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Demian Trevor O'keeffe v. Edward S. Alameida


September 28, 2011


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


I. Introduction

Plaintiff is a former state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the original complaint.*fn1 On April 10, 2007, the district judge adopted findings and recommendations that granted defendants' motion for summary judgment. Doc. 41. On July 7, 2009, the United States Court of Appeals for the Ninth Circuit affirmed the judgment as to all defendants except Karla Erkenbrecher, plaintiff's former parole agent, and remanded to the district court. Doc. 48. At the pretrial hearing on May 19, 2011, both parties consented to the undersigned's jurisdiction for all further proceedings, including trial and entry of final judgment. Doc. 92. The remaining issue is plaintiff's claim that defendant Erkenbrecher violated his federal right to due process by failing to notify plaintiff of the Board of Prison Terms' (now the Board of Parole Hearings, hereinafter "BPH") decisions to retain him on parole on February 1, 2002 and February 3, 2003, respectively, so plaintiff could file an administrative appeal.

On June 1, 2011, the court ordered plaintiff to file a motion for summary judgment and defendant to oppose and file a cross motion for summary regarding whether, as a matter of law, defendant's alleged failure to notify plaintiff of his retention on parole violated his federal due process rights; and if so, whether he is entitled to more than nominal damages for this violation. The briefing was to specifically address:

1. Whether plaintiff had a federally protected liberty interest in the right to administratively appeal from an adverse discharge/retention decision.

2. If plaintiff had a federally protected liberty interest in the right to appeal, what process was due?

3. Assuming that plaintiff had a federally protected liberty interest in the right to appeal, and that due process included timely notice of decision, whether plaintiff must show that the BPH would have reversed its decision on appeal, in order to be entitled to more than nominal damages. See Carey v. Piphus, 42 U.S. 247, 263, 98 S.Ct. 1042, 1052 (1978) ("[T]he injury caused by a justified deprivation, including distress, is not properly compensable under § 1983." Thus, plaintiff must "convince the trier of fact that he actually suffered distress because of the denial of procedural due process itself."); County of Monroe, Florida v. U.S. Dept. of Labor, 690 F.2d 1359, 1363 (11th Cir. 1982) (same); but see Patterson v. Coughlin, 905 F.2d 564, 568-570 (7th Cir. 1990) (where a denial of due process has been followed by a liberty deprivation, burden shifts to the state to prove that plaintiff would have suffered deprivation even if due process rights had been respected).

4. Assuming plaintiff is entitled to more than nominal damages for due process violation, what damages is he entitled to for:

a. the period between defendant's alleged failure to notify and April 23, 2003, when plaintiff was arrested for alleged credit card fraud; and

b. all events subsequent to plaintiff's arrest on April 23, 2003; including

c. plaintiff's alleged inadequate medical care in prison.*fn2

The parties have timely filed their motions and a hearing was held before the court on August 25, 2011. Plaintiff appeared pro se and Monica Anderson appeared for defendant. For the reasons that follow, defendant's cross motion for summary judgment is granted and this case is closed.

II. Motion for Summary Judgment

Legal Standard for Summary Judgment Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986) (quoting Fed. R. Civ. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322, 106 S. Ct. at 2552.

"[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323, 106 S. Ct. at 2553.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11, 106 S. Ct. at 1356 n. 11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356 (citation omitted).

Undisputed Facts

The following of defendant's undisputed facts (DUF) are either not disputed by plaintiff, or following the court's review of the evidence submitted, have been deemed undisputed:

On February 4, 2001, plaintiff was discharged from a four year prison sentence to a three year parole term. DUF # 1, 2. Plaintiff had been serving a prison sentence after being convicted of giving a false written/oral statement. In June 2001, plaintiff was transferred at his request to Nevada parole under the Interstate Parole Compact. DUF # 3. When a parolee such as plaintiff is supervised by another state under the Interstate Parole Compact, all communications between the supervising/receiving state (Nevada) and the sending state (California) go through the Interstate Parole Office. DUF #6. The supervising/receiving state (Nevada) is responsible for generating yearly progress reports and providing it to the sending state (California). Id.

The BPH in California relies solely on the supervising parole agent from the receiving state (Nevada) to make communications to the parolee regarding notice of parole retention decisions, as the receiving state has assumed supervision. DUF #8. Nevada parole agents notify parolees of any change in their expiration status either in person, at an office visit, by telephone, or by mail. DUF #24.

Defendant Erkenbrecher was plaintiff's California parole agent from February 4, 2001, to August 13, 2003, under the Interstate Parole Compact. DUF #9. Her responsibilities included maintaining administrative control of California interstate parolees under supervision in other states and assisting California Parole Agents in processing reports on California parolees confined in other states. Id. Erkenbrecher was the only parole agent responsible for supervising California parolees in Nevada, approximately 350 in 2001 - 2003. DUF #11. She spoke with Nevada parole weekly and discussed issues raised by Nevada parole and also requested yearly reviews for parolees supervised in Nevada. Id. She had no direct contact with plaintiff while he was on parole in Nevada. DUF #13. It is Erkenbrecher's custom and practice to notify parolees assigned to her caseload of decisions of the BPH to retain the parolee on parole. DUF #14. She notifies them by mail. Id.

On February 1, 2002, the BPH conducted a discharge review under Cal. Penal Code § 3001 which included a review of defendant's recommendation of parole retention, and elected to retain plaintiff on parole. DUF #19. On February 11, 2002, a notation in the Nevada parole database shows that plaintiff was retained on parole. DUF #29.

On March 7, 2002, plaintiff asked his Nevada parole agent about traveling to Hawaii for three days for a job. DUF #30. On June 4, 2002, plaintiff stated to his Nevada parole agent that he was going to send California an appeal form due to the state's lack of filing an annual progress report. DUF #31. On September 30, 2002, it was noted in the Nevada parole database that plaintiff should remain on the minimum level of supervision for now but he is very deceptive and manipulative so the parole agent should keep an eye on him. DUF #32. On January 14, 2003, plaintiff was informed not to miss any more appointments otherwise he would be placed on weekly reporting. DUF #35. On January 27, 2003, it was noted that plaintiff was still acting manipulative and giving his parole agent a hard time on issues. DUF #36.

On February 3, 2003, the BPH conducted a discharge review, which included defendant's recommendation of parole retention, and elected to retain plaintiff on parole. DUF #20. On March 3, 2003, a notation in the Nevada parole database shows that plaintiff was retained on parole. DUF #37.

On April 23, 2003, a warrant was issued for plaintiff's arrest for credit card fraud in the State of Nevada. DUF #39. On August 4, 2003, plaintiff's parole was revoked. DUF #39. Plaintiff appealed the revocation and argued that he had not been allowed to appeal the decisions to retain him on parole in 2002 and 2003. Doc. 57, Exh. 2G. Plaintiff was provided with copies of the BPH's actions retaining him on parole for 2002 and 2003 and provided an opportunity to appeal the retention. Id. Plaintiff chose not to appeal the retentions and instead filed the instant action. Plaintiff's statement: August 25, 2011, court hearing.

Disputed Facts

Defendant Erkenbrecher does not specifically remember or have a notation that she sent notices to plaintiff of his retention on parole in 2002 and 2003, though it is her custom and practice to send such notices. Plaintiff states that he did not receive the retention notices.

Liberty Interest

Legal Standard

The Due Process Clause of the Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law...." U.S. Const. amend. XIV, § 1. The analysis of due process claims proceeds in two steps. "[T]he first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient." Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904 (1989) (citation omitted). "A liberty interest may arise from either of two sources: the due process clause itself or state law." Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th Cir. 1986).

It has been argued that the Ninth Circuit's line of cases finding a liberty interest existed from the mandatory language of the statute has been curtailed by the United States Supreme Court's decision in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293 (1995). Yet, the Ninth Circuit has "since held that Sandin's holding was limited to 'the separate but related question of when due process liberty interests are created by internal prison regulations.' [citation]. Accordingly, we continue to apply the 'mandatory language' rule set forth in Greenholtz and Allen in order to determine whether [the state's] statutory scheme creates a liberty interest in early release into community custody." Carver v. Lehman, 558 F.3d 869, 873 n. 5 (9th Cir. 2009) (citing McQuillion v. Duncan, 306 F.3d 895, 902-03 (9th Cir. 2002) and Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123 at 1127 n. 3 (9th Cir. 2006), in applying mandatory language rule to find no liberty interest for early release into community under Washington statute)).*fn3


At the time pertinent to plaintiff's complaint, a California parolee could have been discharged from his parole short of its originally expected duration.*fn4 If a parolee is retained on parole, California Penal Code § 3001 provides, "[t]he board shall make a written record of its determination and the department shall transmit a copy thereof to the parolee." Id. The California Code of Regulations provides a parolee the right to appeal a retention decision, but nothing else:

The prisoner does not have a right to a personal appearance during the review. The parolee shall receive a copy of the parole hearings division's decision, including the reasons for a decision not to discharge the parolee. The parolee may appeal a refusal to discharge as provided in sections 3901.5.1-.6. If the parole hearings division does not discharge the parolee, it shall review the case annually thereafter until discharge. Subsequent reviews shall be performed as provided in this section.

California Code of Regulations, Title XV, Section 3901.13.1(b)(c).*fn5

California Code of Regulations, Title XV section 3901.5.1-.6 discusses the procedures of appealing an adverse decision, yet is not relevant to this case as plaintiff did not file an appeal even when provided the opportunity.

In the instant case plaintiff argues that by not being notified of the parole retention decision, his due process rights were violated as he was unable to file an appeal and he notes there is mandatory language that the retention decision shall be provided to the parolee.*fn6

In Carver v. Lehman, 558 F.3d 869 (9th Cir. 2009), the Ninth Circuit stated: In order to create a constitutionally protected liberty interest, a statute must contain " 'explicitly mandatory language,' i.e., specific directives to the decisionmaker that if the regulations' substantive predicates are present, a particular outcome must follow." Thompson, 490 U.S. at 463, 109 S.Ct. 1904 (quoting Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)).

Id. at 874-75.

However, in discussing the language of the statute at issue in Carver, the Ninth Circuit emphasized:

The only 'explicitly mandatory language' in the [statute] concerns a procedural right to an individualized determination based on the merits of a proposed release plan. That language cannot create a "liberty interest" within the meaning of the Fourteenth Amendment because "expectation of receiving process is not, without more, a liberty interest protected by the Due Process Clause" of the Fourteenth Amendment. Olim v. Wakinekona, 461 U.S. 238, 250-51 n. 12, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983); see also In re Cashaw, 123 Wash.2d 138, 866 P.2d 8, 12 (1994) ( "The United States Supreme Court and the Ninth Circuit have clearly held that procedural laws do not create liberty interests; only substantive laws can create these interests.")

Id. at 875.

Before reaching plaintiff's precise argument, the court must analyze the governing statute, § 3001, as a whole to see if it creates a substantive liberty interest for the process plaintiff contends he was denied. Although § 3001 contains mandatory discharge from parole language, it is not preceded by specific substantive predicates which guide the decision. As shown in footnote 4, the decision to retain a parolee on parole is a decision within the unfettered, general "good cause" discretion of the parole agency. The "mandatory" nature of the discharge comes about only by operation of the calendar and the lack of a decision to retain. A parolee is not even given the procedural right to show up or submit any evidence in connection with the determination to retain. The undersigned cannot find that such language creates a substantive liberty interest. See Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747 (1983) ("[A] State creates a protected liberty interest by placing substantive limitations on official discretion"); Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 871 (1983) (observing that the statute in question provided "explicitly mandatory language in connection with requiring specific substantive predicates") (emphasis added). Nor has any federal or state court to the undersigned's knowledge held (as opposed to assumed) that § 3001 creates a liberty interest.*fn7

Also, the type of "benefit" at issue in the initial decision regarding parole retention is hardly of the significance of a benefit that would give rise to a liberty interest. Plaintiff did not really lose much when retained on parole. Although remaining subject to supervision, he was not incarcerated. For most intents and purposes, he could go about his daily business unconstrained. The decision here did not involve a process which would determine whether plaintiff could be placed on parole in the first instance.*fn8

Thus, the further mandatory statutory language regarding notification of the decision pressed by plaintiff, giving parolees required notice of their parole retention after the fact of the initial decision, in order to have the opportunity to appeal the decision is merely a mandatory procedural right not underlayed by a substantive liberty interest. As a procedural right only, as set forth in Carver, it does not dictate a particular outcome regarding the appeal. Therefore, the outcome here is also similar to that of Carver,-- plaintiff's expectation of receiving notification/process does not equate to a liberty interest protected by the due process clause.

Because no liberty interest existed for the deprivation plaintiff complains of, the "right" to timely appeal a decision to retain plaintiff on parole, he has no federal right to enforce. The court need not go any further in its analysis of the various questions submitted previously assuming that a liberty interest existed. There being no other claims at issue in this long running case, summary judgment should be awarded to defendant.*fn9


Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for summary judgment (Doc. 94) is denied, defendant's cross motion for summary judgment (Doc. 96) is granted and this case is closed.

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