United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
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,  Warden of Mule Creek State Prison.
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.
OF COMPLAINT PURSUANT TO 28 U.S.C. § 1915A
Legal Standards for Screening a Prisoner Civil Rights
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),
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.
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
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.
Allegations of Plaintiff's Complaint
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.
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 ...