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Sam Johnson v. Jennifer Shaffer

October 18, 2012


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


I. Introduction

Plaintiff is a state prisoner proceeding with retained counsel who seeks relief pursuant to 42 U.S.C. § 1983. Presently pending is defendants' motion to dismiss this case pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that plaintiff has failed to state a claim upon which relief can be granted and that defendants are immune from suit. Defendants include several governments officials and agencies responsible for the Board of Parole Hearings (BPH) and psychological assessments of prisoners provided for the BPH. A hearing was held before the undersigned on October 4, 2012. Keith Wattley appeared for plaintiff and Michael Lee appeared for defendant.

The complaint alleges that the BPH has implemented policies making parole a virtual impossibility. Plaintiff contends that the BPH has created a team of psychological evaluators called the Forensic Assessment Division (FAD), but the team has been equipped with invalid risk assessment tools that produce inaccurate and elevated predictions of future risk. It is alleged the BPH uses these improper reports from the FAD as a pretext to provide an evidentiary basis to deny parole. Plaintiff states his own psychiatric assessment was flawed and inaccurate and improperly used to deny him parole. Specifically, plaintiff raised the following twelve claims that allegedly violate federal due process and state law: 1) Defendants are utilizing invalid tools and inadequate training to produce impermissibly elevated risk assessments of plaintiff and others like him; 2 & 14) defendants made numerous false and misleading statements to the public and other state agencies regarding the process of establishing the FAD and selecting the risk assessment tools; 3) defendants refused to remove errors from plaintiff's psychological assessment; 4) while plaintiff was provided with the psychological assessment, he was not provided with the raw data of the assessment or a recording or transcript of the interview; 5) plaintiff was unable to be heard at the hearing because he did not have the raw data underlying the assessment; 6) defendants refuse to record or transcribe the psychological interviews; 7) there are no standards used by the FAD in distinguishing between the various risk categories (low, moderate, or high), thus there is a lack of consistency; 8) while defendants allow plaintiff and other prisoners to file objections to their assessments, the objections are frequently not provided to the BPH; 9) plaintiff and other prisoners are not permitted to question or meet with FAD psychologists after the reports haven been written; 10) defendants routinely overlook or discount errors or omissions contained in the assessments; 11) the BPH grants parole to less than 1% of prisoners appearing at their first hearings; 12 & 13) defendants deny plaintiff and other prisoners the ability to call witnesses, including adverse witnesses such as the FAD psychologists at their parole hearings; 15) defendants failed to comply with the requirements of California's Administrative Procedures Act is setting up the FAD; 16) defendants have never or almost never had FAD psychologists testify at parole hearings in violation of California law.

All of the above claims conclude with a tag line that due process (or equal protection) of the laws has been violated or that a state law has been violated. Claims 10 and 11 assert that the due process error in which leads to a biased adjudicator.

Plaintiff does not seek damages, nor does he seek to have another hearing held in advance of when another hearing might normally be held. The specific relief sought is as follows:

1. Declare due process and equal protection violations under both federal and state constitutions;

2. Declare the regulation governing the FAD void and unenforceable;

3. Declare that plaintiff has a liberty interest in parole;

4. Declare that due process provides at least a limited right to confront and cross-examine adverse experts;

5. Declare that due process requires access to raw data and scores underscoring the FAD's evaluations;

6. Issue relief enjoining use of rules governing the FAD;

7. Remove Dr. Hayward's report from plaintiff's parole ...

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