27 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
28 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
1 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
2 dismiss the case at any time if the court determines that the action or appeal fails to state a claim
3 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
4 A complaint is required to contain “a short and plain statement of the claim showing that
5 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
6 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
7 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
8 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken
9 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores,
10 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state
11 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim
12 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service,
13 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal
14 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this
15 plausibility standard. Id.
16 III. SUMMARY OF COMPLAINT
17 Plaintiff is presently incarcerated at the California Substance Abuse Treatment Facility
18 (SATF) in Corcoran, California, in the custody of the California Department of Corrections and
19 Rehabilitation (CDCR), where the events at issue in the Complaint allegedly occurred. Plaintiff
20 names as defendants the CDCR and Ralph Diaz (CDCR Secretary) (collectively, “Defendants”).
21 A summary of Plaintiff’s allegations follows:
22 Plaintiff was convicted of two non-violent felonies under California Penal Code 273
23 (Child Endangerment) and California Penal Code 594(D) (Vandalism). These are both non-
24 violent offenses, and consistent with the language of Proposition 57 and the California
25 Constitution Article 1, Section 32, subdivision (a)(1). Plaintiff has been denied the non-violent
26 parole process (NVVP) at SATF per California Code of Regulations, Title 15, § 3491(b)(3) that
27 excludes sex offenders or prior sex offenders Plaintiff was convicted of California Penal Code
28 288(a) in 2001 and required to register as a sex offender per Penal Code 290. The regulation
1 promulgated and implemented by CDCR resulted in treating sex offenders differently from other
2 prisoners of the same category of crime. By denying Plaintiff the NVVP, Plaintiff loses any
3 chance to be paroled early.
4 As relief, Plaintiff seeks to be included in the NVPP at SATF and to have his C-file sent
5 to the California Board of Prison Terms for possible release after completion of his longest non-
6 violent term per Proposition 57, on July 7, 2020, and immediate board consideration if Plaintiff
7 is still in custody after the non-violent parole date due to response of this legal proceeding.
8 IV. PLAINTIFF’S CLAIMS
9 The Civil Rights Act under which this action was filed provides:
10 Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
11 be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
12 secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress . . . .
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14 42 U.S.C. § 1983.
15 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a
16 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386,
17 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v.
18 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d
19 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v.
20 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of a state law
21 amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the
22 federal Constitution, Section 1983 offers no redress.” Id.
23 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under
24 color of state law and (2) the defendant deprived him or her of rights secured by the Constitution
25 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also
26 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of
27 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983,
28 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act
1 which he is legally required to do that causes the deprivation of which complaint is made.’”
2 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting
3 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be
4 established when an official sets in motion a ‘series of acts by others which the actor knows or
5 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479
6 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles
7 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp.,
8 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010,
9 1026 (9th Cir. 2008).
10 A. Proposition 57
11 Proposition 57 added Article 1, Section 32 to the California Constitution. It states in
12 relevant part: “Parole consideration: Any person convicted of a nonviolent felony offense and
13 sentenced to state prison shall be eligible for parole consideration after completing the full term
14 of his or her primary offense,” defined for these purposes as “the longest term of imprisonment
15 imposed by the court for any offense, excluding the imposition of an enhancement, consecutive
16 sentence, or alternative sentence.” Cal. Const., art. I, § 32(a)(1), (a)(1)(A).
17 Plaintiff’s claim is properly brought in a civil rights action because a finding in Plaintiff’s
18 favor, i.e., that he is entitled to a parole hearing pursuant to Proposition 57, will not necessarily
19 lead to his immediate or speedier release from custody. See Nettles v. Grounds, 830 F.3d 922,
20 932 (9th Cir. 2016 (en banc) (claim that would not necessarily lead to immediate or speedier
21 release from custody falls outside the core of habeas corpus).
22 However, Plaintiff’s claims are based on a misunderstanding of the applicable regulations
23 and statutes. Under Cal. Code Regs. tit. 15, section 3490(c) (2009), the regulations implementing
24 Proposition 57, a “‘[v]iolent felony’ is a crime or enhancement as defined in subdivision (c) of
25 Section 667.5 of the Penal Code.” Plaintiff correctly asserts that neither Child Endangerment
26 nor Vandalism are enumerated “violent felonies” under Section 667.5(c). However, Section
27 667.5(c)(6) further defines a “violent felony” as a “[l]ewd or lascivious act as defined in
28 subdivision (a) or (b) of Section 288,” and here, Plaintiff acknowledges that he was convicted
1 under California Penal Code 288(a) in 2001 and required to register as a sex offender per Penal
2 Code 290. Cal. Penal Code § 667.5.
3 The only issue Plaintiff appears to raise is whether Defendants have properly applied
4 California Proposition 57 to his case. Chubbuck v. Brown, No. 219CV2608KJMCKDP, 2020
5 WL 4818566, at *2 (E.D. Cal. Aug. 19, 2020). Accordingly, Plaintiff’s claim is not cognizable
6 under § 1983 because it only asserts a violation of state law. Id. Section 1983 remedies violations
7 of the Constitution, law or treaties of the United States. Swarthout v. Cooke, 562 U.S. 216, 222,
8 131 S.Ct. 859, 178 L.Ed.2d 732 (2011). “To the extent that the violation of a state law amounts
9 to the deprivation of a state-created interest that reaches beyond that guaranteed by the federal
10 Constitution, Section 1983 offers no redress.” Id. (quoting Sweaney v. Ada County, Idaho, 119
11 F.3d 1385, 1391 (9th Cir. 1997)). State courts “are the ultimate expositors of state law.” Id.
12 (quoting Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975)).
13 Other courts in this district have held similarly when confronted with section 1983 claims
14 invoking Proposition 57. Chubbuck, 2020 WL 4818566, at *2 (E.D. Cal. Aug. 19, 2020) (citing
15 see, e.g., Eakins v. Diaz, No. 2:19-cv-2013-WBS-EFB P, 2020 WL 1952671, at *2 (E.D. Cal.
16 Apr. 23, 2020); Herrera v. California State Superior Courts, No. 1:17-cv-386 AWI BAM, 2018
17 WL 400320, at *4, 2018 U.S. Dist. LEXIS 6113, at *8-9 (E.D. Cal. Jan. 12, 2018); Hernandez v.
18 Diaz, No. 2:18-cv-3265 AC P, 2019 WL 1532278, at *3, 2019 U.S. Dist. LEXIS 60935, at *7-
19 11 (E.D. Cal. April 8, 2019)).
20 Even if CDCR had improperly denied Plaintiff consideration under Proposition 57, this
21 would remain a state law claim that is not cognizable in federal court. Villegas v. Spearman, No.
22 219CV01539TLNACP, 2020 WL 1865292, at *2 (E.D. Cal. Apr. 14, 2020), report and
23 recommendation adopted, No. 2:19-CV-01539-TLN-AC, 2020 WL 3840557 (E.D. Cal. July 8,
24 2020). Similar allegations raised in other cases within this district have been found to present no
25 cognizable claim under Section 1983. Id. (citing see Russell v. Diaz, 2019 WL 2613592, at *3,
26 2019 U.S. Dist. LEXIS 107306 (E.D. Cal. June 26, 2019) (Case No. 2:18-cv-1062 TLN AC P)
27 (collecting cases), findings and recommendations adopted Aug. 2, 2019; see also Ramos v.
28 Spearman, 2020 WL 1450731, at *2, 2020 U.S. Dist. LEXIS 52064 (E.D. Cal. Mar. 25, 2020)
1 (Case No. 2:19-cv-1662 JAM KJN P) (citing additional cases), findings and recommendations
2 adopted May 12, 2020).
3 V. CONCLUSION AND ORDER
4 Although it is unlikely that Plaintiff can cure the pleading defects discussed above, the
5 Complaint shall be dismissed with leave to amend. Under Rule 15(a) of the Federal Rules of
6 Civil Procedure, “[t]he court should freely give leave to amend when justice so requires.” The
7 court will provide Plaintiff with time to file an amended complaint curing the deficiencies
8 identified above. Plaintiff is granted leave to file a First Amended Complaint within thirty days.
9 Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).
10 The amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each
11 named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights,
12 Iqbal, 556 U.S. at 678; Jones, 297 F.3d at 934. Plaintiff must set forth “sufficient factual matter
13 . . . to ‘state a claim that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 555).
14 Plaintiff is informed that the court cannot refer to a prior pleading in order to make
15 Plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be
16 complete in itself without reference to any prior pleading. This requirement exists because, as a
17 general rule, an amended complaint supersedes the original complaint. See Ramirez v. County
18 of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint supersedes the
19 original, the latter being treated thereafter as non-existent.’” (internal citation omitted)). Once
20 Plaintiff files an amended complaint, the original pleading no longer serves any function in the
21 case. Therefore, in an amended complaint, as in an original complaint, each claim and the
22 involvement of each defendant must be sufficiently alleged. The amended complaint should be
23 clearly and boldly titled “First Amended Complaint,” refer to the appropriate case number, and
24 be an original signed under penalty of perjury.
25 ///
26 Based on the foregoing, IT IS HEREBY ORDERED that:
27 1. Plaintiff’s Complaint is DISMISSED for failure to state a claim, with leave to
28 amend;
1 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form;
2 3. Within thirty (30) days from the date of service of this order, Plaintiff shall file
3 a First Amended Complaint curing the deficiencies identified in this order;
4 4. Plaintiff shall caption the amended complaint “First Amended Complaint” and
5 refer to the case number 1:20-cv-00119-GSA-PC; and
6 5. Plaintiff’s failure to comply with this order shall result in a recommendation that
7 this action be dismissed in its entirety for failure to state a claim.
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IT IS SO ORDERED.
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10 Dated: September 10, 2020 /s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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