Andersen v. Kernan

Filing 19

FINDINGS and RECOMMENDATIONS Regarding Dismissal of Action for Failure to State a Claim, signed by Magistrate Judge Barbara A. McAuliffe on 11/20/17. Objections to F&R Due Within Fourteen Days. Referred to Judge O'Neill. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANDREW S. ANDERSEN,

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Plaintiff,
v.
SCOTT KERNAN, et al.

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Defendants.

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Case No.: 1:16-cv-00369-LJO-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION FOR
FAILURE TO STATE A CLAIM
(ECF No. 19)
FOURTEEN-DAY DEADLINE

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Plaintiff Andrew S. Andersen (“Plaintiff”) is a state prisoner of the California Department of

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Corrections and Rehabilitation (“CDCR”), proceeding pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff’s first amended complaint, filed on July, 25 2016, is

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currently before the Court for screening.

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I.

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief

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from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

Screening Requirement and Standard

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A complaint must contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff’s allegations

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are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart

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Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

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To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient

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factual detail to allow the Court to reasonably infer that each named defendant is liable for the

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misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. U.S.

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Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

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unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility

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standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.

The sheer possibility that a defendant acted

Plaintiff’s Allegations

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II.

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Plaintiff is currently housed at Valley State Prison (“VSP”) in Chowchilla, California. He

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brings suits against Governor Edmund G. Brown, Jr., Secretary of the Department of Corrections and

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Rehabilitation Scott Kernan, and Executive Officer of the Board of Parole Hearings Jennifer Shaffer.

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Plaintiff alleges as follows:

In August 2006, after signing a plea bargain, Plaintiff was

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sentenced to fifteen years to life, with the possibility of parole. He was convicted on one count under

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California Penal Code 288(a) (lewd or lascivious act with a child under the age of fourteen).

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In August 2009, Plaintiff met with a Board of Parole Hearings (“BPH”) Commissioner. The

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Commissioner gave Plaintiff instructions on what he needed to do to qualify for release. These

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instructions included attending self-help groups and therapy related to his crime. Quality of these

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groups was emphasized over quantity.

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On November 17, 2015, Plaintiff attended his initial BPH suitability hearing. Plaintiff was

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denied parole eligibility because he was unable to show sufficient evidence of rehabilitation. The

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BPH panel set Plaintiff’s next hearing for November 2020 and instructed Plaintiff to attend sex

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offender treatment, self-help groups and therapy related to his crime. Plaintiff alleges that he will not
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be able to obey the instructions because those programs, groups and therapies do not exist or are not

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available to him. Based on Plaintiff’s history of unstable relationships, the panel also required that

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Plaintiff show evidence of “a lengthy period of rehabilitation” before his next hearing. (ECF No. 15 at

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p. 11.) Plaintiff asserts that he has been unable to create a history of rehabilitation and cannot

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accumulate evidence of rehabilitation because the state either does not provide the means to

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accumulate such evidence or obstructs access to the means to create such evidence.

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Since 2007, Plaintiff alleges that he has attempted to attend every non-religious self-help group

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or other program related to criminal thinking and victim awareness.

There are no programs

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specifically for sex offenders. Plaintiff was not able to attend any self-help groups for four years due

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to factors including overcrowding and inmate-run self-help groups are allowed to exclude sex

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offenders. Plaintiff first attended a self-help group in December 2011 with a group called “Yoke

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Fellows.” After Yoke Fellows, Plaintiff was never ducated to attend another program until 2013,

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when he was ducated for a coping skills class and a one-day session for victim’s awareness. Since

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2013, Plaintiff has not been ducated to any Inmate Leisure Time Activity Groups, which are inmate-

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run self-help groups. These groups are required to be open to all inmates.

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On October 1, 2015, Plaintiff was interviewed by a forensic psychologist of the Forensic

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Assessment Division of the BPH pursuant to CCR § 2240 for a psychological Comprehensive Risk

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Assessment. Plaintiff was assigned a “Moderate Risk” score for the HCR-20 V3, regarding general

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future violence. The psychologist instructed Plaintiff to take “Sex Offender Treatment” to lower a

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“Moderate” risk score to “Low” risk score. Lowering his HCR-20 V3 from “Moderate” to “Low” is

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mandatory before Plaintiff can be found suitable for release. Plaintiff alleges that he cannot lower his

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risk score without showing evidence that he underwent professional treatment in prison. However,

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Plaintiff alleges that the state is prolonging his sentence by impeding his ability to qualify for parole

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and he will not be able to the meet the criteria of the BPH panel for the next hearing or any other

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hearing because he cannot show evidence that he participated in the required programs, groups,

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therapy, treatment and education. Plaintiff also alleges that the policies of the CDCR preclude him

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from requesting an advanced hearing, since he is unable to achieve a “building block” of attending the

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required groups, programs, treatment, therapy and education.
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Plaintiff alleges that all the impediments he has encountered by CDCR and BPH to fulfilling

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his suitability requirements have also happened to all other sex offenders.
Plaintiff asserts causes of action for violations of the Fourteenth and Eighth Amendments.

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Plaintiff seeks declaratory judgment and injunctive relief.
III.

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Discussion
A. Fourteenth Amendment

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1. Due Process

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Plaintiff’s Due Process claims all stem from allegations that he is being unlawfully denied the

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ability to qualify for parole because necessary rehabilitation programs are not available or he is unable

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to participate in them as a sex offender. Plaintiff’s first amended complaint fails to state a cognizable

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Due Process claim.

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Under the Due Process Clause of the Fourteenth Amendment, the government cannot deprive a

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person of “life, liberty, or property” without the due process of law. U.S. Const. amend, XIV. A due

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process claim, whether procedural or substantive, exists only where a constitutionally protected liberty

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or property interest is at stake. Ingraham v. Wright, 430 U.S. 651, 672 (1977). A liberty interest may

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arise from either the constitution itself or from state law. Meachum v. Fano, 427 U.S. 215, 225-26

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(1976).

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With respect to participation in rehabilitation, prisoners have no liberty interest in rehabilitative

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programs arising directly from the Constitution. See Moddy v. Daggett, 429 U.S. 77, 88 n. 9 (1976)

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(finding no due process right in “eligibility for rehabilitative programs” in the federal prison system);

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Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985) (finding that there “is no constitutional right to

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rehabilitation” and thus no right to access rehabilitative services). Moreover, the Ninth Circuit has

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rejected a right to sex offender treatment arising directly from the Constitution. See Balla v. Idaho

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State Bd. of Corr., 869 F.2d 461, 470 (9th Cir. 1989). State law also does not create a liberty interest

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in rehabilitative programs or sex offender treatment for purposes of parole, as such participation is not

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statutorily required for parole suitability. See Cal. Code Regs tit. 15, § 2281 (programming only one

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of several factors to be considered when determining suitability for parole).

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Plaintiff also alleges that his right to parole has been infringed because the BPH requires him

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to complete rehabilitation programs that are unavailable and the parole decision was biased. Plaintiff

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does not have a liberty interest in parole arising from the Constitution. In Swarthout v. Cooke, 562

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U.S. 216 (2011), the Supreme Court expressly indicated that “[t]here is no right under the Federal

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Constitution to be conditionally released before the expiration of a valid sentence . . . .” Id. at 220. To

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the extent that California law creates a liberty interest in parole, however, “the Due Process Clause

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requires fair procedures for its vindication,” and federal courts merely “review the application of those

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constitutionally required procedures.” Id. In the context of parole, the required procedures are

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minimal, and a prisoner receives adequate process where he is allowed an opportunity to be heard and

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is provided a statement of the reasons why parole is denied. Id. Here, Plaintiff does not allege that he

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was denied the constitutionally required procedures. Furthermore, review of the instant case reveals

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that Plaintiff was present at his hearing, was provided an opportunity to be heard, and was provided a

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statement of the reasons for the parole board’s decision. (See ECF No. 15 at ¶¶ 16-20; ECF No. 1 at

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Ex. B.)

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To the extent that Plaintiff is alleging a deprivation of substantive due process rather than

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procedural due process, he also has failed to state a claim. For a substantive due process violation, the

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conduct at issue must be arbitrary, or shock the conscience and violate the decencies of civilized

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conduct. See County of Sacramento v. Lewis, 523 U.S. 833, 846–47 (1998). Here, Plaintiff contends

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that his substantive due process rights were violated because the State has failed to provide affirmative

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assistance in meeting BPH’s criteria for early release, and CDCR does not have resources for sex

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offenders.

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unavailable to him as a sex offender. As admitted, Plaintiff has signed up for all available non-

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religious self-help groups and programs related to criminal thinking and victim awareness, he

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participated in Yoke Fellows and is on the wait list for several other available rehabilitative programs.

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(ECF No. 15 at p. 10.)

However, Plaintiff has failed to demonstrate that rehabilitative programs are wholly

For these reasons, Plaintiff fails to state a Due Process claim.

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2. Equal Protection

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Plaintiff alleges that Defendants are violating his rights under the Equal Protection Clause of

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the Fourteenth Amendment by providing programs and resources for all life-term crimes except sex

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offenses. The Equal Protection Clause requires that persons who are similarly situated be treated

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alike. City of Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L.Ed. 2d 313

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(1985). An equal protection claim may be established by demonstrating that the defendant

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intentionally discriminated against the plaintiff on the basis of the plaintiff's membership in a

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protected class, such as race. See, e.g., Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001);

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Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005).

However, sex offenders are not

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a suspect or protected class for purposes of the Equal Protection Clause. United States v. Juvenile

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Male, 670 F.3d 999, 1009 (9th Cir. 2012); United States v. LeMay, 260 F.3d 1018, 1030 (9th Cir.

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2001).

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Where no suspect class or fundamental right is implicated, a plaintiff’s equal protection claims

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are subject to a rational basis review. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000);

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Juvenile Male, 670 F.3d at 1009; Nelson v. City of Irvine, 143 F.3d 1196, 1205 (9th Cir. 1998)

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(“Unless a classification trammels fundamental personal rights or implicates a suspect classification,

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to meet constitutional challenge the law in question needs only some rational relation to a legitimate

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state interest.”). In the prison context, the right to equal protection is viewed through a standard of

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reasonableness; that is, whether the actions of prison officials are “reasonably related to legitimate

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penological interests.” Walker v. Gomez, 370 F.3d 969, 974 (9th Cir. 2004) (citing Turner v. Safley,

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482 U.S. 78, 89 (1987)).

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The practice of excluding inmates sentenced to life for sex offenses who do not have a parole

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date from participating in certain rehabilitation programs is reasonably related to the legitimate

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penological interest of limiting participation to inmates who have a reasonable expectation in being

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released from prison. See Anderson v. Beard, 2014 WL 232108, at *3 (N.D. Cal. Jan. 21, 2014)

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(finding CDCR practice of excluding inmates sentenced to life who do not have a parole date from

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participating in certain rehabilitation programs “clearly reasonably related to the legitimate

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penological interest of limiting participation to inmates who have a reasonable expectation in being

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released from prison”).

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For these reasons, the Court finds that Plaintiff cannot state an Equal Protection claim. This
cannot be cured by amendment.
B. Eighth Amendment

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“The Eighth Amendment proscribes the infliction of cruel and unusual punishment on

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prisoners. Whether a particular event or condition in fact constitutes ‘cruel and unusual punishment’ is

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gauged against ‘the evolving standards of decency that mark the progress of a maturing society.’”

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Schwenk v. Hartford, 204 F.3d 1187, 1196 (9th Cir. 2000) (quoting Hudson v. McMillian, 503 U.S. 1,

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8 (1992)). “After incarceration, only the unnecessary and wanton infliction of pain ... constitutes cruel

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and unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319

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(1986) (alteration in original) (internal quotation marks omitted) (quoting Ingraham v. Wright, 430

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U.S. 651, 670 (1977)). Prison officials therefore have a “duty to ensure that prisoners are provided

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adequate shelter, food, clothing, sanitation, medical care, and personal safety.” Johnson v. Lewis, 217

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F.3d 726, 731 (9th Cir. 2000). A prisoner’s claim does not rise to the level of an Eighth Amendment

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violation unless (1) “the prison official deprived the prisoner of the ‘minimal civilized measure of

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life’s necessities,’” and (2) “the prison official ‘acted with deliberate indifference in doing so.’”

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Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744

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(9th Cir. 2002) (citation omitted)).

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Plaintiff alleges that the nature and duration of his confinement does not bear a reasonable

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relationship to a legitimate penological interest. He, and similarly situated incarcerated sex offenders,

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are not provided assistance by the state to accrue rehabilitation opportunities. Therefore, he argues, he

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has been subjected to cruel and unusual punishment. Plaintiff has not pled that his conditions of

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confinement have been inhumane. He does not allege that his shelter is inadequate, or that he was not

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provided food, clothing, sanitation, or medical care. Furthermore, he does not allege that his personal

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safety was compromised. Plaintiff’s cruel and unusual punishment claim wholly relies upon CDCR

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not providing affirmative assistance in his rehabilitation efforts.

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rehabilitation and educational programs does not violate Eighth Amendment. Rhodes v. Chapman, 452
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However, deprivation of

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U.S. 337, 348 (1981). For these reasons, Plaintiff has failed to state an Eighth Amendment claim.

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This cannot be cured by amendment.

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IV.

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Plaintiff fails to state a cognizable federal claim. Despite being provided with the relevant

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legal standards, Plaintiff has been unable to cure the deficiencies in his complaint. Further leave to

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amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000).

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Conclusion and Recommendation

Accordingly, the Court recommends that this action be DISMISSED without leave to amend
due to Plaintiff’s failure to state a cognizable claim.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14)

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days after being served with these Findings and Recommendations, Plaintiff may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.”

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specified time may result in the waiver of the “right to challenge the magistrate’s factual findings” on

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appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d

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1391, 1394 (9th Cir. 1991)).

Plaintiff is advised that failure to file objections within the

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IT IS SO ORDERED.
Dated:

/s/ Barbara

November 20, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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