The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 PETER WIELAND, No. 2:23-cv-00257-DAD-CKD (PC)
12 Plaintiff,
13 v. ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, IN PART
14 GAVIN NEWSOM, et al.,
(Doc. No. 3)
15 Defendants.
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17 Plaintiff Peter Wieland is a state prisoner proceeding with counsel in this action. This
18 matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and
19 Local Rule 302.
20 On February 9, 2023, plaintiff filed the operative complaint, asserting state law claims
21 against the California governor and the Solano State Prison warden and seeking immediate
22 release on parole. (Doc. No. 1.) Specifically, in his complaint, plaintiff alleges that the
23 California Board of Parole Hearings found him suitable for parole in 2021. (Id. at ¶ 1.) However,
24 the governor allegedly reversed that decision on October 8, 2021. (Id.) Plaintiff claims that the
25 governor’s decision violated the California Constitution and state law, as it failed to consider the
26 availability of medical parole and because there is not sufficient evidence of plaintiff’s current
27 dangerousness to deny parole. (Id. at ¶¶ 4–7.)
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1 On July 27, 2023, the assigned magistrate judge screened plaintiff’s complaint and issued
2 findings and recommendations recommending that this action be dismissed, without leave to
3 amend, due to plaintiff’s failure to state a cognizable claim upon which relief may be granted.
4 (Doc. No. 3.) Those findings and recommendations were served on plaintiff and contained notice
5 that any objections thereto were to be filed within fourteen (14) days from the date of service.
6 (Id. at 3.) On August 10, 2023, plaintiff filed objections to the findings and recommendations.
7 (Doc. No. 4.)
8 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has
9 conducted a de novo review of this case. Having carefully reviewed the entire file, including
10 plaintiff’s objections to the pending findings and recommendations, the undersigned will adopt
11 the findings and recommendations in part.
12 The magistrate judge found that plaintiff’s complaint failed to state a claim because
13 “[w]hen a state prisoner challenges the legality of his custody and the relief he seeks is the
14 determination of his entitlement to an earlier or immediate release, his sole federal remedy is a
15 writ of habeas corpus.” (Doc. No. 3 at 2) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)).
16 As the magistrate judge correctly observed, plaintiff filed a civil action seeking his immediate
17 release from custody on parole, but no such remedy is available in this non-habeas action. (See
18 id.)
19 In his objections, plaintiff argues that he “has a right to challenge that Governor’s action
20 under Article 14 of the United States Constitution Section 1” and “[a]t the very least, [p]laintiff
21 should be granted the right to amend his complaint for violation of the Fourteenth Amendment
22 and the ensuing monetary damages . . . .” (Doc. No. 4 at 2.) It therefore appears that plaintiff is
23 seeking leave to amend his complaint to advance a due process challenge to the constitutional
24 validity of the governor’s decision under 42 U.S.C. § 1983 and to seek monetary damages. The
25 undersigned is skeptical that plaintiff will be able to state a cognizable claim by way of
26 amendment. He has named only two defendants in this action: the governor of the State of
27 California and the warden at his institution of confinement. There are no allegations advanced to
28 date indicating that the latter was involved in the decision to deny plaintiff parole and the former
1 | would appear to be entitled to Eleventh Amendment immunity as to any claim for money
2 | damages for actions taken in his official capacity. See Watts v. Pataki, No. 9:08-cv-00092, 2009
3 | WL 1765016, at *2 (N.D.N.Y. June 22, 2009) (“Plaintiff’s claims for damages against the state
4 | defendants in their official capacities are barred by the Eleventh Amendment.”) (citing Davis v.
5 | New York, 316 F.3d 93, 101 (2d Cir. 2002)).
6 The undersigned will adopt the recommendation that plaintiff's complaint be dismissed
7 | for failure to state aclaim. Nonetheless, out of an abundance of caution, the undersigned will
8 | grant plaintiff leave to file a first amended complaint within thirty (30) days from the date of
9 | service of this order. See Bush vy. Dep’t of Corr. & Rehab., No. 2:22-cv-02008-KJM-CKD, 2023
10 | WL 3687420, at *1 (E.D. Cal. May 26, 2023) (citing Wilkinson v. Dotson, 544 U.S. 74, 76
11 } (2005)).
12 Accordingly,
13 1. The findings and recommendations issued on July 27, 2023 (Doc. No. 3) are
14 adopted in part, as follows:
15 a. Plaintiff's complaint (Doc. No. 1) is dismissed;
16 b. Plaintiff is granted leave to file an amended complaint within thirty (30)
17 days from the date of service of this order;
18 2. Any failure on plaintiffs part to file an amended complaint within the time
19 provided will likely result in dismissal of this action due to his failure to comply
20 with a court order; and
21 3. This matter is referred back to the assigned magistrate judge for further
22 proceedings consistent with this order.
23 IT IS SO ORDERED.
*" | Dated: _March 20, 2024 Da A. 2, axel
25 DALE A. DROZD
UNITED STATES DISTRICT JUDGE
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