(PC) Brown v. Gutierrez

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7 UNITED STATES DISTRICT COURT

8 EASTERN DISTRICT OF CALIFORNIA

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10 RODNEY E. BROWN, Case No. 1:20-cv-00245-DAD-EPG (PC)

11 Plaintiff, FINDINGS AND RECOMMENDATIONS,

12 v. RECOMMENDING THAT THIS ACTION BE

DISMISSED FOR FAILURE TO STATE A

13 MARIA GUTIERREZ, et al., CLAIM

14 Defendants. (ECF No. 1)

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OBJECTIONS, IF ANY, DUE WITHIN

16 TWENTY-ONE (21) DAYS

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18 Rodney E. Brown (“Plaintiff”) is a state prisoner proceeding pro se and in forma

19 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the

20 complaint commencing this action on February 18, 2020. (ECF No. 1). On March 2, 2020,

21 Magistrate Judge Stanley A. Boone screened the complaint, found that it failed to state a claim,

22 provided Plaintiff with applicable legal standards, and directed Plaintiff to file an amended

23 complaint. (ECF No. 8). On March 19, 2020, the case was assigned to the undersigned

24 magistrate judge. (ECF No. 9). On April 27, 2020, Plaintiff filed an objection to the screening

25 order, arguing that the screening order is “erroneous” and that a district judge should have

26 reviewed his complaint. (ECF No. 12).

27 Given Plaintiff’s objections and his failure to file an amended complaint, the

28 undersigned has screened Plaintiff’s complaint, and for the reasons described below will issue

1 findings and recommendations to the assigned district judge recommending that this action be

2 dismissed for failure to state a claim.

3 Plaintiff has twenty-one days from the date of service of these findings and

4 recommendations to file his objections.

5 I. SCREENING REQUIREMENT

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

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

8 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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

10 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

11 § 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 5), the Court may

12 also screen the complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any

13 portion thereof, that may have been paid, the court shall dismiss the case at any time if the court

14 determines that the action or appeal fails to state a claim upon which relief may be granted.”

15 28 U.S.C. § 1915(e)(2)(B)(ii).

16 A complaint is required to contain “a short and plain statement of the claim showing

17 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

18 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

19 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

20 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff must set forth “sufficient

21 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.

22 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting

23 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts

24 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d

25 677, 681 (9th Cir. 2009) (citation and internal quotation marks omitted). Additionally, a

26 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678.

27 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal

28 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that

1 pro se complaints should continue to be liberally construed after Iqbal).

2 II. SUMMARY OF PLAINTIFF’S COMPLAINT

3 Plaintiff alleges as follows in his complaint:

4 Plaintiff is a state prisoner incarcerated at California Correctional Institution. Plaintiff’s

5 complaint primarily involves violations associated with his board of parole hearings, which are

6 being denied to him. Plaintiff is not being provided with a parole review process that is

7 consistent with the law. Instead, it is the product of personal bias, where the Board of Parole

8 Hearing (“BPH”) members and defendants in this action made it clear, off the record, that they

9 were personally disrespected by complaints Plaintiff filed and that they would not release him

10 on parole because of personal interests and not because of the legal parole process.

11 The fact that people who have a personal interest in denying parole to Plaintiff hold the

12 parole hearings manifests a clear and established conflict of interest that interfered with

13 Plaintiff’s substantial rights, year after year since 2017, and will continue for twenty years, as

14 Plaintiff was told by defendant Garcia.

15 In 1983 Plaintiff was arrested for murder. Plaintiff was convicted in 1986 and was

16 sentenced to fifteen years to life in state prison.

17 On December 17, 2012, Plaintiff was granted parole after spending approximately

18 twenty-six years in state prison. Plaintiff demonstrated adequate functional compliance

19 regarding his good transition into society, maintained a stable residence, secured a full time job,

20 and was very cooperative with his parole agent.

21 During the scope of Plaintiff’s parole, Plaintiff became suspicious that his son and his

22 wife (biological mother and son) were having an incest-type affair. Prior to Plaintiff’s

23 suspicions, Plaintiff’s son reported to him that Mexican gang members were making hostile

24 threats upon Plaintiff’s son’s life, and that if Plaintiff went to the police to report the gang

25 members, their house would be set on fire and Plaintiff’s son would be killed. In paranoia,

26 Plaintiff got a gun from his friend for protection against gang members.

27 Plaintiff placed a listening device in his and his wife’s bedroom, due to his suspicion of

28 her having an affair with her son. Plaintiff heard his wife making sexual remarks on the

1 recording, and knew only their son was at the house.

2 Plaintiff, with gun in hand, confronted his wife about her having an affair with their son.

3 Plaintiff did not point the gun at his wife at any time. While Plaintiff was discussing the matter

4 with his wife, their son, Rodney Jr., entered the room. Plaintiff pointed the gun at him and said

5 “GET OUT OF HERE.”

6 According to the parole violation report, on July 18, 2015, Police Officer Zirkle and his

7 partner Corporal Blleweg were assigned to uniform patrol when they received a dispatch to the

8 residence located at 479 W. Lurelane Street, in reference to someone “brandishing a firearm.”

9 While en route the officers were informed that the reporting party had changed location

10 because the husband had pulled a shotgun on her, and she and her son were now in a vehicle

11 waiting at the intersection of Walnut just east of Lilac Ave. The reporting party, Ruthy, was

12 contacted by the officers and she advised the officers that on July 18, 2015, her husband had

13 walked into her bedroom holding a shotgun, pointed it at her, and told her to tell him the truth

14 about what was going on with their son Rodney Jr. He then accused her of having a sexual

15 affair with their son and threatened to kill them both with the shotgun. She stated that she was

16 not sure if her husband (Plaintiff) was still at the home. She provided a description of

17 Plaintiff’s vehicle and as she was doing so, Plaintiff drove by in his car. The officers rushed

18 back to the patrol vehicle and conducted a traffic stop of Plaintiff in his vehicle. Plaintiff was

19 handcuffed and placed into the back of the patrol vehicle. Ruthy Brown was contacted to

20 respond to the location of the traffic stop to positively identify whether the black male adult in

21 custody was her husband who had threatened to kill her and her son. She identified her

22 husband who threatened to kill her and her son while holding a shotgun. Plaintiff was then

23 arrested and booked into the Rialto Police Department and then West Valley Detention Center

24 without further incident.

25 Plaintiff was interviewed by officers at the time of the arrest and stated that he believed

26 that his wife and son were having a sexual affair. He stated he placed a recording device in the

27 bedroom and heard his wife making sexual statements and the only other person in the house

28 was his son. He admitted to pointing the gun at his son but not his wife. He also admitted to

1 ownership of the shotgun and that he had it for several months as protection because his son

2 had gotten into trouble with some Hispanics from Highland, but would not say where he got it

3 from.

4 On July 20, 2016, Plaintiff was sentenced based upon his acceptance of a plea

5 agreement regarding ex-felon in possession of a firearm. Plaintiff received two years in state

6 prison for the firearm charge, which was the mid-term for the offense.

7 Defendants Gutierrez and Garcia performed a BPH at California Correctional

8 Institution. The proceeding began: “DEPUTY COMISSIONER GARCIA: On the record.

9 PRESIDING COMISSIONER GUTIERREZ: All right. We are on the record. And today’s

10 date is November 21, 2019, and the time is approximately 11:07 a.m. This is an annual parole

11 reconsideration hearing held under Penal Code Section 3000.1, for Mr. Rodney Brown, CDCR

12 number D-22973, who is present in the hearing room at California Correctional Institution in

13 Tehachapi, California. Mr. [B]rown was originally received on February 3, 1986, from the

14 County of Los Angeles. The controlling offense in this case is second-degree murder, arising

15 from a conviction in Case Number 8392650, and resulting in a sentence of life without parole.

16 Mr. Brown paroled on December 17, 2012.”

17 Plaintiff corrected the Commissioner, stating “No, ma’am, excuse me. Not life without,

18 15 to life.” This hearing was Plaintiff’s fourth parole hearing and his third reconsideration

19 hearing.

20 Presiding Commissioner Gutierrez asked Plaintiff, “Yes. Your third reconsideration

21 hearing. So do you remember what they asked you to work on, on your last year?” Plaintiff

22 responded “Yes.” Gutierrez stated, “WHAT WAS THAT?” Plaintiff responded, “They said to

23 work on, uh, guns, relationship, uh, decision, and judgment.”

24 The judgment/decision was as follows:

25 Presiding Commissoner [sic] Gutierrez: Okay, we’re back on the record. The

time is 12:33 p.m. We have reconvened for pronouncement of the panel’s

26 Decision. All persons previously present prior to the break have returned. The

fundamental consideration in an annual parole consideration hearing is whether

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the inmate continues to pose a current unreasonable threat to public safety upon

28 the inmate’s release. Accordingly, a denial of parole must be based upon

evidence in the record of the inmate’s current dangerousness. Having these

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legal standards in mind, we find that Mr. Brown does pose an unreasonable risk

2 of danger to society or a threat to public safety and is therefore ineligible for

parole today. The Panel dis-- based its Decisions on the following reasons. Mr.

3 Brown, we do see that you have matured on your part. However, there are still,

uh, deep concerns for us, and one of them being that you have a general

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disregard for following laws. And there’s three different specific reasons. One

5 is the weapon. You still need to keep digging deeper into your causative factors.

What is it about you that your’re [sic] willing to take the law into your own

6 hands, right? Knowing that you were on parole, and you went and got a shotgun

and get I get it. You know, uh, you -- you were concerned for your son’s safety.

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However, you continued that theme by not even reporting the threats, right? So

8 you said you intended to kill those boys to protect your son. I mean, you’ve

already murdered someone in the past. So why would you want to repeat the

9 same thing again? So that’s what it means to dig into your causative factors.

10 What is it about you inside that you’re willing to go to those extremes, right?

And then third, sadly, child molestation did occure [sic], and unfortunately to

11 this date, same thing. You wouldn’t be willing to report a felony crime. And so

those are all themes that fall into a general disregard for following the law. So

12 no matter what it is, if a law is broken, it should be reported. And it’s there for a

13 reason, right? We have rules and laws for a reason. And so, um, the District

Attorney, you know, thought that, uh, yea, anti-police behavior, that is an issue,

14 right? You can’t blame them. You can’t, uh use that as an excuse. It’s another

issue where you really need to think about and deep -- dig deeper into, you

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know. But you still have a lack of programming, so you’re on the right pace.

16 Keep programming, figure out deep triggers, coping skills, and get into a

leadership position, right? You’re 54 years old. You’re mature. You see the

17 younger ones that are around you. And a lot of your classes, if you learn and

internalize concepts and programs, and you facilitate, that makes it even better

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for you because then you -- we know that you have internalized these programs.

19 You don’t just memorize something and come in here and just spout it out. Now

they’re real, and they’re unique to you individually. Does that make sense? Did

20 you want to add anything, Deputy Commissioner?

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Deputy Commissioner Garcia stated, “Uh, just that I concur with the Decision to, uh,

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deny parole today. And, uh -- but keep working. Keep working.”

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Commissioner Gutierrez stated, “Keep growing. You’re in the right – you’re on the

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right path. You just need to put all of this together. Okay? So the time is now 12:36 p.m.

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Thank you to everyone who participated. This meeting -- or this hearing is adjourned.”

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Plaintiff alleges that defendants Gutierrez and Garcia discriminated against him,

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holding him accountable and denying parole based on their belief that Plaintiff is guilty of

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1 having a disregard for the law because he did not seek to prosecute his wife for molesting his

2 son, indirectly holding Plaintiff accountable.

3 Plaintiff’s failure to seek prosecution against his wife for molesting their son is

4 irrelevant to the circumstances regarding the Board’s standard of review to decide whether

5 Plaintiff poses an unreasonable risk to the public.

6 The Board, the police, and the District Attorney’s Office had an obligation to inquire

7 whether Plaintiff wanted to prosecute or explain why he should prosecute, since he had brought

8 this to the attention of the law from the very beginning, even at the moment of arrest. The law

9 failed to take legal steps to pursue prosecution against the mother who molested her biological

10 son.

11 Plaintiff also had a parole reconsideration hearing in 2017. The judgment/decision was

12 as follows: “Presiding Commissioner Taira: Today is December 7, 2017. The time is 7:07 p.m.

13 We are reconvening this Hearing for pronouncement of the Panel’s decision. All parties

14 present when we recessed are again present. Mr. Brown -- this is the Subsequent, uh,

15 Reconsideration Hearing for Mr. Rodney Brown…. Mr. Brown the Panel finds you unsuitable

16 for parole --”

17 Plaintiff stated, “UNSUITABLE.”

18 Commissioner Taira stated:

19 Unsuitable and I’ll -- I’ll explain how we go to that and then we will uh -- um

this is a 1-year denial as, uh, Parole Reconsideration Hearings are, so this is a 1-

20 year denial with the finding of unsuitability. According to the California

Supreme Court, in making, in making a parole eligibility decision, this Panel

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must not act arbitrary or capriciously and must consider all relevant and reliable

22 information available. When an inmate has committed his controlling offense

under Penal Code Section 2051 prior to obtaining 23 years of age, the Board

23 shall give great weight to the diminished culpability of juveniles as comp1ared

24 [sic] to adults, the Hallmark Features of Youth, and any subsequent growth and

maturity in reviewing suitability under Penal Code Section 3041.5. Uh, the

25 Panel has read and considered the written record including the Central File, and

the Comprehensive Risk Assessment. The risk Assessment took into

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consideration the Youthful Offender Factors. We also reviewed the additional

27 documents and the Watchdox files submitted during this hearing. We looked at

the confidential portion of the file, but did not rely on any information in the

28 confidential file, uh, due to the lack of relevance. We considered the statements

made today during the testimony of Mr. Brown, uh, statements made on his

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behalf by his attorney and we noticed the opposition from the Los Angeles

2 County District Attorney’s Office. The fundamental consideration in making a

parole eligibility decision is the potential threat to public safety upon an

3 inmate’s release. Accordingly, denial must be based on evidence in the record

of the inmater [sic] current dangerousness. With these legal standards and after

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giving great weight to the Youthful Offender considerations, [w]e find Mr.

5 Brown does pose an unreasonable risk of danger or threat to public safety and is

not currently eligible for parole at this time. The circumstances, uh, show,

6 suitability for parole, and the record does reflect some of those, uh, namely the

Youthful Offender considerations, the -- in that Mr. Brown committed the life

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crime when he was 18 years old and with diminished culpability compared to

8 that of an adult, taking into consideration a number of factors, including the

development and psychology of brain science and that the brain continues to

9 evolve in behavior controle [sic] through late adolescence in areas such as

10 impulse controle [sic], planning ahead and risk avoidance. There arethe [sic]

transit characteristics in that juveniles are more capable of change than adults

11 and the differences as time goes by between juveniles and adult mind enhances

the prospect that, um, that deficiencies will be reformed over time. There’s the

12 vulnerability of youth and juveniles are more vulnerable and susceptible to

13 outside pressures and negative influences including family and peers, and in this

case, Mr. Brown’s case, he was heavily involved in gang activity at the time of

14 the life crime, involved with the Cripps. The crime itself was a gang-related

shooting, and that exposure to deviant peers leads to increased deviant behaviors

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and is a predicator of adolscent [sic] delinquency. Uh, juveniles also have a

16 limited control over their environment and lack of the ability to extricate

themselves in crime producing settings, uh, the background, mental, and

17 emotional development of the juvenile is a mitigating factor and the family and

home environment, um, is also a mitigating factor, because, juveniles cannot

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usually extricate themselves, and there were aspects in Mr. Brown’s, uh -- uh,

19 life, uh, as a child where he suffered some traumatic events, such as being

scalded and the, uh, sexual, uh, contact he had with the, uh, -- the 15-yearold

20 [sic] when he was 11. There is the susceptibility to deterrence in that juveniles

are less susceptible to deterrence than adults because of their lack of maturity

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and underdeveloped sense of responsibility that leads to impetuous and ill-

22 considered actions and decisions without taking punishment into consideration.

Un [sic], there is also the mistrust of the Criminal Justice System, and the

23 mistrust of the adults and limited understanding of the Justice System, can lead

juveniles to work less effectively in their own defense. Juveniles have difficulty

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weighing long-term consequences, and with their impulsiveness and reluctance

25 to trust Counsel can lead to poor decisions and their legal representation. The

Panel considered the exhibited Hallmarks of Youth at the time of the crime, and

26 that as compared to adults juveniles have a lack of maturity and underdeveloped

sense of responsibility that lead to recklessness, impulsivity and heedless risk

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taking. There is also the transient rashness and proclivity for risk and the

28 inability to assess consequences. The Panel also considered to the extent Mr.

Brwon [sic] has shown growth, maturity, and rehabilitation during incarceration,

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relative to his age at the time of the crime, and his current age, he’s 53[,]

2 juveniles should not be deprived of the opportunity to achieve maturity and

maturity leads to remorse, renewal and rehabilitation. Youth must have the

3 ability to demonstrate, reflective or growth. The Panel did give great weight to

those. Those were given great weight at the, um -- uh, to those factors, in, uh,

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evaluating suitability. We also looked at his age. He’s 53 years old, well past

5 the age that reduced recidivism. When he committed the crime, he was 18. We

start to see recidivisim [sic] decrease around the age 40. Mr. Brown is well past

6 [sic] that. Parole Plans are increasingly realistic. Mr. Brown has arranged for,

uh, the Amity House, a Transitional Home, and he understand the, uh, the need

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for that. He also has shown the ability to engage in Institu -- positive

8 Institutional activities. He’s done a number of programs, self-help programs,

um, during his incarceration that we ralked [sic] about on the record. More

9 recent ones had to do with anger, criminal thinking. He’s done CGA. He talked

10 about the Family Relations Workshop that was helpful for him. Um, ultimately,

the Panel found that these were outweighed by the circumstances that tended to

11 show unsuitability and suggest that if released, Mr. Brown continues to pose a

threat to public safety. The Commitment offense for which he was committed

12 for the life crime was, uh, just a horrific and, um, vicious crime, uh, done when

13 he was 18. A gang-related drive by shooting that resulted in the murder of, uh,

of the victim. We also looked at the unstable and violent history of Mr. Brown,

14 uh, the sporadic attendance at school, the, uh, early involvment [sic] with gang

activity, uh, specifically the Cripps, history of drug and alcohol abuse, um, and

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the gang-related, negative antisocial behavior, uh, fights, and criminal activity

16 related to that. Now the California Supreme Court has ruled after a long period

of time, those immutable factors such as the commitment offense, prior criminal,

17 and unstable history may no longer indicate a current risk of danger to society in

light of a lengthy period of positive rehabilitation. So, we – in this case, we

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considered any other circumstances coupled with the other cir -- immutable

19 circumstances that lead us to the conclusion that Mr. Brwon [sic] continues to

pose a threat to public safety um, the -- the Panel found that indicates current

20 risk of danger was the recent relapses into the criminal behavior, uh, specifically

the criminal behavior that lead to the possession of the shotgun, uh, a firearm

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while Mr. Brown was on parole, uh, he knew he was prohibited from owning a

22 shotgun, but yet, when he had to deal with a family crisis and felt threatened, it

was the -- the one thing that turned to that, uh, he clearly knew was prohibited.

23 This was in July of 2015, uh, when his son was being threatened by other --

other members out in the co -- out in the neighborhood, and then what followed,

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uh, was a series of really poor decisions, uh, which reflected that ongoing

25 criminal thinking, uh, the hiding of the shotgun for, um, a certain period of

months and then finally bring it out and ending up brandishing it during a family

26 altercation, so that impulse to brandish the shotgun or have it at the time, uh, of

this, uh, extremely emotional event indicated that Mr. Brown, uh, hasn’t learned

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to control the impulses and relapsed back into that criminal behavior that got

28 him in trouble in the first place as a Youth Offender, uh, but yet at this time, he

was much, much older, uh, well past his, uh, adulthood, and this was in 2015, so

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very, very recent, for the panel, that gave us a nexus for current dangerousness,

2 Commissioner.

3 Deputy Commissioner O’Hara then stated:

4 I agree with the Chair, you know, it’s a- it’s tragic that you’re sitting in that

chair once again, because you spent all that time getting rehabilitated and doing

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everything to be found suitable for parole, that you were not an unreasonable

6 risk to society, and you were given all the benefits of being a Youthful Offender,

18 when you committed your crime, all the time you’ve been in custody, most of

7 your 115s were early on, so they were said to be, uh, things you’ve grown from,

and you said everything right, you did everything right, and the Panel decided

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this gentalman [sic] is not an unreasonable risk to society, so let’s put him out on

9 supervised release. Keep -- somebody keep an eye on him just to make sure our

decision is correct, and you proved them wrong, because the sad part is, you

10 didn’t just make one bad dicision [sic], you made a bunch of them, and setting

aside the weird relationship between your wife and son, that’s really immaterial

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to the Panel. It’s a fact that, huh, get offered a gun, take a gun, hide a gun,

12 forget that you even have it when you’re on parole, and you hide it outside. It’s

kind of similar to how the gangs do it, they’ll leave it here or there and

13 somebody can pick it up, and then when you get into an argument with your

family, that gun comes out. That is criminal thinking. Why would you need a

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gun for an argument with your family, unless your [sic] threatening them like

15 complete strangers where they’re a threat to you, and it didn’t seem like there

was any of that, but to -- to show your dominance, to exert your will, you back it

16 up with a gun. That’s exactly what you did as a kid, shooting up the

neighborhood, killing somebody, that’s the same mentality, and so you have

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brought yourself around a 50 -- this was 2015, so call it 50 years of age to still

18 have that mentality, and that’s tragic at this age that that’s how you would deal

with conflict, and deal with these issues. It does make you an unreasonable risk

19 to society. Everything we feared, everything that brought you to prison just

20 came right be up again when you were stressed tested, and you failed, and so

you have taken a couple of course and we commend you for that, and you’re

21 going to have to not only explain -- well you are going to have to explain why

this, after all those years, and you’re telling the Board I’m good to go, I got it,

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how when push come to shove, you didn’t just make one bad decision, a number

23 of them, and they each one would indicate to us a criminal mentality. You’re

going to get away with it, uh, it’s just a shotgun, it’s for protection. We’ve

24 never had anybody come in here and say I got the shotgun because I’m going to

kill everybody, it’s oh I got there is knife, I got this gun, it’s for protection, same

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answer, and so we’re truly sad that you’re in that seat again, because you have

26 done so well for a long and now you got to kind of start again, and you’re not

going to have the benefit of Youthful Offender, because that had to do with your

27 original commitment offense, you didn’t know that -- how this was going to

play out. They do stupid stuff and then we have to kind of say, well, it doesn’t

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make grown up, but now as a grown up, 50 years old, about in 2015, you’re

back to doing those kid things again, which makes us think you haven’t grown

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up, but at 50, you’re expected to be grown up, so we give you 1-year denial.

2 You do pose an unreasonable risk to society at this point. You’re going to have

to redouble your efforts and prove to us that you’re not going to fall again. It’s

3 going to take some work. Good luck to you.

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Plaintiff responded, “ALL RIGHT.”

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Commissioner Taira stated:

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We also noted that the Comprehensive Risk Assessment that Dr. Barckley

7 prepared, which took into consideration the diminished culpability of juveniles

as compared to adults, the Hallmark Features of Youth, and any subsequent, uh -

8 - um, parole violation and found -- and found Mr. Brown presents a statistically

moderate risk of violence which is an elevated risk, and that we found that was

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supportive of our decision today. This decision becomes final after a 120[-]day

10 review period by the Board of Parole Hearings and then there is an additional 30

days for the Governor’s review, so 150[-]day review period. If there are any

11 changes Mr. Brown will be notified in writing. As I indicated earlier, this is a 1-

year denial, based on the uh, rules and regulations, governing the

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Reconsideration Hearings. We make the following recommendations: No more

13 115s or 128As, stay disciplinary free, earn positive chronos and continue with

your -- your self-help sir, uh, particularly with regard to the -- the issues that we

14 discussed during the course of this hearing. We’re going to adjourn the hearing

now, the time is 7:25 p.m. This hearing is adjourned.

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16 Plaintiff also had a parole reconsideration hearing in 2018. After the same detailed

17 denial as stated in December of 2017, as reflected above, it was “extremely” the same in 2018.

18 Commissioner Barton stated, “So, after review of the evidence, the Panel has determined the

19 circumstances and gravity of the revocation violation does warrant -- uh -- remaining in

20 custody for 12 months. You will be scheduled for a subsequent lifer reconsideration hearing in

21 12 months. Uh, -- the Panel finds that the reasons for unsuitability outweighs those for

22 suitability and -- uh -- that is the decision today. It is 11:30[.] We’re adjourned.”

23 At Plaintiff’s 2019 hearing, off the record, Plaintiff asked if he was going to be released

24 in one year, and defendant Garcia responded “TIMES TWENTY,” and walked away.

25 At Plaintiff’s 2017 review, off the record, Commissioner Taira said to Plaintiff, “You

26 think we are going to release you? You came back and disrepected [sic] us after we let you go.

27 Sorry sir but this is personal, plus you allowed your son to be molested and you still refuse to

28 do anything about it.” Plaintiff stated, “WHAT? ALLOWED MY SON TO BE MOLESTED?

1 ARE YOU CRAZY, I TOLD THE POLICE WHAT WAS GOING ON, WHY THE POLICE

2 DIDN’T DO ANYTHING ABOUT IT, IF IT WAS A MAN AND A GIRL, HE WOULD

3 HAVE BEEN PUT AWAY FOR LIFE RIGHT. BUT INSTEAD OF GOING AFTER THE

4 MOTHER, YOU STILL COME AFTER THE MAN, ME… FOR SOMETHING I DID NOT

5 DO?” Mr. Taira stated, “YOU DO NOT UNDERSTAND.” Plaintiff stated, “HELP ME

6 UNDERSTAND.” Mr. Taira stated, “YOU HAVE PLENTY OF TIME FIGGURE [SIC] IT

7 OUT.”

8 The BPH had been deliberately misapplying the true standards of review by being

9 extremely arbitrary, capricious, and discriminative, based upon their personal interests to see

10 that Plaintiff fails to be released because Plaintiff had somehow personally disrespected BPH

11 officials. Thus, Plaintiff was denied a true and correct standard of review, as BPH had a

12 predisposition to deny Plaintiff’s BPH as an act of reprisal for personally disrespecting the

13 Board.

14 Plaintiff alleges that Defendants and all BPH members retried him of the evidentiary

15 findings of the court and other authority, in violation of the relevant standards, and in order to

16 deny him parole.

17 Personal disrespect falls short of criteria used for BPH determination. It is not within

18 all “reliable information available” to the Panel for the termination or suitability of parole. It

19 constitutes arbitrary and capricious misconduct that highly prejudiced Plaintiff’s Parole

20 Determination Process, because personal interests were applied and used to carry out the goal

21 of personal interest denials, which directly disregarded the real BPH determination procedures

22 and protocols, thereby denying Plaintiff a full and fair hearing in the absence of a

23 predisposition to deny Plaintiff parole for disrespecting BPH by violating parole and coming

24 back to prison.

25 Plaintiff alleges that his hearings should be conducted by impartial persons, not by

26 persons that take a personal interest in the denial or revoking of his parole status, such as the

27 defendants in this case.

28 Defendants retaliated against Plaintiff by denying him parole because they were

1 personally offended or disrespected by him. Plaintiff’s First Amendment rights to expression,

2 speech, and his ability to participate in an impartial hearing were violated, as he moved to

3 exercise these rights, and Defendants retaliated against him by denying his parole

4 reconsideration again and again.

5 Plaintiff was chilled by the prospect that, year after year, he would face the same BPH,

6 and could not afford to offend them, because of fear of retaliation.

7 Plaintiff was informed off the record that his attacks with complaints were not going to

8 do him any good, and that it is only making things worse for him. Because Plaintiff had

9 previously filed appeals and letters challenging the integrity and process of the previous parole

10 hearings, on November 21, 2019, defendant Garcia knew that Plaintiff would also challenge the

11 2019 decision to deny parole. Plaintiff enraged Defendants and the BPH by filing appeals,

12 letters, and challenges to the BPH determination, “MAKING THAT A MORE PERSONAL

13 INTEREST TO FURTHER PUNISH PLAINTIFF BY DENYING HIM A FAIR AND

14 IMPARTIAL BPH REVIEW.”

15 Plaintiff brings a Fourteenth Amendment due process claim, an Eighth Amendment

16 retaliation claim, and a First Amendment retaliation claim.1

17 III. ANALYSIS OF PLAINTIFF’S CLAIMS

18 A. Section 1983

19 The Civil Rights Act under which this action was filed provides:

20 Every person who, under color of any statute, ordinance, regulation, custom,

or usage, of any State or Territory or the District of Columbia, subjects, or

21 causes to be subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any rights, privileges, or

22

immunities secured by the Constitution and laws, shall be liable to the party

23 injured in an action at law, suit in equity, or other proper proceeding for

redress....

24

42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely

25

provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor,

26

27

1 In addition to listing these as the only claims in his complaint, Plaintiff has specifically stated that he

28 only brought a due process claim, an Eighth Amendment retaliation claim, and a First Amendment retaliation

claim. (ECF No. 12, p. 7).

1 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see

2 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los

3 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir.

4 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).

5 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted

6 under color of state law, and (2) the defendant deprived him of rights secured by the

7 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.

8 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing

9 “under color of state law”). A person deprives another of a constitutional right, “within the

10 meaning of § 1983, ‘if he does an affirmative act, participates in another's affirmative act, or

11 omits to perform an act which he is legally required to do that causes the deprivation of which

12 complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th

13 Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite

14 causal connection may be established when an official sets in motion a ‘series of acts by others

15 which the actor knows or reasonably should know would cause others to inflict’ constitutional

16 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of

17 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.”

18 Arnold v. Int'l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City

19 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008).

20 A plaintiff must demonstrate that each named defendant personally participated in the

21 deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual

22 connection or link between the actions of the defendants and the deprivation alleged to have

23 been suffered by the plaintiff. See Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S.

24 658, 691, 695 (1978).

25 B. Due Process and Parole Hearings

26 “There is no right under the Federal Constitution to be conditionally released before the

27 expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners.

28 When, however, a State creates a liberty interest, the Due Process Clause requires fair

1 procedures for its vindication—and federal courts will review the application of those

2 constitutionally required procedures.” Swarthout v. Cooke, 562 U.S. 216, 220 (2011) (citation

3 omitted).

4 Under the Due Process Clause, the standard analysis “proceeds in two steps: We first

5 ask whether there exists a liberty or property interest of which a person has been deprived, and

6 if so we ask whether the procedures followed by the State were constitutionally sufficient.” Id.

7 at 219. “The liberty interest at issue here is the interest in receiving parole when the California

8 standards for parole have been met….” Id. at 221. As to what procedures are required, “[i]n

9 the context of parole, [the Supreme Court has] held that the procedures required are minimal.”

10 Id. at 220. All that is required is an opportunity to be heard and a statement of reasons why

11 parole was denied. Id.; see also Miller v. Oregon Bd. of Parole & Post Prison Supervision, 642

12 F.3d 711, 716 (9th Cir. 2011) (“The Supreme Court held in Cooke that in the context of parole

13 eligibility decisions the due process right is procedural, and entitles a prisoner to nothing more

14 than a fair hearing and a statement of reasons for a parole board’s decision….”).

15 However, “[b]ecause parole board officials perform tasks that are functionally

16 comparable to those performed by the judiciary, they owe the same duty[] to render impartial

17 decisions in cases and controversies that excite strong feelings because the litigant’s liberty is at

18 stake.” O’Bremski v. Maass, 915 F.2d 418, 422 (9th Cir. 1990) (citation and internal quotation

19 marks omitted). A prisoner is entitled to have his parole hearings conducted by a parole board

20 that is “free from bias or prejudice.” Id.

21 Here, Plaintiff alleges that he received a statement of reasons for each BPH decision,

22 and he has not alleged that he was not given an opportunity to be heard. Thus, Plaintiff was

23 provided with the procedures required by the Due Process Clause.

24 While Plaintiff attempts to allege that the hearings were not free from prejudice, he has

25 not sufficiently done so. Plaintiff alleges that Commissioner Taira told him that the parole

26 denial was personal, because he disrespected the parole board after they let him go. However,

27 Commissioner Taira is not named as a defendant in this case. Moreover, Plaintiff already

28 received two parole reconsideration hearings after the reconsideration hearing with

1 Commissioner Taira, and Plaintiff was denied parole both times. These subsequent hearings do

2 not appear to have been conducted by Commissioner Taira.

3 As to Plaintiff’s most recent parole board decision, the 2019 decision, Plaintiff alleges

4 that Deputy Commissioner Garcia and Commissioner Gutierrez discriminated against him.

5 Plaintiff alleges that, after Plaintiff asked if he was going to be released in one year, defendant

6 Garcia responded “TIMES TWENTY.” However, this response alone does not show any bias

7 against Plaintiff.

8 Plaintiff also alleges that defendant Garcia knew Plaintiff was going to appeal the

9 decision because he previously appealed parole decisions, but there are also no allegations

10 suggesting that the decision by the 2019 parole board was influenced by the fact that Plaintiff

11 previously filed grievances and complaints.2

12 To the extent that Plaintiff disagrees with the reasons given by Defendants for not

13 granting parole, Plaintiff’s allegations do not state a due process claim because due process

14 does not entitle Plaintiff to a review by a court regarding whether the parole hearing produced

15 the result that the evidence required. Swarthout, 562 U.S. at 221. To the extent that Plaintiff

16 alleges that Defendants misapplied state law, “a mere error of state law is not a denial of due

17 process.” Id. at 222 (citation and internal quotation marks omitted).

18 Thus, even taking all non-conclusory allegations as true and construing the complaint

19 liberally in favor of Plaintiff, it appears that Plaintiff received all the process he was due.

20 Therefore, Plaintiff has failed to state a claim based on a violation of the Due Process Clause.

21 C. Retaliation3

22 A retaliation claim requires “five basic elements: (1) an assertion that a state actor took

23 some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and

24

25 2 Plaintiff does allege that he was informed off the record that his attacks with complaints were not going

to do him any good, and that it is only making things worse for him. However, Plaintiff does not allege who told

26 him this, allege when he was told this, or provide any allegations suggesting that Defendants denied him parole in

retaliation for his filing of complaints or grievances.

27 3 While it appears that at least one circuit may recognize an Eighth Amendment retaliation claim in a

situation such as this, see, e.g., Meuir v. Greene Cty. Jail Employees, 487 F.3d 1115, 1119 (8th Cir. 2007), in the

28 Ninth Circuit such a claim is addressed as a First Amendment retaliation claim. As there is no separate Eighth

Amendment retaliation claim, Plaintiff has failed to state an Eighth Amendment retaliation claim.

1 that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the

2 action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408

3 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted); accord Watson v. Carter, 668 F.3d 1108,

4 1114-15 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

5 While prisoners have no freestanding right to a prison grievance process, see Ramirez v.

6 Galaza, 334 F.3d 850, 860 (9th Cir.2003), “a prisoner’s fundamental right of access to the

7 courts hinges on his ability to access the prison grievance system,” Bradley v. Hall, 64 F.3d

8 1276, 1279 (9th Cir.1995), overruled on other grounds by Shaw v. Murphy, 532 U.S. 223, 230

9 n.2 (2001). Because filing administrative grievances and initiating civil litigation are protected

10 activities, it is impermissible for prison officials to retaliate against prisoners for engaging in

11 these activities. Rhodes, 408 F.3d at 567.

12 Plaintiff has alleged that he engaged in protected conduct, that is, the filing of

13 complaints and grievances. However, Plaintiff has failed to connect the adverse action (denial

14 of parole) to his protected conduct. While Plaintiff alleges that that he was informed off the

15 record that his attacks with complaints were not going to do him any good, and that it is only

16 making things worse for him, Plaintiff does not allege who told him this, allege when he was

17 told this, or provide any allegations suggesting that Defendants denied him parole in retaliation

18 for his filing of complaints or grievances. In fact, Plaintiff seems to allege that he was denied

19 parole because Defendants were “disrespected” by Plaintiff committing a crime after being

20 granted parole.

21 Accordingly, Plaintiff has failed to state a retaliation claim.

22 IV. CONCLUSION AND RECOMMENDATIONS

23 The Court finds that Plaintiff’s complaint fails to state any cognizable claims.

24 The Court does not recommend granting further leave to amend because Judge Boone

25 explained to Plaintiff why his complaint failed to state a claim and provided Plaintiff with an

26 opportunity to amend his complaint with the benefit of applicable legal standards, but Plaintiff

27 \\\

28 \\\

4: CU UVM ET MARE NS MMU PIO Vee OY 40 VI LO

1 || declined to amend his complaint.*

2 Accordingly, based on the foregoing, it is HEREBY RECOMMENDED that:

3 1. This action be dismissed for failure to state a claim; and

4 2. The Clerk of Court be directed to close the case.

5 These findings and recommendations will be submitted to the United States district

6 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within

7 || twenty-one (21) days after being served with these findings and recommendations, Plaintiff

8 || may file written objections with the Court. The document should be captioned “Objections to

9 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

10 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

11 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

12 || (9th Cir. 1991)).

13

14 IT IS SO ORDERED.

'S ll Dated: _Jume 25, 2020 [Je hey —

16 UNITED STATES MAGISTRATE JUDGE

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27 |} ———

28 4 While the Court is not recommending that Plaintiff be granted leave to amend, the Court will vacate

these findings and recommendations if Plaintiff files an amended complaint in response.

18