Johnson v. California Department of Corrections and Rehabilitation et al

Filing 22

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 4/16/2014 GRANTING plaintiff's 18 motion to file late exhibits; GRANTING plaintiff's 21 motion; GRANTING plaintiff's 17 motion to amend; a nd VACATING the 12/20/2013 findings and recommendations 12 ; and RECOMMENDING that plaintiff's 19 second amended complaint be dismissed with prejudice; and this case be closed. Referred to Judge Kimberly J. Mueller; Objections due within 14 days.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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OSHAY JOHNSON,

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Plaintiff,

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No. 2:13-cv-1730 KJM KJN P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

J. JOHNSTON, et al.,

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Defendants.

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I. Introduction

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Plaintiff is a state prisoner, proceeding without counsel. On December 20, 2013, the

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undersigned recommended that plaintiff‟s amended complaint be dismissed. Subsequently,

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plaintiff filed a motion to amend, accompanied by a proposed second amended complaint, a

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motion to file late exhibits, objections to the findings and recommendations, and a motion to

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expand the record to include documents reflecting that his request to appeal the 2013

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Comprehensive Risk Assessment was denied. Plaintiff‟s motions regarding exhibits and

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documents are granted, and the court turns now to plaintiff‟s motion to amend.

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II. Motion to Amend
Rule 15(a)(1) of the Federal Rules of Civil Procedure provides that:

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A party may amend its pleading once as a matter of course within:
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(A) 21 days after serving it, or

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(B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or 21 days
after service of a motion under Rule 12(b), (e), or (f), whichever is
earlier.

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Id. Plaintiff has previously amended his complaint. Nonetheless, Rule 15(a)(2) provides that

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“[i]n all other cases, a party may amend its pleading only with the opposing party's written

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consent or the court's leave. The court should freely give leave when justice so requires.” Fed. R.

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Civ. P. 15(a)(2). Granting or denying a motion to amend is a matter within the district court‟s

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discretion. See, e.g., Ventress v. Japan Airlines, 603 F.3d 676, 680 (9th Cir. 2010).

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Plaintiff has now amended his complaint to reduce the number of individuals named as

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defendants, and to include only one of his three initial claims. Good cause appearing, plaintiff‟s

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motion to amend is granted. Therefore, the findings and recommendations are vacated, and the

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court will now screen plaintiff‟s second amended complaint. After careful review of the second

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amended complaint, as well as plaintiff‟s exhibits submitted in support, the court finds that

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plaintiff‟s second amended complaint should be dismissed without leave to amend.

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III. Screening

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

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.
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2000) (“a judge may dismiss [in forma pauperis] claims which are based on indisputably

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meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

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1227.

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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words,

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

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim

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upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570.

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“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129

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S. Ct. at 1949. When considering whether a complaint states a claim upon which relief can be

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granted, the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007),

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and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974).

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Plaintiff‟s Allegations

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In his second amended complaint, plaintiff names as defendants the California

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Department of Corrections and Rehabilitation (“CDCR”); Matthew Cates, Director of the CDCR;

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and the Board of Parole Hearings (“Board”). Plaintiff contends that he was denied parole on June

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3, 2009, due to the psychological evaluation conducted by Board psychologist Dr. Starrett,

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diagnosing plaintiff with an antisocial personality disorder (“ASPD”). (ECF No. 19 at 5.)

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Plaintiff argues that despite Dr. Starrett‟s evaluation, prison officials refuse to provide plaintiff

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with mental health treatment for ASPD so that he can become eligible for parole. Plaintiff also

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notes that other CDCR mental health professionals opine that plaintiff does not have symptoms of

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mental illness and thus no treatment is required, yet these professionals refuse to provide plaintiff

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with such an evaluation or chrono. (ECF No. 19 at 6.) Plaintiff claims the doctors had a duty to

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treat him, and that despite their failure to treat him, the Board continues to use Dr. Starrett‟s

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evaluation to deny plaintiff parole. Plaintiff seeks only declaratory and injunctive relief. Plaintiff
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asks the court to bar the Board from using Dr. Starrett‟s psychological evaluation.

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Background

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On May 7, 1993, plaintiff was convicted of attempted murder and other offenses, and

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sentenced to a term of fifteen years, eight months in prison followed by a term of fifteen years to

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life with the possibility of parole. Johnson v. Sisto, Case No. 2:08-cv-0496 MCE KJM P (E.D.

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Cal.) (ECF No. 38 at 5.) On August 16, 2007, the Sacramento County Superior Court issued an

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amended abstract of judgment showing a total determinate term of fifteen years, eight months,

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and an indeterminate term of fifteen years to life concurrent to the determinate sentence. (ECF

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No. 38 at 7.) In plaintiff‟s first habeas case, the district court found that plaintiff had not been re-

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sentenced in 2007; rather, the amended abstracts recorded the sentence as announced by the trial

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court in 1993, sentencing plaintiff to a total determinate term of fifteen years, eight months to be

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served concurrently with the life term, and requiring plaintiff to serve a minimum of fifteen years

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of his life term before being eligible for parole. Johnson v. Sisto, Case No. 2:08-cv-0496 MCE

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KJM P (ECF No. 38 at 10-11.) Ultimately, the district court dismissed plaintiff‟s habeas petition

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as barred by the statute of limitations. Id. (ECF No. 41.)

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In addition, plaintiff has filed other habeas petitions, some of which raise issues similar to
those alleged in plaintiff‟s second amended complaint:

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In Johnson v. Board of Parole Hearings, Case No. 2:11-cv-2748 GGH (E.D. Cal.),

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plaintiff filed another habeas petition raising a due process challenge to the 2009 Board decision,

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which the court found unavailing because the transcript reflected plaintiff was present and

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represented by counsel, and that both counsel and plaintiff presented “many, many arguments to

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the Board and responded to the Board‟s questions,” thus satisfying the minimum due process

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requirements of Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011).

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In Johnson v. Singh, Case No. 2:12-cv-2230 (E.D. Cal.), plaintiff filed a habeas petition

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raising a due process challenge based on the prison‟s refusal to provide treatment for plaintiff‟s

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“antisocial personal disorder,” allegedly resulting in the denial of parole. Id. (ECF No. 6 at 1-2.)

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The magistrate judge found that plaintiff does not have a right protected by the Due Process

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Clause to be rehabilitated so that he may be paroled and the fact that he was not receiving
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treatment for the “personality disorder” did not otherwise render his confinement

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unconstitutional. Id. (ECF No. 6 at 2.) Because plaintiff failed to present a valid challenge to the

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fact or duration of his confinement, the petition was dismissed. Id. (ECF No. 10.)

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Finally, in Johnson v. Unknown, Case No. 13-cv-0878 (E.D. Cal.), plaintiff filed a habeas

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petition challenging his 1993 conviction, which was dismissed because the petition was a second

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or successive petition. Id. (ECF No. 6 at 2.)

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On June 3, 2009, the Board found plaintiff unsuitable for parole because he remained a

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“present risk of danger if released,” due to his “past and present mental state, [his] minimization,

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[his] lack of insight when the [Board member] read that document to [plaintiff] that [plaintiff]

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wrote, Dr. Starrett‟s report, dated 1/1/08, is not totally supportive of release, overall propensity

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for violence is moderate, [plaintiff‟s] serious misconducts while . . . incarcerated, the mental state,

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remorse, the unstable social history, and, finally, [plaintiff‟s] life crime.” (ECF No. 15 at 5-6.)

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Legal Standards

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The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives

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a person of life, liberty, or property without due process of law. A litigant alleging a due process

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violation must first demonstrate that he was deprived of a liberty or property interest protected by

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the Due Process Clause and then show that the procedures attendant upon the deprivation were

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not constitutionally sufficient. Kentucky Dep‟t of Corrections v. Thompson, 490 U.S. 454, 459-

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60 (1989).

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California‟s parole scheme gives rise to a liberty interest in parole protected by the federal

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Due Process Clause. McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002), overruled on

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other grounds by Swarthout v. Cooke, 131 S. Ct. 859, 861-62 (2011) (finding the Ninth Circuit‟s

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holding in this regard to be a reasonable application of Supreme Court authority); Pearson v.

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Muntz, 639 F.3d 1185, 1190-91 (9th Cir. 2011) (“[Swarthout v.] Cooke did not disturb our

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precedent that California law creates a liberty interest in parole.”) In California, a prisoner is

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entitled to release on parole unless there is “some evidence” of his or her current dangerousness.

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In re Lawrence, 44 Cal.4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal. 4th 616, 651-

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53 (2002). However, under Cooke, federal district courts court may not review whether
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California‟s “some evidence” standard was correctly applied. 131 S. Ct. at 862-63; see also

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Miller v. Oregon Bd. of Parole and Post-Prison Supervision, 642 F.3d 711, 716 (9th Cir. 2011)

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(In Cooke, “The Supreme Court held . . . that in the context of parole eligibility decisions the due

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process right is procedural, and entitles a prisoner to nothing more than a fair hearing and a

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statement of reasons for a parole board‟s decision.”).

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Nonetheless, state prisoners may challenge the constitutionality of state parole procedures

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in an action under Section 1983 seeking declaratory and injunctive relief. Wilkinson v. Dotson,

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544 U.S. 74, 76 (2005). In Wilkinson, the United States Supreme Court addressed the issue of

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whether an inmate could challenge a parole denial via § 1983 rather than habeas corpus.

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Wilkinson, 544 U.S. at 74. The Court determined that an inmate may initiate a § 1983 action to

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seek invalidation of “state procedures used to deny parole eligibility . . . and parole suitability,”

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but he may not seek “an injunction ordering his immediate or speedier release into the

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community.” Wilkinson, 544 U.S. at 82. At most, an inmate can seek as a remedy “consideration

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of a new parole application” or “a new parole hearing,” which may or may not result in an actual

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grant of parole. Id. In other words, the Wilkinson case identifies parole claims that are not barred

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by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Section 1983 remains available for

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procedural challenges where success in the action would not necessarily spell immediate or

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speedier release for the prisoner. Id. at 81 (“[H]abeas remedies do not displace § 1983 actions

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where success in the civil rights suit would not necessarily vitiate the legality of (not previously

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invalidated) state confinement.”)

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Analysis

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Here, plaintiff does not challenge the constitutionality of parole procedures, but rather

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challenges the evidentiary basis for his individual denial of parole; thus, plaintiff fails to state a

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cognizable claim for relief. See Johnson v. Shaffer, 2013 WL 5934156, *7-8 (E.D. Cal. Nov. 1,

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2013) (distinguishing constitutional challenges under Wilkinson). Plaintiff alleges that his rights

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were violated when, in denying him parole in 2009, the Board relied on Dr. Starrett‟s evaluation

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stating plaintiff suffers from ASPD, yet prison officials refuse to treat plaintiff for same. Plaintiff

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seeks a court order barring the Board from considering Dr. Starrett‟s report that diagnosed
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plaintiff with ASPD, based on his allegation that mental health professionals refuse to treat

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plaintiff for ASPD.

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However, plaintiff fails to explain how the Board‟s use of Dr. Starrett‟s report violated

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plaintiff‟s rights arising under federal law. See Reece v. Smith, 2010 WL 5317440, *2 (E.D. Cal.

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Dec. 20, 2010) (claim for injunctive relief failed to state a claim upon which relief can be granted

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because plaintiff failed “to point to any federal law indicating that defendant, by drafting a false

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psychological evaluation for use at a parole hearing, violated plaintiff‟s rights arising under

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federal law and the court is not aware of any such law.”) Plaintiff‟s reliance on involuntary

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commitment cases is inapposite. (ECF No. 19 at 9.) Unlike the persons detained in or committed

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to mental hospitals, plaintiff is legally confined to prison by virtue of his criminal conviction.

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Moreover, it would be futile to grant leave to amend this claim because a federal court‟s review

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of parole proceedings is limited to the narrow question of whether the prisoner received “fair

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procedures” that provide a meaningful opportunity to be heard and a statement of reasons why

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parole was denied. Cooke, 131 S. Ct. at 860. “[I]t is no federal concern . . . whether California‟s

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„some evidence‟ rule of judicial review (a procedure beyond what the Constitution demands) was

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correctly applied.” Id. at 863.

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Finally, plaintiff asks whether plaintiff has a constitutional right to treatment for his

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ASPD. (ECF No. 19 at 8.) However, plaintiff also alleges that subsequent psychological

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evaluations indicated plaintiff showed no symptoms of mental illness requiring treatment. (ECF

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No. 19 at 6.) Prison staff are not required to treat symptoms that do not exist. “[T]o maintain an

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Eighth Amendment claim based on prison medical treatment, an inmate must show „deliberate

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indifference to serious medical needs.‟” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)

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(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976).) The two prong test for deliberate

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indifference requires the plaintiff to show (1) “„a serious medical need‟ by demonstrating that

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„failure to treat a prisoner's condition could result in further significant injury or the unnecessary

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and wanton infliction of pain,‟” and (2) “the defendant's response to the need was deliberately

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indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.

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1992).) Deliberate indifference is shown by “a purposeful act or failure to respond to a prisoner's
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pain or possible medical need, and harm caused by the indifference.” Jett, 439 F.3d at 1096

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(citing McGuckin, 974 F.2d at 1060.) Thus, in order to state a claim for violation of the Eighth

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Amendment, a plaintiff must allege sufficient facts to support a claim that the named defendants

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“[knew] of and disregard[ed] an excessive risk to [plaintiff's] health. . . .” Farmer v. Brennan,

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511 U.S. 825, 837 (1994). Plaintiff‟s second amended complaint alleges no such facts.

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Accordingly, plaintiff‟s second amended complaint should be dismissed.

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IV. Futility of Amendment

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As set forth above, federal courts are instructed to “freely give leave [to amend] when

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justice so requires.” Fed. R. Civ. P. 15(a)(2). However, a district court may, in its discretion,

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deny leave to amend “due to „undue delay, bad faith or dilatory motive on the part of the movant,

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repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the

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opposing party by virtue of allowance of the amendment, [and] futility of amendment.‟”

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Leadsinger, Inc. v. BMG Music Publ‟g., 512 F.3d 522, 532 (9th Cir. 2008) (quoting Foman v.

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Davis, 371 U.S. 178, 182 (1962)).

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Here, as nothing in the second amended complaint or the attached record suggests that the

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Board‟s procedures violated plaintiff's constitutional rights so as to be actionable under § 1983,

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the undersigned concludes that amendment would be futile and recommends that the complaint be

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dismissed with prejudice.

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V. Conclusion

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For all of the above reasons, the court finds that plaintiff fails to state a claim upon which
relief can be granted, and this case should be dismissed.

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IT IS HEREBY ORDERED that:

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1. Plaintiff‟s motion to file late exhibits (ECF No. 18) is granted;

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2. Plaintiff‟s March 21, 2014 motion (ECF No. 21) is granted;

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3. Plaintiff‟s motion to amend (ECF No. 17) is granted;

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4. The December 20, 2013 findings and recommendations (ECF No. 12) are vacated; and

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IT IS RECOMMENDED that:

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1. Plaintiff‟s second amended complaint (ECF No. 19) be dismissed with prejudice; and

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2. This case be closed.

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

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

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

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with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge‟s Findings and Recommendations.” Plaintiff is advised that

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failure to file objections within the specified time may waive the right to appeal the District

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Court‟s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: April 16, 2014

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