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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
JOE ROBERT COLLIER, 
CDCR #AP-8482, 
Plaintiff, 
vs. 
JAMES HILL, Warden, KATHLEEN 
ALLISON, Secretary and A. MAY, 
Reviewing Authority, 
Defendants. 

 
ORDER: 
 
1) GRANTING MOTION TO 
PROCEED IN FORMA PAUPERIS, 
 
2) DENYING MOTION FOR 
APPOINTMENT OF COUNSEL, and 
 
3) DISMISSING COMPLAINT FOR 
FAILURE TO STATE A CLAIM 
 
 Plaintiff Joe Robert Collier, a state prisoner proceeding pro se, has filed a civil rights 
Complaint pursuant to 42 U.S.C. § 1983, along with a Motion to proceed in forma pauperis 
(“IFP”) and a Motion for appointment of counsel. (Doc. Nos. 1–3.) 
I. Motion to Proceed IFP 
 All parties instituting any civil action, suit or proceeding in a district court of the 
United States, except an application for writ of habeas corpus, must pay a filing fee of 
$405, consisting of a $350 statutory fee plus an additional administrative fee of $55, 
although the administrative fee does not apply to persons granted leave to proceepd IFP. 
See 28 U.S.C. § 1914(a) (Judicial Conference Sc hedule of Fees, District Court Misc. Fee 
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Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure to 
prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 
§ 1915(a). See Andrews v. Cervantes , 493 F.3d 1047, 1051 (9th Cir. 2007). A prisoner 
seeking leave to proceed IFP must submit a “certified copy of the trust fund account 
statement (or institutional equivalent) for . . . the 6-month period immediately preceding 
the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 
(9th Cir. 2005). From the certified trust account statement, the Court assesses an initial 
payment of 20% of (a) the average monthly deposits in the account for the past six months, 
or (b) the average monthly balance in the ac count for the past six months, whichever is 
greater, unless the prisoner has insufficient assets. See 28 U.S.C. § 1915(b)(1) & (4); Bruce 
v. Samuels, 577 U.S. 82, 84 (2016). Prisoners who pr oceed IFP must pay any remaining 
balance in “increments” or “installments,” regardless of whether their action is ultimately 
dismissed. 28 U.S.C. § 1915(b)(1) & (2); Bruce, 577 U.S. at 84. 
In support of his IFP motion, Plaintiff has submitted a copy of his trust account 
statement attested to by a California Depa rtment of Corrections and Rehabilitation 
(“CDCR”) trust account official. (Doc. No. 4 at 4.) The document shows he had an average 
monthly balance of $14.68 and average monthl y deposits of $13.12, with an available 
balance of $7.17. (Id.) The Court GRANTS Plaintiff’s motion to proceed IFP and assesses 
a $2.93 initial partial filing fee. Plaintiff re mains obligated to pay the $347.07 balance of 
the filing fee required by 28 U.S.C. § 1914 pursuant to the installment payment provisions 
of 28 U.S.C. § 1915(b)(1). 
II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 
A. Standard of Review 
Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-
Answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must sua 
sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, 
malicious, fails to state a claim, or seeks damages from defendants who are immune. Lopez 
v. Smith , 203 F.3d 1122, 1126–27 (9th Cir. 2000) ( en banc) (28 U.S.C. § 1915(e)(2)); 
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Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (28 U.S.C. § 1915A(b)). 
“The standard for determining whether a plaintiff has failed to state a claim upon 
which relief can be granted un der § 1915(e)(2)(B)(ii) is the sa me as the Federal Rule of 
Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 
1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman , 680 F.3d 1113, 1121 (9th Cir. 
2012) (noting that § 1915A screening “incorporat es the familiar standard applied in the 
context of failure to state a claim under Fede ral Rule of Civil Procedure 12(b)(6).”) Rule 
12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether 
a complaint states a plausible claim for relief [is] . . . a context-specific task that requires 
the reviewing court to draw on its judicial experience and common sense.” Id. 
Title 42 U.S.C. § 1983 “creates a private ri ght of action against individuals who, 
acting under color of state law, violate fe deral constitutional or statutory rights.” 
Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, a 
plaintiff must show both (1) deprivation of a right secured by the Constitution and laws of 
the United States, and (2) that the depr ivation was committed by a person acting under 
color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 
B. Allegations in the Complaint 
Plaintiff claims that the CDCR has violated his federal due process rights by 
adopting a regulation inconsistent with California Proposition 57 (“Prop 57”), which 
provides that any person convicted of a nonvi olent offense is eligible for parole 
consideration after completing the full term of their primary commitment offense. (Doc. 
No. 1 at 9–10, 18.) On February 10, 2011, Plaintiff was convicted in Santa Clara County 
Superior Court of first-degree residential burglary by entering a residence with intent to 
commit theft while another person other than an accomplice was present, and is serving a 
sentence of 40 years to life, consisting of 25 years to life for the burglary conviction 
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enhanced under California’s three strikes law, plus a five-year enhancement for each of 
three prior felony convictions. (Id. at 13–14.) 
Plaintiff alleges that while housed at the R.J. Donovan Correctional Facility (“RJD”) 
in San Diego, California, he filed a CDCR grieva nce requesting parole consideration on 
the basis that he had served the full six-year primary term on his burglary offense, which 
he argued did not constitute a violent crim e under Prop 57 because it did not involve a 
verbal threat, physical force, or injury to another person. (Id. at 19–20, 24.) The grievance 
was denied on June 9, 2025, on basis that the CDCR, consistent with California Penal Code 
§ 667.5, considers his burglary offense a violent crime “due to a person being present 
during the burglary.” (Id.) Plaintiff argues that he was denied a state created liberty interest 
in parole consideration pr otected by federal due proce ss because “[i]n order for a 
conviction to qualify as a violent crime it must involve the same conduct as defined by 
federal law, that is physical force capable of causing physical pain or injury to another 
person. Johnson v. United States, 559 U.S. 133, 140 (2010).” (Id. at 14.) 
The Complaint names as Defendants RJD Wa rden James Hill, former Secretary of 
the CDCR Kathleen Allison, and Reviewing Authority A. May who denied the grievance. 
(Id. at 2.) Plaintiff claims his right to federal due process was violated by the denial of his 
grievance, and requests immedi ate parole consideration a nd monetary da mages for ten 
years of illegal incarceration. (Id. at 7, 12, 24.) 
C. Discussion 
The Fourteenth Amendment’s Due Process Cl ause protects against deprivations of 
life, liberty, or property. Wolff v. McDonnell , 418 U.S. 539, 556 (1974). Federal due 
process does not provide any right “to be cond itionally released before the expiration of a 
valid sentence, and the States are under no dut y to offer parole to their prisoners.” 
Swarthout v. Cooke, 562 U.S. 216, 220 (2011). Neverthele ss, “[s]tates may under certain 
circumstances create liberty interests whic h are protected by the Due Process Clause.” 
Sandin v. Conner, 515 U.S. 472, 483–84 (1995). California law creates a liberty interest in 
parole protected by the Fourteenth Amendment. Cooke
, 562 U.S. at 219 (citing Board of 
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Pardons v. Allen, 482 U.S. 369, 373–81 (1987); Greenholtz v. Inmates of Neb. Penal and 
Correctional Complex, 442 U.S. 1, 12 (1979)). 
Prop 57 amended the California Constitution to provide that: “Any person convicted 
of a nonviolent felony offense and sentenced to state prison shall be eligible for parole 
consideration after completing the full term for [their] primary offense.” Cal. Const. art. I, 
§ 32(a)(1). The “full term for the primary offense” refers to “the longest term of 
imprisonment imposed by the court for any offense, excluding the imposition of an 
enhancement, consecutive sentence, or alte rnative sentence.” Cal. Const., art. I, 
§ 32(a)(1)(A). It also provides that the CDCR “shall adopt regulations in furtherance of 
these provisions, and the Secretary of the [C DCR] shall certify that these regulations 
protect and enhance public safety.” Cal. Const., art. I, § 32(b). 
The Supreme Court has found that similar mandatory language and the structure of 
a state parole statute analogous to Prop 57 created a liberty interest protected by the 
Fourteenth Amendment. Greenholtz, 442 U.S. at 12; Cooke , 562 U.S. at 220–21 (holding 
that the protected interest is procedural, not substantive, and the pr ocedures necessary to 
protect that interest “are minimal.”) Alt hough the Supreme Court has also found that “a 
state prisoner’s § 1983 action is barred (abs ent prior invalidation)—no matter the relief 
sought (damages or equitable relief), no matter the target of the prisoner’s suit (state 
conduct leading to conviction or internal prison proceedings)—if success in that action 
would necessarily demonstrate the invalidity of confinement or its duration,” it has 
recognized that a claim such as the one Plaintiff presents here, which, if successful, would 
lead only to parole consideration, can be cognizable in a § 1983 action. Wilkinson v. 
Dotson, 544 U.S. 74, 81–82 (2005); see also Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 
1997) (concluding that § 1983 claim was cognizab le because “[t]he only benefit that a 
victory in this case would provide [prisoners], beside the possibility of monetary damages, 
is [eligibility for parole consid eration].”) California courts have “uniformly state[d] that 
Proposition 57 creates a mechanism for pa role consideration, not a vehicle for 
resentencing.” Daniels v. California Department of Corrections and Rehabilitation, 2018 
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WL 489155, at *3 (E.D. Cal. Jan. 19, 2018). Thus, if Plaintiff were to prevail on his claim, 
it would not necessarily result in a speedier release from prison, but would merely provide 
him with earlier parole consid eration, and would not compel a grant of parole but merely 
a hearing. See also Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016) (en banc) (noting 
that “the parole board must consider all re levant, reliable informa tion” in determining 
parole suitability, and may deny parole “on the basis of a ny of the grounds presently 
available to it.”) (citations and quote marks omitted). 
Accordingly, Plaintiff has plausibly allege d that Prop 57 created a liberty interest 
protected by the Fourteenth Amendment’s Due Process Clause in receiving parole 
consideration for non-violent offenders who ha ve served the full term of their primary 
offense. However, for the following reasons, Plaintiff has not plausibly alleged he was 
denied due process by the determinati on of Reviewing Authority May, under the 
supervision of RJD Warden Hill, based on a regulation pr omulgated by the CDCR and 
certified by former CDCR Secretary Allison, that Prop 57 does not apply to him because 
his burglary offense is a violent crime. 
The CDCR has promulgated a regulation pursuant to Prop 57 defining a violent 
felony as “a crime or enhancement as define d in subdivision (c) of Section 667.5 of the 
Penal Code.” Cal. Code Regs, tit. 15, § 3490(c) (2019). That section of the California Penal 
Code provides that “for purposes of this s ection, ‘violent felony’ means any of the 
following: . . . (21) any burglary of the first degree, as defined in subdivision (a) of Section 
460, wherein it is charged and proved that another person, other than an accomplice, was 
present in the residence during the commi ssion of the burglary.” Cal. Penal Code 
§ 667.5(c)(21). Prop 57 has been interpreted by the California courts to exclude from parole 
consideration inmates with violent felony convictions “as defined in Penal Code 667.5(c).” 
In re Hicks, 97 Cal. App. 5th 348, 410 (2023). 
Plaintiff’s § 1983 claim is based on the denial of an inmate grievance pursuant to the 
CDCR regulation, which treats his offense as violent under Penal Code § 667.5(c)(21) 
because someone other than an accomplice was in the residence during the burglary. 
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However, “[a prison] grievance procedure is a procedural right only, it does not confer any 
substantive right upon the inmates. Hence, it does not give rise to a protected liberty interest 
requiring the procedural protections envisioned by the fourteenth amendment.” Buckley v. 
Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see also Ramirez v. Galaza, 334 F.3d 850, 860 
(9th Cir. 2003) (“[I]nmates lack a separate constitutional entitlement to a specific prison 
grievance procedure.”) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (“The 
Supreme Court has also held that to obtain a protectable right an individual must have a 
legitimate claim of entitlement to it, [but] ther e is no legitimate clai m of entitlement to a 
grievance procedure.”) (citations and internal quotations marks omitted)). 
Thus, actions in denying Plaintiff’s inmate grievance cannot serv e as the basis for 
liability in a § 1983 action. Adams, 855 F.2d at 640; see also George v. Smith , 507 F.3d 
605, 609–10 (7th Cir. 2007) (“Only persons who cause or participate in the violations are 
responsible [under § 1983]. Ruling against a prisoner on an administrative complaint does 
not cause or contribute to the violation. A guard who stands and watches while another 
guard beats a prisoner violates the Constitu tion; a guard who rejects an administrative 
complaint about a completed act of misconduc t does not.”) (citations omitted). Plaintiff 
therefore cannot seek relief from Defendant May merely for denying his grievance based 
on the CDCR regulation which treats his commitm ent offense as a violent crime. Even if 
he could, he does not plausi bly allege he was denied fe deral due process because his 
reliance on Johnson v. United States to argue that the CDCR regulation violates due process 
because it did not adopt the federal definition of a violent crime is unavailing, as that case 
defined a violent crime for purposes of the federal Armed Career Criminal Act, not a state 
statute. See Johnson, 559 U.S. at 138–42 (holding that Fl orida felony offense of battery 
was not a violent crime under the ACCA because it does not have as an element the use of 
physical force against another person). 
Nor has Plaintiff identified a basis for seeking relief against former CDCR Secretary 
Allison based on her responsibility under the California Constitution with respect to the 
adoption of the regulation. See Cal. Const., art. I, § 32(b) (providing t
 hat the CDCR “shall 
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adopt regulations in furtherance of these provisions, and the Secretary of the [CDCR] shall 
certify that these regulations protect and enhance public safety.”) As noted above, the 
CDCR promulgated a regulation defining a violent felony as “a crime or enhancement as 
defined in subdivision (c ) of Section 667.5 of the Penal Code.” Cal. Code Regs., tit. 15, 
§ 3490(c). That section of the California Pena l Code provides that “for purposes of this 
section, ‘violent felony’ means any of the following: . . . (21) any burglary of the first 
degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that 
another person, other than an accomplice, was present in the residence during the 
commission of the burglary.” Cal. Penal Code § 667.5(c)(21). Plaintiff fails to plausibly 
allege that former Secretary Allison’s certification that California Code of Regulations, tit. 
15, § 3490(c) deprived him of a protected lib erty interest in parole consideration for 
nonviolent offenders merely because the regulation did not adopt his view that his burglary 
offence should be considered nonviolent since it did not involve a verbal threat, physical 
force, or injury to another person. 
Likewise, Plaintiff provides no allegations against RJD Warden Hill, other than he 
“is the authorized person having cust ody of Petitioner.” (Doc. No. 1 at 2.) “In order for a 
person acting under color of state law to be liable under section 1983 there must be a 
showing of personal participation in the alleged rights deprivation: there is no respondeat 
superior liability under section 1983.” Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 
Supervisors may only be held liable if they were “personally involved in the constitutional 
violation or a sufficient causal connection exists between the supervisor’s unlawful conduct 
and the constitutional violation.” Lemire v. Cal. Dept. of Corrections & Rehabilitation, 726 
F.3d 1062, 1074–75 (9th Cir. 2013). At most, the Complaint alleges Warden Hill failed to 
supervise Defendant May, who, as set forth above, could not have caused a constitutional 
violation merely by denying Plaintiff’s grievance. 
Finally, to the extent that under a liberal reading of the Complaint Plaintiff seeks to 
hold the CDCR liable for promulgation of California Code of Regulations, tit. 15, § 3490(c) 
or its application to him, he has failed to state a claim because states and state agencies are 
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generally immune from suit in federal court and are not “per sons” within the meaning of 
42 U.S.C. § 1983. Howlett By & Through Howlett v. Rose, 496 U.S. 356, 365 (1990) (citing 
Will v. Michigan Dep’t of State Police , 491 U.S. 58, 66 (1989)); Christman v. Micheletti, 
302 F. App’x 742, 743 (9th Cir. 2008) (affirming dismissal because CDCR not a “person” 
under section 1983). In any case, Plaintiff ca nnot state a § 1983 claim based merely on a 
challenge to a prison regulation. See Cousins v. Lockyer , 568 F.3d 1063, 1070 (9th Cir. 
2009) (allegations of violations of state prison regulations fail to plead a constitutional 
claim); Lovell v. Poway Unified School Dist ., 90 F.3d 367, 370 (9th Cir. 1996) (“To the 
extent that the violation of a state law amounts to the deprivation of a state-created interest 
that reaches beyond that guara nteed by the federal Constituti on, Section 1983 offers no 
redress.”). 
In sum, Plaintiff has not, and clearly ca nnot, plausibly allege he was denied a 
federally protected liberty interest in Prop 57 parole consideration for nonviolent offenders 
for the simple reason that he is not a nonviolent offender. Prop 57 do es not apply to him 
since his primary commitment offense, first- degree burglary where another person other 
than an accomplice was present, has been de termined by state law and CDCR regulations 
to be a violent crime for the purposes of Prop 57. Plaintiff has failed to plausibly allege he 
was not afforded procedural or substantive due process in that determination merely 
because he disagrees with the result. See Swarthout, 562 U.S. at 220 (holding that federal 
review of a California inmate’s challenge to parole consideration is limited to whether he 
received the minimal procedural protections afforded by the Due Process Clause, not 
whether the state reached the correct result on the merits); Styre v. Adams, 645 F.3d 1106, 
1108 (9th Cir. 2011) (“[N]o substantive due process right [is] created by California’s parole 
scheme.”). 
Accordingly, the Court finds that Plaintiff’s Complaint fails to state a claim for relief 
and is subject to sua sponte dismissal in its entirety pursuant to 28 U.S.C. §§ 1915(e)(2) & 
1915A(b). Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. Because it is clear 
Plaintiff is unable to state a § 1983 upon whic h relief may be granted, the dismissal is 
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without further leave to amend. See Schmier v. U.S. Court of Appeals for the Ninth Circuit, 
279 F.3d 817, 824 (9th Cir. 2002) (recognizing futility of amendment as a proper basis for 
dismissal without leave to amend); Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) 
(“A district court should not dismiss a pro se complaint without leave to amend unless it is 
absolutely clear that the deficiencies of the complaint could not be cured by amendment.”) 
(internal quotation marks omitted). 
III. Motion to appoint counsel 
 Plaintiff requests appointment of counsel on the basis that his claim is meritorious. 
(Doc. No. 3 at 1.) There is no constitutional right to counsel in a civil case, and the decision 
to appoint counsel under 28 U.S.C. § 1915(e)(1) is within “the sound discretion of the trial 
court and is granted only in exceptional circumstances.” Agyeman v. Corr. Corp. of 
America, 390 F.3d 1101, 1103 (9th Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 
Cir. 1991) (only “exceptional circumstances ” support discretionary appointment). 
Exceptional circumstances exist where there is cumulative showing of both a likelihood of 
success on the merits and an inability to articulate claims in light of their legal complexity. 
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 
 Plaintiff’s Complaint demonstrates that he is fully capable of legibly articulating the 
facts and circumstances relevant to his claim and he has not shown a likelihood of success 
on the merits. Accordingly, the Court DENIES Plaintiff’s motion for appointment of 
counsel. 
IV. Conclusion and Orders 
For the reasons explained, the Court: 
 1. GRANTS Plaintiff’s Motion to proceed IFP (Doc. No. 2). 
 2. DENIES Plaintiff’s Motion to appoint counsel (Doc. No. 3). 
3. DIRECTS the Secretary of the CDCR, or his designee, to collect from 
Plaintiff’s prison trust account the $2.93 in itial partial filing fee and collect the $347.07 
balance of the filing $350 filing fee owed in this case by garnishi ng monthly payments 
from his account in an amount equal to twen ty percent (20%) of the preceding month’s 
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income and forwarding those payments to the Clerk of the Court each time the amount in 
the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). 
4. DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail 
on Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation, 
P.O. Box 942883, Sacramento, California, 94283-0001. 
5. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 
relief may be granted pursuant to 28 U.S. C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1) without 
leave to amend. The Clerk of Court will enter a final judgment of dismissal accordingly. 
IT IS SO ORDERED. 
Dated: May 27, 2026 
 
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