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Lopez v. Brown

United States District Court, E.D. California

November 12, 2014

EMILIANO LOPEZ, Plaintiff,
v.
JERRY BROWN, et al., Defendants

Emiliano Lopez, Plaintiff, Pro se, AVENAL, CA.

FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (Doc. 26.) OBJECTIONS, IF ANY, DUE WITHIN THIRTY (30) DAYS

Gary S. Austin, UNITED STATES MAGISTRATE JUDGE.

I. BACKGROUND

Emiliano Lopez (" Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on June 29, 2012. (Doc. 1.) On December 14, 2012, based on the finding that Plaintiffs claims sounded in habeas and could entitle him to earlier release, the court dismissed this case for failure to state a claim under § 1983, without prejudice to the filing of a petition for writ of habeas corpus. (Doc. 13.)

On December 26, 2012, Plaintiff filed a notice of appeal, and on January 2, 2014, the Ninth Circuit reversed the district court's ruling and remanded the case to the district court. (Docs. 15, 21.)[1] The Ninth Circuit's mandate was entered on January 27, 2014. (Doc. 22.) The district court reopened the case.

The court screened the Complaint pursuant to 28 U.S.C. § 1915A and issued an order on January 30, 2014, dismissing the case for failure to state a claim, with leave to amend. (Doc. 23.) On March 31, 2014, Plaintiff filed the First Amended Complaint, which is now before the court for screening. (Doc. 26.)

II. SCREENING REQUIREMENT

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). " Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint is required to contain " a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but " [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). While a plaintiff's allegations are taken as true, courts " are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Plaintiff must set forth " sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal 556 U.S. at 678. While factual allegations are accepted as true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting this plausibility standard. Id. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

III. SUMMARY OF FIRST AMENDED COMPLAINT

Plaintiff is an inmate in the custody of the California Department of Corrections and Rehabilitation, presently incarcerated at Avenal State Prison in Avenal, California. The events at issue in the First Amended Complaint allegedly occurred while Plaintiff was incarcerated at Pleasant Valley State Prison in Coalinga, California. Plaintiff names as defendants Jerry Brown (Governor of California), the Board of Parole Hearings (BPH), Arthur Anderson (BPH Commissioner), Kristin Kanyinsola Adeniji (BPH Deputy Commissioner), and Jennifer Shaffer (BPH Executive Officer). Plaintiff's factual allegations follow.

On July 26, 2011, Plaintiff appeared before the BPH for an initial parole hearing for his commitment offense of gross vehicular manslaughter. Defendant Anderson read into the record Plaintiff's commitment offense of a conviction of manslaughter by motor vehicle while driving under the influence, with a prior. (Board Transcrit pt (BT) at p. 3.)[2] Defendants Anderson and Adeniji conducted the hearing using the criteria in the California Code of Regulations, Title 15, Division 2, section 2402, titled Parole Consideration Criteria and Guidelines for Murders Committed on or After November 8, 1978, and Specified Attempted Murders, and denied Plaintiff parole for a period of seven years. Defendant Anderson stated that the factors of suitability were contained in Title 15 § 2402. (BT at p. 7.)

Prior to deliberating, defendant Anderson stated that he " had a discussion with the representative of the victims, the representative from MADD, and one of the [unidentified person] . . ." (BT at p. 103) (First Amended Complaint (FAC), Doc. 26 at 6 ^15.) Defendant Anderson held that the gravity of the commitment offense weighs heavily against suitability, and that the commitment offense was calculated and demonstrates exceptional callous disregard for human suffering. (BT at p. 106.) Defendant Anderson incorporated into the record and used as evidence the Comprehensive Risk Assessment (CRA) conducted on October 28, 2010 by Dr. James McNairn. (BT at p. 108-110.)

On November 8, 2010, the Office of Administrative Law determined that the Board's risk assessment policy was an underground regulation as defined by Government Code ยง 11342.600 and ...


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