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Andersen v. Kernan

United States District Court, E.D. California

November 20, 2017

ANDREW S. ANDERSEN, Plaintiff,
v.
SCOTT KERNAN, et al. Defendants.

          FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM (ECF NO. 19) FOURTEEN-DAY DEADLINE

          BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE

         Plaintiff Andrew S. Andersen (“Plaintiff”) is a state prisoner of the California Department of Corrections and Rehabilitation (“CDCR”), proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff's first amended complaint, filed on July, 252016, is currently before the Court for screening.

         I. Screening Requirement and Standard

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

         A complaint must 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 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (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).

         To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.

         II. Plaintiff's Allegations

         Plaintiff is currently housed at Valley State Prison (“VSP”) in Chowchilla, California. He brings suits against Governor Edmund G. Brown, Jr., Secretary of the Department of Corrections and Rehabilitation Scott Kernan, and Executive Officer of the Board of Parole Hearings Jennifer Shaffer.

         Plaintiff alleges as follows: In August 2006, after signing a plea bargain, Plaintiff was sentenced to fifteen years to life, with the possibility of parole. He was convicted on one count under California Penal Code 288(a) (lewd or lascivious act with a child under the age of fourteen).

         In August 2009, Plaintiff met with a Board of Parole Hearings (“BPH”) Commissioner. The Commissioner gave Plaintiff instructions on what he needed to do to qualify for release. These instructions included attending self-help groups and therapy related to his crime. Quality of these groups was emphasized over quantity.

         On November 17, 2015, Plaintiff attended his initial BPH suitability hearing. Plaintiff was denied parole eligibility because he was unable to show sufficient evidence of rehabilitation. The BPH panel set Plaintiff's next hearing for November 2020 and instructed Plaintiff to attend sex offender treatment, self-help groups and therapy related to his crime. Plaintiff alleges that he will not be able to obey the instructions because those programs, groups and therapies do not exist or are not available to him. Based on Plaintiff's history of unstable relationships, the panel also required that Plaintiff show evidence of “a lengthy period of rehabilitation” before his next hearing. (ECF No. 15 at p. 11.) Plaintiff asserts that he has been unable to create a history of rehabilitation and cannot accumulate evidence of rehabilitation because the state either does not provide the means to accumulate such evidence or obstructs access to the means to create such evidence.

         Since 2007, Plaintiff alleges that he has attempted to attend every non-religious self-help group or other program related to criminal thinking and victim awareness. There are no programs specifically for sex offenders. Plaintiff was not able to attend any self-help groups for four years due to factors including overcrowding and inmate-run self-help groups are allowed to exclude sex offenders. Plaintiff first attended a self-help group in December 2011 with a group called “Yoke Fellows.” After Yoke Fellows, Plaintiff was never ducated to attend another program until 2013, when he was ducated for a coping skills class and a one-day session for victim's awareness. Since 2013, Plaintiff has not been ducated to any Inmate Leisure Time Activity Groups, which are inmate-run self-help groups. These groups are required to be open to all inmates.

         On October 1, 2015, Plaintiff was interviewed by a forensic psychologist of the Forensic Assessment Division of the BPH pursuant to CCR § 2240 for a psychological Comprehensive Risk Assessment. Plaintiff was assigned a “Moderate Risk” score for the HCR-20 V3, regarding general future violence. The psychologist instructed Plaintiff to take “Sex Offender Treatment” to lower a “Moderate” risk score to “Low” risk score. Lowering his HCR-20 V3 from “Moderate” to “Low” is mandatory before Plaintiff can be found suitable for release. Plaintiff alleges that he cannot lower his risk score without showing evidence that he underwent professional treatment in prison. However, Plaintiff alleges that the state is prolonging his sentence by impeding his ability to qualify for parole and he will not be able to the meet the criteria of the BPH panel for the next hearing or any other hearing because he cannot show evidence that he participated in the required programs, groups, therapy, treatment and education. Plaintiff also alleges that the policies of the CDCR preclude him from requesting an advanced hearing, since he is unable to achieve a “building block” of attending the required groups, programs, treatment, therapy and education.

         Plaintiff alleges that all the impediments he has encountered by CDCR and BPH to fulfilling his suitability requirements have ...


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