“A district court should not dismiss a pro se complaint without leave to amend 4 || unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by 5 || amendment.’”
How later courts described this case
- “A district court should not dismiss a pro se complaint without leave to amend 4 || unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by 5 || amendment.’”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 CRAIG A. BUSH, No. 2:22-cv-2008 KJM CKD P
12 Plaintiff,
13 v. ORDER
14 DEPARTMENT OF CORRECTIONS
AND REHABILITATION, et al.,
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Defendants.
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17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief
18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided
19 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
20 On April 4, 2023, the magistrate judge filed findings and recommendations, which were
21 served on plaintiff and which contained notice to plaintiff that any objections to the findings and
22 recommendations were to be filed within fourteen days. Plaintiff has filed objections to the
23 findings and recommendations.
24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this
25 court has conducted a de novo review of this case. Having reviewed the file, the court adopts the
26 findings and recommendations in part.
27 The magistrate judge found plaintiff failed to state a claim because “release from prison
28 must be sought in a petition for a writ of habeas corpus and not a § 1983 action.” F. & R. at 2,
1 ECF No. 11 (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). In Preiser, the Supreme
2 Court held “when a state prisoner is challenging the very fact or duration of his physical
3 imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or
4 a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.”
5 411 U.S. at 500.
6 In his objections, plaintiff argues he “is not seeking release from this court, he is seeking a
7 rehearing due to a constitutional violation.” Objs. at 2, ECF No. 12. As the magistrate judge
8 notes, the first amended complaint does appear to challenge the duration of plaintiff’s
9 confinement as excessive. First Am. Compl. (FAC) at 3, ECF No. 10. At the same time, the
10 complaint also appears to challenge the decisions of the Parole Board for violating his due
11 process rights. Id. at 3, 6. In Wilkinson v. Dotson, the Supreme Court affirmed the Sixth
12 Circuit’s judgment and held prisoners could challenge the constitutional validity of the state
13 parole-eligibility proceedings and parole suitability proceedings under section 1983. 544 U.S. 74,
14 76 (2005). Here, after construing plaintiff’s pro se filing liberally, Erickson v. Pardus, 551 U.S.
15 89, 94 (2007), the court finds plaintiff is challenging the parole suitability and eligibility
16 proceedings for violating his due process rights, see FAC at 6; Objs. at 2–3. Accordingly,
17 plaintiff could bring this action under section 1983.
18 However, as the magistrate judge notes, there is nothing in the record suggesting plaintiff
19 was denied due process. See F. & R. at 2. Plaintiff is correct that Federal Rule of Civil Procedure
20 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled
21 to relief.” Fed. R. Civ. P. 8; see Objs. at 2. However, as the magistrate judge notes, this rule
22 demands “more than ‘naked assertions,’ ‘labels and conclusions,’ or ‘a formulaic recitation of the
23 elements of a cause of action.’” F. & R. at 1–2 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
24 544, 555–557 (2007)). There must be “sufficient factual matter” that make the claim at least
25 plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Here, plaintiff does not explain how his
26 due process rights or any other rights were violated. See generally FAC. Rather, he concludes
27 defendants violated his constitutional rights “by denying [him] suitability when facts in the
28 records showed suitability.” Id. at 3. Even under a liberal construction of the pleading, the court
1 | finds plaintiff has failed to state a claim. But because the court finds plaintiff may be able to cure
2 || the deficiencies in his complaint, it grants leave to amend. Akhtar v. Mesa, 698 F.3d 1202, 1212
3 | (Oth Cir. 2012) (“A district court should not dismiss a pro se complaint without leave to amend
4 || unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by
5 || amendment.’”).
6 Accordingly, IT IS HEREBY ORDERED that:
7 1. The findings and recommendations filed April 4, 2023, are adopted in part;
8 2. Plaintiff's amended complaint is dismissed for failure to state a claim upon which
9 | relief can be granted, with leave to amend;
10 3. Plaintiff's amended complaint, if any shall be filed within thirty days of the date of
11 | service of this order; and
12 4. This matter is referred back to the assigned magistrate judge for all further pretrial
13 || proceedings consistent with this order.
14 | DATED: May 25, 2023.
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CHIEF ED STATES DISTRICT JUDGE
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