Thomas v. Roberts et al

Filing 40

ORDER signed by District Judge Kimberly J. Mueller on 6/11/2018 ADOPTING 38 FINDINGS AND RECOMMENDATIONS to the extent they are consistent with this order; Plaintiff's Amended Complaint is DISMISSED. CASE CLOSED. (Fabillaran, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSH THOMAS,

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No. 2:16-cv-0724 KJM CKD P
Plaintiff,

v.

ORDER

BRIAN ROBERTS, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to

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28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On March 23, 2018, the magistrate judge filed findings and recommendations, which were

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served on plaintiff and which contained notice to plaintiff that any objections to the findings and

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recommendations were to be filed within fourteen days. Plaintiff has filed objections to the

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findings and recommendations.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. For the reasons discussed below, the court

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finds plaintiff has failed to state a cognizable claim under 42 U.S.C. § 1983 and that the defects in

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his amended complaint could not be cured by further amendment. The court will, therefore,

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dismiss this action.
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This action is proceeding on plaintiff’s first amended complaint, filed May 30, 2017. ECF

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No. 26. Plaintiff is serving a sentence of 15 years to life in prison following his conviction in or

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about 1982 on charges of second degree murder. Id. at 4. Plaintiff’s claims arise from parole

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consideration hearings conducted in 1991, 1993, 1995, 1997, 2000, 2002, 2004, 2008, 2009,

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2012, 2015 and 2016. Id., passim. The claims fall into several categories. First, plaintiff alleges

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that findings made at the hearings concerning the supposed callousness and cruelty of his

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commitment offense are not supported by any evidence and are contradicted by a 2008 state

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superior court ruling “that there appears to be no evidence to support the that [sic] plaintiff’s

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crime was cruel, heinous, or atrocious. . . .” Id. at 5-6. Second, plaintiff alleges that findings that

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he would pose an unreasonable danger to society if released were not supported by the risk

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assessments conducted by psychologists or psychiatrists in connection with the parole hearings.

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Id. at 6-7. Third, plaintiff claims that certain defendants failed to correct or expunge false and

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incorrect findings in his parole record. Id. at 9-10. Fourth, plaintiff claims that certain defendants

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failed to order a transcript needed for consideration at a subsequent hearing and improperly

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delayed that hearing. Id. at 11-15. Plaintiff also apparently alleges that he received ineffective

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assistance of counsel at his parole hearing. Id. at 18. Plaintiff names thirty-two defendants. Id. at

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Plaintiff’s claims implicate the limited due process protections available to prison inmates

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at parole consideration hearings. In Swarthout v. Cooke, 562 U.S. 216 (2011), the United States

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Supreme Court held that the Due Process Clause of the United States Constitution only

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guarantees an opportunity to be heard at a parole consideration hearing and a statement of the

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reasons for denial of parole. Swarthout, 562 U.S. at 220. The federal Due Process Clause does

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not require correct application of the California law requirement that a parole denial be supported

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by “‘some evidence’ [that] support the conclusion that the inmate is unsuitable for parole because

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he or she is currently dangerous” nor does it include a separate federal requirement that a parole

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denial be supported by “some evidence.” Id. at 216, 219, 220. Plaintiff’s allegations do not

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support a finding that his limited federal Due Process rights were violated at any of the parole

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hearings, or by the failure to obtain a transcript of certain proceedings, nor could these defects be
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cured by amendment. Finally, plaintiff has no right to counsel at his parole consideration

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hearings. See Dorado v. Kerr, 454 F.2d 892, 896-97 (9th Cir. 1972). Accordingly, any

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contention that he received ineffective assistance of counsel at any parole consideration hearing

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does not state a cognizable claim for relief.

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For all of the foregoing reasons, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed March 23, 2018, are adopted to the extent

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they are consistent with this order;

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2. Plaintiff’s amended complaint is dismissed; and

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3. This case is closed.

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DATED: June 11, 2018.

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UNITED STATES DISTRICT JUDGE

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