Johnson v. Cal. Dep't of Corrs. & Rehab.

ORDER FOR CLERK TO RANDOMLY ASSIGN A UNITED STATES DISTRICT JUDGE TO THIS CASE FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED AS MOOT (ECF NO. 16.)

GARY S. AUSTIN, UNITED STATES MAGISTRATE JUDGE.

I. BACKGROUND

Darryl Johnson (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this case on January 23, 2000. (ECF No. 1.) On September 11, 2020, the court dismissed the Complaint for failure to state a claim, with leave to amend. (ECF No. 14.) On October 9, 2020, Plaintiff filed the First Amended Complaint, which is now before the court for screening. 28 U.S.C. § 1915. (ECF No. 16.)

II. 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

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“frivolous or malicious, ” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that the action or appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint is required to 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)). 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 state a viable claim, 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 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

III. SUMMARY OF FIRST AMENDED COMPLAINT

Plaintiff is presently incarcerated at the California Substance Abuse Treatment Facility and State Prison (SATF) in Corcoran, California, in the custody of the California Department of Corrections and Rehabilitation (CDCR), where the events at issue in the First Amended Complaint allegedly occurred. Plaintiff names as defendants the CDCR, Ralph Diaz (CDCR Secretary), and Stu Sherman (Warden, SATF) (collectively, “Defendants”). A summary of Plaintiff's allegations follows:

Claim 1: Violation of the Right to Equal Protection - Fourteenth Amendment

Plaintiff was convicted in 2018 of two non-violent felonies under California Penal Code 273 (Child Endangerment) and California Penal Code 594(D) (Vandalism) for a term of 5 years and 4 months, to be served in state prison.

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Proposition 57, approved by voters in November 2016, makes parole more available for certain felons convicted of non-violent crimes. Proposition 57 added Article 1, Section 32 to the California Constitution. That section provides in relevant part, “Parole Consideration”: Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense. . . Section 32, Subdivision (a)(1).

The CDCR improperly denied Plaintiff consideration under the Non-Violent Parole Process (NVPP) because he is a sex offender for which he must register as a sex offender. The CDCR promulgated the regulation, Cal.Code Regs. tit 15 section 3491(b)(3) that disallows NVPP consideration for certain sex offenders like Plaintiff. That regulation is inconsistent with Proposition 57, which did not exclude sex offenders from the NVPP.

The CDCR violated Plaintiff's rights to Equal Protection and to be free of ex post facto laws by promulgating the regulation and relying on it to deny Plaintiff's consideration under the NVPP.

Plaintiff alleges that in implementing the new regulation disallowing participation in NVPP for certain sex offenders, the CDCR is treating sex offenders, including Plaintiff, differently from other prisoners of the same category of crime, which constitutes a cognizable claim under the Fourteenth Amendment right to equal protection of the laws.

Claim 2: Ex Post Facto Laws

Article 1, section 10 of the U.S. Constitution prohibits the states from passing any ex post facto laws.

“To fall within the ex post facto prohibition, a law must be retrospective - that is, ‘it must apply to events occurring before its enactment' and it ‘must disadvantage the offender affected by it' by altering the definition of criminal conduct or increasing the punishment for the crime.”

Some retroactive changes in parole laws may violate the ex post facto clause, but “not every retroactive procedural change creating a risk of affecting an inmate's terms or conditions. The critical inquiry in examining a change to a parole law is “whether retroactive application of

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change. . . creates a sufficient risk of increasing the measure of punishment attached to the covered crimes.”

Plaintiff alleges that the regulation promulgated and implemented by the CDCR that has caused Plaintiff to be deemed ineligible for the NVPP has resulted in the infliction of a greater punishment than that to which he otherwise was subject to under the law as it existed before that regulation was promulgated.

Relief Requested

As relief, Plaintiff seeks (1) an injunction invalidating the state policy rules and regulations used to deny parole consideration in violation of the Fourteenth Amendment and Article 1 Section 10 of the U.S. Constitution; (2) a declaratory judgment that Ralph Diaz's policies, rules and regulations denied Plaintiff substantive and procedural due process and equal protection of the law under the Fifth, Sixth, and Fourteenth Amendments; (3) a declaratory judgment that the Secretary's defendants assisted in perpetuating an unconstitutional policy and violated Plaintiff's substantive and procedural due process rights and equal protection rights under the Fifth, Sixth, and Fourteenth Amendments; (4) an injunction ordering Ralph Diaz to correct the unconstitutional rules and regulations by removing Cal.Code Regs. Tit 15 section 3491(a)(3) from the descriptive list of eligibility review; (5) an injunction ordering [sic] or his agents to grant Plaintiff a parole hearing immediately; and (6) punitive damages.

IV. PLAINTIFF'S CLAIMS

The Civil Rights Act under which this action was filed provides:

Every person who, under color of any statute, ordinance regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress

42 U.S.C. § 1983.

“[Section] 1983 ‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v.

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Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of a state law amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the federal Constitution, Section 1983 offers no redress.” Id.

To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under color of state law and (2) the defendant deprived him or her of rights secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if he does an affirmative act, participates in another's affirmative act, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.'” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be established when an official sets in motion a ‘series of acts by others which the actor knows or reasonably should know would cause others to inflict' constitutional harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles the standard ‘foreseeability' formulation of proximate cause.” Arnold v. Int'l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th...