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Johnson v. Johnston

United States District Court, Ninth Circuit

December 20, 2013

OSHAY JOHNSON, Plaintiff,
v.
J. JOHNSTON, et al., Defendants.

ORDER AND FINDINGS AND RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights complaint. Plaintiff's amended complaint is before the court. After careful review of the amended complaint, as well as plaintiff's other filings in the Eastern District of California, plaintiff's amended complaint should be dismissed without leave to amend.

Screening Standards

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner 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 defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams , 490 U.S. 319, 325 (1989); Franklin v. Murphy , 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke , 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona , 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in Lopez v. Smith , 203 F.3d 1122, 1130-31 (9th Cir. 2000) ("a judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless."); Franklin , 745 F.2d at 1227.

Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic , 550 U.S. at 555. However, "[s]pecific facts are not necessary; the statement [of facts] need only give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Erickson v. Pardus , 551 U.S. 89, 93 (2007) (quoting Bell Atlantic , 550 U.S. at 555, citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Erickson , 551 U.S. at 93, and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes , 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer , 468 U.S. 183 (1984).

Plaintiff's Allegations

In his amended complaint, plaintiff names 18 individuals as defendants: the current and former wardens of the California Medical Facility ("CMF"); various correctional case managers or records managers, and correctional staff who reviewed administrative appeals; a medical doctor, psychiatrist, and two psychologists; and nine members of the Board of Prison Hearings ("BPH"). Plaintiff also names the California Department of Corrections and Rehabilitation ("CDCR") as a defendant.

In his first claim for relief, plaintiff contends that his attempted premeditated murder conviction does not carry a term of 15 years to life, and that defendants applied a 2000 CDCR memorandum to increase his prison sentence to 23 years to life, retroactively in violation of the Ex Post Facto Clause. The 2000 memorandum provided sentencing instructions pursuant to People v. Jefferson , 86 Cal.Rptr.2d 893 (1999), which found "that the minimum term for a life' term under P.C. Section 186.22 is 15 calendar years." (ECF No. 10 at 45.) Specifically, the memo instructed that inmates sentenced to a life term, when it was charged and proven that the offense was committed for the benefit of, at the direction of, or in association with any criminal street gang, and with the specific intent to promote, further, or assist in any criminal street gang activity, "shall not be paroled until a minimum of 15 calendar years have been served." (ECF No. 10 at 45.) Plaintiff contends that the memo does not provide for retroactive application of such new instructions, and resulted in the unconstitutional delay of plaintiff's parole hearings and a wrongful change to plaintiff's MEPD.[1]

In his second claim for relief, plaintiff contends that he was denied parole on June 3, 2009, "partly due to a psychiatric report which diagnosed him with an antisocial personality disorder ("ASPD")." (ECF No. 10 at 9.) Plaintiff argues that despite Dr. Starrett's report diagnosing plaintiff with ASPD, prison officials refuse to provide plaintiff with mental health treatment so that he can become eligible for parole.[2] Plaintiff notes that other mental health professionals opine that plaintiff does not have symptoms of ASPD and thus no treatment is required. Plaintiff claims the doctors had a duty to treat him, and that despite their failure to treat him, continue to use Dr. Starrett's report to deny plaintiff parole.

In his third claim for relief, plaintiff alleges that he has been unsuccessful in his efforts to correct his sentence for attempted premeditated murder and the minimum eligible parole date ("MEPD") in prison records used by the BPH in determining whether plaintiff is eligible for parole. Plaintiff claims he received an amended abstract of judgment prepared by records manager K. Fox, but that there is still an error. Plaintiff contends that during the 2009 hearing, the BPH conceded that plaintiff's hearing was approximately seven years too late, and that plaintiff had missed at least three hearings. Plaintiff claims that the BPH then applied Marsy's Law retroactively, and denied plaintiff parole for another five years.

Plaintiff seeks only injunctive relief. Plaintiff asks the court to bar the BPH from using the psychological evaluation that found plaintiff suffers from ASPD, bar the CDCR and BPH from applying the 2000 memorandum retroactively to plaintiff's sentence, and to record plaintiff's sentence and term as 8 years consecutive to the straight life term, where plaintiff is to serve half time on the 8 years being completed in 1996, and plaintiff is to serve 7 years on the straight life term becoming eligible in 2002, one year before the completion of the 7th year, with instructions that plaintiff could not be paroled until the completion of 15 calendar years which was completed in 2007. (ECF No. 10 at 15.) Plaintiff contends he has no adequate remedy at law, and is in danger of suffering irreparable injury unless the court issues the requested injunction. (Id.)

Background

On May 7, 1993, plaintiff was sentenced to a term of fifteen years, eight months in prison followed by a term of fifteen years to life with the possibility of parole. Johnson v. Sisto, Case No. 2:08-cv-0496 MCE KJM P (E.D. Cal.) (ECF No. 38 at 5.) The original abstract of judgment provided that the indeterminate term was to be served consecutively to the determinate term. Id . (ECF No. 38 at 5-6.) Plaintiff filed habeas petitions in the state court raising various sentencing issues, and the California Supreme Court asked the Attorney General to file an informal reply, addressing the conflict between the superior court's oral pronouncement of judgment and the abstract of judgment. Id . (ECF No. 38 at 7.) On August 8, 2007, the respondent notified the court that CDCR's Legal Processing Unit sent a letter to the superior court, asking whether the determinate portion of plaintiff's sentence was to be served consecutively or concurrently to the indeterminate portion, a decision which could have an impact on plaintiff's minimum eligible parole date ("MEPD"). Id . The California Supreme Court denied plaintiff's habeas petition on October 10, 2007. Id.

On August 16, 2007, the Sacramento County Superior Court issued an amended abstract of judgment showing a total determinate term of fifteen years, eight months, and an indeterminate term of fifteen years to life concurrent to the determinate sentence. Id.

The amended abstract for the determinate term is signed on "8/15/07 nunc pro tunc to 5/27/93"; the amended abstract for the indeterminate term is signed on "8/14/07 nunc pro tunc to 7/29/93." The document is identified as an "amended abstract of judgment" and lists the date the judgment was imposed as May 7, 1993.

Id. The district court found that plaintiff had not been re-sentenced in 2007; rather, the amended abstracts recorded the sentence as ...


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