The opinion
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8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
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TORIANO G. HUDSON, SR.,
11 Case No. 21-cv-06747 EJD (PR)
Plaintiff,
12 ORDER GRANTING
v. DEFENDANTS’ MOTION FOR
13 SUMMARY JUDGMENT;
ADDRESSING PENDING MOTIONS
14 RON BROOMFIELD, et al.,
15 Defendants.
16 (Docket Nos. 30, 35, 36)
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18 Plaintiff, a California state prisoner, filed a pro se civil rights complaint pursuant to
19 42 U.S.C. § 1983. The Court issued an order of partial dismissal and of service. Dkt. No.
20 7. Defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1)
21 based on the lack of subject-matter jurisdiction. Dkt. No. 11. The Court denied the motion
22 and directed Defendants to file a summary judgment motion on Plaintiff’s due process
23 claim challenging the denial of parole under California’s Proposition 57.1 Dkt. No. 24.
24 Defendants filed a motion for summary judgment on the grounds that they did not
25 violate Plaintiff’s right to due process because he was properly denied parole consideration
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27 1 The Court dismissed Plaintiff’s Eighth Amendment challenge to his sentence to bringing
1 and they are entitled to qualified immunity. Dkt. No. 30.2 3 Plaintiff filed opposition, Dkt.
2 No. 31, and Defendants filed a reply, Dkt. No. 32. Plaintiff filed a sur-reply. Dkt. No. 33.
3 However, he failed to seek approval before filing this sur-reply as required by the local
4 rules. See Civ. L.R. 7-3(d). Accordingly, Plaintiff’s sur-reply is improper, and the Court
5 will not consider it.
6 Plaintiff subsequently filed two summary judgment motions. Dkt. Nos. 35, 36.
7 Defendants filed an opposition to the second of these motions. Dkt. No. 37. Plaintiff filed
8 a “counter” which the Court construes as a reply. Dkt. No. 38.
9 For the reasons discussed below, Defendants’ summary judgment motion is
10 GRANTED.
11 DISCUSSION
12 I. Statement of Facts4
13 California’s Proposition 57, approved by voters in November 2016, makes parole
14 more available for certain felons convicted of nonviolent crimes. Specifically, Proposition
15 57 adds article I, section 32 to the California Constitution. That section provides, in part,
16 that “[a]ny person convicted of a nonviolent felony offense and sentenced to state prison
17 shall be eligible for parole consideration after completing the full term for his or her
18 primary offense.” Cal. Const. art. I, § 32(a)(1). The provision also expressly charged the
19 California Department of Corrections and Rehabilitation (“CDCR”) to “adopt regulations
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21 2 In support of the motion, Defendants submit the following: (1) a declaration from
counsel, Deputy Attorney General Theodore Lee, along with the transcript of Plaintiff’s
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deposition conducted on February 14, 2023, Dkt. No. 30-3; and (2) excerpts from
Plaintiff’s central file maintained by the CDCR, authenticated by SQSP’s custodian of
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records, Eryn Cervantes, Dkt. No. 30-4.
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3 Defendants state that Defendant K. Allison retired in December 2022, and that Secretary
Macomber’s substitution as the actual party-in-interest is automatic. Dkt. No. 30 at 1, fn.
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1, citing Fed. R. Civ. P. 25(d). Accordingly, Defendant Allison shall be dismissed from
this actioin.
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1 in furtherance of these provisions….” Id., § 32(b).
2 CDCR enacted several regulations regarding article I, section 32, e.g., Cal. Code
3 Regs., tit. 15 (Title 15), §§ 3490-3497 (2022). These regulations specified pertinent
4 factors that rendered a prisoner ineligible for nonviolent offence parole consideration. See,
5 e.g., Title 15 § 3495(a), (c). The regulations also detailed the eligibility review and referral
6 to the Board of Parole Hearings processes. See Title 15, §§ 3496-3497.
7 The state regulations exclude inmates convicted of a violent felony and sentenced to
8 a life term from nonviolent offense parole consideration. See Title 15, § 3495(a)(3). A
9 violent felony is “a crime or enhancement as defined in subdivision (c) of Section 667.5 of
10 the Penal Code.” Title 15, § 3495(c). Such a felony includes any “felony punishable by…
11 imprisonment in the state prison for life” and a “felony in which the defendant inflicts
12 great bodily injury on any person… which has been charged and proved as provided for in
13 Section 12022.7….” Cal. Penal Code § 667.5(c)(7) -(8) (2022).
14 On July 31, 2015, the Superior Court for the County of Contra Costa sentenced
15 Plaintiff after a jury found him guilty of the following counts under the California Vehicle
16 Code (“VC”): (1) VC § 23153(a) (driving under influence causing injury) with a GBI
17 (great bodily injury) enhancement (Pen. Code § 12022.7); (2) VC § 23153(b) (driving with
18 .08% blood alcohol causing injury) with a GBI enhancement (Pen. Code § 12022.7); (3)
19 VC § 20001(a),(b)(1) (leaving scene of accident); and (4) VC § 20002(a) (hit-run driving).
20 Cervantes Decl., Ex. 1 at 2, 6-7; Dkt. No. 30-4 at 3, 8-9. The Court imposed sentences for
21 the two GBI enhancements under counts 1 and 2 but struck the punishment. Cervantes
22 Decl., Ex. 1 at 2; Dkt. No. 30-4 at 4. For count one, Plaintiff received the longest sentence
23 of thirty-five years to life, which included two five-year enhancements for prior
24 convictions under Penal Code § 667(a)(1). Id.
25 Plaintiff requested parole under Proposition 57 in September 2020. Cervantes
26 Decl., Ex. 2 at 5-6, Dkt. No. 30-4 at 24-25 (grievance log no. 43014). The institution-level
1 minute order for Plaintiff’s sentence. Id. at 4, Dkt. No. 30-4 at 23. The headquarters-level
2 response (Office of Appeals) reversed the decision and ordered a new determination in
3 December 2020, finding the institution-level response’s conclusion was “unsupported.”
4 Id. at 1, Dkt. No. 30-4 at 20.
5 Plaintiff filed this action on August 31, 2021. Dkt. No. 1. Plaintiff claimed that he
6 is a nonviolent offender whose only underlying offense is a DUI, and that he is therefore
7 eligible for parole consideration under Proposition 57. Dkt. No. 1 at 4, 15. On December
8 27, 2021, liberally construing the allegations, the Court found Plaintiff’s claim regarding
9 the applicability of Proposition 57 stated a due process claim, such that if he was
10 successful, he would be entitled to a parole hearing that comports with due process. Dkt.
11 No. 7 at 3. Defendants filed their unsuccessful motion to dismiss on March 22, 2022. Dkt.
12 No. 11.
13 In August 2022, a new institution-level response again denied Plaintiff’s grievance,
14 specifically citing two “violent enhancements” under Penal Code section 12022.7 attached
15 to counts one and two, which were stricken for punishment purposes. Cervantes Decl,, Ex.
16 3 at 1, Dkt. No. 30-4 at 32 (grievance log no. 266952). Plaintiff appealed the decision
17 shortly thereafter. Id., Ex, 4, Dkt. No. 30-4 at 35-36. The Office of Appeals affirmed the
18 decision in October 2022, agreeing that Plaintiff’s two Penal Code section 12022.7
19 enhancements constituted violent felonies under Penal Code section 667.5. Id., Ex. 5, Dkt.
20 No. 30-4 at 40-41.
21 Defendants filed their summary judgment motion on May 15, 2023. Dkt. No. 30.
22 II. Summary Judgment
23 Summary judgment is proper where the pleadings, discovery and affidavits show
24 that there is “no genuine dispute as to any material fact and the movant is entitled to
25 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment
26 “against a party who fails to make a showing sufficient to establish the existence of an
1 at trial . . . since a complete failure of proof concerning an essential element of the
2 nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v.
3 Cattrett, 477 U.S. 317, 322-23 (1986). A fact is material if it might affect the outcome of
4 the lawsuit under governing law, and a dispute about such a material fact is genuine “if the
5 evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
6 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
7 Generally, the moving party bears the initial burden of identifying those portions of
8 the record which demonstrate the absence of a genuine issue of material fact. See Celotex
9 Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue
10 at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other
11 than for the moving party. But on an issue for which the opposing party will have the
12 burden of proof at trial, the moving party need only point out “that there is an absence of
13 evidence to support the nonmoving party’s case.” Id. at 325. If the evidence in opposition
14 to the motion is merely colorable, or is not significantly probative, summary judgment may
15 be granted. See Liberty Lobby, 477 U.S. at 249-50.
16 The burden then shifts to the nonmoving party to “go beyond the pleadings and by
17 her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on
18 file,’ designate specific facts showing that there is a genuine issue for trial.’” Celotex
19 Corp., 477 U.S. at 324 (citations omitted). “This burden is not a light one. The non-
20 moving party must show more than the mere existence of a scintilla of evidence.” In re
21 Oracle Corporation Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Liberty
22 Lobby, 477 U.S. at 252). “The non-moving party must do more than show there is some
23 ‘metaphysical doubt’ as to the material facts at issue.” Id. (citing Matsushita Elec. Indus.
24 Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “In fact, the non-moving party
25 must come forth with evidence from which a jury could reasonably render a verdict in the
26 non-moving party’s favor.” Id. (citing Liberty Lobby, 477 U.S. at 252). If the nonmoving
1 law.” Celotex Corp., 477 U.S. at 323.
2 The Court’s function on a summary judgment motion is not to make credibility
3 determinations or weigh conflicting evidence with respect to a material fact. See T.W.
4 Elec. Serv., Inc. V. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).
5 The evidence must be viewed in the light most favorable to the nonmoving party, and the
6 inferences to be drawn from the facts must be viewed in a light most favorable to the
7 nonmoving party. See id. at 631. It is not the task of the district court to scour the record
8 in search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir.
9 1996). The nonmoving party has the burden of identifying with reasonable particularity
10 the evidence that precludes summary judgment. Id. If the nonmoving party fails to do so,
11 the district court may properly grant summary judgment in favor of the moving party. See
12 id.; see, e.g., Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1028-29
13 (9th Cir. 2001). The court’s obligation to view evidence in the light most favorable to the
14 non-movant does not require it to ignore undisputed evidence produced by the movant.
15 L.F. v. Lake Washington School District, 947 F.3d 621, 625 (9th Cir. 2020).
16 A. Due Process
17 The Due Process Clause of the Fourteenth Amendment does not provide any right
18 “to be conditionally released before the expiration of a valid sentence, and the States are
19 under no duty to offer parole to their prisoners.” Swarthout v. Cooke, 562 U.S. 216, 220
20 (2011). When a state enacts a statutory scheme allowing parole, however, the state creates
21 a liberty interest such that the “Due Process Clause requires fair procedures for its
22 vindication,” and federal courts can review the application of those constitutional required
23 procedures. Id. The liberty interest at issue here is the interest in receiving parole
24 consideration under Proposition 57 when the California standards have been met, and the
25 minimum procedures adequate for due-process protection of that interest. See id. at 221.
26 In the context of parole, the Supreme Court has held that the procedures required are
1 denied. Id. at 220. Similarly, the Court will consider whether these minimum
2 requirements were met here where only parole consideration was denied.
3 Defendants assert that there is no evidence that they infringed on Plaintiff’s due
4 process rights. Dkt. No. 30-1 at 8. Defendants assert that they provided ample due process
5 through existing state regulations that allowed Plaintiff to request parole and for state
6 prison officials to consider the request on the merits. Id. Defendants also assert that
7 Plaintiff was never eligible for parole because his life term sentence included two
8 enhancements under Penal Code section 12022.7, which are violent felonies. Id. at 10.
9 Defendants contend that it matters not that the sentencing court stayed the punishment for
10 the enhancements because what matters is the violent nature of an inmate’s convicted
11 felony. Id., citing Title 15, § 3495(a)(3). In other words, Defendants assert that their
12 conduct at issue here never affected Plaintiff as he was outside the class of inmates who
13 could participate in the regulatory scheme governing nonviolent felony offense parole
14 consideration. Id.
15 In opposition, Plaintiff asserts for the first time that this case is not about
16 Proposition 57 but rather “1170 recall and resentencing violation.” Dkt. No. 31 at 1. He
17 asserts that he deserved to be resentenced under Title 15, §§ 3076.1 and 3076.2. Id. at 2.
18 Plaintiff also relies on the fact that his appeal (log no. 43014) was granted in December
19 2020. Id. He asserts that he is “low risk” and does not pose an unreasonable risk of
20 danger to the public if released. Id. at 4.
21 In reply, Defendants assert that Plaintiff’s opposition confirms that there is no
22 genuine disputed issue of fact or law as to whether they violated Plaintiff’s due process
23 rights related to parole. Dkt. No. 32 at 1. Defendants point out that Plaintiff improperly
24 seeks habeas relief, i.e., resentencing, which is impossible to obtain in a § 1983 action. Id.
25 Defendants also assert that Plaintiff fails to sufficiently refute their evidence that they
26 never violated his due process rights. Id. at 3. Lastly, Defendants assert that to the extent
1 sentenced under the appropriate statutes for his enhancements. Id. at 4.
2 After carefully reviewing the papers and viewing the evidence in the light most
3 favorable to Plaintiff, the Court finds that the evidence presented does not show a genuine
4 dispute as to any material fact relating to Plaintiff’s due process claim based on the denial
5 of parole consideration under Proposition 57. Plaintiff’s sole argument is that he qualifies
6 because his underlying conviction is a nonviolent DUI. However, he does not dispute the
7 evidence submitted by Defendants showing that he was also found guilty of two GBI
8 enhancements related to his DUI conviction. In other words, these two GBI enhancements
9 were “charged and proved” under § 12022.7, which qualify as violent felonies under Penal
10 Code § 667.5. See supra at 3. Therefore, under state regulations, Plaintiff is excluded
11 from nonviolent offense parole consideration because he was convicted of violent crimes,
12 i.e., GBI enhancements, and sentenced to a life term.5 See Title 15, c 3495(a)(3).
13 Furthermore, even if it could be said that he qualified for consideration, Plaintiff
14 was not denied due process. State regulations provide the means for requesting nonviolent
15 offense parole. See, e.g., Title 15, §§ 3084-3084.9 (2020) (inmate appeals process); Title
16 15, § 3086 (2020) (inmate request for interview, item, or service). The appeals process
17 provides Plaintiff an opportunity to be heard, and the institutional/appeal response must
18 provide a reasoned statement for the decision. The undisputed evidence shows that these
19 means were available to Plaintiff, and that he used these avenues to request parole and then
20 to appeal the matter when he was denied. See supra at 3. Furthermore, the appeals process
21 provided him with due process. In granting Plaintiff’s appeal, the Office of Appeals
22 ordered a new determination because the initial denial was “unsupported,” i.e., it was
23 unclear how the institution found Plaintiff’s vehicular convictions to be violent felonies as
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5 This conclusion is consistent with the reasoning of the state superior court, an excerpt of
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which Plaintiff attached to his complaint. Dkt. No. 1 at 18-20. Although it denied the
claim for failure to exhaust administrative remedies, the state court noted without deciding
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that Plaintiff appeared not to come within the terms of Proposition 57 because he was
1 the decision failed to establish such a nexus. Dkt. No. 1 at 4. After the institution issued a
2 new determination, the Office of Appeals affirmed it because the decision did establish the
3 necessary nexus to show that Plaintiff was a violent offender. Dkt. No. 30-4 at 40.
4 Violation of procedural due process rights requires only procedural correction and not a
5 reinstatement of the substantive right. See, e.g., Raditch v. United States, 929 F.2d 478,
6 481 (9th Cir. 1991). In other words, the remedy for the denial of procedural due process is
7 more process. Here, Plaintiff received “more process” through his appeals.
8 In opposition, Plaintiff attempts to raise a new claim and argues that he is entitled to
9 resentencing and release. However, resentencing is not a remedy available in a § 1983
10 action. Rather, as the Court has already informed Plaintiff, habeas is the “exclusive
11 remedy” for the prisoner who seeks “immediate or speedier release” from confinement.
12 See Dkt. No. 7 at 3, citing Skinner v. Switzer, 562 U.S. 521, 533-34 (2011). Plaintiff’s
13 argument that he is entitled to resentencing and release clearly lie within habeas and may
14 not be raised in this action. The same is true of Plaintiff’s assertion that his sentence is
15 incorrect. He may only challenge the validity of his state sentence through a habeas
16 petition under 28 U.S.C. § 2254.
17 Based on the evidence presented, Defendants have shown that there is no genuine
18 issue of material fact with respect to Plaintiff’s due process claim. See Celotex Corp., 477
19 U.S. at 323. Plaintiff has failed to point to specific facts showing that there is a genuine
20 issue for trial, id. at 324, or identify with reasonable particularity the evidence that
21 precludes summary judgment, Keenan, 91 F.3d at 1279. Accordingly, Defendants are
22 entitled to judgment as a matter of law. Id.; Celotex Corp., 477 U.S. at 323.
23 Because the Court finds that no constitutional violation occurred, it is not necessary
24 to reach Defendants’ qualified immunity argument.
25 III. Plaintiff’s Summary Judgment Motions
26 Plaintiff first moved for summary judgment based on Defendants’ alleged “failure
1 || Defendants failed to file a reply to his opposition is without merit. Defendants’ reply was
2 || served on Plaintiff on the same day it was filed. See Dkt. No. 32 at 6.
3 Plaintiff's second motion for summary judgment asserts that he has been “granted
4 || early release and parole consideration at the final level of appeal, yet SQSP has yet to
5 || honor 3 of my ‘granted’ final level appeals.” Dkt. No. 36 at 1. Ina reply, Plaintiff repeats
6 || his assertion that the Court can “remand and resentence,” asserting it is not the same as
7 || seeking immediate, speedier release. Dkt. No. 38. First, the attached papers do not
8 || support Plaintiff's assertion that he has been granted early release and parole consideration
9 || by the institution. Id. at 3-11. Second, as Defendants argue in opposition, Dkt. No. 37 at
10 || 3, the issue of early release or resentencing is not a matter that can be addressed in this §
11 1983 action but rather lies within the province of habeas. See supra at 9. Plaintiff cannot
12 || argue for nor seek such relief in this matter. Accordingly, the motion is DENIED as
13 without merit.
CONCLUSION
a 16 For the reasons stated above, Defendants Ron Broomfield and J. Macomber’s
17 || motion for summary judgment is GRANTED. Dkt. No. 30. The due process claim
5 18 || against Defendants is DISMISSED with prejudice. Plaintiff's motions for summary
19 || judgment are DENIED as without merit. Dkt. Nos. 35, 36.
20 Defendant K. Allison is dismissed as a party in this action as Defendant Macomber
21 || has been substituted as the actual-party-in-interest. See supra at 2, fn. 3.
22 This order terminates Docket Nos. 30, 35, and 36.
23 IT IS SO ORDERED.
24 Dated: January 17, 2024
95 EDWARD J. DAVILA
United States District Judge
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