United States District Court, E.D. California
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]
Michael Hewitt is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
before the Court is Plaintiff's first amended complaint,
filed October 23, 2019.
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).
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.
challenges the Board of Parole Hearings (BPH) March 27, 2019
decision to deny his release on parole.
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
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.
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
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.
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