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Bryant W. Plitt v. R. Gonzalez

September 29, 2011

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



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

MEMORANDUM DECISION AND ORDER FRESNO POLICE OFFICER

The Court has before it a Report and Recommendation filed by United States Magistrate Judge Larry M. Boyle. (Dkt. 40.) The United States Magistrate Judge recommends granting Defendants' Motion for Summary Judgment (Dkt. 23) based on the record presented. Plaintiff has filed an objection (Dkt. 42), which the Court now addresses.

REVIEW OF REPORT AND RECOMMENDATIONS

1. Request for Counsel

Plaintiff first argues that he is at a disadvantage because he does not understand the standard of law or the legal analysis used by the Court in this case. Judge Boyle denied Plaintiff's request for appointment of counsel. (Dkt. 41.)

After reviewing the record, the Court finds that Plaintiff has adequately articulated and provided appropriate documentary support for his claims. While appointing counsel may help Plaintiff understand why summary judgment is being granted, counsel would not be able to make substantially different or better arguments than Plaintiff has made, given the undisputed facts in the record. The Court also finds that Plaintiff's claims are not particularly complex nor do they appear to have merit. Accordingly, Magistrate Judge Boyle did not err in declining to appoint counsel for Plaintiff.

2. Background

Plaintiff seeks to have certain information in his arrest history and prison file corrected and removed. Defendant argues that Plaintiff's records have been corrected, but it is impossible to remove the information with which Plaintiff disagrees because the information is historical in nature. Plaintiff and Defendants rely on the same court and prison records filed by the parties in support of their arguments, and there is no dispute as to how the files have been "corrected" to date--Plaintiff's argument is that the corrections are inadequate.

3. Report and Recommendation

Magistrate Judge Larry M. Boyle found and concluded that Plaintiff's Fourteenth Amendment due process claim was premature because Plaintiff will not be eligible for parole until May 2, 2028, and will not have a parole eligibility hearing until April 2027 (Defendants' Undisputed Facts & Exhibits, Dkt. 23-2 at 2, 12), and thus, Plaintiff cannot presently show that "the information in his central file about the 1985 arrest, even assuming it is false, 'inevitably affects the duration of his sentence.'" (Report and Recommendation, Dkt. 40 at 11.) Construing the claim as a due process claim focusing on parole eligibility, the Court finds that (1) at worst, the claim must be denied because there is no evidence in the record that Plaintiff's parole eligibility has been adversely affected by the limited extent to which the arrest records have been corrected, and (2) at best, the claim is unripe until such future date Plaintiff can show that his parole eligibility actually has been adversely affected by the limited extent to which the arrest records have been corrected.

As Judge Boyle noted, since the time Plaintiff filed his Complaint, the law on due process claims in parole settings has changed. If Plaintiff's claim is construed as a parole eligibility claim, little can be accomplished in a civil rights action. If, in the future, Plaintiff disagrees with the outcome of his parole hearing based on the "incorrect arrest record" argument, then his remedy would be in habeas corpus (after complete and proper state court exhaustion) and it would be limited to the inquiry of whether he was afforded "an opportunity to be heard and was provided a statement of the reasons why parole was denied." See Swarthout v Cooke, 131 S.Ct. 859, 862 (2011).

The only type of parole claim that can be brought in a civil rights action is a claim seeking invalidation of "state procedures used to deny parole eligibility . . . and parole suitability," and not a claim for "an injunction ordering [an] immediate or speedier release into the community." Wilkinson v. Dotson, 544 U.S. 74, 82 (2005). At most, in a civil rights action an inmate can seek as a remedy "consideration of a new parole application" or "a new parole hearing," which may or may not result in an actual grant of parole. Id.

In addition, to the extent that Plaintiff's claim can be construed under a different civil rights theory such as defamation or cruel and unusual punishment, the claim fails on the merits because Plaintiff's prison records are substantially accurate and Plaintiff has shown no causal connection between these Defendants and his injuries, as the Court will now explain.

On May 3, 1985, Plaintiff was arrested by the Fresno Police Department and charged with one count of "P.C. 672.2, necessity of registration by outsider on school grounds," and one count of "P.C. 626.8, disruptive presence at school by known sex offender."*fn1 (Dkt. 30 at 47.) However, on June 11, 1985, the District Attorney filed charges against Plaintiff for violation of Penal Code § 647A, alleging that "defendant, on or about May 3, 1985, did willfully and unlawfully annoy and molest a child under the age of eighteen years." (Dkt. 30 at 48, 106.)*fn2

Plaintiff did not appear for the originally-scheduled hearing on June 14, 1985. (Dkt. 30 at 48.) Plaintiff appeared for a hearing on the charges three months later, on September 25, 1985. (Dkt. 30 at 48, 106.) The record indicated there was probable cause for arrest based on his failure to register at the high school and disruptive entry upon school grounds. (Id. at 58, 106.) The court found Plaintiff to be "factually innocent" of the § 647A charge, a motion to dismiss was filed, and the case was dismissed. (Id.)

When Plaintiff was incarcerated on a subsequent unrelated conviction (for which he is still imprisoned), Pleasant Valley State Prison (PVSP) erroneously noted in Plaintiff's prison file that he wasarrested on a PC 477A Annoy/Molest Children charge. The errors were that he originally was arrested on other charges, but several days later charged with an Annoy/Molest Children charge, and that the correct Penal Code section was 647A (Annoy/Molest Children), not 477A ...


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