Cavalier v. Newsom

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 ROBERT THOMAS CAVALIER, Case No. 3:20cv1615-MMA-DEB

CDCR #E-98747,

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ORDER GRANTING MOTION TO

Plaintiff,

13 PROCEED IN FORMA PAUPERIS;

vs.

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[Doc. No. 2]

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GAVIN NEWSOM, Governor; DENYING MOTION TO

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JOHN DOE, Director of BPH Operations; WITHDRAW AND DISMISS

17 RANDY GROUNDS, BPH “CAVALIER v. POLLARD”

Commissioner; RALPH DIAZ, AS MOOT;

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CDCR Secretary,

19 Defendants. [Doc. No. 3]

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DISMISSING COMPLAINT FOR

21 FAILING TO STATE A CLAIM

PURSUANT TO 28 U.S.C. § 1915(e)(2)

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AND § 1915A(b)

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25 Plaintiff Robert Thomas Cavalier, currently incarcerated at Richard J. Donovan

26 Correctional Facility (“RJD”) and proceeding pro se, has filed this civil rights action

27 pursuant to 42 U.S.C. § 1983. See “Compl.,” Doc. No. 1 at 1. Plaintiff claims the

28 Governor of California, the former Secretary of the California Department of Corrections

1 and Rehabilitation (“CDCR”), the Director of the Board of Parole Hearings (“BPH”), and

2 BPH Commissioner Randy Grounds (“Defendants”) violated his Eighth and Fourteenth

3 Amendment rights during a September 6, 2019 parole suitability hearing. Id. at 1-6. He

4 seeks no monetary damages, but instead requests injunctive relief prohibiting the

5 application of “Marsy’s Law” to his case, a “new forensic evaluation,” and

6 “consideration for COVID-19 release.” Id. at 6‒7.

7 Plaintiff did not prepay the civil filing fees required by 28 U.S.C. § 1914(a),

8 instead he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C.

9 § 1915(a). See Doc. No. 2. Plaintiff has also submitted a Motion requesting that another

10 civil action which he filed prematurely (“Cavalier v. Pollard”) be dismissed and or

11 withdrawn without prejudice (Doc. No. 3), a Declaration in support of his Complaint

12 (Doc. No. 5), and an Exhibit which he asks the Court to “attach” to his Eighth

13 Amendment claims (Doc. No. 6).1

14 I. Motion to Proceed IFP

15 All parties instituting any civil action, suit or proceeding in a district court of the

16 United States, except an application for writ of habeas corpus, must pay a filing fee of

17 $400.2 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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1 Plaintiff’s Exhibit is in fact a “Memorandum of Points and Authorities in Support of [a] Petition for Writ

21 of Habeas Corpus.” See Doc. No, 6 at 1. This Memorandum appears to have been submitted in support of

a separate petition for writ of habeas corpus Plaintiff filed in state court, but it includes no California

22 Superior, Appellate, or Supreme Court case number. The Memorandum asks that the State be ordered to

show cause why Plaintiff should not be “immediately release[d] … on parole” due to the COVID-19 state

23 of emergency and the “enhanced danger to incarcerated people.” Id. at 2, 14. However, a review of the

publicly available docket in the Second District of the California Court of Appeal indicates Plaintiff did

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file a petition for writ of habeas corpus in that Court on November 9, 2020. That petition remains pending.

25 See In re ROBERT CAVALIER on Habeas Corpus, Cal. Ct. App., Second Dist., Div. 2, Case No. B308733,

available at https://appellatecases .courtinfo.ca.gov/search/case/dockets.cfm?dist=2&doc_id=2333266

26 &doc_no=B308733&request_token=NiIwLSEmXkg%2BW0BNSCJdXEtIIFw6USxXIyBeWzlTQCAg

Cg%3D%3D (last visited Dec. 7, 2020).

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2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See

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1 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

2 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

3 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners who are granted leave to

4 proceed IFP remain obligated to pay the entire fee in “increments” or “installments,”

5 Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th

6 Cir. 2015), and regardless of whether their action is ultimately dismissed. See 28 U.S.C.

7 § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

8 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

9 “certified copy of the trust fund account statement (or institutional equivalent) for ... the

10 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

11 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

12 trust account statement, the Court assesses an initial payment of 20% of (a) the average

13 monthly deposits in the account for the past six months, or (b) the average monthly

14 balance in the account for the past six months, whichever is greater, unless the prisoner

15 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution

16 having custody of the prisoner then collects subsequent payments, assessed at 20% of the

17 preceding month’s income, in any month in which his account exceeds $10, and forwards

18 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. §

19 1915(b)(2); Bruce, 577 U.S. at 85‒86.

20 Plaintiff’s CDCR Inmate Statement Report and Prison Certificate shows that he

21 had no money in his trust account, carried no average monthly balance, and had no

22 deposits during the six months preceding the filing of this action. See Doc. No. 4 at 1, 3.

23 Based on this accounting, the Court GRANTS Plaintiff’s Motion to Proceed IFP (Doc.

24 No. 2) and assesses no initial partial filing fee. See 28 U.S.C. § 1915(b)(4) (providing that

25 “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a

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Oct. 1, 2019)). The additional $50 administrative fee does not apply to persons granted leave to proceed

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1 civil action or criminal judgment for the reason that the prisoner has no assets and no

2 means by which to pay the initial partial filing fee.”); Bruce, 577 U.S. at 86; Taylor, 281

3 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing

4 dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of

5 funds available to him when payment is ordered.”). The Court instead directs the

6 Secretary of the CDCR, or her designee, to collect the entire $350 balance of the filing

7 fees required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court pursuant to

8 the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

9 II. Motion to Withdraw/Dismiss “Cavalier v. Pollard”

10 Approximately two weeks before he filed this case, Plaintiff filed two separate

11 civil rights actions in Cavalier v. Newsom, et al., S.D. Cal. Civil Case No. 3:20-cv-

12 01398-MMA-KSC (“Newsom I”), and Cavalier v. Pollard, et al., S.D. Cal. Civil Case

13 No. 3:20-cv-1379-DMS-AHG (“Pollard”). All three cases name mostly the same

14 Defendants, and allege similar claims related to the validity of his September 6, 2019

15 parole suitability hearing. See Bias v. Moynihan, 508 F.3d 1212, 1255 (9th Cir. 2007)

16 (permitting court to take “‘notice of proceedings in other courts, both within and without

17 the federal judicial system, if those proceedings have a direct relation to matters at

18 issue.’”) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)).

19 Because the claims raised in Newsom I were deemed duplicative of those alleged

20 and still pending in Pollard, Newsom I was dismissed sua sponte pursuant to 28 U.S.C.

21 § 1915A(b)(1) without prejudice to Plaintiff’s pursuit of those claims in Pollard. See

22 Newsom I, S.D. Cal. Civil Case No. 3:20-cv-01398-MMA-KSC, Doc. No. 4.

23 While Pollard still remained pending, Plaintiff filed this case, Cavalier v. Newsom,

24 et al., S.D. Cal. Civil Case No. 3:20-01615-MMA-DEB (“Newsom II”), together with

25 another Motion to Proceed IFP, and followed by a “Motion to Withdraw and Dismiss”

26 Pollard. See Doc. No. 3. Plaintiff simultaneously filed an identical Motion to Withdraw

27 in Pollard. See S.D. Cal. Civil Case No. 3:20-cv-01379-DMS-AHG (Doc. No. 6).

28 In Plaintiff’s Motion to Withdraw and Dismiss, he admits his Complaint in Pollard

1 was incomplete at the time he filed it, and claims Newsom I better “articulate[d] what he

2 is trying to explain.” See Doc. No. 3 at 2‒3. Plaintiff acknowledges, however, that

3 Newsom I has already been dismissed without prejudice; therefore, he asks instead to

4 withdraw Pollard, and to proceed with his claims as they are alleged in this case,

5 Newsom II. Id. at 4‒5.

6 On September 10, 2020, Judge Sabraw construed Plaintiff’s Motion to Withdraw

7 Pollard as a Notice of Voluntary Dismissal pursuant to Fed. R. Civ. P. 41(a) and

8 dismissed that case without prejudice to pursuit of Plaintiff’s claims as re-alleged and

9 currently pending before this Court. See Pollard, S.D. Cal. Civil Case No. 3:20-cv-

10 01379-DMS-AHG (Doc. No. 7 at 3‒4). Thus, because Pollard has already been

11 dismissed, Plaintiff’s duplicate “Motion to Dismiss/Withdraw Cavalier v. Pollard” (Doc.

12 No. 3) is hereby DENIED as moot.

13 III. Screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

14 A. Standard of Review

15 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a

16 preliminary review pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

17 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion

18 thereof, if it is frivolous, malicious, fails to state a claim, or seeks damages from

19 defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000)

20 (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004

21 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to

22 ensure that the targets of frivolous or malicious suits need not bear the expense of

23 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation

24 omitted).

25 “The standard for determining whether a plaintiff has failed to state a claim upon

26 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

27 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

28 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

1 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

2 applied in the context of failure to state a claim under Federal Rule of Civil Procedure

3 12(b)(6)”).

4 Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to “contain

5 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

6 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted);

7 Wilhelm, 680 F.3d at 1121. And while the court “ha[s] an obligation where the petitioner

8 is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford

9 the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th

10 Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not

11 “supply essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents

12 of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

13 “Courts must consider the complaint in its entirety,” including “documents

14 incorporated into the complaint by reference” to be part of the pleading when

15 determining whether the plaintiff has stated a claim upon which relief may be granted.

16 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Schneider v. Cal.

17 Dep’t of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998); see also Fed. R. Civ. P. 10(c)

18 (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading

19 for all purposes.”).

20 B. Plaintiff’s Allegations

21 On September 6, 2019, Plaintiff claims to have appeared before the BPH

22 Commissioner Defendant Randy Grounds for a parole suitability hearing.3 See Compl. at

23 4. Plaintiff claims he submitted a “17-page written objection & axiomatic challenge to

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27 3 “The purpose of a parole suitability hearing is to determine if an inmate should be released from prison.

Parole suitability hearings are usually conducted in-person at the prison where the inmate is located.” See

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1 the BPH forensic CRA ([comprehensive] risk assessment)” sometime prior to the “onset

2 of the parole suitability hearing” based on a “multitude of factual errors, misleading

3 assertions, and hyper-conjecture utilized by the forensic psychologist (Reynoso) to

4 misdiagnose [him] with a ‘mental disorder.’” Id.; see also Pl.’s Decl. at 6.

5 Plaintiff also objected to Grounds’s “reconstruct[ion]” of his 1994 commitment

6 offense, one count of felony possession of weapon in jail in violation of Cal. Penal Code

7 § 4574(a) in Los Angeles Superior Court Case No. BA092651‒01, as violent. Id. at 3, 4,

8 5, 8; Pl.’s Decl. at 1.5 “At the spur of the moment,” and just “seconds into the record,”

9 Plaintiff admits Grounds “understood” that there were “problems with the CRA,” stated:

10 “[W]e are not going to consider []or use [it],” and “immediately withdrew the CRA from

11 the record.” See Compl. at 4, 13. Plaintiff nevertheless claims Grounds then proceeded

12 to commit a “sequence of due process violations,” by “illicitly impos[ing] an added term

13 of confinement” under Marsy’s Law “ex post facto,” by considering his “admissions of

14 an uncharged crime,” and by failing to “afford [him] equal administration of law” when

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19 4 Before a parole suitability hearing, the Forensic Assessment Division of BPH issues a Comprehensive

Risk Assessment (“CRA”) to all inmates. The purpose of the risk assessment is to help identify an inmate’s

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“potential for future violence and protective factors that could minimize his or her risk if released to the

21 community.” See https://www.cdcr.ca.gov/bph/ divisions/fad/ (last visited Dec. 7, 2020).

22 5 “In 1994, [Plaintiff] was convicted of possession of a deadly weapon in jail, a shank, in violation of

Penal Code section 4574, subdivision (a) [footnote omitted]. He also admitted two prior serious felony

23 convictions within the meaning of the ‘Three Strikes’ Law (§ 667, subds. (b)‒(i)), and two prior prison

terms within the meaning of section 667.5, subdivision (b). He was sentenced to a total prison term of 27

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years to life.” People v. Cavalier, 2018 WL 1622580, at *1 (Cal. Ct. App. 2d District, Div. 2, April 5,

25 2018). After the passage of California’s Proposition 36 (the Three Strikes Reform Act), Plaintiff filed a

petition for resentencing, arguing that the weapons he possessed, two six‒inch tooth brush handles …

26 modified by removing the bristles from the heads and sharpening the opposite ends into points,” were not

“deadly weapons, and that he was not “armed” within the meaning of Cal. Penal Code § 667(e)(2)(C)(iii)

27 and § 1170.12(c)(2)(C)(iii). Id. at *2. Both the trial court and the Court of Appeal rejected those

arguments. Id. at *3‒8.

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1 he denied Plaintiff release on parole for 7 years without considering the “conflict”

2 between California Propositions 9 & 57.6 Id. at 3, 5. 11‒12; Pl.’s Decl. at 1‒4.

3 Plaintiff further contends Grounds, together with Governor Newsom, and the

4 unidentified Director of BPH Operations, “knowingly promulgated racism” in denying

5 him parole on September 6, 2019, because “each … is responsible for the hidden

6 vernaculars used to disproportionately stif[]le, stricken, harden, or otherwise impede the

7 fair hearing and adjudication process,” and “the parole system is a mega chapter of a

8 systematically racist bias and unjust mass incarceration experiment stemming from the

9 fruits of the tree of evil.” Compl. at 6; Pl.’s Decl. at 5.

10 Finally, Plaintiff claims the denial of parole “now jeopardizes [his] health and

11 welfare” because he suffers from chronic asthma and bronchitis, and “stands to suffer

12 irreparable harm” should he contract COVID-19 after spending “decades behind bars.”

13 Compl. at 3. Plaintiff contends Defendants Grounds, Governor Newsom, the BPH

14 Director, and CDCR’s former Secretary Ralph Diaz have thus imposed cruel, unusual and

15 excessive punishment upon him in violation of the Eighth Amendment rights by “failing

16 to protect” him from the “iatro[ge]nic” “crisis in California prisons.” Id.; see also Pl.’s

17 Decl. at 6.

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6 California’s Proposition 57, passed in 2016, added a provision to the California Constitution to read:

21 “[a]ny person convicted of a nonviolent felony offense and sentenced to a state prison shall be eligible for

parole consideration after completing the full term for [their] primary offense.” Cal. Const. art. I, § 32,

22 subd. (a)(1) (hereafter [§] 32(a)(1)) (emphasis added). Section 32(a)(1)(A) defines “the full term for the

primary offense” as “the longest term of imprisonment imposed by the court for any offense, excluding

23 the imposition of an enhancement, consecutive sentence, or alternative sentence.” See In re Edwards, 26

Cal. App. 5th 1181, 1184 (Cal. Ct. App. 2018); Harrington v. Covello, No. 19-CV-1824-LAB-RBM, 2020

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WL 3270826, at *2 (S.D. Cal. June 17, 2020). “Marsy’s Law, which was passed by the California

25 electorate in 2008 as Proposition 9, amended the California Constitution and added provisions to the Penal

Code in order to strengthen and increase the number of crime victims’ rights.” People v. Marquez, 56

26 Cal. App. 5th 40, 97‒97 (2020) (citing People v. Johns, 50 Cal.App.5th 46, 68 (2020)). “Marsy’s Law

amended the California Constitution to grant crime victims the right ‘[t]o a speedy trial and a prompt and

27 final conclusion of the case and any related post-judgment proceedings’ (Cal. Const., art. I, § 28, subd.

(b)(9)), and ‘[t]o have the safety of the victim, the victim’s family, and the general public considered

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1 C. 42 U.S.C. § 1983

2 “Federal law opens two main avenues to relief on complaints related to

3 imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the

4 Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983. Challenges

5 to the validity of any confinement or to particulars affecting its duration are the province

6 of habeas corpus.” Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam) (citing

7 Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)).

8 Under these parameters, Plaintiff may initiate a § 1983 action to seek invalidation

9 of “state procedures used to deny parole eligibility ... and parole suitability,” but he may

10 not seek “an injunction ordering his immediate or speedier release into the community.”

11 Wilkinson v. Dotson, 544 U.S. 74, 82 (2005). Thus, in this case, Plaintiff may seek as a

12 remedy “consideration of a new parole application” or “a new parole hearing,” which

13 may or may not result in an actual grant of parole. Id.; see Compl. at 6 (seeking relief in

14 the form of a “NEW forensic evaluation.”). He may not, however, seek “consideration

15 for COVID-19 release,” id., as a remedy in this § 1983 action. See Wilkinson, 544 U.S. at

16 78 (“[A] prison in state custody cannot use a § 1983 action to challenge the fact or

17 duration of his confinement. He must seek federal habeas corpus relief (or appropriate

18 state relief) instead.”); Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc)

19 (“[H]abeas is the exclusive vehicle for claims brought by state prisoners that fall within

20 the core of habeas corpus, and such claims may not be brought in a § 1983 [civil rights]

21 action.”).

22 “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right

23 secured by the Constitution and laws of the United States, and (2) that the deprivation

24 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc.,

25 698 F.3d 1128, 1138 (9th Cir. 2012); see also Rawson v. Recovery Innovations, Inc., 975

26 F.3d 742, 747 (9th Cir. 2020) (“Pursuant to § 1983, a defendant may be liable for

27 violating a plaintiff’s constitutional rights only if the defendant committed the alleged

28 deprivation while acting under color of state law.”).

1 D. Fourteenth Amendment Claims

2 As summarized above, Plaintiff claims Defendants violated his Fourteenth

3 Amendment rights to due process and equal protection during his September 6, 2019

4 parole suitability hearing. See Compl. at 4‒6; Pl.’s Decl. at 1‒4.

5 1. Due Process

6 The Fourteenth Amendment prohibits the deprivation of life, liberty or property

7 without due process of law. U.S. Const., amend. XIV. “Application of this prohibition

8 requires the familiar two-stage analysis: We must first ask whether the asserted individual

9 interests are encompassed within the Fourteenth Amendment’s protection of ‘life, liberty

10 or property’; if protected interests are implicated, we then must decide what procedures

11 constitute ‘due process of law.’” Ingraham v. Wright, 430 U.S. 651, 672 (1977). A

12 liberty interest may be created by the Constitution or by state law. Meachum v. Fano,

13 427 U.S. 215, 226 (1976).

14 Prisoners do not have a federal Constitutional right to be conditionally released

15 before the expiration of a valid sentence. Swarthout v. Cooke, 562 U.S. 216, 220 (2011);

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

17 California, however, has statutorily created a liberty interest in parole. See Swarthout,

18 562 U.S. at 220; McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002) (“California’s

19 parole scheme gives rise to a cognizable liberty interest in release on parole.”).

20 Accordingly, California authorities must provide some procedural protections when

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

22 however, are minimal‒‒prisoners must be provided only an opportunity to be heard and a

23 statement of reasons why parole was denied. Id. at 220. “‘[M]ere error of state law’ is not

24 a denial of due process.” Swarthout, 562 U.S. at 222 (quoting Engle v. Isaac, 456 U.S.

25 107, 121, n.21 (1982)). “[T]he responsibility for ensuring that the constitutionally

26 adequate procedures governing California’s parole system are properly applied rests with

27 California courts, and is no part of the [federal court’s] business.” Id.

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1 Here, Plaintiff admits he “appeared before … BPH Commissioner Randy

2 Grounds,” was present during his September 6, 2019 parole suitability hearing, and

3 “personally witnessed” Grounds allegedly “abus[e] his discretion” while considering

4 Plaintiff’s “public safety risk factors.” See Compl. at 4; Pl’s Decl. at 1‒2. Plaintiff

5 further alleges he had the opportunity to submit a “17 page written objection & axiomatic

6 challenge to the BPH forensic CRA,” and challenged its “multitude of factual errors,

7 misleading assertions, and hyper‒conjecture” during the hearing. See Compl. at 4.

8 Indeed, Plaintiff’s efforts with respect to the CRA were successful‒‒for he admits

9 Grounds “subsequently elected to withdraw the CRA from the entire record,” and

10 indicated it would not be considered when evaluating Plaintiff’s suitability. Id. at 4; Pl.’s

11 Decl. at 6. Based on these assertions, the Court finds Plaintiff’s pleading is replete with

12 factual allegations which show he was provided both “an opportunity to be heard and a

13 statement of reasons why parole was denied.” Swarthout, 562 U.S. at 220; Compl. at 10

14 (acknowledging the “individualized factors of aggravation” “rendered on the record at the

15 decision handed down by Commissioner Randy Grounds.”)

16 In addition, the Court notes Plaintiff’s suit is not so much a challenge to the

17 procedures Grounds employed during the September 6, 2019 hearing as it is an attack on

18 the sufficiency of the evidence Grounds relied upon, and the final determination to deny

19 him for parole for a period of 7 years. See, e.g., Compl. at 5 (claiming Grounds failed to

20 apply the “great weight” standard afforded to youth offenders under Prop. 57); see also

21 Pl.’s Decl. at 3 (objection to Grounds’s “reweigh[ing] [of] the elements of [his] offense

22 under the meager preponderance standard.”). But Swarthout explicitly bars any

23 challenge to the sufficiency of the evidence to support the Board’s decision. Swarthout,

24 562 U.S. at 222 (“Because the only federal right at issue is procedural, the relevant

25 inquiry is what process Cooke and Clay received, not whether the state court decided the

26 case correctly.”); see also Roberts v. Hartley, 640 F.3d 1042, 1046 (9th Cir. 2011)

27 (noting that it “makes no difference that [the plaintiff] may have been subjected to a

28 misapplication of California’s ‘some evidence’ standard. A state’s misapplication of its

1 own laws does not provide a basis for granting” relief.); Miller v. Oregon Bd. of Parole

2 and Post-Prison Supervision, 642 F.3d 711, 717 (9th Cir. 2011) (issue is not whether

3 Board’s parole denial was “substantively reasonable,” or whether the Board correctly

4 applied state parole standards, but simply was “whether the state provided Miller with the

5 minimum procedural due process outlined in [Swarthout v.] Cooke”).

6 As such, the Court finds Plaintiff’s Complaint does not plausibly allege a

7 Fourteenth Amendment due process claims against BPH Commissioner Grounds. See

8 Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678; see also Vaught v. Oppedisano, No.

9 20CV1500-MMA-RBB, 2020 WL 5819853, at *4–5 (S.D. Cal. Sept. 30, 2020) (sua

10 sponte dismissing prisoner’s § 1983 claims related to parole suitability hearing on due

11 process grounds pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A because allegations in

12 complaint showed prisoner “was given the opportunity to be heard,” “was provided with

13 the reasons for the conclusions in the CRA and for the denial of his parole.”); Cyprian v.

14 Cross, No. 2:19-CV-1925-EFB P, 2020 WL 5070592, at *2 (E.D. Cal. Aug. 27, 2020)

15 (dismissing California prisoner’s § 1983 objection to parole board’s consideration of

16 “inaccurate information” sua sponte pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A and

17 noting that “[s]o long as the inmate is provided an opportunity to respond to his record …

18 and provided a statement of reasons for the denial, due process is satisfied.”).

19 As to Defendants Newsom, Doe, and Diaz, Plaintiff makes no specific allegations

20 as to how any of them personally participated in his September 6, 2019 parole suitability

21 hearing or otherwise violated his due process rights. “A plaintiff must allege facts, not

22 simply conclusions, t[o] show that [each defendant] was personally involved in the

23 deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

24 1998); see also Estate of Brooks ex rel. Brooks v. United States, 197 F.3d 1245, 1248 (9th

25 Cir. 1999) (stating that “[c]ausation is, of course, a required element of a § 1983 claim.”).

26 Plaintiff claims only that Governor Newsom and John Doe “knew or should have known

27 of the constitutional violations occurring within the BPH,” see Compl. at 2, because they

28 they “oversee” and “direct” BPH operations. Id. He does not allege that Newsom or Doe

1 personally participated or served as a decision‒maker on his September 6, 2019 parole

2 suitability review tribunal.7 See e.g., Brown v. Shaffer, No. 1:18-CV-00470-JDP, 2019

3 WL 2089500, at *8 (E.D. Cal. May 13, 2019) (recommending sua sponte dismissal of

4 prisoner’s § 1983 due process claims against defendant who was “neither a decision-

5 maker in the tribunal that denied plaintiff parole” pursuant to 28 U.S.C. § 1915A), report

6 and recommendation adopted, No. 1:18-CV-00470-AWI-JDP PC, 2020 WL 3977449

7 (E.D. Cal. July 14, 2020).

8 There is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v.

9 Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). “Because vicarious liability is

10 inapplicable to ... § 1983 suits, [Plaintiff] must plead that each government-official

11 defendant, through the official’s own individual actions, has violated the Constitution.”

12 Iqbal, 556 at 676; see also Jones v. Community Redevelopment Agency of City of Los

13 Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at

14 least some degree of particularity overt acts which defendants engaged in” in order to

15 state a claim). Supervisory officials, like the Governor and Director of the BPH, may

16 only be held liable under § 1983 if Plaintiff alleges their “personal involvement in the

17 constitutional deprivation, or ... a sufficient causal connection between the supervisor’s

18 wrongful conduct and the constitutional violation.” Keates v. Koile, 883 F.3d 1228,

19 1242-43 (9th Cir. 2018); Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). Because he

20 does not allege that either Newsom or Doe “through [his] own individual actions, ...

21 violated the Constitution,” Plaintiff fails to state a due process claim against them as well.

22 Iqbal, 556 at 676; Jones, 733 F.2d at 649; see also Vaught, 2020 WL 5819853, at *5.

23 //

24 //

25

26

27 7 Parole suitability hearings are conducted by a two or three-person panel comprised of commissioners

and a deputy commissioner. See https://www.cdcr.ca.gov/bph/parole-suitability-hearings-overview/ (last

28

1 2. Equal Protection

2 Plaintiff also claims Governor Newsom and the Director of the BPH “deprive non-

3 violent offenders equal protection under the law” by employing “illicit practice[,]

4 policy[,] and procedures … cultivated[,] designed and well[-]versed to orchestrate

5 fraudulent grounds for systematic denials against Prop. 57 offenders the CDCR deemed

6 by fore-drawn [sic] conclusion would be denied.” See Compl. at 5. He claims these

7 Defendants “inherited a system that collectively and disproportionately abuses the civil

8 rights of the minority,” and that they are now “effective cohorts in the system’s

9 deplorable abuses.” Id. at 6.

10 “The Equal Protection Clause of the Fourteenth Amendment commands that no

11 State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’

12 which is essentially a direction that all persons similarly situated should be treated alike.”

13 City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). The Fourteenth

14 Amendment’s Equal Protection Clause protects prisoners against invidious discrimination

15 that is based on an impermissible factors such as race, gender, religion, or the like. See,

16 e.g., Wolff v. McDonnell, 418 U.S. 539, 556 (1974); Freeman v. Arpaio, 125 F.3d 732,

17 737 (9th Cir. 1997). But Plaintiff’s sweeping and conclusory allegations do not plausibly

18 show that he was treated differently than other similarly situated California inmate

19 eligible for parole because he is a member of any protected class. See Iqbal, 556 U.S. at

20 678‒79 (“Rule 8 marks a notable and generous departure from the hyper-technical, code-

21 pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff

22 armed with nothing more than conclusions.”); see also Village of Arlington Heights v.

23 Metro. Housing Development Corp., 429 U.S. 252, 264-65 (1977) (requiring “racially

24 discriminatory intent or purpose” to support an equal protection violation); Crutcher v.

25 Williams, No. 2:10-cv‒00474-KJD-RJJ, 2010 WL 4366357 at *2 (D. Nev. Oct. 28, 2010)

26 (dismissing as conclusory prisoner’s “claim[s] [that] he was denied equal protection as

27 guaranteed by the Fourteenth Amendment because of a purported racial disparity in the

28 grant of parole” based on “an informal survey he conducted”); Lum v. Penarosa, 2 F.

1 Supp. 2d 1291, 1294 (D. Haw. 1998) (dismissing claims that prisoner’ was denied parole

2 in violation of equal protection where he failed to “point[] to [any] other similarly

3 situated inmate, or class of inmates who ha[d] been differently treated,” and “presented

4 no evidence [in his parole proceedings] of … [any] discriminatory intent.”); cf. Block v.

5 Potter, 631 F.2d 233, 238, 241 (3d Cir. 1980) (finding parole board violated petitioner’s

6 right to equal protection because, in the minutes explaining the denial of parole, the board

7 “considered Block’s race as one factor warranting harsher treatment for him than for the

8 ‘typical’ black or Puerto Rican applicant.”).

9 Thus, without more, Plaintiff has not and cannot state a plausible equal protection

10 claim with respect to his September 6, 2019 parole suitability determination. See e.g.,

11 Uhuru v. Mancusi, No. 2:20-CV-2088 KJN P, 2020 WL 6742749, at *4 (E.D. Cal. Nov.

12 17, 2020) (dismissing prisoner’s “vague and conclusory” equal protection allegations

13 against parole officials who purportedly denied parole based on “atheist dogma” sua

14 sponte pursuant to 28 U.S.C. § 1915A).

15 E. Ex Post Facto Claims

16 Next, while Plaintiff’s Complaint does not clearly allege a separate ex post facto

17 challenge to his September 6, 2019 parole suitability determination, the Court will

18 liberally construe his claims that Defendant Grounds “impos[ed] a[n] added term of

19 confinement[,] e.g. 7 years,” “ex post facto under Mar[s]y’s Law,” see Compl. at 5, Pl.’s

20 Decl. at 1, 3, 4, as a distinct federal constitutional cause of action for purposes of initial

21 screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A. See Erickson v. Pardus, 551

22 U.S. 89, 94 (2007) (documents filed pro se are “to be liberally construed,” and “a pro se

23 complaint, however inartfully pleaded, must be held to less stringent standards than

24 formal pleadings drafted by lawyers”) (citations omitted).

25 Article I, section 10 of the United States Constitution prohibits the States from

26 passing any ex post facto law. “To fall within the ex post facto prohibition, a law must be

27 retrospective—that is, ‘it must apply to events occurring before its enactment’—and it

28 ‘must disadvantage the offender affected by it,’ by altering the definition of criminal

1 conduct or increasing the punishment for the crime.” Lynce v. Mathis, 519 U.S. 433, 441

2 (1997) (citations omitted). Some retroactive changes in parole laws may violate the Ex

3 Post Facto Clause, but “not every retroactive procedural change creating a risk of

4 affecting an inmate’s terms or conditions of confinement is prohibited.” Garner v. Jones,

5 529 U.S. 244, 250 (2000). The controlling inquiry in examining a change to a parole law

6 is “whether retroactive application of the change ... create[s] ‘a sufficient risk of

7 increasing the measure of punishment attached to the covered crimes.’” Id. (quoting Cal.

8 Dept. of Corr. v. Morales, 514 U.S. 499, 509 (1995)). Speculative and attenuated risks of

9 prolonging incarceration do not establish a violation of the Ex Post Facto Clause.

10 Morales, 514 U.S. at 509.

11 Here, to the extent Plaintiff seeks a new parole hearing based on claims that the

12 application of Proposition 9 (“Marsy’s Law”) to his September 6, 2019 suitability hearing

13 resulted in an “added term” of 7 years in violation of the Ex Post Facto Clause,8 see

14 Compl. at 5; Pl.’s Decl. at 4, his Complaint fails to state a claim upon which § 1983

15 relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1).

16 “Even assuming, without deciding, that the statutory changes decreasing the

17 frequency of scheduled hearings [c]ould create a risk of prolonged incarceration,”

18 Proposition 9 is not an ex post facto law because it allows the parole board, in its

19 discretion, to advance a parole hearing, and “an advance hearing by the Board ‘would

20 remove any possibility of harm’ to prisoners because they would not be required to wait a

21 minimum of three years for a hearing.”9 Gilman v. Brown, 814 F.3d 1007, 1109 (9th Cir.

22

23

8 Before enactment of Marsy’s Law, parole hearings following an initial denial of parole had to be

24

convened within one year of the denial unless the Board found that it was unreasonable to expect that

25 parole could be granted the following year. Gilman v. Schwarzenegger, 638 F.3d 1101, 1104 (9th Cir.

2011) (citing Cal. Penal Code § 3041.5(b)(2) (2008)). Proposition 9 modified this time period and

26 authorizes the deferral of a subsequent parole hearing for a period up to fifteen years. Id.; see Cal. Penal

Code § 3041.5(b)(3) (2009).

27

9 “Notwithstanding these deferral periods, Proposition 9 allows an inmate to request that the Board

28

1 2016) (quoting Morales, 514 U.S. at 513); see also In re Vicks, 56 Cal.4th 274, 278‒79,

2 317 (2013) (holding that Marsy’s Law does not violate the Ex Post Facto Clause in the

3 U.S. Constitution or the California Constitution); Johnson v. Soto, No. CV 14-9441 CAS

4 (RAO), 2019 WL 2719810, at *21 (C.D. Cal. June 7, 2019) (dismissing prisoner’s claim

5 that “the enactment and application of Proposition 9, commonly known as Marsy’s Law,

6 violate[d] his rights under the Ex Post Facto Clause of the Constitution”) (citing Gilman,

7 814 F.3d at 1016‒21), report and recommendation adopted, No. CV 14-09441 CAS

8 (RAO), 2019 WL 2719406 (C.D. Cal. June 25, 2019); Jameson v. Chappell, No. CV 13-

9 04037-CAS VBK, 2014 WL 5528385, at *8 (C.D. Cal. Sept. 5, 2014) (recommending

10 dismissal of ex post facto challenge to Marsy’s Law in light of Gilman), report and

11 recommendation adopted, No. CV 13-04037-CAS VBK, 2014 WL 5581320 (C.D. Cal.

12 Oct. 29, 2014).

13 F. Eighth Amendment Claims

14 Finally, Plaintiff claims Defendants’ September 6, 2019 decision to deny him

15 parole for a period of seven years amounts to “excessive” punishment” and that his

16 “continued incarceration” jeopardizes his health and welfare because he is “predisposed

17 to [a] substantial risk” of contracting COVID-19 “due to [his] chronic asthma &

18 bronchitis.” See Compl. at 3; Pl.’s Decl. at 6.

19 First, to the extent Plaintiff challenges the validity of his continued confinement as

20 a result of his September 6, 2019 parole suitability determination on grounds that it

21 amounts to excessive punishment in violation of the Eighth Amendment’s proscription of

22

23

24

setting forth ‘the change in circumstances or new information that establishes a reasonable likelihood that

25 consideration of the public safety does not require the additional period of incarceration of the inmate.’”

Gilman, 814 F.3d at 1011 (quoting Cal. Penal Code § 3041.5(d)(1)); see also Rios v. Warden of CSP-

26 Corcoran, No. 1:11-CV-00667-EPG-PC, 2018 WL 2463870, at *4 (E.D. Cal. June 1, 2018), report and

recommendation adopted, No. 1:11-CV-00667-LJO-EPG-PC, 2018 WL 10809620 (E.D. Cal. July 30,

27 2018). In fact, Plaintiff filed a petition to advance his next parole suitability hearing on July 31, 2020, but

it was denied. See https://inmatelocator.cdcr.ca.gov/ Details.aspx?ID=E98747 (Board of Parole Hearing

28

1 cruel and unusual punishments, his claims must be dismissed for failing to state a claim

2 upon which § 1983 relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C.

3 § 1915A(B)(a). This is because the relief Plaintiff seeks, i.e., “consideration for COVID-

4 19 release,” and an “immediate[] release … on parole, id. at 6; Pl.’s Ex., Doc. No. 6 at

5 14, may not be pursued in civil rights action even if he could allege a plausible claim.10

6 See Nettles, 830 F.3d at 927‒28 (“Although “the literal terms of § 1983 might seem to

7 cover” claims that a prisoner’s confinement violated the Constitution, … the language of

8 the habeas statute is more specific, and the writ’s history makes clear that it traditionally

9 “has been accepted as the specific instrument to obtain release from [unlawful]

10 confinement.”) (quoting Preiser, 411 U.S. at 486, 489).

11 Second, Plaintiff claims his continued incarceration amounts to an Eighth

12 Amendment “failure to protect” violation because he suffers from chronic asthma and

13 bronchitis and “California prisons are a hot bed for contagion and infectious disease.”

14 See Compl. at 3, 6. But these types of broad and conclusory allegations are insufficient to

15 state a plausible Eighth Amendment claim. See Iqbal, 556 U.S. at 678-79. Although a

16 complaint “does not need detailed factual allegations, ... a plaintiff’s obligation to provide

17

18

19 10 Plaintiff’s Eighth Amendment excessive punishment claims would face an additional hurdle even if

they were properly raised in a § 1983 action. No violation of the Eighth Amendment occurs merely

20

because a prisoner is determined unsuitable for release on parole during the service of an otherwise valid

21 indeterminate prison term. See Harris v. Long, No. CV 12–1349–VBF (PLA), 2012 WL 2061698, at *8

(C.D. Cal. May 10, 2012) (“[T]he Court is unaware of any United States Supreme Court case holding that

22 either the denial of parole and continued confinement of a prisoner pursuant to a valid indeterminate life

sentence, ... constitutes cruel and unusual punishment in violation of the Eighth Amendment. Indeed, the

23 Supreme Court has held that ‘[t]here is no constitutional or inherent right of a convicted person to be

conditionally released before the expiration of a valid sentence.’”) (quoting Greenholtz v. Inmates of Neb.

24

Penal and Correctional Complex, 442 U.S. 1, 7 (1979)); Prellwitz v. Sisto, No. Civ S-07-0046 JAM EFB

25 P, 2012 WL 1594153, at *6 (E.D. Cal. May 4, 2012) (rejecting a similar Eighth Amendment claim and

holding that “[w]hile petitioner might have hoped or expected to be released sooner, the Board’s decision

26 to deny him a parole release date has not enhanced his punishment or sentence.”); see also Rosales v.

Carey, No. CIV S-03-0230 JAM DAD (TEMP) P, 2011 WL 3319576, at *8 (E.D. Cal. Aug.1, 2011)

27 (“[T]he Ninth Circuit has said that any emotional trauma from dashed expectations concerning parole

‘does not offend the standards of decency in modern society.’”) (quoting Baumann v. Arizona Dep’t of

28

1 the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,

2 and a formulaic recitation of the elements of a cause of action will not do.... Factual

3 allegations must be enough to raise a right to relief above the speculative level.”

4 Twombly, 550 U.S. at 555 (citations omitted). A complaint must proffer “enough facts to

5 state a claim to relief that is plausible on its face.” Id. at 570.

6 Neither Plaintiff’s Complaint nor his Declaration allege any particular wrongdoing

7 or specific action taken by Governor Newsom, John Doe Director of BPH, BPH

8 Commissioner Randy Grounds, or Ralph Diaz, the former Secretary of the CDCR, with

9 respect to his health or safety at RJD. Iqbal, 556 U.S. at 676; Jones, 733 F.2d at 649.

10 “The inquiry into causation must be individualized and focus on the duties and

11 responsibilities of each individual defendant whose acts or omissions are alleged to have

12 caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988)

13 (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)); see also Starr v. Baca, 652 F.3d

14 1202, 1207-08 (9th Cir. 2011).

15 Moreover, even assuming Plaintiff had alleged personal liability on the part of any

16 Defendant, and could seek injunctive relief requiring a new parole hearing (but not an

17 earlier or immediate release) in light of the dangers posed by COVID-19, see Wilkinson,

18 544 U.S. at 74-75, his bare allegations as to the existence of the global pandemic, the

19 prevalence of coronavirus within California’s prisons, and his understandable desire to

20 avoid contracting the virus simply are not enough to state an Eighth Amendment claim.

21 See Torres v. Milusnic, __ F. Supp. 3d __, __, No. CV-20-4450-CBM-PVC(x), 2020 WL

22 4197285, at *7 (C.D. Cal. July 14, 2020).

23 “‘[O]nly the unnecessary and wanton infliction of pain implicates the Eighth

24 Amendment.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks,

25 emphasis, and citations omitted). “To violate the Cruel and Unusual Punishments

26 Clause, a prison official must have a ‘sufficiently culpable state of mind,’” which is one

27 of “deliberate indifference” to inmate health or safety. Id.

28 “[I]t is not enough to show [RJD] inmates are at risk of contracting COVID-19 or

1 that [Defendants] were aware of that risk.” See Torres, __ F. Supp. 3d at __, 2020 WL

2 4197285, at *9. “A prison official may be held liable under the Eighth Amendment for

3 acting with ‘deliberate indifference’ to inmate health or safety only if he knows that

4 inmates face a substantial risk of serious harm and disregards that risk by failing to take

5 reasonable measures to abate it.” Farmer, 511 U.S. at 847. Under this standard, “prison

6 officials who actually kn[o]w of a substantial risk to inmate health or safety may be

7 found free from liability if they respond[] reasonably to the risk, even if the harm

8 ultimately [i]s not averted.” Id. at 844. To allege deliberate indifference, therefore,

9 Plaintiff must include “factual content” from which the court might reasonably infer that

10 each Defendant he seeks to sue had a subjective “state of mind more blameworthy than

11 negligence,” and more akin to criminal recklessness. Id. at 835, 839–40.

12 Even when liberally construed, Plaintiff’s Complaint cannot reasonably be read to

13 suggest any deliberate indifference. Defendants must not only “be aware of facts from

14 which the inference could be drawn that a substantial risk of serious harm exists,” but

15 they “must also draw the inference.” Id.; see also George v. Diaz, No. 20-CV-03244-SI,

16 2020 WL 5073996, at *3‒4 (N.D. Cal. Aug. 24, 2020) (dismissing prisoner’s “bare

17 allegations of the existence of [COVID-19] and a desire to avoid contracting it” as

18 “simply… not enough to state an Eighth Amendment deliberate indifference claim”

19 pursuant to 28 U.S.C. § 1915A). Plaintiff’s Complaint fails to contain “sufficient factual

20 matter, accepted as true” to plausibly show any of the named Defendants acted with

21 deliberate indifference to his health or safety, or any risk of harm known to them when

22 they denied him parole on September 6, 2019‒‒more than two months before COVID-19

23 was first identified, and before it became a global pandemic. Iqbal, 556 U.S. at 678.

24 In fact, the Court takes judicial notice of public records related to the COVID-19

25 health crisis pursuant to Fed. R. Evid. 201(c)(1), including documents available through

26 government agency websites. See United States v. McKinney, No. CR18-096 RSM, 2020

27 WL 6076898, at *1 (W.D. Wash. Oct. 15, 2020). These records show “Coronavirus

28 disease 2019 (COVID-19) is caused by a new coronavirus first identified in Wuhan,

1 China, in December 2019.” See https://www.cdc.gov/coronavirus/2019-

2 ncov/cdcresponse/about-COVID-19.html (last visited Dec. 7, 2020) (emphasis added);

3 see also George, 2020 WL 5073996, at *2 (taking judicial notice of materials on the

4 CDCR’s website outlining action addressing the spread of COVID-19 in the California

5 prison system); https://www.cdcr.ca.gov/covid19/ (“COVID-19 preparedness and

6 response efforts at institutions”) (last visited Dec. 7, 2020).

7 Thus, to the extent Plaintiff’s Eighth Amendment conditions of confinement claims

8 may be properly raised pursuant to 42 U.S.C. § 1983, they are nevertheless subject to sua

9 sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii) and § 1915A(b)(1). See

10 Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121.

11 G. Leave to Amend

12 Because Plaintiff is proceeding without counsel and it is not “absolutely clear that

13 the deficiencies of [his] complaint could not be cured by amendment,” the Court will

14 grant him leave to fix them, if he can. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.

15 2012) (“‘Before dismissing a pro se complaint the district court must provide the litigant

16 with notice of the deficiencies in his complaint in order to ensure that the litigant uses the

17 opportunity to amend effectively.’”) (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261

18 (9th Cir. 1992)).

19 IV. Conclusion and Orders

20 For the reasons explained, the Court:

21 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

22 (Doc. No. 2).

23 2. DIRECTS the Secretary of the CDCR, or her designee, to collect from

24 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing

25 monthly payments from his account in an amount equal to twenty percent (20%) of the

26 preceding month’s income and forwarding those payments to the Clerk of the Court each

27 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2).

28 PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

1 || ASSIGNED TO THIS ACTION.

2 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen

3 || Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.

4 4, DENIES Plaintiff's Motion to Withdraw and Dismiss “Cavalier v. Pollard”

5 ||(Doc. No. 3) as moot.

6 5. DISMISSES Plaintiff's Complaint sua sponte for failing to state a claim

7 |{upon which § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)ai) and

8 1915A(b)(1); and

9 6. GRANTS Plaintiff 45 days leave from the date of this Order in which to file

10 |}an Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff's

11 || Amended Complaint must be complete in itself without reference to his original pleading.

12 || Defendants not named and any claims not re-alleged in the Amended Complaint will be

13 ||considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner

14 || & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes

15 || the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that

16 ||claims dismissed with leave to amend which are not re-alleged in an amended pleading

17 || may be “considered waived if not repled.”).

18 If Plaintiff fails to file an Amended Complaint within the time provided, the Court

19 || will enter a final Order dismissing this civil action based both on Plaintiff’s failure to

20 || state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)

21 1915A(b), and his failure to prosecute in compliance with a court order requiring

22 ||amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff

23 || does not take advantage of the opportunity to fix his complaint, a district court may

24 convert the dismissal of the complaint into dismissal of the entire action.”).

25 IT IS SO ORDERED.

26 ||DATE: December 11, 2020 e Vhhth ak ‘Ld = hhh

HON MICHAEL M. ANELLO

United States District Judge

28

22