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Thomas v. Hernandez

September 13, 2010

JOHN PAUL THOMAS, PLAINTIFF,
v.
ROBERT HERNANDEZ, BOARD OF PRISON TERMS UNKNOWN DEPUTY COMMISSIONER, DEFENDANTS.



The opinion of the court was delivered by: Hon. William V. Gallo U.S. Magistrate Judge

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (Doc. # 23)

John Paul Thomas(hereafter "Plaintiff"), an inmate proceeding pro se and in forma pauperis, filed a Complaint pursuant to 42 U.S.C. § 1983 (hereafter "Complaint") claiming that his civil rights were violated in March 2007, when he was housed at the Richard J. Donovan Correctional Facility. He sues Defendants Robert Hernandez and Board of Prison Terms Unknown Deputy (hereafter "Defendant Hernandez," "Defendant Unknown Deputy," or collectively "Defendants"), in their official and individual capacities, and seeks injunctive relief, compensatory damages, and punitive damages. Defendants have filed a Motion to Dismiss the Complaint. Plaintiff has filed an Opposition to the Motion. In Plaintiff's Complaint, Plaintiff consented to have the undersigned conduct all proceedings in this case, including trial and the entry of final judgment, pursuant to 28 U.S.C. §636(c) and Fed.

R. Civ. Pro. 73. On April 16, 2010, Defendants also so stipulated. The Court, having reviewed the Complaint, Opposition, the exhibits attached thereto, and GOOD CAUSE APPEARING, HEREBY GRANTS Defendants' Motion to Dismiss.

I. FACTUAL ALLEGATIONS

On December 16, 2006, Plaintiff was served with a notice of an institutional disciplinary hearing, CDC Serious Rule Violation Report form 115 (hereafter "RVR"). The RVR alleged that Plaintiff committed a battery on a peace officer. (Complaint at 3).

On January 10, 2007, Plaintiff was informed that the Board of Prison Terms (hereafter "BPT"), gave him an "in house parole violation," or a "parole revocation extension," because of the RVR. (Complaint at 3). On that same day, Plaintiff signed a BPT form entitled, "Notice of Rights/Acknowledgment of Parole Revocation Extension Proceedings," which started a thirty-five calendar day time limit to hold his final parole revocation hearing. (Complaint at 3).

On February 14, 2007, the time limit expired. After the time limit expired, Plaintiff wrote a letter to Defendant Hernandez that explained to Hernandez that Hernandez must dismiss the charges and drop the "parole hold" against him. Thereafter, Plaintiff received from Hernandez a letter of denial. (Complaint at 3).

On March 15, 2007, Plaintiff had his parole revocation extension hearing. At the hearing, Plaintiff's representative explained that Plaintiff's parole revocation extension hearing had to be dropped because the BPT allowed the thirty-five day deadline to lapse. Defendant Unknown Deputy responded that it would not matter because Plaintiff would still be in prison. (Complaint at 3). Plaintiff explained that the allegations of battery in the RVR were false and provided two witness statements to corroborate his version of the events. He claims that he did not assault a peace officer. Rather, the peace officer assaulted him. (Complaint at 4, 5). Plaintiff requested that the written statements be returned to him. The BPT told Plaintiff that it would return the statements to him by mail. Plaintiff claims that the statements were not returned to him. (Complaint at 5).

At the hearing, Plaintiff was found guilty of the Rule Violation and was given an additional 110 day sentence. (Complaint at 3, 4). Plaintiff claims that he requested final written documentation of the hearing, but Defendant Hernandez has not provided it to him. (Complaint at 4).

On May 10, 2007, Plaintiff filed a Petition for Writ of Habeas Corpus in the Superior Court. The Petition claimed that the result of the parole revocation hearing violated his constitutional rights. The Petition was denied because, as Plaintiff alleges, he failed to provide the court with the necessary documentation of the parole revocation hearing. Plaintiff alleges that the documentation to which the court referred was the final written documentation of the parole revocation hearing that was never given to him despite his request to receive it. (Complaint at 4).

Further, Plaintiff alleges that he needs the two above-noted written statements about how he was assaulted by a prison correct- ional officer in order to pursue a separate lawsuit regarding the assault. (Complaint at 5).

II. PLAINTIFF'S CLAIMS

Plaintiff claims the following:

(1) His right to due process was violated because his parole revocation hearing was held after the expiration of the 35-day period to hold the hearing; and

(2) His right to due process was violated because Defendants denied him access to the courts.

Defendants' Motion asserts: (1) The Court does not have subject matter jurisdiction over Plaintiff's claim regarding ...


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