(PC) Andersen v. Shaffer

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 ANDREW S. ANDERSEN, No. 2:20-cv-00999-KJM-CKD P

12 Plaintiff,

13 v. ORDER and FINDINGS AND

RECOMMENDATIONS

14 JENNIFER SHAFFER, et al.,

15 Defendants.

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17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in the pending civil

18 rights action filed pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court

19 pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff has filed a first amended

20 complaint which is now before the court for screening.

21 I. Screening Requirement

22 As plaintiff was previously advised, the court is required to screen complaints brought by

23 prisoners seeking relief against a governmental entity or officer or employee of a governmental

24 entity. 28 U.S.C. § 1915A(a). The court will independently dismiss a complaint or portion

25 thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that fail to state

26 a claim upon which relief may be granted, or that seek monetary relief from a defendant who is

27 immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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1 II. Allegations in the Amended Complaint

2 In his amended complaint, plaintiff sues the State of California, the Board of Parole

3 Hearings (“BPH”), Governor Gavin Newsom, the Executive Director of the BPH, several

4 individual forensic psychologists employed by the BPH, and two BPH Commissioners who

5 presided at plaintiff’s most recent parole hearing in 2020. ECF No. 12. The allegations in the

6 amended complaint characterize the parole system in California as “a belief and thought control

7 system.” ECF No. 12 at 14. Plaintiff asserts five causes of action against defendants for violating

8 his First Amendment right to freedom of speech and his Fourteenth Amendment right to due

9 process. ECF No. 12 at 26-29. By way of relief, plaintiff seeks various forms of declaratory and

10 injunctive relief. ECF No. 12 at 30-31.

11 III. Legal Standards

12 A. First Amendment

13 A prisoner's First Amendment rights are necessarily “more limited in scope than the

14 constitutional rights held by individuals in society at large.” Shaw v. Murphy, 532 U.S. 223, 229

15 (2001)(holding that prisoners do not have a First Amendment right to provide legal assistance to

16 other inmates). Thus, an inmate retains only “those First Amendment rights that are not

17 inconsistent with his status as a prisoner or with the legitimate penological objectives of the

18 corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974); Bell v. Wolfish, 441 U.S. 520,

19 545 (1979); Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001).

20 A prison regulation that infringes on a constitutional right “is valid if it is reasonably

21 related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). The

22 Supreme Court adopted a four-part standard in Turner for evaluating the constitutionality of

23 prison regulations. Id. “First, there must be a ‘valid, rational connection’ between the prison

24 regulation and the legitimate governmental interest put forward to justify it.” Turner, 482 U.S. at

25 89 (internal citation omitted). Next, the court reviews whether alternative means for exercising

26 the constitutional right remain open to inmates. Id. at 90. “A third consideration is the impact

27 accommodation of the asserted constitutional right will have on guards and other inmates, and on

28 the allocation of prison resources generally.” Id. Lastly, the court considers whether there exist

1 reasonable alternatives to the prison regulation that could be implemented with a de minimis cost

2 to the interests of the prison. Id. at 90-91.

3 B. Due Process

4 Prisoners do not have a federal constitutional right to be released on parole before the

5 expiration of their term of imprisonment. Swarthout v. Cooke, 562 U.S. 216, 220 (2011);

6 Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979). California,

7 however, has statutorily created a liberty interest in parole. See Swarthout, 562 U.S. at 220;

8 McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002) (“California's parole scheme gives rise

9 to a cognizable liberty interest in release on parole.”), overruled on other grounds by Swarthout,

10 562 U.S. 216. Accordingly, California authorities must provide some procedural protections

11 when determining parole eligibility. Swarthout, 562 U.S. at 219. The procedures required

12 however, are minimal--prisoners must be provided only an opportunity to be heard and a

13 statement of reasons why parole was denied. Id. at 220. Outside of these procedural protections,

14 mere errors in the application of state law do not constitute a denial of due process. See

15 Swarthout, 562 U.S. at 222 (quoting Engle v. Isaac, 456 U.S. 107, 121, n.21 (1982)). “[T]he

16 responsibility for ensuring that the constitutionally adequate procedures governing California's

17 parole system are properly applied rests with California courts, and is no part of the [federal

18 court's] business.” Id.

19 C. Eleventh Amendment

20 The Eleventh Amendment serves as a jurisdictional bar to suits brought by private parties

21 against a state or state agency unless the state or the agency consents to such suit. See Quern v.

22 Jordan, 440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam); Jackson v.

23 Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir. 1982). Moreover, a governmental agency that is an

24 arm of the state is not a person for purposes of § 1983. See Howlett v. Rose, 496 U.S. 356, 365

25 (1990); Sato v. Orange Cty. Dep’t of Educ., 861 F.3d 923, 928 (9th Cir. 2017) (explaining

26 agencies of the state are immune under the Eleventh Amendment from private damages or suits

27 for injunctive relief brought in federal court).

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1 IV. Analysis

2 The court has reviewed plaintiff’s first amended complaint and finds that it fails to state a

3 claim upon which relief can be granted under federal law. First, in his amended complaint

4 plaintiff has named the State of California and the Board of Parole Hearings as defendants. The

5 State of California has not consented to suit. Accordingly, plaintiff’s claims against these

6 defendants are barred by the Eleventh Amendment and must be dismissed.

7 To the extent that the amended complaint challenges the scientific validity of the

8 Comprehensive Risk Assessment (“CRA”) used in determining plaintiff’s suitability for parole,

9 such allegations do not establish any constitutional claim for relief. See ECF No. 12 at 19 (stating

10 that “[p]laintiff can point to alternative remedies that would provide greater procedural protection

11 and save cost.”). There is no federal substantive due process right that requires state parole

12 officials to utilize any particular analytical model for determining recidivism or risk of

13 dangerousness if released on parole. See Swarthout, 562 U.S. at 222 (emphasizing that

14 “[b]ecause the only federal right at issue is procedural, the relevant inquiry is what process Cooke

15 and Clay received, not whether the state court decided the case correctly.”). Federal due process

16 is limited to certain minimal procedures including the opportunity to be heard and a statement of

17 reasons for the denial of parole. Absent these procedural due process protections, the

18 Constitution demands nothing more. Accordingly, the amended complaint fails to state a

19 cognizable due process challenge against any defendant.

20 Plaintiff’s claims for relief under the First Amendment are entirely conclusory and are too

21 convoluted to state a claim upon which relief can be granted. As the court understands it, plaintiff

22 is alleging that defendants evaluated his particular “beliefs, thoughts, content of speech, and

23 manner of speech” to opine that he was not suitable for parole because he was a risk to public

24 safety. ECF No. 12 at 16. Plaintiff avers that the decisions to deny him parole in 2015 and 2020

25 had a chilling effect on his freedom of expression in violation of the First Amendment. As

26 plaintiff was previously advised, in order to demonstrate a First Amendment violation, he must

27 provide evidence showing that defendants “deterred or chilled [the plaintiff's] political speech and

28 such deterrence was a substantial or motivating factor in [the defendant's] conduct.’” Mendocino

1 Environmental Center v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999) (citation

2 omitted). ECF No. 7 at 4 (screening order). The allegations in the amended complaint do not

3 allege that chilling plaintiff’s speech was “a substantial or motivating factor” in defendants’

4 decision that plaintiff was not suitable for parole based on his risk of recidivism. Therefore, the

5 allegations based on the First Amendment fail to state a cognizable claim against any named

6 defendant.

7 Plaintiff’s facial challenges to the specific state statutes governing parole suitability also

8 fail to state a claim for relief applying the four-part Turner standard. The court has no doubt that

9 California’s parole suitability standards are reasonably related to the legitimate penological

10 interest in ensuring that violent inmates are not released into the community. Requiring inmates

11 to have a psychological assessment to determine their risk of recidivism is logically connected to

12 a parole suitability determination by the Board of Parole Hearings. The challenged regulations do

13 not preclude plaintiff from learning or communicating about his alternative relapse prevention

14 strategies in non-parole related forums within the prison setting. See Pell v. Procunier, 417 U.S.

15 at 827-28 (finding that “in light of the alternative channels of communication that are open to

16 prison inmates, …this restriction on one manner in which prisoners can communicate with

17 persons outside of prison is unconstitutional”). Therefore, the court finds that plaintiff’s amended

18 complaint does not state a claim for relief based on his facial challenge to California’s specific

19 parole statutes.

20 V. Leave to Amend

21 If the court finds that a complaint or claim should be dismissed for failure to state a claim,

22 the court has discretion to dismiss with or without leave to amend. Leave to amend should be

23 granted if it appears possible that the defects in the complaint could be corrected, especially if a

24 plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); Cato v.

25 United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given leave to

26 amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that

27 the deficiencies of the complaint could not be cured by amendment.” (citation omitted).

28 However, if, after careful consideration, it is clear that a claim cannot be cured by amendment,

1 the Court may dismiss without leave to amend. Cato, 70 F.3d at 1105-06.

2 It appears to the court that further amendment would be futile because plaintiff’s factual

3 allegations do not establish any constitutional claim for relief as a matter of law even after leave

4 to amend was previously granted. Therefore, the undersigned recommends that this action be

5 dismissed without further leave to amend. Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv.

6 Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely

7 given, the court does not have to allow futile amendments).

8 VI. Plain Language Summary

9 The following information is meant to explain this order in plain English and is not

10 intended as legal advice.

11 It is recommended that your first amended complaint be dismissed because it fails to state

12 any cognizable claim for relief. Allowing you to amend the complaint would be futile at this

13 point. As a result, it is recommended that you not be granted leave to amend your complaint and

14 that this civil action be closed.

15 If you disagree with this recommendation, you have 14 days to explain why it is not the

16 correct result. Label your explanation as “Objections to the Magistrate Judge's Findings and

17 Recommendations.” The district judge assigned to your case will then make a final decision.

18 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to expedite the screening

19 of his amended complaint (ECF No. 13) is denied as moot in light of the recommendation to

20 dismiss his first amended complaint for failing to state a claim.

21 IT IS FURTHER RECOMMENDED that:

22 1. Plaintiff’s first amended complaint (ECF No. 12) be dismissed without leave to

23 amend.

24 2. The Clerk of Court be directed to close this case.

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

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

27 after being served with these findings and recommendations, any party may file written

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

1 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

2 || objections shall be served and filed within fourteen days after service of the objections. The

3 || parties are advised that failure to file objections within the specified time may waive the right to

4 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).

5 | Dated: May 10, 2021 A: Oe Fes

(_LA NO fr jd. Les ey

6 CAROLYN K. DELANEY ;

7 UNITED STATES MAGISTRATE JUDGE

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