Andrews v. Martinez

1 UNITED STATES DISTRICT COURT

2 NORTHERN DISTRICT OF CALIFORNIA

3

DAVID ANDREWS,

4 Case No. 17-cv-04363-YGR (PR)

Plaintiff,

5 ORDER GRANTING DEFENDANTS’

v. MOTION FOR SUMMARY

6 JUDGMENT; AND DENYING

B. MARTINEZ, et al., PLAINTIFF’S MOTION FOR

7 SUMMARY JUDGMENT

Defendants.

8

9 I. INTRODUCTION

10 Plaintiff David Andrews, a state prisoner currently incarcerated at the Correctional

11 Training Facility (“CTF”), has filed the instant pro se civil rights action under 42 U.S.C. § 1983.

12 Plaintiff has filed an amended complaint, which is the operative complaint in this action. Dkt. 31.

13 The Court notes that Plaintiff was convicted of second-degree murder in 2002, and he was

14 sentenced to a term of fifteen years to life. Id. at 7. His claims stem from alleged constitutional

15 violations that took place during his parole hearings in 2015 and 2016.

16 Specifically, Plaintiff alleged a due process claim against the following Defendants who

17 are either at CTF or employed by the California Board of Parole Hearings (“BPH”): Correctional

18 Counselors B. Martinez, G. Walters, and F. Gutierrez; Warden S. Hatton; Correctional Case

19 Records Analyst Supervisor C. Dzioba; Correctional Officer C. Hoyt; Commissioner A.

20 Anderson; Chairperson J. Shaffer; Attorney C. Christensen; Psychologist C. Carman; and

21 Correctional Case Records Manager P. Melendrez. Id. at 3-6.1 The following is taken from the

22 Court’s January 23, 2018 Order of Partial Dismissal and Service:

23 Liberally construed, it appears that Plaintiff is attempting to state a

due process violation. In essence, Plaintiff alleges that his prison file

24 contains false, inaccurate and incomplete information, which was

unfairly used against him at his September 8, 2016 parole suitability

25 hearing (during which the Court assumes he was denied parole). The

inaccuracy of records compiled or maintained by the government is

26 not, standing alone, sufficient to state a claim of constitutional injury

27

under the Due Process Clause. See Paul v. Davis, 424 U.S. 693, 711-

1 714 (1976). However, [Plaintiff’s] due process claim may arise

instead from a deprivation authorized by state law. See Meachum v.

2 Fano, 427 U.S. 215, 223-27 (1976) (recognizing that interests

protected by the Due Process Clause may arise from two sources—

3 the Due Process Clause itself and laws of the states). A deprivation

authorized by state law may also amount to a deprivation of a

4 procedurally protected liberty interest, if (1) state statutes or

regulations narrowly restrict the power of prison officials to impose

5 the deprivation, i.e. give the inmate a kind of right to avoid it, and

(2) the liberty in question is one of “real substance.” See Sandin v.

6 Conner, 515 U.S. 472, 477-87 (1995). Liberally construed, Plaintiff

has stated a cognizable claim of a violation of due process against

7 Defendants Martinez, Walters, Gutierrez, Carman, Hoyt, and

Anderson.

8

Dkt. 15 at 2. Meanwhile, Plaintiff’s claims against Defendants Hatton, Dzioba, Shaffer,

9

Christensen, and Melendrez were dismissed because Plaintiff did not allege that they actually or

10

proximately caused the deprivation of any federally protected right. Id. (citing Leer v. Murphy,

11

844 F.2d 628, 634 (9th Cir. 1988)). Thereafter, as mentioned, Plaintiff filed his amended

12

complaint. Dkt. 31. The Court screened the amended complaint and found that liberally

13

construed, it stated a cognizable due process claim against previously-dismissed Defendants

14

Hatton, Dzioba, Shaffer, and Melendrez. Dkt. 30 at 5. However, the Court dismissed Plaintiff’s

15

claim involving Defendant Christensen, the attorney who represented him during his parole

16

hearing on November 17, 2015, because “a defense attorney, or in this case an attorney who

17

represents a prisoner during a parole hearing, does not act under color of state law when

18

performing an attorney’s traditional functions, including responding to the commissioner during a

19

parole hearing, as was alleged in the instant case.” Id. at 6 (citing Polk County v. Dobson, 454

20

U.S. 312, 318-19 (1981)).

21

On November 1, 2018, Defendants moved to dismiss the case. Dkt. 42. Plaintiff opposed

22

Defendants’ motion to dismiss on February 27, 2019, and filed his motion for summary judgment

23

in his opposition. Dkt. 46. Defendants filed a reply on March 13, 2019. Dkt. 47. Defendants

24

separately filed an opposition to Plaintiff’s motion for summary judgment. Dkt. 50.

25

On July 9, 2019, the Court denied Defendants’ motion to dismiss because their grounds for

26

dismissal were more properly raised in a motion for summary judgment, and it directed

27

Defendants to file a motion for summary judgment by August 13, 2019. Dkts. 61, 67.

1 The parties are presently before the Court on Defendants’ motion for summary judgment

2 (dkt. 68) and Plaintiff’s previously-filed motion for summary judgment (dkt. 46), which are both

3 submitted as oppositions and replies have been filed as to both motion (dkts. 50, 56, 72, 73).

4 Defendants specifically move for summary judgment on the following grounds: (1) there are no

5 genuine issues of material fact concerning Plaintiff’s due process claims; (2) Defendant Anderson

6 is entitled to absolute quasi-judicial immunity; (3) Plaintiff’s claims are barred by the Eleventh

7 Amendment and Heck’s2 favorable-termination rule; and (4) Defendants are entitled to qualified

8 immunity. Dkt. 68 at 7-8.

9 Also before the Court are Plaintiff’s renewed motion for referral to the Court’s Alternative

10 Dispute Resolution Program, his motion for joinder of parties, and Defendants’ motion to strike

11 Plaintiff’s improper separate statement of facts. Dkts. 51, 55, 59.

12 Having read and considered the papers submitted, and being fully informed, the Court

13 GRANTS Defendants’ motion for summary judgment, DENIES Plaintiff’s motion for summary

14 judgment, and terminates the remaining aforementioned pending motions as moot.

15 II. BACKGROUND

16 A. The Parties

17 At all times relevant to this action, Plaintiff was housed at CTF. Dkt. 31 at 3. Defendants

18 Anderson, Carman, and Shaffer were BPH staff members. Id. at 3-6. Defendants Dzioba,

19 Gutierrez, Hatton, Hoyt, Martinez, Melendrez, and Walters were CDCR staff members at CTF.

20 Id. Plaintiff sues each Defendant in their official and individual capacity and seeks monetary

21 damages. Id. at 2.

22 B. California Regulations Regarding Parole in 2015 and 2016

23 Title 15 of the California Code of Regulations and the California Penal Code provide

24 California’s law related to parole. These laws establish the procedures for parole consideration-

25 hearings to determine if a California inmate is suitable for parole. Cal. Code Regs., tit. 15

26 §§ 2281, 2402. According to the Penal Code, an inmate’s initial parole consideration or suitability

27

1 hearing should be held one year prior to the inmate’s minimum eligible parole date. Cal. Penal

2 Code § 3041(a) 2015. The regulations and the Penal Code provide that the inmate has a right to

3 attend the parole consideration hearing, ask and answer questions, and speak on his behalf. Id. at

4 § 3041.5; Cal. Code Regs., tit. 15 § 2247. These laws also provide that the inmate is entitled to be

5 represented by an attorney. Cal. Penal Code § 3041.7; Cal. Code Regs., tit. 15 § 2256. However,

6 the inmate may waive these rights. Cal. Code Regs., tit. 15 §§ 2247, 2256.

7 California regulations under Title 15 section 2247 also provides that an inmate has the

8 right to review his/her central file before their parole hearing, and “a prisoner shall have the

9 opportunity to enter a written response to any material in the file.” Cal. Code Regs., tit. 15 § 2247.

10 Moreover, an inmate has the right to present relevant documents to the hearing panel, but the

11 documents should be brief, pertinent, and clearly written. Id. § 2249. The documents may cover

12 any relevant matters such as mitigating circumstances, disputed facts, or release planning. Id.

13 In addition to these hearing requirements, Title 15 § 2240(a) provides that, “[p]rior to a life

14 inmate’s initial parole consideration hearing, a Comprehensive Risk Assessment (“CRA”) will be

15 performed by a licensed psychologist.” Cal. Code Regs., tit. 15 § 2240(a). The regulations further

16 provide that the CRA:

17 will consist of both static and dynamic factors which may assist a

hearing panel or [BPH] in determining whether the inmate is suitable

18 for parole. It may include, but is not limited to, an evaluation of the

commitment offense, institutional programming, the inmate’s past

19 and present mental state, and risk factors from the prisoner’s history.

The [CRA] will provide the clinician’s opinion, based on the available

20 data, of the inmate’s potential for future violence. [BPH]

psychologists may incorporate actuarially derived and structured

21 professional judgment approaches to evaluate an inmate’s potential

for future violence.

22

Id. § 2240(b) (brackets added).

23

Moreover, at least one month before the hearing, the inmate shall be notified of the week

24

during which the parole suitability hearing will be held. Id. § 2246. But the inmate can waive

25

his/her parole suitability hearing for any reason. Id. The parole suitability hearing panel chair can

26

also postpone or continue the hearing upon its own motion or at the request of the inmate for

27

various reasons including the absence or untimeliness of required CDCR or BPH “notices,

1 documents, reports, or required prisoner accommodations.” Id. § 2253(d)-(e). Finally, the

2 regulations provide that an inmate has a right to receive a copy of the hearing decision, which

3 includes the information considered and the reasons for the decision. Id. §§ 2254-2255.

4 C. Plaintiff’s Parole Hearings

5 1. November 17, 2015 Parole Hearing

6 On June 30, 2015, Plaintiff was informed that he was scheduled for his initial parole

7 hearing on November 17, 2015. Dkt. 31 at 8. On August 11, 2015, Plaintiff reviewed his C-file in

8 preparation for his upcoming parole hearing. Galvan Decl. ¶ 7, Ex. B at 130. On October 7, 2015,

9 Dr. Carman, a BPH psychologist, interviewed Plaintiff and prepared a CRA report. Dkt. 31 at 8.

10 Commissioner Minor (a non-defendant) conducted Plaintiff’s parole suitability hearing on

11 November 17, 2015. Maciel Decl. ¶ 3, Ex. A at 4:4-21. Plaintiff attended the hearing with

12 Attorney Christensen, and both of them actively participated. Maciel Decl. ¶ 3, Ex. A at 5:1-

13 10:21, 17:23-19:6. Plaintiff stated to the commissioner that he had no mobility, hearing, vision,

14 reading, or mental health issues that would affect the parole hearing. Maciel Decl. ¶ 3, Ex. A at

15 6:8-8:21. Plaintiff also confirmed to the commissioner that he signed a Notice of Hearing Rights

16 Form several months before the hearing (April 30, 2015), and that his assigned correctional

17 counselor went over the hearing rights with him. Maciel Decl. ¶ 3, Ex. A at 9:1-17. Plaintiff and

18 Attorney Christensen were asked whether Plaintiff’s rights were met so far to continue with the

19 hearing. Maciel Decl. ¶ 3, Ex. A at 9:14-10:20. Plaintiff stated that he was provided a copy of the

20 CRA report at the hearing, and that he needed more time to prepare his objections. Id. Thus, the

21 hearing was postponed to give Plaintiff a chance to review the CRA report and prepare his

22 responses. Maciel Decl. ¶ 3, Ex. A at 13:15-14:19, 17:23-19:6. At the hearing, Plaintiff was

23 informed that documents he provided to the hearing panel (a total of 77 pages) were scanned and

24 added to his BPH files, and the originals were returned to him. Maciel Decl. ¶ 3, Ex. A at 19:3-22.

25 Plaintiff was not denied parole during this hearing. Maciel Decl. ¶ 3, Ex. A at 21:4-11.

26 2. March 22, 2016 Parole Hearing

27 Plaintiff’s next parole hearing took place on March 22, 2016, before Defendant Anderson,

1 Plaintiff reviewed his C-file on January 15, 2016. Galvan Decl. ¶ 7, Ex. B at 130-131. At the

2 March 22, 2016 hearing, Plaintiff elected to represent himself and waived representation by an

3 attorney. Maciel Decl. ¶ 4, Ex. B at 31:20-32:24. During the hearing, Plaintiff stated that his

4 parole-hearing rights were not met because his documents were not included in the BPH’s file.

5 Maciel Decl. ¶ 4, Ex. B at 44:21-48:23. Defendant Anderson allowed Plaintiff to submit up to 20

6 pages of documents at the hearing, but Plaintiff stated that he wanted to submit 112 pages of

7 documents and an additional 20-page response to the psychological risk assessment report.

8 Maciel Decl. ¶ 4, Ex. B at 49:3-50:1, 52:16-21. Defendant Anderson informed Plaintiff that under

9 the rules, he could only submit up to 20 pages of documents on the day of the hearing. Maciel

10 Decl. ¶ 4, Ex. B at 50:2-11. The hearing panel took a short recess to allow Plaintiff time to

11 identify the documents he wanted to submit. Maciel Decl. ¶ 4, Ex. B at 51:4-52:8. After a recess,

12 the panel informed Plaintiff that they had 77 pages of documents in Plaintiff’s C-File that he

13 submitted for the BPH’s review. Maciel Decl. ¶ 4, Ex. B at 56:23-57:10. Plaintiff stated that he

14 submitted 112 pages and that 35 pages were missing. Maciel Decl. ¶ 4, Ex. B at 57:6-10.

15 Therefore, the hearing was continued again to give Plaintiff an opportunity to include any missing

16 documents in his files. Maciel Decl. ¶ 4, Ex. B at 57:2-58:8. Defendant Anderson advised

17 Plaintiff to accept an attorney to help him in the next hearing process. Maciel Decl. ¶ 4, Ex. B at

18 56:7-14. Plaintiff was not denied parole during this hearing. Maciel Decl. ¶ 4, Ex. B at 57:21-

19 58:18.

20 3. September 8, 2016 Parole Hearing

21 On September 8, 2016, Plaintiff, who again elected to represent himself, attended his

22 parole hearing before Defendant Anderson. Maciel Decl. ¶ 5, Ex. C at 61, 63:4-65:5. Plaintiff

23 was provided with notice of the hearing and his hearing rights three months earlier on June 3,

24 2016, and again a month before the hearing on August 5, 2016. Maciel Decl. ¶¶ 6-8, Exs. D-F;

25 Maciel Decl. ¶ 5, Ex. C at 65:7-11. On August 5, 2016, Plaintiff declined to review his C-file

26 records. Galvan Decl. ¶ 7, Ex. B at 130-131. Plaintiff submitted documents in support of his case

27 for parole suitability before the hearing, and the hearing panel confirmed receiving and

1 reviewed Plaintiff’s C-file prior to the hearing. Maciel Decl. ¶ 5, Ex. C at 64:24-25. During the

2 hearing, Plaintiff was given further opportunity to submit additional documents in support of his

3 case for parole-suitability consideration. Maciel Decl. ¶ 5, Ex. C at 69:1-16. At the beginning of

4 the hearing, Plaintiff requested to return to his cell and retrieve “some papers” that would help him

5 to “make [his] presentation,” but Defendant Anderson denied the request stating that Plaintiff

6 knew about the hearing for a long time, and he should have brought the alleged presentation

7 papers with him. Maciel Decl. ¶ 5, Ex. C at 66:15-68:15. Plaintiff also objected to the presence of

8 Madera County District Attorney’s representative at the hearing, but Defendant Anderson

9 overruled Plaintiff’s objection. Maciel Decl. ¶ 5, Ex. C at 69:20-70:8.

10 The parole hearing took more than three hours, and the following topics and issues were

11 raised and discussed: (1) a CRA report prepared by Dr. Carmen; (2) Plaintiff’s objection to Dr.

12 Carmen’s CRA report; (3) Plaintiff’s background information and visitation history; (4) Plaintiff’s

13 arrest and conviction history; (5) post-conviction factors including Plaintiff’s rules-violation

14 reports, education, certificates of accomplishments, work, self-help, and custody level while at

15 CDCR; (6) the facts of the commitment offense and Plaintiff’s attitude towards the offense; and

16 (7) letters of support. Maciel Decl. ¶ 5, Ex. C at 70:16-85:11, 139:11-163:3; 139:11-144:15, 177-

17 178; 71:2-72:8; 80:19-103:3, 106:12-25; 103:13-106:7, 107:4-126:9, 126:15-127:20; 88:23-

18 103:12; and 134:3-138:10. Plaintiff was further given multiple opportunities to add any issue,

19 information, or document that was not covered during the parole-suitability hearing or that was not

20 included in the record. Maciel Decl. ¶ 5, Ex. C at 133:20-25, 138:19-25, 161:3-4, 176:1-6.

21 Plaintiff actively participated in the hearing by asking and responding to questions. Maciel Decl.

22 ¶ 5, see generally Ex. C. And Plaintiff laid out the reasons why he was suitable for parole

23 including his stable social history; good relationships with his mother, siblings, and friends;

24 remorse for past wrong doings; that he was not a danger to society; that he paid for the crime; did

25 not participate in violence in prison; and that he was old enough to know better. Maciel Decl. ¶ 5,

26 Ex. C at 176:14-181:7. Defendant Anderson commended Plaintiff for using the legal process to

27 remove the “sex offender” designation from his file and putting the issue off the table. Maciel

1 Plaintiff was denied parole, however, because the panel determined that despite some

2 circumstances of suitability, Plaintiff posed an unreasonable risk of danger to society. Maciel

3 Decl. ¶ 5, Ex. C at 183:3-13. Specifically, the panel determined that Plaintiff’s conviction offense

4 was atrocious and cruel, Plaintiff had an unstable social history with lengthy criminal conduct,

5 Plaintiff lacked a lengthy period of positive rehabilitation, he failed to show adequate signs of

6 remorse and taking full responsibility, he blamed his criminal conduct on everyone else including

7 the victim, he gave conflicting statements during and prior to the hearing, he tried to minimize

8 every crime that he had committed, he was unable to follow rules and regulations in prison and

9 blamed correctional officers for his rules-violation reports at prison, he suffered antisocial-

10 personality disorder, was unable to understand what it was going take for him to be successful on

11 parole, and he stated during the hearing that he was willing to use force to resist what he considers

12 an unlawful order. Maciel Decl. ¶ 5, Ex. C at 183-197; id., ¶ 10, Ex. H. All these reasons were

13 explained to Plaintiff at the hearing. Id.

14 At the end of the September 8, 2016 hearing, Defendant Anderson advised Plaintiff what

15 he needed to do to improve his chances of getting parole the next time. Maciel Decl. ¶ 5, Ex. C at

16 195:22-196:24. The denial of Plaintiff’s parole on September 8, 2016 has not been reversed or

17 invalidated by a court or administrative decision. Maciel Decl. ¶ 11.

18 D. Plaintiff’s Parole-Related Documents

19

Plaintiff alleges that on July 26, 2016, he submitted the following documents for inclusion

20

to the BPH section of his C-file: (1) Written Response to File Materials, (2) Memorandum/[Cal.

21

Code Regs., tit. 15 §] 2236 Prisoner’s Version, (3) 37-Page Documentary Evidence Volume,

22

(4) 53-Page (Trial) Reporter’s Transcript Excerpts Volume, and (5) CRA Objection, Challenge

23

and Rebuttal. Dkt. 31 at 14-15; Galvan Decl. ¶ 6, Ex. A. On July 28, 2016, all five records that

24

Plaintiff submitted for inclusion into his file were scanned into the BPH section of his C-File.

25

Galvan Decl. ¶ 6, Ex. A.

26

III. LEGAL STANDARD

27

Summary judgment is proper where the pleadings, discovery, and affidavits demonstrate

1 that there is “no genuine issue as to any material fact and that the moving party is entitled to

2 judgment as a matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect the

3 outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a

4 material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for

5 the nonmoving party. Id.

6 The party moving for summary judgment bears the initial burden of identifying those

7 portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue

8 of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will

9 have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable

10 trier of fact could find other than for the moving party. On an issue for which the opposing party

11 by contrast will have the burden of proof at trial, as is the case here, the moving party need only

12 point out “that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325.

13 Once the moving party meets its initial burden, the nonmoving party must go beyond the

14 pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a

15 genuine issue for trial.” Fed. R. Civ. P. 56(e). The court is only concerned with disputes over

16 material facts and “[f]actual disputes that are irrelevant or unnecessary will not be counted.”

17 Anderson, 477 U.S. at 248. It is not the task of the court to scour the record in search of a genuine

18 issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party

19 has the burden of identifying, with reasonable particularity, the evidence that precludes summary

20 judgment. Id. If the nonmoving party fails to make this showing, “the moving party is entitled to

21 a judgment as a matter of law.” Celotex, 477 U.S. at 323.

22 For purposes of summary judgment, the court must view the evidence in the light most

23 favorable to the nonmoving party; if the evidence produced by the moving party conflicts with

24 evidence produced by the nonmoving party, the court must assume the truth of the evidence

25 submitted by the nonmoving party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999).

26 The court’s function on a summary judgment motion is not to make credibility determinations or

27 weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv., Inc. v.

1 A district court may only consider admissible evidence in ruling on a motion for summary

2 judgment. See Fed. R. Civ. P. 56(e); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002).

3 In support of the motion for summary judgment, Defendants have presented declarations and

4 supporting exhibits from BPH Chief Deputy of Program Operations S. Maciel and CTF Litigation

5 Coordinator and Custodian of Records E. Galvan. Dkts. 68-1 to 68-5. Meanwhile, Plaintiff has

6 filed his declaration and supporting exhibits in support of his motion for summary judgment.

7 Dkts. 46-1 to 46-2. Plaintiff has also filed his verified complaint and opposition. Dkt. 1 at 28;

8 Dkt. 72 at 10. The Court construes his complaint and opposition as affidavit under Federal Rule

9 of Civil Procedure 56, insofar as it is based on personal knowledge and sets forth specific facts

10 admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir.

11 1995). However, “self-serving affidavits are cognizable to establish a genuine issue of material

12 fact so long as they state facts based on personal knowledge and are not too conclusory.”

13 Rodriguez v. Airborne Express, 265 F.3d 890, 902 (9th Cir. 2001).

14 When the parties file cross-motions for summary judgment, the district court must consider

15 all of the evidence submitted in support of both motions to evaluate whether a genuine issue of

16 material fact exists precluding summary judgment for either party. The Fair Housing Council of

17 Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1135 (9th Cir. 2001).

18

IV. DISCUSSION

19

A. Defendants’ Motion for Summary Judgment

20

1. Official Capacity Claims

21

Plaintiff seeks monetary relief from Defendants in their individual and official capacities.

22

However, Defendants argue that Plaintiff’s claims for monetary damages against them in their

23

official capacities are barred by the Eleventh Amendment. Dkt. 68 at 24.

24

The Eleventh Amendment to the United States Constitution bars from the federal courts

25

suits against a state by its own citizens, citizens of another state, or citizens or subjects of any

26

foreign state. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 237-38 (1985) abrogated on other

27

grounds as noted in Lane v. Pena, 518 U.S. 187, 198 (1996). Unless a state has waived its

1 Eleventh Amendment immunity or Congress has overridden it, a state cannot be sued regardless of

2 the relief sought. Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985). Eleventh Amendment

3 immunity extends to suits against a state agency, Brown v. Cal. Dep’t of Corrs., 554 F.3d 747, 752

4 (9th Cir. 2009) (CDCR and BPH entitled to Eleventh Amendment immunity), and to suits for

5 damages against state officials sued in their official capacities, Kentucky v. Graham, 473 U.S. 159,

6 169-70 (1985). California has not waived its Eleventh Amendment immunity with respect to

7 claims brought under Section 1983 in federal court. Dittman v. California, 191 F.3d 1020, 1025-

8 26 (9th Cir. 1999). Therefore, because the CDCR and the BPH are state agencies, their

9 employees, who are the aforementioned Defendants, sued in their official capacities are immune

10 from suit for monetary damages.

11 Accordingly, Plaintiff’s claims for monetary damages against Defendants in their official

12 capacities are DISMISSED as barred by the Eleventh Amendment.3 Because it is clear that this

13 jurisdictional bar cannot be cured by further amendment to the complaint, the dismissal of

14 Plaintiff’s claims against Defendants in their official capacities is without leave to amend. As

15 such, Defendants’ motion for summary judgment is GRANTED as to all claims against

16 Defendants in their official capacities. Dkt. 68.

17 2. Due Process Claim

18 The Due Process Clause of the Fourteenth Amendment protects individuals against

19 governmental deprivations of “life, liberty or property,” as those words have been interpreted and

20 given meaning over the life of our republic, without due process of law. Board of Regents v. Roth,

21 408 U.S. 564, 570-71 (1972); Mullins v. Oregon, 57 F.3d 789, 795 (9th Cir. 1995).

22 The standard analysis for a procedural due process claim “proceeds in two steps: [courts]

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

24 and if so [they] ask whether the procedures followed by the State were constitutionally sufficient.”

25 Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (citing Kentucky Dept. of Corr. v. Thompson, 490

26 U.S. 454, 460 (1989)). Interests that are procedurally protected by the Due Process Clause may

27

1 arise from two sources—the Due Process Clause itself and laws of the states. See Meachum v.

2 Fano, 427 U.S. 215, 223-27 (1976). “There is no right under the Federal Constitution to be

3 conditionally released before the expiration of a valid sentence, and the States are under no duty to

4 offer parole to their prisoners.” Cooke, 562 U.S. at 220 (citing Greenholtz v. Inmates of Nebraska

5 Penal & Corr. Complex, 442 U.S. 1, 7 (1979)). Thus, any liberty interest arising out of

6 California’s statutory scheme granting its prisoners the right to parole is “a state interest created

7 by California law.” Id. (emphasis in original); see also Sandin v. Conner, 515 U.S. 472, 483-84

8 (1995) (States “may under certain circumstances create liberty interests which are protected by the

9 Due Process Clause.”).

10 a. State-Created Liberty Interest in Parole

11 While there is “no constitutional or inherent right of a convicted person to be conditionally

12 released before the expiration of a valid sentence,” Greenholtz v. Inmates of Nebraska Penal &

13 Corr. Complex, 442 U.S. 1, 7 (1979), a State’s statutory parole scheme, if it uses mandatory

14 language, may create a presumption that parole release will be granted when or unless certain

15 designated findings are made, and thereby give rise to a constitutionally protected liberty interest.

16 See Board of Pardons v. Allen, 482 U.S. 369, 376-78 (1987); Greenholtz, 442 U.S. at 11-12. In

17 such a case, a prisoner gains a legitimate expectation in parole that cannot be denied without

18 adequate procedural due process protections. See Allen, 482 U.S. at 373-81; Greenholtz, 442 U.S.

19 at 11-16. The Ninth Circuit has held that “California’s parole scheme gives rise to a cognizable

20 liberty interest in release on parole.” McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002).

21 b. Sufficiency of Process

22 Once a court has determined that the alleged deprivation implicates a cognizable liberty

23 interest, the next step in the due process analysis is to determine whether “the procedures followed

24 by the State were constitutionally sufficient.” Cooke, 562 U.S. at 219. The Supreme Court has

25 held that, in the context of parole, “the procedures required are minimal.” Id. at 220. Adequate

26 process is afforded to prisoners in the parole context so long as they are “allowed an opportunity

27 to be heard” and are “provided a statement of the reasons why parole was denied,” id.; “[t]he

1 The inaccuracy of records compiled or maintained by the government is not, standing

2 alone, sufficient to state a claim of constitutional injury under the due process clause of the

3 Fourteenth Amendment. Paul v. Davis, 424 U.S. 693, 711-14 (1976); see also Reyes v. Supervisor

4 of DEA, et al., 834 F.2d 1093, 1097 (1st Cir. 1987) (no claim presented where inmate failed to

5 allege false information maintained by police department relied upon to deprive him of

6 constitutionally protected interest); Pruett v. Levi, 622 F.2d 256, 258 (6th Cir. 1980) (mere

7 existence of inaccuracy in FBI criminals files not state constitutional claim). In certain limited

8 circumstances, however, a claim of constitutional magnitude may be raised where a prisoner

9 alleges 1) that information is in his file, 2) that the information is false, and 3) that it is relied on to

10 a constitutionally significant degree. Paine v. Baker, 595 F.2d 197, 201 (4th Cir.), cert. denied,

11 444 U.S. 925 (1979); cf. Hernandez v. Johnston, 833 F.2d 1316, 1319 (9th Cir. 1987) (Ninth

12 Circuit refusing to reach whether “in proper case” there may be constitutional right grounded in

13 due process clause to accurate prison records). If the information is relied upon to deny parole or

14 statutory good-time credits, or to revoke probation or parole, the inmate’s conditional liberty

15 interest is at stake, and the due process clause is called into play. Paine, 595 F.2d at 202. An

16 adverse decision in such matters as transfer or status classification may also have collateral

17 consequences touching on the liberty interest. Id. An administrative decision regarding such

18 purely internal matters as work assignments, however, cannot be said to reasonably affect a liberty

19 interest. Id. Further, if the error is merely technical, no claim for relief will lie. Id. Federal

20 jurisdiction will exist over such a claim only if the prisoner has first made a request for expunction

21 to prison officials, which has been denied. Id.

22 c. Analysis

23 Plaintiff generally alleges that Defendants violated his due process rights in connection

24 with his parole hearings on November 17, 2015, March 22, 2016, and September 8, 2016. Dkt. 46

25 at 20. Specifically, Plaintiff alleges that, pursuant to the liberty interest created by California’s

26 parole scheme, he was entitled to and deprived of certain procedures including the right to speak at

27 his parole hearings, to contest the evidence against him, and to submit written material for

1 the “defendants’ use of controverted practice, procedures and policies that circumvent[ed] the

2 intent of the state codes, rules and regulations” and further imposed on him “atypical and

3 significant hardship.” Dkt. 46 at 20. Plaintiff further alleges that Defendants engaged in

4 a systematic course of conduct that reveals the pattern of blocking

[his] efforts to enter written responses to unduly inserted false

5 narratives and other untrue indicia contained in his file and of

obstructing the presentment, on the record, of mitigating documentary

6 evidence and material squelching [him] during proceedings wherein

[he] is entitled to speak, all done as a false narrative and untrue record

7 building maneuver.

Dkt. 31 at 6-7; see also id. While Plaintiff accurately identifies the minimum due process required

8

in the context of parole, he contends that he was not afforded the opportunity to be heard or to

9

refute the allegedly false evidence presented against him. Dkt. 46 at 21. Meanwhile, Defendants

10

assert that Plaintiff was afforded all procedural protections required under the Constitution. Dkt.

11

68 at 16-19. The Court agrees with Defendants.

12

Although there is “no constitutional or inherent right of a convicted person to be

13

conditionally released before the expiration of a valid sentence,” Greenholtz v. Inmates of Neb.

14

Penal & Corr. Complex, 442 U.S. 1, 7 (1979), a state’s statutory parole scheme, if it uses

15

mandatory language, may create a presumption that parole release will be granted when or unless

16

certain designated findings are made, and thereby give rise to a constitutionally protected liberty

17

interest, see Bd. of Pardons v. Allen, 482 U.S. 369, 376-78 (1987) (Montana parole statute

18

providing that board “shall” release prisoner, subject to certain restrictions, creates due process

19

liberty interest in release on parole); Greenholtz, 442 U.S. at 11-12 (Nebraska parole statute

20

providing that board “shall” release prisoner, subject to certain restrictions, creates due process

21

liberty interest in release on parole). In such a case, a prisoner gains a legitimate expectation in

22

parole that cannot be denied without adequate procedural due process protections. See Allen, 482

23

U.S. at 373-81; Greenholtz, 442 U.S. at 11-16.

24

In Swarthout v. Cooke, 562 U.S. 216, 220 (2011), the Supreme Court explained that, in the

25

context of parole, its earlier cases had “held that the procedures required are minimal.” The Court

26

earlier had “found that a prisoner subject to a parole statute similar to California’s received

27

1 the reasons why parole was denied.” Id. at 220 (citing Greenholtz, 442 U.S. at 16); see Miller v.

2 Or. Bd. of Parole and Post-Prison Supervision, 642 F.3d 711, 716 (9th Cir. 2011) (“The Supreme

3 Court held in Cooke that in the context of parole eligibility decisions the due process right is

4 procedural, and entitles a prisoner to nothing more than a fair hearing and a statement of reasons

5 for a parole board’s decision[.]”) (emphasis in original).

6 Here, the undisputed evidence shows that Plaintiff was provided with these minimal

7 protections. First, Defendants did not violate Plaintiff’s due process rights in connection with the

8 November 17, 2015 and March 22, 2016 parole hearings because Plaintiff was not denied parole

9 in either of those hearings. Maciel Decl. ¶ 3, Ex. A at 21:4-11; Maciel Decl. ¶ 4, Ex. B at 57:21-

10 58:18. Moreover, both of those hearings were postponed to future dates to give Plaintiff an

11 opportunity to review the CRA report and prepare his responses, and to give Plaintiff an

12 opportunity to include any missing documents in his C-file. Maciel Decl. ¶ 3, Ex. A at 13:15-

13 14:19, 17:23-19:6; Maciel Decl. ¶ 4, Ex. B at 57:2-58:8. Further, Plaintiff concedes in his

14 opposition that he was not denied parole at either the November 17, 2015 or the March 22, 2016

15 parole hearings and that both were postponed to future hearing dates for his benefit. Dkt. 72-1 at

16 2-3, 9-12. Defendants argue that Plaintiff cannot state a due process claim against them “merely

17 because the hearings were postponed to accommodate his requests.” Dkt. 68 at 17. Again, the

18 Court agrees with Defendants. As discussed above, California law allows a parole suitability

19 hearing panel chair to postpone or continue an inmate’s parole hearing upon its own motion or at

20 the request of the inmate for various reasons, including to allow the inmate to prepare required

21 documents, as in the present case. See Cal. Code Regs., tit. 15 § 2253(d)-(e). To show a due

22 process violation from a delayed hearing, a prisoner must show prejudice from the delay. See

23 Camacho v. White, 918 F.2d 74, 78-80 (9th Cir. 1990). However, the Court finds that Plaintiff has

24 failed to demonstrate prejudice resulting from any delay because he was denied parole at the

25 delayed hearing on September 8, 2016. Furthermore, the record shows that Plaintiff waived any

26 claim based on any alleged delayed hearings because he consented to postponing the hearings.

27 See Maciel Decl. ¶ 3, Ex. A at 17:23-23:13; Maciel Decl. ¶ 4, Ex. B at 55:19-58:18.

1 Plaintiff was given two advance notices of his parole suitability hearing on June 3, 2016 and on

2 August 5, 2016. See Maciel Decl. ¶¶ 6-8, Exs. D-F; Maciel Decl. ¶ 5, Ex. C at 65:7-11. Plaintiff

3 was allowed to submit documents in support of his case for parole suitability prior to the hearing.

4 See Maciel Decl. ¶ 5, Ex. C at 68:16-25. Prior to the hearing, the documents he submitted in

5 support of his parole suitability application were scanned into his prison file. See Galvan Decl.

6 ¶ 6, Ex. A. Defendants argue that Plaintiff cannot maintain a due process claim against any

7 Defendant based on the September 8, 2016 parole hearing because he was “provided with all the

8 process that he was due.” Dkt. 68 at 18. The Court agrees. As mentioned above, in Cooke, the

9 Supreme Court found that inmates subject to California’s parole statute received adequate process

10 because they “were allowed to speak at their parole hearings and to contest the evidence against

11 them, were afforded access to their records in advance, and were notified as to the reasons why

12 parole was denied.” 562 U.S. at 220.

13 As to the first requirement relating to “an opportunity to be heard,” Plaintiff was given an

14 opportunity to testify at length concerning various parole suitability factors and to speak to the

15 panel throughout the parole hearing (which was over three hours long), including submitting

16 documents in support of his case for parole suitability prior to the hearing for the panel’s

17 consideration, and was given an opportunity to make a closing statement. See Maciel Decl. ¶ 5,

18 Ex. C at 175:3-181:10; see also Dkt. 72-2 at 16. Specifically, Plaintiff testified at length that he

19 was suitable for parole and why certain records including Dr. Carmen’s CRA report should not be

20 considered in determining his parole suitability, see Maciel Decl. ¶ 5, Ex. C at 70:16-85:11,

21 139:11-163:3; 139:11-144:15, 177-178; 71:2-72:8; 80:19-103:3, 106:12-25; 103:13-106:7, 107:4-

22 126:9, 126:15-127:20; 88:23-103:12; and 134:3-138:10. Moreover, Plaintiff was given multiple

23 further opportunities to add any issue, information, or document that was not covered during the

24 hearing or that was not included in the record. See Maciel Decl. ¶ 5, Ex. C at 133:20-25, 138:19-

25 25, 161:3-4, 176:1-6. Secondly, after the panel members conferred, they found Plaintiff to be

26 unsuitable for parole release and provided him with a statement of reasons for their denial. Maciel

27 Decl. ¶ 5, Ex. C at 183-197; id., ¶ 10, Ex. H. As long as the prisoner received at least that much

1 640 F.3d 1042, 1047 (9th Cir. 2011) (substantive due process claim fails because petitioner

2 “received all of the process to which he was due under the applicable tests from Greenholtz and

3 Cooke”). The Ninth Circuit recognized that Cooke clearly holds that the “responsibility for

4 assuring that the constitutionally adequate procedures governing California’s parole system are

5 properly applied rests with California courts.” Roberts, 640 F.3d at 1047 (quoting Cooke, 562

6 U.S. at 222). Therefore, because the record shows Plaintiff was provided the minimal procedural

7 protections, his complaint does not establish a due process violation.

8 In opposition, Plaintiff asserts that his “opportunity to be heard and to challenge the

9 evidence against him was clearly violated by experts.” Dkt. 72 at 7. Specifically, Plaintiff

10 contends that the “[s]ubmitted documents were not entered into the file, not considered, and not

11 included and incorporated by reference into the record of the hearing” in violation of California

12 Code of Regulations, tit. 15, § 2254. Dkt. 72-2 at 7. In support of this argument, Plaintiff offers

13 as evidence a statement by Defendant Anderson that Plaintiff was trying to “rewrite” the file. Id.

14 (citing Maciel Decl. ¶ 4, Ex. B at. 38:2-3). However, this statement was made at the March 22,

15 2016 hearing. See Maciel Decl. ¶ 4, Ex. B. As the Court previously discussed, Defendants did not

16 violate Plaintiff’s due process rights in connection with the March 22, 2016 parole hearings

17 because Plaintiff was not denied parole at that hearing. See Maciel Decl. ¶ 4, Ex. B at 57:21-

18 58:18. To the extent that Plaintiff’s argument amounts to a challenge to the panel’s decision to

19 deny parole on September 8, 2016, the Court finds that Plaintiff was provided the minimum

20 protections and thus, there is no further federal due process inquiry. See Cooke, 562 U.S. at 220-

21 22.

22 Finally, Plaintiff’s amended complaint alleges that his prison file contained false,

23 inaccurate and incomplete information, which was unfairly used against him at his September 8,

24 2016 parole hearing. See Dkt. 31 at 18. If such false information was relied upon to deny parole,

25 Plaintiff’s conditional liberty interest could be at stake, and the due process clause may be called

26 into play. See Paine, 595 F.2d at 202. However, Plaintiff offers only conclusory allegations,

27 which do not amount to a due process violation. For example, he does not elaborate on which

1 denying parole. Whereas, the record reflects that the panel denied parole primarily because it

2 determined that despite some circumstances of suitability, Plaintiff posed an unreasonable risk of

3 danger to society. Maciel Decl. ¶ 5, Ex. C at 183:3-13. Although self-serving affidavits may

4 establish a genuine issue of material fact, they may do so only when “they state facts based on

5 personal knowledge and are not too conclusory.” Rodriguez, 265 F.3d at 902. Here, Plaintiff’s

6 allegations in his amended complaint that related to his prison file containing false, inaccurate and

7 incomplete information are conclusory assertions and are insufficient to establish a genuine issue

8 of material fact. See id. Plaintiff has proffered no foundational evidentiary support for his

9 assertions that Defendants relied on such false, inaccurate and incomplete information to deny

10 parole, and the record indicates the contrary. Specifically, the panel denied parole for various

11 reasons, including the atrocity of Plaintiff’s conviction offense, lengthy history of criminal

12 conduct, failure to show adequate remorse or to take full responsibility, blaming his criminal

13 conduct on everyone else including the victim, and inability to follow prison rules and regulations,

14 among others. See Maciel Decl. ¶ 5, Ex. C at 183-197; id., ¶ 10, Ex. H. Moreover, as mentioned

15 above, the denial of Plaintiff’s parole on September 8, 2016 has not been reversed or invalidated

16 by a court or administrative decision. See Maciel Decl. ¶ 11.

17 Based on the evidence presented, Defendants have shown that there is no genuine issue of

18 material fact with respect to Plaintiff’s due process claim. See Celotex Corp., 477 U.S. at 323. In

19 response, Plaintiff has failed to point to specific facts showing that there is a genuine issue for

20 trial, id. at 324, or identify with reasonable particularity the evidence that precludes summary

21 judgment, Keenan, 91 F.3d at 1279. Accordingly, Defendants are entitled to judgment as a matter

22 of law on this claim. Id.; Celotex Corp., 477 U.S. at 323. Therefore, Defendants’ motion for

23 summary judgment is GRANTED.4

24 B. Plaintiff’s Motion for Summary Judgment

25 In resolving Defendants’ motion, and in considering whether a triable issue of fact exists,

26 the Court has reviewed the evidence and argument in Plaintiff’s motion for summary judgment.

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1 The evidence and argument in the Plaintiff’s motion for summary judgment do not defeat

2 || Defendants’ motion. Having determined that Defendants are entitled to judgment as a matter of

3 law because there is no genuine issue of material fact with respect to Plaintiff’s due process claim,

4 || Plaintiff’s motion for summary judgment is necessarily DENIED. Dkt. 46.

5 Vv. CONCLUSION

6 For the reasons outlined above, the Court rules as follows:

7 1. Defendants’ motion for summary judgment is GRANTED. Dkt. 68.

8 2. Plaintiff's motion for summary judgment is DENIED. Dkt. 46.

9 3. The Clerk of the Court shall terminate all remaining motions as moot, including

10 || Plaintiff’s renewed motion for referral to the Court’s Alternative Dispute Resolution Program, his

11 motion for joinder of parties, and Defendants’ motion to strike Plaintiff’s improper separate

12 statement of facts. Dkts. 51, 55,59. The Clerk shall also close the file.

13 4. This Order terminates Docket Nos. 46, 51, 55, 59 and 68.

IT IS SO ORDERED.

3 15 Dated: September 27, 2019

16 ‘apres Hag of Ceca

ONNE GONZALEZ ROGERS

17 nited States District Judge

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