Opinion
Case No. 6:16-cv-01071-TC
07-21-2017
LAYCELLE TORNEE WHITE, Plaintiff, v. KATE BROWN, in her Official Capacity as Governor of the State of Oregon, et al., Defendants.
OPINION AND ORDER
:
On May 5, 2017, Magistrate Judge Coffin filed his Findings and Recommendation ("F&R"), recommending that this Court grant defendants' motion to dismiss (doc. 16). Plaintiff filed objections, so I review de novo "those portions of the report . . . to which objection is made." 28 U.S.C. § 636(b)(1)(C); accord Fed. R. Civ. P. 72(b)(3); Holder v. Holder, 392 F.3d 1009, 1022 (9th Cir. 2004).
I have reviewed this matter de novo. I agree with Judge Coffin that a § 1983 action is the improper vehicle for plaintiff's claims. Plaintiff argues that defendants are denying him parole hearings, thereby depriving him of his rights under the Eighth Amendment to the United States Constitution. Under some factual circumstances, that argument is cognizable in a § 1983 lawsuit. See, e.g., Wilkinson v. Dotson, 544 U.S. 74, 83-84 (2005) (challenging Ohio's parole procedures); Md. Restorative Justice Initiative v. Hogan, 2017 WL 467731, *41 (D. Md. Feb. 3, 2017) (challenging Maryland's parole procedures). But here, plaintiff's ineligibility for parole does not arise from a statute or regulatory framework governing frequency of parole hearings; it is, rather, a component of his 800-month determinate sentence. See State ex rel. Engweiler v. Felton, 260 P.3d 448, 473 (Or. 2011) (explaining that, for determinate sentences that include no eligibility for parole, the parole board "has no general power to parole any inmate whose crime of conviction was committed on or after November 1, 1989" (emphasis in original)). Therefore, in order to rule that plaintiff is entitled to the earlier parole hearing he seeks, I would have to invalidate a portion of plaintiff's judgment and sentence. Plaintiff's claim, if successful, would "alter [the] sentence or judgment of a state court." Thornton v. Brown, 757 F.3d 834, 844 (9th Cir. 2013). It therefore lies within the "core of habeas" and must be asserted, if at all, through a habeas petition. Id.
In his objections to the F&R, plaintiff raises a new argument: that he is statutorily entitled to parole proceedings pursuant to a provision of Oregon law providing that "[n]otwithstanding any other provision of law, a sentence imposed upon any person waived from the juvenile court . . . shall not include any sentence of death or life imprisonment without the possibility of release or parole[.]" Or. Rev. Stat. § 161.620. But by its terms, that statute applies to sentences of death or life imprisonment, not to a sentence for a term of years. Plaintiff's fixed-term sentence is not, on its face, life imprisonment. Plaintiff might argue that with respect to constraints imposed by the Eighth Amendment, a sixty-seven year sentence is tantamount to a life sentence. See Kelly v. Brown, 851 F.3d 686, 688 (7th Cir. 2017) (Posner, J., dissenting) (noting that the average life expectancy of a man sentenced to life in prison is 58 years). That argument has considerable force, but it, too, depends on invalidation of a portion of a state court judgment. Plaintiff must make his constitutional arguments, if at all, through a petition for a writ of habeas corpus.
I ADOPT Judge Coffin's F&R (doc. 24). Defendants' motion to dismiss (doc. 16) is GRANTED and this case is DISMISSED.
IT IS SO ORDERED.
Dated this 21st day of July 2017.
/s/_________
Ann Aiken
United States District Judge