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Plitt v. Gonzalez

September 8, 2009

BRYANT W. PLITT, PLAINTIFF,
v.
FRESNO POLICE OFFICER R. GONZALEZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

INITIAL REVIEW ORDER

The Clerk of Court conditionally filed Plaintiff's Complaint due to his status as a prisoner and his in forma pauperis request. As a result, Plaintiff's Complaint is subject to review by the Court to determine whether it or any of its claims are subject to summary dismissal under 28 U.S.C. §§ 1915(e)(2) and 1915A. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order.

REVIEW OF COMPLAINT

A. Background

Plaintiff is an inmate in the custody of the State of California. Plaintiff alleges that he was arrested on May 3, 1985, for being upon school grounds without permission from the school. The charges were in part for a violation of California Penal Code 626.8, disruptive presence at school by a "known sex offender." Plaintiff alleges that he was not and has never been a sex offender, and that the charges were dismissed.

Later, when Plaintiff was arrested for and convicted of a different offense, he discovered that his California Department of Corrections and Rehabilitation (CDCR) classification record contained the statement: "Arrested 9/25/1985 by CASO Fresno for PC 477(A), Annoy/Molest Children. The dispo was dismissed. UCC of 4/15/1997 elected not to affix 'R' suffix, per archive review of 8/22/2003." Plaintiff alleges that, beginning on November 11, 2003, he has attempted to have the reference removed from his classification record because it was defamatory and placed him in a dangerous position with the CDCR. He has been unable to have the reference removed through administrative channels, or via habeas corpus in the California state court system.

Here, he asserts that the incorrect record amounts to a violation of his constitutional right to due process and right to free speech. He also alleges that the statements amount to slander. (Complaint, Docket No. 1.)

B. Standard of Law

The Court is required to review complaints seeking relief against a governmental entity or an officer or employee of a governmental entity to determine whether summary dismissal is appropriate. 28 U.S.C. § 1915. The Court must dismiss a complaint or any portion thereof that states a claim that is frivolous or malicious, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). To state a claim under § 1983, a plaintiff must allege a violation of rights protected by the Constitution or created by federal statute proximately caused by conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).

To state a civil rights claim under § 1983, a plaintiff must allege a violation of rights protected by the Constitution or created by federal statute proximately caused by conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The Court is required to review civil rights complaints filed by prisoners to determine whether summary dismissal is appropriate. 28 U.S.C. § 1915. The Court must dismiss a complaint or any portion thereof that states a claim that is frivolous or malicious, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

C. Discussion

1. Plaintiff May Not Proceed on His Claim that the Wrongful Entries Pose a Danger to his Safety

Plaintiff has alleged that being labeled a known sex offender is a danger to his safety in the institution. This allegation can be liberally construed as an Eighth Amendment claim, but Plaintiff will have to file a motion to amend and provide additional factual allegations (if he has any) in order to proceed. To prevail on an Eighth Amendment "prison conditions" claim based on failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 834 (1994). When a prison official is deliberately indifferent to a substantial risk of serious harm, his conduct violates the Eighth Amendment. Id., 511 U.S. at 828. "Deliberate indifference" requires a showing that the official was "subjectively aware of the risk." Id., 511 U.S. at 829.

It is unclear whether the dismissed charges have actually been used to Plaintiff's detriment or actually pose a substantial risk of serious harm. (It is unclear what the following record notation means: "The dispo was dismissed.

UCC of 4/15/1997 elected not to affix 'R' suffix, per archive review of 8/22/2003.") Plaintiff has not alleged that he particularly suffered any harm in the past or is currently exposed to a substantial risk of serious harm as a result of the wrongful notations in his prison records or that other prisoners are privy to his prison records; nor has he alleged that prison officials have failed to removed the notations as a result of deliberate indifference to a substantial risk of serious harm. In addition, it is unclear whether any acts of Defendants occurred within the statute of limitations period. If he has any such allegations, he may file a motion to amend and include such additional facts. Presently, he may not proceed on a claim that the errors in his prison records have endangered his safety.

2. Plaintiff May Proceed on Liberty Interest Claims Liberally construing Plaintiff's claims, the Court concludes that he has stated a cognizable Fourteenth Amendment due process liberty interest claim in not having incorrect factual information in his parole records. Several decades ago, the United States Court of Appeals for the Fourth Circuit held that expungement of wrongful records in parole files can rise to the level of a due process violation if an inmate requests that the State correct the records, but it refuses to do so. See Paine v. Baker, 595 F.2d 197, 201 (4th Cir. 1979). More recently the United States Court of Appeals for the Fifth Circuit has determined that Paine is no longer good law in jurisdictions where the parole statutes do not establish a liberty interest in parole. See Johnson v. Rodriguez, 110 F.3d 299, 309 n.13 (5th Cir. 1997). However, the Ninth Circuit has determined that "California's parole scheme gives rise to a cognizable liberty interest in release on parole." Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1127-28 (9th Cir. 2006). However, Plaintiff may not proceed on free speech or slander grounds.

Plaintiff has stated no allegations showing his free speech has been limited. Plaintiff cannot proceed on state-law slander grounds under the Court's supplemental jurisdiction powers unless he files an amended complaint showing that he has complied with the notice provisions of the California Tort Claims Act and that some Defendant acted within the ...


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