# (PC) Loveless v. Parole Authorities of the California Board of Parole Hearings > District Court, E.D. California · August 4, 2021 URL: https://www.frixlaw.com/law-library/cases/10029198 ## Case - **Court:** District Court, E.D. California - **Decided:** August 4, 2021 - **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/10029198 ## Opinion text 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL J. LOVELESS, No. 2:21-CV-0430-DMC-P 12 Plaintiff, 13 v. ORDER 14 PAROLE AUTHORITIES OF THE CALIFORNIA BOARD OF PAROLE 15 HEARINGS, 16 Defendant. 17 18 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 19 U.S.C. § 1983. Pending before the Court is Plaintiff’s complaint, ECF No. 1. 20 The Court is required to screen complaints brought by prisoners seeking relief 21 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 22 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 23 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 24 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 25 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 26 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 27 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 28 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 1 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 2 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege 3 with at least some degree of particularity overt acts by specific defendants which support the 4 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 5 impossible for the Court to conduct the screening required by law when the allegations are vague 6 and conclusory. 7 8 I. PLAINTIFF’S ALLEGATIONS 9 Plaintiff states that he was arrested in Texas by the “Calif. parole authorities” on 10 an “interstate parole transfer.” ECF No. 1, pg. 2. Plaintiff admits to violating the terms of his 11 California parole while in Texas, suffering two convictions in Texas for driving under the 12 influence. See id. Plaintiff states that he served jail time for these offenses. See id. at 2-3. 13 Plaintiff states that his California parole was revoked and that he was returned to state prison in 14 California to serve the remainder of his California sentence. See id. at 3. Plaintiff claims his 15 California parole revocation and return to prison amounts to disproportionate punishment given 16 that he served time in Texas for the crimes committed there. See id. 17 18 II. DISCUSSION 19 Plaintiff’s claim, as currently pleaded, is not cognizable because success on the 20 merits would necessarily imply the invalidity of his continued incarceration in California for 21 violating the terms of his parole. 22 When a state prisoner challenges the legality of his custody and the relief he seeks 23 is a determination that he is entitled to an earlier or immediate release, such a challenge is not 24 cognizable under 42 U.S.C. § 1983 and the prisoner’s sole federal remedy is a petition for a writ 25 of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Neal v. Shimoda, 26 131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 27 1995) (per curiam). Thus, where a § 1983 action seeking monetary damages or declaratory relief 28 alleges constitutional violations which would necessarily imply the invalidity of the prisoner’s 1 underlying conviction or sentence, or the result of a prison disciplinary hearing resulting in 2 imposition of a sanction affecting the overall length of confinement, such a claim is not 3 cognizable under § 1983 unless the conviction or sentence has first been invalidated on appeal, by 4 habeas petition, or through some similar proceeding. See Heck v. Humphrey, 512 U.S. 477, 483- 5 84 (1994) (concluding that § 1983 claim not cognizable because allegations were akin to 6 malicious prosecution action which includes as an element a finding that the criminal proceeding 7 was concluded in plaintiff’s favor); Butterfield v. Bail, 120 F.3d 1023, 1024-25 (9th Cir. 1997) 8 (concluding that § 1983 claim not cognizable because allegations of procedural defects were an 9 attempt to challenge substantive result in parole hearing); cf. Neal, 131 F.3d at 824 (concluding 10 that § 1983 claim was cognizable because challenge was to conditions for parole eligibility and 11 not to any particular parole determination); cf. Wilkinson v. Dotson, 544 U.S. 74 (2005) 12 (concluding that § 1983 action seeking changes in procedures for determining when an inmate is 13 eligible for parole consideration not barred because changed procedures would hasten future 14 parole consideration and not affect any earlier parole determination under the prior procedures). 15 Here, Plaintiff does not challenge the conditions of his eligibility for parole. Nor 16 does he seek prospective changes in parole procedures. Rather, he claims that he should not be 17 incarcerated at all on a California parole violation. Success on the merits of this claim would 18 necessarily mean that his continued incarceration in California is invalid. Plaintiff has not alleged 19 that the parole revocation has been set aside or overturned. In an abundance of caution, the Court 20 will permit Plaintiff an opportunity to amend to further clarify and explain his claim in light of the 21 foregoing principles. 22 23 III. CONCLUSION 24 Because it is possible that the deficiencies identified in this order may be cured by 25 amending the complaint to state a claim for habeas corpus relief, Plaintiff is entitled to leave to 26 amend prior to dismissal of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 27 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an amended complaint 28 supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). 1 | Thus, following dismissal with leave to amend, all claims alleged in the original complaint which 2 | are not alleged in the amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th 3 | Cir. 1987). Therefore, if Plaintiff amends the complaint, the Court cannot refer to the prior 4 | pleading in order to make Plaintiff's amended complaint complete. See Local Rule 220. An 5 || amended complaint must be complete in itself without reference to any prior pleading. See id. 6 If Plaintiff chooses to amend the complaint, Plaintiff not only amend the claim to 7 | a habeas corpus action, but must also demonstrate how the conditions complained of have 8 | resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 9 | (9th Cir. 1980). The complaint must allege in specific terms how each named defendant is 10 | involved, and must set forth some affirmative link or connection between each defendant’s 11 | actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); 12 | Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 13 Finally, Plaintiff is warned that failure to file an amended complaint within the 14 | time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 15 |} 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply 16 | with Rule 8 may, in the Court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). 17 | See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. Plaintiff's complaint is dismissed with leave to amend; and 20 2. Plaintiff shall file a first amended complaint within 30 days of the date of 21 || service of this order. 22 23 | Dated: August 4, 2021 Sx