United States District Court, E.D. California
ANDREW S. ANDERSEN, Plaintiff,
SCOTT KERNAN, et al. Defendants.
FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF
ACTION FOR FAILURE TO STATE A CLAIM (ECF NO. 19) FOURTEEN-DAY
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
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 Requirement and Standard
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),
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).
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.
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
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).
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.
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.
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.
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.
alleges that all the impediments he has encountered by CDCR
and BPH to fulfilling his suitability requirements have ...