Freeman v. Kernan

Full title: MARK FREEMAN, Plaintiff, v. SCOTT KERNAN, et al., Defendants

Court: United States District Court, E.D. California

Date published: Jun 9, 2006

No. CIV S-04-0902 DFL PAN P (E.D. Cal. Jun. 9, 2006)

Opinion

No. CIV S-04-0902 DFL PAN P.

June 9, 2006

ORDER

DAVID LEVI, District Judge

Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.

On December 7, 2004, the magistrate judge filed findings and recommendations herein which were served on plaintiff and which contained notice to plaintiff that any objections to the findings and recommendations were to be filed within twenty days. Plaintiff has filed objections to the findings and recommendations.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds that plaintiff lacks Article III standing to bring this claim because he has not suffered an injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130 (1992) (holding that standing requires a plaintiff to state "an injury in fact" that is not "hypothetical"). Plaintiff states in his objections that he seeks to have the rules violation report removed from his records because it will prevent him from being paroled. However, he has not had an adverse ruling from a parole board based upon the report and may never receive such a ruling. To satisfy the requirements for standing on the claim that this rules violation report is unfounded, plaintiff must wait until he is denied parole on this ground and then petition for writ of habeas corpus. See Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir. 1997) (holding that prisoner could not bring an action under § 1983 to challenge improper parole hearing); Elliott v. United States, 572 F.2d 238, 239 (9th Cir. 1978) (holding that challenge to improper denial of parole should be brought as a petition for writ of habeas corpus).

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed December 7, 2004, are VACATED; and

2. This action is DISMISSED for lack of standing.