Lopez v. Beard et al

Filing 13

FINDINGS and RECOMMENDATIONS that this 1 Action be Dismissed for Failure to State a Claim signed by Magistrate Judge Gary S. Austin on 03/05/2015. Referred to Judge O'Neill; Objections to F&R due by 4/8/2015. (Flores, E)

1

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

2
3
4
5
6
7
8

Case No. 1:13 cv 01556 LJO GSA PC

ANDREW R. LOPEZ,
Plaintiff,

9
10

FINDINGS AND RECOMMENDATION
THAT THIS ACTION BE DISMISSED FOR
FAILURE TO STATE A CLAIM

vs.

JEFFREY BEARD, et al.,
Defendants

11

OBJECTIONS DUE IN THIRTY DAYS

12
13
14

I.

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights

15
16
17

action pursuant to 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 Rule 302.
The Court is required to screen complaints brought by prisoners seeking relief against a

18
19
20
21
22
23
24
25
26

Screening Requirement

governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are
legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or
that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that . . . the action or
appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. §
1915(e)(2)(B)(ii).
///

27

///
28

1

1
2
3
4
5
6
7
8
9
10
11
12
13

II.

Plaintiff’s Claims
Plaintiff, an inmate in the custody of the California Department of Corrections and

Rehabilitation (CDCR) at Corcoran State Prison, brings this civil rights action against defendant
CDCR officials employed by the CDCR and the Board of Parole Hearings (BPH). Plaintiff
names the following individual defendants: Jeffrey Beard, CDCR Secretary; C. Kusaj, Chief
BPH Psychologist; BPH Psychologist S. Walker; BPH Psychologist J. Olson; BPH
Commissioner T. Arbaugh; Deputy BPH Commissioner F. Lopez; Enforcement Analyst J.
Brown; Does 1-50.
Plaintiff’s central claim is that he has been improperly denied parole. Specifically,
Plaintiff challenges the underlying basis for the decision by the BPH to deny his release on
parole. Plaintiff claims that he has a liberty interest in parole, and Defendants clearly deprived
him of that interest by improperly relying on invalid information.
Plaintiff alleges that on April 5, 2001, he was interviewed by a psychiatrist in preparation

14

for a parole hearing. Plaintiff’s minimum eligible parole date (MEPD) was in 2003. The

15

evaluation indicated that Plaintiff’s “level of dangerousness within the structured setting of a

16

correctional institution is below average as indicated by the absence of violent behavior in this

17

setting. He has demonstrated his willingness and ability to refrain from physical violence and

18

appears to have no intention to change this pattern.” Plaintiff alleges that a hearing was

19

conducted on August 1, 2007. Parole was denied. The board recommended a new psychological

20

evaluation be performed prior to the next hearing.

21

In January of 2009, the BPH made changes to its processes. Plaintiff had a habeas

22

petition pending at the time, Lopez v. Schwarzenegger, 1:08-cv-1651 OWW SMS HC. The

23

court ultimately granted the petition, directing respondent to provide Plaintiff with a parole

24

hearing within 90 days. Plaintiff alleges that the Parole Board had been “ordered” to make

25

psychological evaluations available to inmates 60 days prior to their parole hearing.

26

September 28, 2009, Plaintiff was given notice that a hearing was scheduled for October 12,

27

2009. Plaintiff advised Defendant Olson that “he would not agree to such unconstitutional

28

2

On

1
2
3
4
5
6
7

attempts,” and reminded Defendant Olson that the court ordered a parole hearing that “comports
to the constitution.” On September 29, 2009, Plaintiff was taken to the visiting area at Corcoran
and told that he would be evaluated by Defendant Olson for a BPH hearing. Plaintiff had no
prior notice of the evaluation.
On September 30, 2009, the district court granted an extension of time to December 30,
2009, in which to conduct the parole hearing.

On October 14, 2009, Plaintiff received a

Comprehensive Risk Assessment, dated October 5, 2009, that reflected the September 29, 2009,

8

evaluation. Plaintiff alleges that the 2009 evaluation “contains falsehoods, misrepresentations,

9

references to plaintiff’s petitioning for redress for no legitimate physchological purpose, and

10
11

contains opinions and conclusions of prejudicial nature involving subject matters that are way
outside the expertise of Defendants Olson and Walker.” Plaintiff alleges that Defendants Olson

12

and Walker falsely indicated that Plaintiff was scheduled for a BPH psychological evaluation by

13

October 24, 2009 for a hearing scheduled for November 30, 2009. Plaintiff alleges that his 2007

14

denial of parole included a five year deferral, indicating that Plaintiff would not have been

15

scheduled until 2012. Plaintiff alleges that these falsehoods by Walker and Olson “permeates

16

their entire reports and destroys their credibility.”

17

Plaintiff also lists several items in the 2009 evaluation that he characterizes as falsehoods.

18

As an example, Plaintiff states that the evaluation indicates that Plaintiff stopped attending

19

school in tenth grade then earned his G.E.D. Plaintiff alleges that he did in fact “graduate when

20

he was sixteen, i.e. in the 10th grade.” Plaintiff alleges that this shows that Defendants relied

21

upon prison records to evaluate Plaintiff, thus establishing retaliation against Plaintiff for filing a

22

civil rights lawsuit in 1994. Walker and Olson also allegedly made false references to gang

23

affiliation and SHU housing.

24

Plaintiff appeared at a scheduled BPH hearing on December 7, 2009.

The panel

25

consisted of Defendants Arbaugh and Lopez. Arbaugh and Lopez “noted the objections to the

26

2009 psych evaluation, but stated they intended to rely upon it because it was in front of them.

27

On December 21, 2009, Defendant Kusaj, the Chief BPH Psychologist, “reports that defendants

28

3

1
2
3
4
5
6

Arbaugh and F. Lopez, as commissioners of the December 7, 2009, BPH, did not report any
errors in the 2009 psych evaluation. Further, defendant Kusaj admitted the existence of a
BPH/FAD policy where only requests received from a BPH panel for new psychological
evaluations will be considered.”

Plaintiff alleges that the failure of Defendants Arbaugh and

Lopez to document errors in the 2009 psychological evaluation undermined the validity of the
hearing. Plaintiff was therefore improperly denied parole.

7

In November of 2009, Plaintiff forwarded a complaint to Defendant Brown, “that shows

8

the errors and violations within the 2009 psych evaluation signed by Olson and Walker.”

9
10

Plaintiff was notified by an enforcement technician that his information was being reviewed and
that a thorough analysis would be conducted. On December 29, 2009, Defendant Brown sent to

11

Plaintiff a “notice of the need for plaintiff to complete and return a consent form authorizing

12

access to plaintiff’s records, and she included the form.” On January 19, 2010, Plaintiff was

13

informed by Defendant Brown that she closed his case because she did not receive the consent

14

form. Plaintiff then provided the forms, explaining that prison officials had delayed delivering

15

Defendant Brown’s correspondence.

16

plaintiff due process and equal protections, and began jeopardizing public safety, by intentionally,

17

and without any legitimate justification, suppressing plaintiff’s complaints against Julie Olson

18

and Steven Walker.”

Plaintiff alleges that thereafter, Brown “began denying

19

On April 19, 2010, Defendant Brown “falsely alleged her office did ‘not have the

20

authority to obtain or access the records relied upon by Dr. Walker and Dr. Olson in preparing’

21

the 2009 psych evaluation.” Plaintiff was advised that his objection must be raised “through the

22

complaint and appeals process set forth by the BPH.”

23

A.

24

Plaintiff premises his claim on a right to parole. To state a claim under section 1983, a

25

plaintiff must allege that (1) the defendant acted under color of state law and (2) the defendant

26

deprived him of rights secured by the Constitution or federal law. Long v. County of Los

27

Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). “A person deprives another of a constitutional

28

Parole

4

1
2
3
4
5

right, where that person ‘does an affirmative act, participates in another’s affirmative acts, or
omits to perform an act which [that person] is legally required to do that causes the deprivation
of which complaint is made.’” Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007) (quoting
Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).
Regarding Plaintiff’s claims against the California Board of Parole Hearings, these claims

6

are foreclosed by the Supreme Court’s decision in Swarthout v. Cooke, 562 U.S. 216 (2011). In

7

Swarthout, the Supreme Court held that the federal habeas court’s inquiry into whether a

8
9
10
11

prisoner who has been denied parole received due process is limited to determining whether the
prisoner “was allowed an opportunity to be heard and was provided a statement of the reasons
why parole was denied.” Id., (citing Greenholtz v. Inmates of Neb. Penal and Correctional
Complex, 442 U.S. 1, 16 (1979)). Plaintiff does not contend he was denied these procedural due

12

process guarantees, and in any case, the parole hearing transcript reflects that he was present at

13

his parole hearing, was given an opportunity to be heard, and was provided a statement of reason

14

for the parole board’s decision. (Compl.) According to the Supreme Court, this is “the

15

beginning and end of the federal habeas court’s inquiry into whether [the prisoner] received due

16

process.” Swarthout, 562 U.S. at 219. “The Constitution does not require more.” Greehnoltz,

17

442 U.S. at 16. Plaintiff’s allegations go to the information on which the parole board relied.

18

Any such challenge should be raised in the procedures set forth for challenging the denial with

19

the BPH. As noted, Plaintiff has no protected interest in parole itself. Therefore, Plaintiff’s

20

challenge to the Board’s denial of parole fails to state a cognizable federal claim for relief.

21

Further, when a prisoner challenges the legality or duration of his custody, or raises a

22

constitutional challenge which could entitle him to an earlier release, his sole federal remedy is a

23

writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d

24

874 (9th Cir. 1990), cert. denied, 498 U.S. 1126 (1991).

25

Where the complaint states a habeas claim instead of a § 1983 claim, the court should

26

dismiss the claim without prejudice for failure to exhaust, rather than converting it to a habeas

27

action and addressing it on the merits. See Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997);

28

5

1
2
3
4
5
6

Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995). Where the complaint alleges
claims that sound in habeas and claims that do not, the court should allow the non-habeas claims
to proceed. See Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 681-82 (9th
Cir. 1984).
III.

Conclusion and Recommendation
The Court has screened Plaintiff’s complaint and finds that it does not state any claims

7

upon which relief may be granted under section 1983. The gravamen of Plaintiff’s complaint is

8

that the parole board denied Plaintiff’s release on parole based on incorrect information. The

9
10
11

facts alleged indicate that Plaintiff received all required due process. Because Plaintiff is
challenging the validity of the parole decision, his sole remedy is a petition for writ of habeas
corpus. Because the Court finds that these deficiencies are not capable of being cured by

12

amendment, the Court HEREBY RECOMMENDS dismissal of this action, without prejudice to

13

the filing of a petition for writ of habeas corpus. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th

14

Cir. 1987).

15

These findings and recommendations are submitted to the United States District Judge

16

assigned to the case, pursuant to the provisions of 28 U.S. C. § 636(b)(1)(B). Within thirty days

17

after being served with these findings and recommendations, plaintiff may file written objections

18

with the Court. Such a document should be captioned “Objections to Magistrate Judge’s

19

Findings and Recommendations.” The parties are advised that failure to file objections within

20

the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d

21

834 (9th Cir. 2014)(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

22
23

IT IS SO ORDERED.

24

Dated:

25

/s/ Gary S. Austin

26

UNITED STATES MAGISTRATE JUDGE

27
28

6

March 5, 2015