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Cedric Greene v. Board of Prison Terms

October 14, 2011

CEDRIC GREENE, PLAINTIFF,
v.
BOARD OF PRISON TERMS, ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

Plaintiff is a former state prisoner proceeding pro se and in forma pauperis. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. Before the court is plaintiff's second amended complaint.

I. Background

Plaintiff's original complaint was filed on January 26, 2009. Therein, plaintiff alleged in brief and conclusory terms that his parole agent, defendant Martin, and his parole agent's supervisor, defendant Johnson, falsely reported that plaintiff's whereabouts were unknown resulting in him being "wrongfully held in custody for a total of 167 days." (Doc. No. 1 at 3.) On October 26, 2009, the court dismissed the complaint and granted plaintiff leave to file an amended complaint. Plaintiff was advised in that order that in any amended complaint he elected to file he should allege additional facts in support of his contention that defendants submitted false reports and clarify whether his parole was revoked, whether he received a probable cause hearing, and what decision was rendered at the hearing. Plaintiff was also advised that the Board of Prison Terms was not a proper defendant in a civil rights action and that this civil action may be barred by the decision in Heck v. Humphrey, 512 U.S. 477, 486 (1994). (Doc. No. 6 at 2-3.)

Plaintiff filed an amended complaint on November 18, 2009. In his three-page handwritten amended complaint plaintiff alleged little more than in his original complaint but did include allegations that defendants Martin and Johnson wrongfully reported that plaintiff was avoiding contact with them, when in fact he was making every effort to contact the defendants but they failed to return his attempted contacts. (Doc. No. 7 at 2.) On September 21, 2010, the undersigned issued findings and recommendations recommending that plaintiff's amended complaint be dismissed without prejudice as barred by the decision in Heck v. Humphrey, 512 U.S. 477, 486 (1994), because it appeared plaintiff was challenging the validity of the parole revocation which has not been reversed or declared invalid. (Doc. No. 10 at 2.) Those findings and recommendations were adopted by the assigned District Judge on November 5, 2010.

On January 25, 2011, following his release from custody, plaintiff moved to set aside the judgment, claiming that he had been unable to file objections to the findings and recommendations due to his incarceration. On February 17, 2011, the assigned District Judge entered an order vacating the judgment and re-opening the case. Following plaintiff's filing of objections to the September 21, 2010, findings and recommendations, on April 18, 2011 the assigned District Judge issued an order declining adoption of the findings and recommendations reasoning that since plaintiff was now no longer in custody following the revocation of his parole the decision in Heck no longer bared this action. (Doc. No. 20 at 2-3) (citing Nonnette v. Small, 316 F.3d 872, 877 & n.6 (9th Cir. 2002) and Guerrero v. Gates, 442 F.3d 697, 705 (9th Cir. 2006). The court also observed that plaintiff's amended complaint did not appear to comply with the minimum pleading requirements set forth in the undersigned prior order dismissing with leave to amend. (Doc. No. 20 at 3.) Accordingly, plaintiff was granted leave to file a second amended complaint. (Id.)

In an order filed May 18, 2011, the undersigned reiterated that plaintiff had been granted leave to file a second amended complaint, advised plaintiff of the deficiencies with his amended complaint and advised him of the legal standards governing his claims. (Doc. No. 21 at 2-5.) Plaintiff was again advised that the Board of Prison Terms was not properly named as a defendant in this civil rights action. (Id. at 3.) As to his other named defendants, plaintiff was advised that he would be required to provide additional factual allegations concerning their involvement in the claimed constitutional violations and was instructed to allege specifically in what way each of the named defendant participated in making the alleged false report which resulted in the revocation of his parole. (Id. at 4.) The undersigned even suggested that plaintiff attach a copy of the allegedly false report to his second amended complaint. (Id.) Finally, plaintiff was advised that he must clarify the nature of his causes of action and identify in his second amended complaint the federal statutes or constitutional provisions that he claims were violated by the actions of the defendants. Once again, plaintiff was also provided the legal standards governing a due process claim under the Fourteenth Amendment.

II. Second Amended Complaint

Plaintiff's second amended complaint was filed on May 31, 2011. (Doc. No. 22.)

Therein he names three defendants: S. Martin, K. Johnson, and M. Brhel. Plaintiff 's statement of claim as set out in his second amended complaint, in its entirety, reads as follows:

On August 5, 2008, Cedric Greene was unlawfully placed into custody by S. Martin and K. Johnson. The two submitted false reports stating that Mr. Greene's whereabouts were unknown until his arrest date of 8-5-2008. S. Martin and K. Johnson then wrongfully reported that Mr. Greene was avoiding parole contact. On September 5, 2008, M. Brhel knowingly issued an order that held Mr. Greene in unlawful confinement for "167 days." The evidence and testimony showed that Mr. Greene was working and maintained a stable residence well within his County. M. Brhel had no reports, documents, or evidence produced on the hearing date to send or hold Mr. Greene in a penal institution.

United States Code Section 1981(a) states that Mr. Greene has equal rights under the law. Mr. Greene was well within his rights before his arrest date of 8-5-2008, but those rights were taken away by S. Martin and K. Johnson. The violation continued when M. Brhel made the decision to issue the order that held Mr. Greene in violation of the Constitution, laws, and treaties of the United States. For all stated reasons, Mr. Greene seeks damages in the amount of $60,000.00 from each named defendant, for a total of $180,000.00. (Doc. No. 22 at 3.)

Plaintiff did not attach a copy of the parole agents' allegedly false reports to his second amended complaint as suggested by the court in its prior order dismissing with leave to amend. However, plaintiff had previously filed a copy of the September 5, 2008 Summary of Revocation Hearing and Decision with his application to proceed in forma pauperis. (Doc. No. 8 at 3-7.) Those documents reflect that plaintiff was represented by counsel at his parole revocation hearing, that he denied the parole violation charge and that the Board of Parole Hearings nonetheless determined that there was good cause for the charge of absconding parole supervision. (Id.) Accordingly, the Board revoked plaintiff's parole and ordered him returned to custody for nine months with eligibility for time credits. (Id. at 7.)

III. Analysis

As plaintiff has been previously advised, the court is required to screen complaints and must dismiss a complaint or portion thereof if the plaintiff has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a ...


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