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Johnson v. Lizarraga

United States District Court, E.D. California

September 6, 2017

JOE A. LIZARRAGA, et al., Defendants.




         Plaintiff is a state prisoner at Mule Creek State Prison, under the authority of the California Department of Corrections and Rehabilitation (CDCR), who proceeds pro se with a civil rights complaint filed pursuant to 42 U.S.C. § 1983, and request to proceed in forma pauperis. Plaintiff challenges his March 2015 denial of parole. The named defendants, sued in both their official and individual capacities, are Cynthia Fritz, Presiding Commissioner at the subject March 26, 2015 hearing convened by the California Board of Parole Hearings (BPH), and Joe Lizarraga, [1] Warden of Mule Creek State Prison.

         This action is referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). For the reasons that follow, the undersigned recommends that this action be dismissed, and plaintiff's request to proceed in forma pauperis be denied as moot.


         I. Legal Standards for Screening a Prisoner Civil Rights Complaint

         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, ” fail to state a claim upon which relief may be granted, or 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 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 pled, has an arguable legal and factual basis.

         A district court must construe a pro se pleading liberally to determine if it states a potentially cognizable claim. The court must explain to the plaintiff any deficiencies in his complaint and accord plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). While detailed factual allegations are not required, “[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 (2009) (citing Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007)). 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 (quoting Twombly, 550 U.S. at 570). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 679. Rule 8 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.” Twombly, 550 U.S. at 555 (citation and internal quotation and punctuation marks omitted).

         A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies cannot be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

         II. Allegations of Plaintiff's Complaint

         In his complaint (206 pages with exhibits), plaintiff seeks damages and injunctive relief premised on the denial of his parole pursuant to a BPH hearing held March 26, 2015. See ECF No. 1. Plaintiff alleges that defendant BPH Presiding Commissioner Cynthia Fritz “acted outside her duties” to conclude that plaintiff's release would pose an unreasonable risk to public safety, improperly rejected the opinion of a CDCR expert, made multiple false statements and failed to abide by policies promoting the release of elderly inmates (it appears that plaintiff was 65 years of age at time of the hearing, see ECF No. 1 at 5). Plaintiff further alleges that in October 2013 defendant Lizarraga improperly denied plaintiff's “request for treatment for alleged violent offenders per the Governor's order, causing plaintiff to suffer conditions amounting to grievous loss, as one of the [BPH] denials was based upon plaintiff not having taken sex offender treatment, amounting to the loss of plaintiff's parole opportunity[.]” Id.

         Plaintiff contends that both defendants, acting in their official and individual capacities, violated plaintiff's “First Amendment right against Illegal Detention, Eighth Amendment right against Cruel and Unusual Punishment and Fourteenth Amendment rights of Due Process and Equal Protection.” Id. Plaintiff seeks compensatory and punitive damages, fees and costs, an award of lost potential earnings, and the following injunctive relief: a new and fair BPH hearing, a declaration that “plaintiff's submitted exhibit [state petition for writ of habeas ...

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