1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 WONDIYRAD KABEDE, 11 Case No. 20-01683 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL; DENYING v. MOTION AS MOOT 13

CA STATE GOVERNOR’S PAROLE 14 BOARD HEARING DEPT., 15 Defendant. (Docket No. 1) 16

17 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42

. Dkt. No. 5. This action was opened with Plaintiff’s filing of a motion 19 requesting court action. Dkt. No. 1. Subsequently, Plaintiff filed a complaint using the 20 court form. Dkt. No. 5. Plaintiff’s motion for leave to proceed in forma pauperis will be 21 addressed in a separate order. 22

23 DISCUSSION 24 A. Standard of Review 25 A federal court must conduct a preliminary screening in any case in which a 26 prisoner seeks redress from a governmental entity or officer or employee of a 27 1 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 2 upon which relief may be granted or seek monetary relief from a defendant who is immune 3 from such relief. See

§ 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 4 construed. See Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1988). 5 To state a claim under

, a plaintiff must allege two essential 6 elements: (1) that a right secured by the Constitution or laws of the United States was 7 violated, and (2) that the alleged violation was committed by a person acting under the 8 color of state law. See West v. Atkins,

(1988). 9 B. Plaintiff’s Claims 10 Plaintiff initiated this action by filing a motion with following title: “Motion: 11 pursuant order Case No. C 01-1351-TEH & No. 2” 90-cv-0520-LKK-DAD (PC) Northern 12 & Eastern District Court: I am requesting your court to order the assig[n]ed compliance 13 officer investigate as well as to appoint me counsel as your court general order No. 25.” 14 Dkt. No. 1. In the subsequently filed complaint, Plaintiff claims that he is being “illegally 15 kept in prison” despite the fact that he qualified for “elderly parole” pursuant to a “three 16 judges panel order on 2-10-14 in the above couple of cases.” Dkt. No. 5 at 3. According 17 to the attached papers, Plaintiff was denied parole after a hearing on January 9, 2020.

18 at 9-10. The attached papers to the complaint also indicate that Plaintiff sought release 19 under “medical-compassionate parole” based on medical needs. Dkt. No. 5 at 7-8. 20 Plaintiff wants the Court to investigate why he has not yet been paroled. Id. at 3. 21 The “three judges panel” to which Plaintiff refers can only be to the Three-Judge 22 Court appointed by the Ninth Circuit to preside over two consolidated federal class actions 23 under Coleman/Plata v. Brown which issued various orders related to prison overcrowding 24 that required the State of California to undertake prison population reduction measures.1 25 1 The original class actions were filed under Coleman v. Brown, Case No. 90-cv-00520- 26 LKK-JFM (E.D. Cal.), and Plata v. Brown, Case No. C01-1351 TEH (N.D. Cal.). See also 1 The specific order referred to by Plaintiff is an order issued on February 10, 2014, 2 directing the state to implement a parole process for inmates who are 60 years or older and 3 who have been incarcerated for at least 25 years; in response, the state implemented the 4 “Elderly Parole Program.”2 Also in response to a court order, the state expanded its 5 existing medical parole hearing process, referred to as now as “expanded medical parole.”3 6 To the extent that Plaintiff is challenging the denial of parole and seeks earlier 7 release under either the elderly parole or medical parole programs, the appropriate avenue 8 to obtain relief is not a § 1983 action. “‘Federal law opens two main avenues to relief on 9 complaints related to imprisonment: a petition for habeas corpus,

, and a 10 complaint under the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended,

1983. Challenges to the lawfulness of confinement or to particulars affecting its duration 12 are the province of habeas corpus.’” Hill v. McDonough,

(2006) 13 (quoting Muhammad v. Close,

(2004)). “An inmate’s challenge to the 14 circumstances of his confinement, however, may be brought under § 1983.” Id. Habeas is 15 the “exclusive remedy” for the prisoner who seeks “‘immediate or speedier release’” from 16 confinement. Skinner v. Switzer,

(2011) (quoting Wilkinson v. 17 Dotson,

(2005)). A parole claim that affects the legality or duration of a 18 prisoner’s custody, and a determination of which may likely result in entitlement to an 19 earlier release, must be brought in habeas. See Ramirez v. Galaza,

, 858-59 20 (9th Cir. 2003) (implying that claim, which if successful would “necessarily” or “likely” 21 accelerate the prisoner’s release on parole, must be brought in a habeas petition). 22 Furthermore, although a district court may construe a habeas petition by a prisoner 23 attacking the conditions of his confinement as a civil rights action under

, 24 see Wilwording v. Swenson,

(1971), the opposite is not true: A civil 25

26 2 https://www.cdcr.ca.gov/bph/elderly-parole-hearings-overview/ 1 rights complaint seeking habeas relief should be dismissed without prejudice to bringing it 2 as a petition for writ of habeas corpus. See Trimble v. City of Santa Rosa,

, 3 586 (9th Cir. 1995). Accordingly, this action should be dismissed without prejudice to 4 Plaintiff’s refiling as a petition for habeas corpus pursuant to

. 5 The Court notes that Plaintiff refers to a previous habeas action filed under Case 6 No. 19-cv-1992. Dkt. No. 5 at 4. That case was dismissed as second or successive 7 because Plaintiff had filed an earlier habeas action challenging the same underlying state 8 conviction. See Kabede v. State of Ca, Case No. 19-cv-1992 EJD, Dkt. No. 16. Although 9 he may not challenge his underlying state conviction, Plaintiff is not barred from filing a 10 new habeas action challenging the most recent denial of parole if he can allege the 11 violation of a minimum procedural requirement under Swarthout v. Cooke,

(2011).

(holding that the only process due during parole hearing is an 13 opportunity to be heart and a statement of reasons for the parole board’s decision); see 14 Miller v. Or. Bd. of Parole and Post-Prison Supervision,

(9th Cir. 2011) 15 (“The Supreme Court held in Cooke that in the context of parole eligibility decisions the 16 due process right is procedural, and entitles a prisoner to nothing more than a fair hearing 17 and a statement of reasons for a parole board's decision[.]”) Petitioner should keep in 18 mind that he is also required to exhaust state judicial remedies before filing a federal 19 habeas petition in the federal court.4 20 Lastly, to the extent that Plaintiff is individually attempting to enforce a 21 Coleman/Plata order, this action must be dismissed. An individual suit for injunctive and 22 equitable relief from allegedly unconstitutional prison conditions may be dismissed when 23 it duplicates an existing class action’s allegations and prayer for relief. See Pride v. 24 4 Prisoners in state custody who wish to challenge collaterally in federal habeas 25 proceedings either the fact or length of their confinement are first required to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting 26 the highest state court available with a fair opportunity to rule on the merits of each and 1 || Correa,

(9th Cir. 2013). The relief he seeks, 1.e., an investigation by 2 || the “assigned compliance officer,” e.g., the Receiver, falls squarely within the purview of 3 || Coleman/Plata. Therefore, he may not bring his claim as an individual suit but must 4 || instead seek to remedy the claimed violation through class counsel in the Coleman/Plata 5 || case.° 6 7 CONCLUSION 8 For the reasons set forth above, this action is DISMISSED without prejudice. 9 Plaintiff's motion for court action, Dkt. No. 1, is DENIED. Plaintiff may file a federal 10 || habeas petition challenging the recent denial of parole, provided he has also exhausted his 11 || state court remedies before doing so. See

(b), (c). Otherwise, he must «= 12 |} pursue injunctive relief under Coleman/Plata. 5 13 This order terminates Docket No. 1. IT IS SO ORDERED.

15 || Dated: _ July 21,2020 00 Ae Lowe ermal BETH LABSON FREEMAN 16 United States District Judge 17

O Z 18 19 20 21 22 23 IA Order of Dismissal PRO-SE\BLF\CR.20\01683Kabede_dism(cr-hc) 25 76 Il s plaintiff may submit his claim to plaintiffs’ counsel in Plata by mailing it to the lead 97 || counsel listed on the docket for Case No. 01-1351 TEH: Donald H. Specter, Prison Law officer, 1917 Fifth Street, Berkeley, CA 94710-1916.