Hewitt v. Board of Parole Hearings

          ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF THE ACTION FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF [ECF NO. 16]

         Plaintiff Michael Hewitt is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Plaintiff's first amended complaint, filed October 23, 2019.

         I.

         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 on which relief may be granted, ” or that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the deprivation of Plaintiff's rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

         Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations 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 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with' a defendant's liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

         II.

         COMPLAINT ALLEGATIONS

         Plaintiff challenges the Board of Parole Hearings (BPH) March 27, 2019 decision to deny his release on parole.

         Plaintiff contends the BPH denied him a fair review and failed to provide the minimum standard of review. The BPH denied release on parole because he had fifteen felony convictions and he had not participated in sufficient self-help programs. The BPH acknowledged that Plaintiff was violent free for fifteen years, had participated in alternative to violence program, had participated in Narcotics Anonymous for two months, and he was incarcerated for a nonviolent victimless crime.

         The BPH standard of review that was applied was taken outside the BPH's official judicatory role, and the BPH failed to afford the minimum measure of the correct standard. The decision herein constitutes ordering the issuance of a parole hold or recommending the initiation of parole revocation without due process of law. A state's statutory scheme for parole can give rise to a constitutional liberty interest if it uses mandatory language and creates a presumption that parole release will be granted.

         The BPH was arbitrary toward Plaintiff and deprived him of rights to a full and fair review. The BPH was bias where it prejudicially found that Plaintiff poses an unreasonable risk of violent to the public by relying on unreasonable factors that are sufficient to determine that Plaintiff is an unreasonable risk if released. The BPH is using reprehensible methods to further the goal of not complying with the federal mandate.

         Plaintiff's work assignment limits his ability to participate in other types of programs to establish rehabilitation. Because of the work assignments he is prevented or excluded from participating in available rehabilitative programs. Inmate are not allowed to pick and choose their work assignments, and if they do not participate in the work assignment they receive a rules violation report for program failure.

         The one true program that exists for addressing Plaintiff's issues that contributed to his incarceration is the substance abuse program which involves months of therapy, treatment and education. ...