Gilman v. Fisher, et al

Filing 420

ORDER signed by Judge Lawrence K. Karlton on 5/30/2012 GRANTING 404 Motion for Judgment on the Pleadings with respect to claims 2, 4, 5, and 7; DENYING 404 Motion for Judgment on the Pleadings with respect to all remaining claims. (Michel, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD M. GILMAN, et al.,
NO. CIV. S-05-830 LKK/GGH

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Plaintiffs,

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v.
O R D E R

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EDMUND G. BROWN, JR., et al.,
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Defendants.

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/
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In California persons convicted of murder but with a sentence

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less than mandatory life, are at some point, eligible for parole.

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See California Penal Code §3041, In re Lawrence, 44 Cal 4th 1181

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(2008). Plaintiffs in this class action are such prisoners who

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allege constitutional violations related to California’s parole

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system. Pending before the court is defendant’s motion for judgment

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on the pleadings, ECF No. 404. For the reasons stated herein,

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defendants’ motion is GRANTED with respect to claims 2, 4, 5, and

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7, and is DENIED as to the remaining claims.

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I. Background

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The factual and procedural background of this case have been

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detailed at length in prior orders. See, e.g., March 4, 2009 Order

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Granting Class Certification, ECF No. 182. What follows is a

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summary of the background relevant to this motion.

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Plaintiffs’

complaint

alleges

nine

causes

of

action

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challenging California’s parole process on ex post facto and due

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process grounds. Those causes of action can be grouped as follows:

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Claims 1 and 3-7 allege due process violations with respect to

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parole suitability determinations; Claim 8 alleges an ex post facto

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violation with respect to the deferral provisions of California’s

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Proposition 9; and Claim 9 alleges an ex post facto violation with

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respect to the Governor’s authority to reverse a parole grant,

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enacted by Proposition 89. The parties agree that Claim 2 is

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redundant of Claims 8 and 9, and should be dismissed.

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This court has certified a class and subclasses. The class is

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defined

as

all

California

state

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sentenced to a life term with possibility of parole, b) have

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reached parole eligibility, and c) have been denied parole at least

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once. The subclasses are: 1) As to Claim 8 (ex post facto

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challenge to Proposition 9 deferral provisions), the class is

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defined as “all California state prisoners who have been

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sentenced to a life term with possibility of parole for an

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offense that occurred before November 4, 2008.” 2) As to

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Claim 9 (ex post facto challenge to Proposition 89 giving

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Governor authority to overturn a parole decision), the class
2

prisoners

who

a)

have

been

1

is defined as “all California state prisoners who have been

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sentenced to a life term with possibility of parole for an

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offense that occurred before November 8, 1988.” April 21, 2011

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Order, ECF No. 339.

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Defendants now seek a judgment on the pleadings on all claims.
II. Standard for a Judgment on the Pleadings

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A motion for judgment on the pleadings may be brought

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“[a]fter the pleadings are closed but within such time as to not

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delay the trial.” Fed.R.Civ.P. 12(c). All allegations of fact by

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the party opposing a motion for judgment on the pleadings are

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accepted as true. Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d

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1480, 1482 (9th Cir. 1984). A “dismissal on the pleadings for

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failure to state a claim is proper only if ‘the movant clearly

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establishes that no material issue of fact remains to be

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resolved and that he is entitled to judgment as a matter of

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law.” ’ Id. (quoting 5 C. Wright & A. Miller, Federal Practice

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and Procedure: Civil § 1368, at 690 (1969)); see also McGlinchy

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v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir.1988).

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When a Rule 12(c) motion is used to raise the defense of

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failure to state a claim, the motion is subject to the same test

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as a motion under Rule 12(b)(6). McGlinchy, 845 F.2d at 810;

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Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1989). Thus, the

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complaint must be supported by factual allegations.

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Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1937 (2009).

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this court “must accept as true all of the factual allegations

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contained in the complaint.”

Ashcroft v.
Moreover,

Erickson v. Pardus, 551 U.S. 89,
3

1

94 (2007).

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III. Analysis

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A. Due Process Clause Claims
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Plaintiffs’ due process clause claims (Claims 1, 3-7) allege
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various constitutional defects in California’s parole eligibility
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determination process. Generally, plaintiffs allege that the Board
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of Parole Hearings (“the Board”) and the Governor are denying and
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deferring parole for improper reasons. Defendants argue that the
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Supreme Court’s holdings in Greenholtz v. Inmates of the Nebraska
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Penal and Correction Complex, 442 U.S. 1 (1979) and Swarthout v.
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Cooke, 131 S. Ct. 859 (2011) render the due process claims
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uncognizeable.
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Greenholtz was a Section 1983 case challenging Nebraska’s

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procedure for making parole eligibility determinations. There is

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no federal constitutional right to be released on parole prior to

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the end of a valid sentence. Greenholtz, 442 U.S. at 7. However,

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once a state establishes a parole system, that system may create

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a court enforceable expectation of parole. In Greenholtz, the

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Supreme Court “accepted” that Nebraska’s statutory scheme created

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an expectancy of release on parole, and that the expectancy “is

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entitled to some measure of constitutional protection.” The Court

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emphasized that “whether any other state statute [governing parole
eligibility] provides a protectable entitlement must be decided on
a case-by-case basis.” Id. at 12. The Court found that in the
context of Nebraska’s parole eligibility determination procedure
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due

process

is

satisfied

where

the

procedure

“affords

an

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opportunity to be heard, and when parole is denied it informs the

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inmate in what respects he falls short of qualifying for parole.”

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Id. at 16. Although the Court’s holding was specific to Nebraska’s

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statutory scheme, the Court noted that “the function of legal

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process, as that concept is embodied in the Constitution, and in

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the realm of factfinding, is to minimize the risk of erroneous

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decisions.” Id. at 11. Thus, a procedure which does not decrease

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the risk of error does not raise due process concerns. In any

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event, defendants do not deny that California’s system creates some

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form of liberty interest.

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In Swarthout, two California prisoners petitioned for federal

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habeas relief after being denied parole by the Board and Governor,

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respectively. Both had sought, and were denied, habeas relief in

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state court. The state court had determined that the parole denials

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had been based on “some evidence,” of current dangerousness as is

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required by state law. The Ninth Circuit, applying the AEDPA

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standard to petitioner Cooke’s claim, found that the state court’s

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conclusion was “based on an unreasonable determination of the facts

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in light of the evidence,” and that therefore Cooke was entitled

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to habeas relief. Cooke v. Solis, 606 F.3d 1206, 1216 (9th Cir.

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2010). The Supreme Court reversed, holding that “the beginning and

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the end of the federal habeas courts’ inquiry into whether Cooke

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and Clay received due process” should have been a review of the

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application of constitutionally required procedures. Swarthout at

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*7. The Court held that due process was satisfied because the
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petitioners “were allowed to speak at their parole hearings and to

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contest the evidence against them, were afforded access to their

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records in advance, and were notified as to the reasons why parole

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was denied.” The Court noted that this process was “at least” the

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amount of process due, citing Greenholtz’s holding that “the

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Constitution does not require more” than an opportunity to be heard

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and a statement of the reasons why parole was denied in the context

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of a parole statute similar to California’s. Swarthout at *7.

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Plaintiffs

here

allege

that

California’s

procedure

for

10

determining

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requirements because the Board and the Governor’s decisions are

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guided by “biases,” such as a belief that a prisoner must serve an

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arbitrary number of years before he can be considered eligible for

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parole (First and Third Causes of Action); the Board and Governor

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rely on static factors to support the denial of parole, despite

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lack of risk to public safety (Fourth Cause of Action); the reasons

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given to defer or deny parole are not connected to risk to public

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safety and do not provide meaningful guidance to the prisoner about

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what he must do to obtain parole (Fifth Cause of Action); the Board

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and Governor make their decisions based on biases, but justify them

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by the use of regulatory criteria, or base their decisions on

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limited items of evidence in the record that are inconsistent with

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the record as a whole (Sixth Cause of Action); the Board and

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Governor defer parole reconsideration for some plaintiffs for more

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than one year for unreasonable reasons (Seventh Cause of Action).

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Thus,

parole

plaintiffs

eligibility

argue

that,

falls

short

although
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the

of

constitutional

California

parole

1

statutes do provide for the basic due process safeguards (a hearing

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and a statement of the reason for denial), the hearings themselves

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are tainted by the biases of the Board and the Governor, rendering

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them constitutionally inadequate.

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The Supreme Court has spoken unequivocally on the division of

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labor

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challenges

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prisoners. Pursuant to Swarthout, the federal courts may not review

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a state’s parole eligibility decision on the merits. This is

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because the question of whether those decisions comply with state

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law

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jurisdiction of the

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to determine whether those prisoners have received the process they

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are due under the constitution, i.e. a hearing and a statement of

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reasons for the denial of parole. As is explained below, it appears

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to this court that the Court’s ruling, while quite confining, does

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not end the inquiry in this case.

between

is

a

to

the

state

parole

question

for

and

federal

eligibility

the

courts

with

determinations

state’s

courts

and

respect
for

to

state

outside

the

federal courts. The federal courts’ role is

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Although not discussed in Greenholtz or Swarthout, the Supreme

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Court has held elsewhere that a constitutional hearing is a

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“meaningful” hearing. “For more than a century the central meaning

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of procedural due process has been clear: Parties whose rights are

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to be affected are entitled to be heard; and in order that they may

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enjoy that right they must first be notified. It is equally

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fundamental that the right to notice and an opportunity to be heard

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must be granted at a meaningful time and in a meaningful manner."

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Fuentes v. Shevin, 407 U.S. 67, 80 (1972)(internal quotations
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omitted)(emphasis

added).

For

example,

a

parole

eligibility

2

determination presided over by Board members who were all wearing

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earplugs would not be a “meaningful” hearing. Similarly, it appears

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to this court that the statement of reasons for a denial of parole

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must be a statement of the real reasons for denial.

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Defendants apparently concede that a parole board hearing

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would not satisfy due process if it were presided over by officers

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with an unconstitutional bias. Defs.’ Mot. 10. Indeed, in the

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context of administrative adjudication as well as in the courts,

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“a

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Withrow v. Larkin, 421 U.S. 35, 47 (1975). "That officers acting

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in a judicial or quasi-judicial capacity are disqualified by their

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interest in the controversy to be decided is, of course, the

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general

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governor’s role when reviewing parole decisions, is “functionally

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comparable” to a judge’s role. Miller v. Davis, 521 F.3d 1142, 1144

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(9th Cir. 2008). Similarly, parole board officials’ decisions to

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grant, deny, or revoke parole is "functionally comparable" to tasks

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performed by judges. Swift v. California, 384 F.3d 1184, 1189 (9th

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Cir. 2004). Thus, in order to be constitutionally sufficient, a

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parole eligibility hearing must be presided over by unbiased

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officials.

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decisions, must make the decisions without improper bias. The

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question

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decisionmakers will render a parole eligibility hearing inadequate.

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biased

decisionmaker

rule."

Tumey

v.

Similarly,

then,

is

what

[is]

constitutionally

Ohio,

the

273

U.S.

Governor,

types

of

bias

510,

when

in

unacceptable.”

522

(1927).

reviewing

parole

A

parole

eligibility

No one could dispute that a decision made by a Board tainted
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by a bribe would not satisfy due process even though the Board went

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through the motions of holding a hearing and stating a permissible

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reason

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identified in which experience teaches that the probability of

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actual bias on the part of the judge or decisionmaker is too high

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to be constitutionally tolerable. Among these cases are those in

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which the adjudicator has a pecuniary interest in the outcome and

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in which he has been the target of personal abuse or criticism from

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the party before him. Withrow v. Larkin, 421 U.S. 35, 47 (1975).

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A self-interest in the outcome of a quasi-judicial decision, then,

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is one type of bias that could render a hearing inadequate.

for

denial

of

parole.

“Various

situations

have

been

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In many contexts, those presiding over the hearing must not

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only be free from self-interest, but they must also be “detached.”

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In the parole revocation context, the Supreme Court mandates a

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“neutral and detached” hearing body. Morrisey v. Brewer, 408 U.S.

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471 (1972).1 The court concludes that in the parole eligibility

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determination context, a hearing must be conducted by a neutral,

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detached body, free from pecuniary or other self-interest in the

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outcome. A neutral decision maker is one who arrives at a hearing

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with an open mind, who considers the evidence and arguments

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presented at the hearing, and whose decision is influenced by what

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transpires at the hearing.

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Thus, plaintiffs could ultimately prevail on their due process

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1

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See also Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004)(among
the process due to citizen detainees seeking to challenge their
classification as enemy combatants is a hearing “before a neutral
decision-maker”).
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claims upon a showing that the Board and the Governor were not

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“neutral

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decisions. Plaintiffs have alleged as much in their complaint by

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asserting,

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predetermined judgment about whether parole should be granted or

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denied based on factors that are not a part of the hearing. If it

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is the case that the Board and Governor had an across-the-board

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practice of denying parole until a minimum number of years was

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served, with no consideration given to the substance of the

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hearing, then the plaintiffs are arguably deprived of a meaningful

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hearing, and consequently, of their constitutional right to due

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process.2

decision-makers”

in

essence,

while

that

the

making

Board

parole

and

eligibility

Governor

had

a

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Similarly, plaintiffs allege defects with respect to the due

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process requirement of a statement of reasons for parole denial.

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Plaintiffs allege that the Board and Governor make their decisions

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based on biases, but justify them by the use of regulatory

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criteria. This allegation challenges the procedure, and not the

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substance of the Board’s and Governor’s decision, and is thus

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within the scope of this court’s authority.

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Accordingly, defendants motion for judgment on the pleadings

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of plaintiffs’ due process claims is DENIED with respect to Claims

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1, 3, and 6. The motion is GRANTED with respect to Claims 4, 5, and

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7,

which

challenge

the

substance

of

the

parole

eligibility

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2

Of course given the nature of the motion, the court makes
no judgement of whether there is proof of a lack of a hearing
conforming to the requisites of due process.
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decisions.

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B. Statute of Limitations

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6
7
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Defendants assert that the claims of the named plaintiffs and
certain class members are barred by the statute of limitations.
Specifically, defendants contend that all of plaintiffs’ Due
Process claims (Claims 1, 3-7) are untimely because the plaintiffs
knew or should have known of the allegedly unlawful practice when
they were denied parole any time after 1990, the year in which

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plaintiffs allege the improper procedures began. Defs.’ Mot. 15.

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Defendants also argue that the Ninth Cause of Action, an Ex Post

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Facto Claim, is time barred for any class member whose parole was

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denied prior to October 7, 2006.

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Section 1983 does not contain a statute of limitations, but
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courts apply the state statute of limitations for personal injury
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claims. Wilson v. Garcia, 471 U.S. 261, 279 (1985); McDougal v.
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County of Imperial, 942 F.2d 668, 672 (9th Cir. 1991). Prior to
January 1, 2003, the statute of limitations that applies to § 1983
claims was one year, as then delineated in Cal. Civ. Proc. Code §
340(3). Id. The California legislature amended the statute of
limitations for personal injury claims to two years, beginning
January 1, 2003. See Cal. Civ. Proc. Code § 335.1.

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In a § 1983 action, "a claim accrues when the plaintiff knows
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or has reason to know of the injury which is the basis of the
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action." Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001).
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Defendants contend that each plaintiffs’ claim accrued the first
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time they were denied parole pursuant to the allegedly unlawful

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practices. Plaintiffs contend that they may pursue their claims

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because the conditions complained of are a continuing violation.

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“A continuing violation is occasioned by continual unlawful acts,

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not by continual ill effects from an original violation.” Ward v.

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Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981); Ledbetter v. Goodyear,

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550 U.S. 618 (superceded by statute on other grounds).

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say, even if “some or all the events evidencing the inception of

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[an unconstitutional] practice or policy occurred prior to the

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limitations period” the claim is not barred. De Grassi v.City of

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Glendora, 207 F3d. 636, 644 (9th Cir. 2000). While plaintiffs may

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not use a continuing violations theory to avoid

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limitations when only the lingering effect of a prior act remains,

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“Section 1983 is presumptively available to remedy a state's

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ongoing violation of federal law. A plaintiff has adequately pled

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an ongoing claim if she can show a systematic policy or practice

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that

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systematic violation.” Mansourian v. Regents of the Univ. of Cal.,

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594

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citations omitted). Here, of course,

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defendants have an ongoing policy of depriving inmates of their due

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process during the parole eligibility determination process.

operated,

F.3d

1095,

in

part,

1110

within

(9th

Cir.

the

the statute of

limitations

2010)(internal

That is to

period

--

quotations

a

and

plaintiffs allege that the

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Defendants cite Brown v. Georgia Bd. of Pardons & Paroles, 335

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F.3d 1259, 1261 (11th Cir. 2003), which rejected a continuing

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violations theory asserted by an inmate who was first denied parole

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outside

of

the

statute

of

limitations
12

period,

holding

“that

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plaintiff's injury occurred when the Georgia Parole Board first

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applied its new policy to him in 1995, which was also when

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plaintiff could have discovered the factual predicate of his

4

claim."

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contention. Even if plaintiffs were able to discover the factual

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predicate of their claims the first time they were denied parole,

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they are not necessarily barred. In the Ninth Circuit, use of the

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continuing violations doctrine has never been invalidated in the

9

context of an unconstitutional policy or procedure. Moreover, as

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plaintiffs note, the Brown plaintiff was seeking to remedy a prior

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improper denial of parole, whereas the plaintiffs here seek only

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prospective relief.

This court must respectfully disagree with defendants

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IV. Conclusion

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For the foregoing reasons, the court ORDERS as follows:

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[1] Defendants’ Motion for Judgment on the Pleadings,
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is GRANTED with respect to Claims 2, 4, 5, and 7 and
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The motion is DENIED with respect to all other claims.

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IT IS SO ORDERED.

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DATED:

May 30, 2012.

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