Tillman v. Board of Parole Hearings et al

Filing 17

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/15/2014 RECOMMENDING that plaintiff's amended complaint be dismissed; and this case be closed. Referred to Judge Kimberly J. Mueller; Objections due within 14 days. (Yin, K)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY BRYAN TILLMAN, 12 Plaintiff, 13 14 No. 2:14-cv-0613 KJM CKD P v. FINDINGS AND RECOMMENDATIONS BOARD OF PAROLE HEARINGS, et al., 15 Defendants. 16 Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 17 18 42 U.S.C. § 1983, and is proceeding in forma pauperis. This proceeding was referred to this court 19 pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. On April 23, 2014, plaintiff’s complaint was dismissed with leave to file an amended 20 21 complaint. The court construes the document filed by plaintiff on April 30, 2014 as an amended 22 complaint. The court is required to screen complaints brought by prisoners seeking relief against a 23 24 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 25 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 26 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 27 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 28 ///// 1 1 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 2 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 3 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 4 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 5 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 6 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 7 Cir. 1989); Franklin, 745 F.2d at 1227. 8 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon 9 which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in 10 support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 11 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt 12 Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under 13 this standard, the court must accept as true the allegations of the complaint in question, Hospital 14 Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light 15 most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v. 16 McKeithen, 395 U.S. 411, 421 (1969). 17 In his amended complaint, plaintiff seeks a new parole hearing because he was appointed 18 an “A.D.A. attorney” at his last parole hearing, not an “A.D.H. attorney.” The court assumes 19 plaintiff is making some reference to the terms of settlement in Armstrong v. Davis, No. cv-94- 20 2307 CW, a case heard in the United States District Court for Northern California concerning 21 access by disabled persons to parole hearings. In any case, plaintiff has not stated a valid claim 22 for relief in this court as it is not clear what an “A.D.H. attorney”1 is, or how his federal rights 23 were violated by the representation provided. 24 25 Because it does not appear plaintiff can state a claim upon which relief could be granted in this court, this court will recommend that this action be dismissed. Plaintiff is informed that if he 26 27 28 1 Perhaps plaintiff is referencing an attorney with a specialized understanding of Attention Deficit and Hyperactivity Disorder. In any case, plaintiff fails to show how federal law would require that an attorney representing him at parole proceedings have such specialized knowledge. 2 1 believes the terms of settlement in Armstrong v. Davis are not being complied with in some 2 respect as they pertain to plaintiff, he should seek relief in that case. 3 In accordance with the above, IT IS HEREBY RECOMMENDED that: 4 1. Plaintiff’s amended complaint be dismissed; and 5 2. This case be closed. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 8 after being served with these findings and recommendations, plaintiff may file written objections 9 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 10 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 11 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 12 (9th Cir. 1991). 13 Dated: October 15, 2014 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 1 till0613.14 20 21 22 23 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?