Brodheim v. Dickinson, et. al.

Filing 97

ORDER signed by Judge Lawrence K. Karlton on 8/23/12 ADOPTING IN FULL 91 Findings and Recommendations. (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL J. BRODHEIM,
Plaintiff,

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vs.
LOUIE DININNI, et al.,
Defendants.

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MICHAEL J. BRODHEIM,
Petitioner,

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ORDER
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No. 2:05-cv-1512 LKK GGH P

No. 2:06-cv-2326 LKK GGH P

vs.
M. VEAL, Acting Warden, et al.,
Respondents.

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ORDER
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Plaintiff, a state prisoner proceeding pro se, has filed Case No. 2:05-cv-1512 LKK

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GGH P, a civil rights action seeking relief under 42 U.S.C. § 1983.1 The matter was referred to a

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United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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The related case is a pending habeas matter, No. 2:06-cv-2326 LKK GGH P.
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On May 7, 2012, the magistrate judge filed findings and recommendations in

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Case No. 2:05-cv-1512 LKK GGH P which were served on all parties and which contained

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notice to all parties that any objections to the findings and recommendations were to be filed

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within fourteen days. Plaintiff has filed objections to the findings and recommendations.

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The court also herein considers plaintiff’s subsequently filed and belated motion

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for leave to amend/supplement the amended complaint in what appears to be a last-ditch effort to

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resuscitate this action largely on the premise that a new equal protection claim may be framed

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based on the governor’s recent reversal of the parole board’s parole grant. This most recent

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claim is predicated on alleged disparate treatment arising from parole officials having undergone

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a “marked shift...in recent years” by reliance on “a lack of insight to deny parole... .” Docket #

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58-1, at 21. Another claim of disparate treatment vis-à-vis plaintiff is alleged to have arisen

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from the governor [in his parole reversal] purportedly having changed the application of CAL.

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CODE REGS.

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factors are to be weighed with regard to finding parole unsuitability. Id.

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tit.xv, § 2402(c)(5), by allegedly deviating from the standard by which psychological

As has been previously noted, plaintiff herein proceeds in two other actions

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implicating parole issues: a habeas petition, Brodheim v. Dininni, No. 2:06-2326 LKK GGH P,

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which is related to the instant case, and as a plaintiff class member in Gilman v. Brown, No.

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2:05-0830 LKK GGH. Notwithstanding plaintiff’s argument otherwise, the court finds that the

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allegations regarding parole board officials have been mooted by the board’s parole grant, and to

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the extent it there remains any live issue, it is subsumed within the Gilman class action. With

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respect to the specific and recent reversal of parole which the board granted to plaintiff,

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amending to raise a new equal protection claim in 2012 in a civil rights action that was initiated

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in 2005 is too broad a stretch. If plaintiff feels he has a viable equal protection claim that

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implicates a specific parole decision, it should be raised in a new habeas petition. If plaintiff

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believes there is a viable equal protection claim with regard to parole procedures generally, it

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should be encompassed within the Gilman class action, or at the least, in a new civil rights action
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brought by plaintiff. The motion for further leave to amend is denied.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule

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304, this court has conducted a de novo review of this case. Having carefully reviewed the

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entire file, the court finds the findings and recommendations to be supported by the record and

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by proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to amend/supplement the amended complaint, filed on June

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23, 2012 (docket # 58), is denied;
2. The findings and recommendations filed May 7, 2012, are adopted in full; and
3. The civil rights action, Case No. 2:05-cv-1512 LKK GGH P, is dismissed

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without prejudice to the ruling in the Gilman class.

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DATED: August 23, 2012.

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