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ATHENS, Greece (AP) - Greece slipped deeper into its financial abyss after the bailout program it has relied on for five years expired at midnight Tuesday and the country failed to repay a loan due to the International Monetary Fund, deepening fears over whether it will be able to remain in the eurozone.
SAN JUAN, Puerto Rico (AP) - Puerto Rico's financial future hung in limbo Tuesday as economists and officials warned that the U.S. territory could head down Greece's path if it is not allowed to declare bankruptcy as it struggles with $72 billion in public debt.
NEW YORK (AP) - When Susannah Mushatt Jones and Emma Morano were born in 1899, there was not yet world war or penicillin, and electricity was still considered a marvel. The women are believed to be the last two in the world with birthdates in the 1800s.
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LOUISVILLE, Ky. (AP) - A few court clerks in Kentucky were refusing to issue marriage licenses to any couple Monday as an objection to the U.S. Supreme Court's ruling on same-sex marriage.
COLUMBIA, S.C. (AP) - A survey of South Carolina legislators shows there is enough support to remove the Confederate flag from Statehouse grounds if all supporters cast a vote.
NEW YORK (AP) - A state trooper had the law on his side when he shot unarmed prison escapee David Sweat, apparently in the back, as the convicted killer ran toward a forest near the Canadian border.
NEW YORK (AP) - "Growing Up Trans" explores the transgender phenomenon as younger people than ever (and their parents) now experience it: a frontier of possibilities and unknowns, and a minefield of high-stakes choices for these youngsters as they also navigate the changes adolescence brings.
DALLAS (AP) - At First Baptist Dallas, where the pulpit was adorned Sunday with red, white and blue bunting to honor the Fourth of July, the pastor called the Supreme Court's gay marriage ruling "an affront in the face of Almighty God."
LUBBOCK, Texas (AP) - Texas' conservative Republican Attorney General Ken Paxton called the Supreme Court decision giving same-sex couples the right to marry a "lawless ruling" and said state workers can cite their religious objections in denying marriage licenses.
POLKTON, N.C. (AP) - A kitchen worker at a North Carolina prison was charged Sunday with helping a convicted murderer escape as the search for the inmate continued.
LOS ANGELES (AP) - An inmate at a federal prison in central California has agreed to plead guilty to killing a correctional officer seven years ago to avoid a possible death sentence, federal prosecutors said.
HOUSTON (AP) - An unmanned SpaceX rocket carrying supplies to the International Space Station broke apart Sunday shortly after liftoff. It was a severe blow to NASA, the third cargo mission to fail in eight months.
Page 134 of 694
BANGOR, Maine (AP) - A man charged with mailing cyanide to a suicidal man in England, leading to his death, has been found guilty by a ...
PORTLAND, Ore. (AP) - A Portland bakery is being accused of racism for selling an Oreo cupcake they named "Mr. President."
CLEARFIELD, Utah (AP) - A Utah man who was cleared Tuesday after being arrested two months earlier on accusations he a drugged a police officer's ...
GREENVILLE, N.C. (AP) - A state trooper shot and killed an armed man during a search for flood victims in a tense and dispirited North ...
LOS ANGELES (AP) - California is a state that both mints millionaires and relies heavily on taxing them to fund its education and provide basic state ...
WASHINGTON (AP) - Supreme Court Justice Ruth Bader Ginsburg has called the protests of football players who decline to stand for the national anthem "dumb and ...
WASHINGTON (AP) - House Speaker Paul Ryan, the nation's top elected Republican, effectively abandoned Donald Trump Monday, telling anxious fellow lawmakers he will not campaign ...
AMBRIDGE, Pa. (AP) - Donald Trump on Monday put the claim that Bill Clinton was a sexual predator whose wife attacked the victims at the center ...
Page 15 of 15
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September 2, 2009
DARRELL GOODLEY, PLAINTIFFv.SUPERINTENDANT LOUIS S. FOLINO, SUPERINTENDENT OF SCI GREENE; PRISON HEALTH SERVICES, INC.; STANLEY E. FALOR, M.D.; BYUNCHAK) JIN, M.D.; HOWARD DIGGS, PA-C; DEBRA GRESS, CRNP; NEDRA WENDELL, RN; RONALD J. LEDWICH, RN; PENNSYLVANIA DEPARTMENT OF) RE: DOC. 27 CORRECTIONS, DEFENDANTS
Darrell Goodley ("Plaintiff"), an inmate in the custody of the Pennsylvania Department of Corrections, commenced this case pursuant to 42 U.S.C. § 1983, alleging that he suffered an Eighth Amendment violation when he received inadequate medical care at SCI-Greene in 2006. Presently before the Court is the motion to dismiss (Doc. 27) filed by Defendants Prison Health Services, Inc., Stanley E. Falor, M.D., Byunchak Jin, M.D., Michelle Howard-Diggs, PA, and Debra Gress, CRNP (collectively the "Medical Defendants"). For the reasons that follow, the motion will be granted.
On February 12, 2006, while incarcerated at SCI-Greene, Plaintiff slipped on the floor in the prison's kitchen and lost his balance, causing his right arm to become submerged in a large pot of boiling water. (Doc. 6 at ¶ 22). Plaintiff was taken to the infirmary and examined by Dr. Falor, who diagnosed second degree burns. (Id. at ¶ 27). Plaintiff was given a shot for pain and his arm was cleansed and bandaged. (Id.) While in the infirmary, Plaintiff apparently continued to complain of pain to Dr. Falor, who gave Plaintiff Tylenol #3. (Id. at ¶ 28).
Plaintiff was discharged from the infirmary the next day, at which time Dr. Jin prescribed ibuprofen tablets (30) and instructed Plaintiff to return every day to have his bandages changed. (Id. at ¶30; Grievance 145554 (Doc. 36-2 at 14)). On February 15, 2006, Dr. Jin prescribed a three-day regimen of Ultram*fn1 for Plaintiff's pain. (Id. at 15).
The next day, Plaintiff complained to the nurse who was changing his bandages that he was still in pain and that his wound had become infected. (Id. at 15). The following day, i.e., February 17, 2006, Plaintiff again complained of pain to Dr. Jin and requested stronger pain medication. (Id.) Dr. Jin denied Plaintiff's request for stronger pain medication but ordered 4 antibiotic injections. (Id.). As Plaintiff was leaving the treatment area, he complained about his pain to Dr. Fowler, who then prescribed Vicodin for Plaintiff's pain. (Id.).
Plaintiff filed two grievances in this matter.*fn2 In Grievance 144141, Plaintiff asserted that he was denied proper treatment on the date of the accident in that Dr. Falor misdiagnosed Plaintiff's burns as second degree when they were, in Plaintiff's opinion, third degree burns, and Dr. Falor refused to send Plaintiff to an outside physician who specialized in the treatment of third degree burns.*fn3 (Doc. 33 at p.2).
In Grievance 145554, Plaintiff claimed that he was denied proper medical care inasmuch as Dr. Jin refused to prescribe an antibiotic and pain medication stronger than ibuprofen at the time of Plaintiff's discharge from the infirmary on February 13, 2006, and refused Plaintiff's request for stronger pain medication on February 17, 2006, which Dr. Falor ordered moments later. (Doc. 36-2).*fn4
Plaintiff alleges in his Amended Complaint that "[o]n and after February 12, 2006" he made frequent and repeated requests to the Defendants herein for medical treatment and care of his arm, ongoing severe pain and worsening injuries. (Doc. 6 at ¶ 31). He asserts that his requests were denied for no justifiable reason and that he suffered severe pain, mental anguish, scarring and disfigurement as a result. (Id. at ¶¶ 31-32).
C. Standard of Review
As the United States Supreme Court recently held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a complaint may properly be dismissed pursuant to Fed. R. Civ. P. 12 (b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Id. at 570 (rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Under this standard, the Court must, as a general rule, accept as true all factual allegations of the complaint and all reasonable inferences must be viewed in the light most favorable to plaintiff. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985). Nevertheless, under the 12(b)(6) standard, a "court need not... accept as true allegations that contradict matters properly subject to judicial notice or by exhibit." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), amended by, 275 F.3d 1187 (9th Cir. 2001). Nor must the Court accept inferences drawn by plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 554 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.2 (3d Cir. 1994). In addition, the Court of Appeals in Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004), held that a "defendant may submit an indisputably authentic [document] to the court to be considered on a motion to dismiss[.]"
The question to be resolved is: whether, taking the factual allegations of the complaint, which are not contradicted by the indisputably authentic exhibits and matters of which judicial notice may be had, and taking all reasonable inferences to be drawn from those uncontradicted factual allegations of the complaint, are the "factual allegations... enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true even if doubtful in fact[.]" Twombly, 550 U.S. at 555-556. Or put another way, a complaint may be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570.
D. Discussion
The Eighth Amendment requires prisons to provide inmates with adequate care for their medical needs. Estelle v. Gamble, 429 U.S. 97, 103 (1976). Eighth Amendment liability attaches only where there is deliberate indifference to an inmate's serious medical needs. Id. at 104 ("[D]eliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain,' Gregg v. Georgia, supra, at 173, 96 S.Ct. at 2925 (joint opinion), proscribed by the Eighth Amendment.").
Analysis of a violation of the Eighth Amendment involves a two pronged inquiry: (1) an objective inquiry into the qualitative nature of the harm suffered by the victim of the alleged punishment and (2) a "subjective inquiry" into the mind of the person inflicting the harm. See Wilson v. Seiter, 501 U.S. 294 (1991). The Court of Appeals for the Third Circuit has explained the objective element as requiring proof that "the deprivation was sufficiently serious to fall within the Eighth Amendment's zone of protections.... If not our inquiry is at an end." Fuentes v. Wagner, 206 F.3d 335, 344 (3d Cir. 2000). The subjective prong of an Eighth Amendment "deliberate indifference" claim is met when a prison "official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Plaintiff bears the burden to prove, by competent evidence, both the subjective and the objective components of the Eighth Amendment. Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001); Newland v. Achute, 932 F.Supp. 529, 532 (S.D.N.Y. 1996); Pasha v. Barry, No. Civ. A. 96-466, 1996 WL 365408, at *1 (D.D.C. June 21, 1996).
The Supreme Court cautioned in Estelle that "not... every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment." 429 U.S. at 105. Mere negligence by physicians in treating prisoners is not sufficient to state an Eighth Amendment violation. Id. at 105-06. The Supreme Court has held that in the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute "an unnecessary and wanton infliction of pain" or to be "repugnant to the conscience of mankind." Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.
Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend "evolving standards of decency" in violation of the Eighth Amendment.
Id. Further, an inmate's disagreement with the course of treatment taken by a physician does not constitute deliberate indifference. White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990)(citations omitted). Accord Young v. Quinlan, 960 F.2d 351, 358 n.18 (3d Cir. 1992)(an inmate's disagreement with prison personnel over the exercise of medical judgment does not state a claim for relief under Section 1983), superseded by statute on other grounds as stated in Ghana v. Holland, 226 F.3d 175, 184 (3d Cir. 2000).
The Medical Defendants suggest that, at most, Plaintiff's Amended Complaint states a claim for professional negligence. See Doc. 28 at 4-5. The Court agrees.
The heart of Plaintiff's Amended Complaint is his disagreement with the course of treatment taken by Drs. Falor and Jin. Plaintiff specifically challenges the pain control regimen prescribed by these physicians, the medical decision not to prescribe antibiotics as a precautionary measure, and the medical decision not to refer Plaintiff to a burn specialist at an outside hospital. These disagreements, however, simply do not implicate the Eighth Amendment. Young v. Quinlan, supra. While an intentional refusal to provide any medical treatment to an inmate suffering from a serious medical need manifests deliberate indifference and is actionable under the Eighth Amendment, the Eighth Amendment does not require that a prisoner receive every medical treatment that he requests or that is available elsewhere. Layne v. Vinzant, 657 F.2d 468, 474 (1st Cir. 1981)(where the dispute is over the adequacy of the medical treatment, federal courts should be reluctant to second guess medical judgments and to constitutionalize claims that sound in state tort law). A disagreement as to the appropriate choice of medical treatment does not give rise to a constitutional violation because the "right to be free from cruel and unusual punishment does not include the right to the treatment of one's choice." Id. at 473.
Nothing in Plaintiff's Amended Complaint or Response or Grievances persuades the Court that his case rises to anything more than a state law tort of professional negligence. The language of Plaintiff's Amended Complaint itself suggests a claim that more properly sounds in negligence. See Doc. 6 at 6-7, ¶ 33 (" The care provided by said defendants herein... fell below recognized standards of medical care and was negligent and reckless and in reckless disregard of the rights of Plaintiff to receive proper, adequate and non-negligent treatment and to be free from cruel and unusual punishment as proscribed by the Eight[h] Amendment.").*fn5 As well, Plaintiff's grievances are couched in negligence terms. See, e.g., Doc. 36-2 at 19 (Final Appeal on Grievance 145554, wherein Plaintiff asserts that Dr. Jin did not order an antibiotic when Plaintiff requested one, which "any thorough practicing physician" would have ordered as a precautionary measure, and that "no thorough medical physician would have ordered" ibuprofen for a burn victim.). Taken as true, Plaintiff's allegations simply do not suggest the requisite subjective component of an Eighth Amendment violation, nor can such be reasonably inferred.
Plaintiff admits that he received medical care for his injuries immediately following the accident. (Doc. 6 at ¶¶ 29-31). By his own account, Plaintiff's complaints of pain were not ignored since the doctors changed the prescribed pain medication on at least 3 occasions in response to his complaints. Plaintiff's disagreement here is with the strength of the pain medication prescribed over the course of five days. Plaintiff's Amended Complaint also evidences that the physicians treated Plaintiff's burns. Plaintiff disagreement here is with the doctors' unwillingness to send Plaintiff to a specialist of his choice outside the prison and their failure to administer an antibiotic as a precautionary measure. As discussed, a prisoner's disagreement with prison doctors over the exercise of medical judgment simply does not state a claim for relief under Section 1983. Young, supra. Even if Plaintiff were to present evidence that the decisions of Drs. Falor and Jin did not comport with accepted medical standards, such would provide grounds for a medical malpractice claim, not a civil rights violation. See White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990)("If the doctor's judgment is ultimately shown to be mistaken, at most what would be proved is medical malpractice, not an Eighth Amendment violation."); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1081 (3d Cir. 1976)("Neglect, carelessness or malpractice is more properly the subject of a tort action in the state courts."). What a "thorough" medical professional would have done is not the deliberate indifference standard required under the Eighth Amendment but is merely a negligence standard, more appropriate for a state tort action and absolutely falling short of any constitutionally cognizable claim. See e.g., Farmer v. Brennan, 511 U.S. at 860 (Thomas, J. concurring) ("Petitioner's suggested 'should have known' standard is nothing but a negligence standard").
In summary, viewing the Amended Complaint in a light most favorable to the Plaintiff, it fails to state a claim of deliberate indifference to what were arguably serious medical needs.*fn6 For the foregoing reasons, the Medical Defendants' motion to dismiss is properly granted.
An appropriate order follows.
Amy Reynolds Hay Chief United States Magistrate Judge
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Mushroom-Barley Casserole
Total Time
1hr 35mins
Prep 20 mins
Cook 1 hr 15 mins
From BHG.
Ingredients Nutrition
- 1 cup chopped onion
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United States District Court, E.D. California
April 16, 2015
RUBEN HERRERA, Plaintiff,v.P. AHLIN, et al., Defendants.
GARY S. AUSTIN, Magistrate Judge.
I. Screening Requirement
Plaintiff is a civil detainee prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).[1]
The Court is required to screen complaints brought by a plaintiff 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 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).
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions, " none of which applies to section 1983 actions. Swierkewicz v. Sorema N.A., 534 U.S. 506, 512 (2002); Fed.R.Civ.P. 8(a). Pursuant to Rule 8(a), 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). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard.... applies only to a plaintiff's factual allegations." Nietze v. Williams, 490 U.S. 319, 330 n. 9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997)(quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
II. Plaintiff's Claims
Plaintiff, an civil detainee the custody of the Department of State Hospitals at Coalinga State Hospital (CSH), brings this civil rights action against the following individual defendants: Pam Ahlin, former CSH Director; CSH Director Audrey King; Hospital Administrator George King; R. Rhandhawa, M.D.; John Doe members of Police Services.
On September 18, 2011, Plaintiff was housed on the Secured Services Unit (SSU) at CSH. Plaintiff alleges that the criteria for assignment to the SSU is "because the individual has had some problems adjusting to the mental health environmental surroundings. Meaning the individual is unable to get along with his peers, or his behavior is such that he is constantly in violation of facility rules and regulations."
On September 18, 2011, at approximately 3:00 p.m., Plaintiff, while in the SSU courtyard, "took up a protective position on the top of the basketball pole" The psychiatric technician and duty officer on the yard at the time ordered Plaintiff to climb down from the pole. Plaintiff alleges that the basketball pole is roughly 10 to 11 feet at its highest point, where the pole bends forward to hold the backboard. Plaintiff alleges that the end of the pole where the backboard is attached was the position he occupied for several hours.
Plaintiff refused to come down on the ground that he was not given an opportunity to talk to the then Director, Pam Ahlin. Four inch mattresses were placed around the base of the pole in order to protect Plaintiff if he fell. Plaintiff refused commands to come down from the pole. Plaintiff alleges that unidentified officers fired "several shots from the launcher" in order to get Plaintiff down from the pole. Plaintiff used his hands to cover his eyes and fell over backwards, falling head first. Plaintiff alleges that the fall "created a tremendous and dangers amount of strain on his head and neck." Plaintiff alleges that he "did not intentionally provoke, harass, use profanity, or violent actions toward any of the officer and PTs."
C. Excessive Force
Under the Eighth Amendment, "prison officials have a duty... to protect prisoners from violence." Farmer v. Brennan, 511 U.S. 825, 833 (1994) (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)). To establish a violation of this duty, a prisoner must demonstrate that prison officials were "deliberately indifferent to a serious threat to the inmate's safety." Farmer, 511 U.S. at 834. This requires the prisoner to satisfy both an objective and a subjective component. First, the prisoner must demonstrate that the alleged deprivation was, in objective terms, "sufficiently serious." Id. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prisoner must demonstrate that prison officials must have known of and disregarded an excessive risk to the prisoner's safety. Id. at 837.
As a civil detainee, Plaintiff is entitled to protection under the Fourteenth Amendment, rather than the Eighth Amendment. Fisher v. Bryant, 2:10 cv 2311 KJM DAD, 2012 WL 3276968 (E.D. Cal. Aug. 9, 2012)(Applying the Fourteenth Amendment due process standard to a claim of the excessive force brought by a civil detainee, rather than the standard set forth under the Eighth Amendment). The Ninth Circuit has recognized that the aforementioned Eighth Amendment rights guaranteed for prisoners "set a floor for those that must be afforded to" civil detainees. Hydrick v. Hunter, 500 F.3d 978, 989 (9th Cir. 2007) summarily reversed on other grounds by Hunter v. Hydrick, 129 S.Ct. 2431 (2009). The objectively reasonable standard set forth by the Fourteenth Amendment, rather than the "malicious and sadistic" standard of the Eighth Amendment, Fisher, 2012 WL 3276986 *9 (E.D. Cal. 2012), applies to Plaintiff's claim.
Here, a state employee firing non-lethal rounds to remove Plaintiff from a basketball pole without any provocation, as alleged here, denotes an objective use of force. As such, Plaintiff states an Eighth Amendment claim against Defendants for excessive force. Therefore, it logically follows that Plaintiff states a cognizable claim under the Fourteenth Amendment. However, Plaintiff has not identified the individual who fired the non-lethal round. Plaintiff names as defendants Doe officers. The Court cannot order service upon unidentified defendants. Plaintiff must name the individual defendant, describe where that defendant is employed and in what capacity, and explain how that defendant acted under color of state law.
D. Civil Rights
Plaintiff alleges generally that the other defendants have violated his civil rights. Under section 1983, Plaintiff must link the named defendants to the participation in the violation at issue. Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009); Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010). Liability may not be imposed under a theory of respondeat superior, and there must exist come causal connection between the conduct of each named defendant and the violation at issue. Iqbal, 556 U.S. at 676-77; Lemire v. California Dep't of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012).
A convicted inmate's challenge to the conditions of his confinement is properly brought under the Eighth Amendment, but the challenge of a pretrial detainee or a civil detainee is properly brought under the Fourteenth Amendment. Redman v. County of San Diego, 942 F.2d 1435, 1440 (9th Cir. 1991)(en banc), cert. denied, 502 U.S. 1074 (1991); Youngberg v. Romeo, 457 U.S. 307, 314-15 (1982).
Under the Fourteenth Amendment, it is clear that civil detainees have a right to adequate food, shelter, clothing, and medical care. Id. at 315. Civilly detained persons must be afforded "more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish." Romeo, 457 U.S. at 322. In Pierce v. County of Orange, 526 F.3d 1190 (9th Cir. 2008), the Court explained the standard as follows:
Under the Due Process Clause, detainees have a right against jail conditions or restrictions that "amount to punishment." Bell v. Wolfish, 441 U.S. 520, 535-37 (1979). This standard differs significantly from the standard relevant to convicted prisoners, who may be subject to punishment so long as it does violate the Eighth Amendment's bar against cruel and unusual punishment. Id. at 535 n. 16, 441 U.S. at 520.
Absent evidence of express punitive intent, it may be possible to infer a given restriction's punitive status "from the nature of the restriction." Valdez v. Rosenbaum, 303 F.3d 1039, 1045 (9th Cir. 2002); see Demery v. Arpaio, 378 F.3d 1020, 1030 (9th Cir. 2004)(noting that "to constitute punishment, the harm or disability caused by the government's action must either significantly exceed, or be independent of, the inherent discomforts of confinement").
Therefore, "if a particular restriction or condition is not reasonably related to a legitimate goal - if it is arbitrary or purposeless - a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees." Id . (relying on Bell v. Wolfish, 441 U.S. at 539). Stated another way, "[i]n determining whether a substantive right protected by the Due Process Clause has been violated, it is necessary to balance the liberty of the individual' and the demands of an organized society.'" Romeo, 457 U.S. at 320.
In Redman, the Ninth Circuit further explained:
There are... limits on the extent to which pretrial detainees may claim they are being punished in violation of the Fourteenth Amendment. The government has "legitimate interests that stem from its need to manage the facility in which the individual is detained." Bell v. Wolfish, 441 U.S. at 540. The Supreme Court has held that "maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees." Id. at 546 (footnote omitted). Because of the importance of internal security within the corrections facility, "[p]rison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry." Id. at 547. "[P]rison practices] must be evaluated in the light of the central objective of prison administration, safeguarding institutional security." Id . Because "the problems that arise in the day-to-day operations of a corrections facility are not susceptible of easy solutions, " prison administrators "should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Id.
942 F.2d at 1440-41.
In addition, negligence is not actionable under § 1983, Daniels v. Williams, 474 U.S. 327 (1986), nor is mere irresponsible action. County of Sacramento v. Lewis, 523 U.S. 833, 855 (1998). Rather, a plaintiff must present facts capable of a finding of at least recklessness, see Redman, 942 F.2d at 1445, n. 13, or "intent to harm." Lewis, 523 U.S. at 854.
Plaintiff must allege conduct on behalf of each individually named defendant indicating that they deprived Plaintiff of a protected interest. Plaintiff need not, however, set forth legal arguments in support of his claims. In order to hold an individual defendant liable, Plaintiff must name the individual defendant, describe where that defendant is employed and in what capacity, and explain how that defendant acted under color of state law. Plaintiff should state clearly, in his own words, what happened. Plaintiff must describe what each defendant, by name, did to violate the particular right described by Plaintiff.
III. Conclusion
The Court has screened Plaintiff's complaint and finds that it does not state any claims upon which relief may be granted under section 1983. The Court will provide Plaintiff with the opportunity to file an amended complaint curing the deficiencies identified by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is cautioned that he may not change the nature of this suit by adding new, unrelated claims in his amended complaint.
Plaintiff's amended complaint should be brief, Fed.R.Civ.P. 8(a), but must state what each named defendant did that led to the deprivation of Plaintiff's constitutional or other federal rights, Hydrick, 500 F.3d at 987-88. Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level...." Bell Atlantic v. Twombly, 550 U.S. 544, 554 (2007)(citations omitted).
Finally, Plaintiff is advised that an amended complaint supersedes the original complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be "complete and in and of itself without reference to the prior or superseded pleading." Local Rule 15-220. Plaintiff is warned that "[a]ll causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)).
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's complaint is dismissed, with leave to amend, for failure to state a claim;
2. The Clerk's Office shall send to Plaintiff a complaint form;
3. Within thirty days from the date of service of this order, Plaintiff shall file an amended complaint;
4. Plaintiff may not add any new, unrelated claims to this action via his amended complaint and any attempt to do so will result in an order striking the amended complaint; and
5. If Plaintiff fails to file an amended complaint, the Court will dismiss this action, with prejudice, for failure to state a claim.
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Homemade Biscuits
Total Time
Prep 10 mins
Cook 15 mins
I got this recipe from a friend. These are quick and easy to make. Please do not substitute sweet milk for the buttermilk. (It is okay to make your own by adding a Tablespoon of lemon juice or vinegar to milk and let it sit 5 minutes.) Please note that the amount of flour is approximate. If your dough is too sticky you can add more by sprinkling it on top while kneading.
Ingredients Nutrition
- 2 cups flour (approximately)
- 1 tablespoon baking powder
- 1⁄2 teaspoon salt
- 1⁄2 teaspoon baking soda
- 1⁄4 cup shortening or 1⁄4 cup butter
- 1 cup buttermilk
- Preheat oven to 425.
- Mix first 5 ingredients with a pastry blender or 2 knives until the size of small peas.
- Stir in the buttermilk.
- Knead for a couple of minutes on a lightly floured surface.
- Roll or pat out dough for biscuits.
- Bake for 10-15 minutes until lightly browned.
Most Helpful
These are good and simple to make. I chose butter over shortening. There's a little too much b powder in these (but I'm very sensitive to and finicky about tasting baking powder in biscuits) but tolerable. I didn't need the full amount of milk required. I just added until the dough was very moist but not too gloppy (don't you love these technical terms?), hand shaped and placed in baking pan.
I made these biscuits as part of mine and SO's dinner on 1/15/09.I measured all the dry ingredients, and added the shortening. After adding the buttermilk, it looked more like a very thin pancake batter.I had to add almost another full cup of flour to make it thick enough to handle.My SO seemed to enjoy them.But I wish I could say that these will be made again, but they won't. But thanks for taking the time to post them.
Thank you!! These were just what I was looking for. Very tasty and easy to make. I ended up adding about a Tablespoon of extra flour and then I patted the dough out to about half an inch thick and cut into eight "squares". DH is asking for more already ;)


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August 27, 2010
DANNIE BROWN, PETITIONER,v.JAMES D. HARTLEY, WARDEN, RESPONDENT.
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
RELEVANT HISTORY*fn1
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation (CDCR) following his conviction in Los Angeles County Superior Court in 1988 of second degree murder with use of a firearm. Petitioner is serving a sentence of fifteen years to life with the possibility of parole.
Petitioner does not challenge his underlying conviction; rather, he claims the Board of Parole Hearings (Board) violated his due process rights in its 2008 decision finding him unsuitable for parole, because there was no evidence to support the finding that he currently posed an unreasonable risk of danger to the public if released.
Petitioner filed a habeas court petition challenging the Board's 2008 decision in the Los Angeles County Superior Court on September 5, 2008. The petition was denied in a reasoned decision on November 4, 2008. Petitioner then filed a state habeas petition in the California Supreme Court. The petition was summarily denied on June 10, 2009.
Petitioner filed the instant federal petition for writ of habeas corpus on October 5, 2009. Respondent filed an answer to the petition on February 18, 2010. Petitioner filed a traverse on March 25, 2010.
STATEMENT OF FACTS*fn2
The record reflects that Petitioner was involved in several incidents with the victim, David Williams, prior to the commitment offense. The victim's mother had previously smashed Petitioner's car windshield, so he pushed her to the ground. Subsequently, the victim hit Petitioner in the head with a brick, resulting in a gash that required several stitches. The day after that encounter, Petitioner armed himself with a gun and confronted the victim at his home. Witnesses testified that as the victim began to walk away, Petitioner shot him in the back, causing the victim to fall to the ground. Petitioner then stood over the victim and shot him in the head, killing him. Petitioner claims that the victim had threatened him with a gun on a previous occasion and that he was demanding that Petitioner pay his mother's doctor's bills. Petitioner also claims that the victim reached for a gun in his waistband before Petitioner shot him.
I. Standard of Review
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA; thus, it is governed by its provisions.
Petitioner is in custody of the California Department of Corrections and Rehabilitation pursuant to a state court judgment. Even though Petitioner is not challenging the underlying state court conviction, 28 U.S.C. § 2254 remains the exclusive vehicle for his habeas petition because he meets the threshold requirement of being in custody pursuant to a state court judgment. Sass v. California Board of Prison Terms, 461 F.3d 1123, 1126-1127 (9th Cir.2006), citing White v. Lambert, 370 F.3d 1002, 1006 (9th Cir.2004) ("Section 2254 'is the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the petition is not challenging [her] underlying state court conviction.'").
The instant petition is reviewed under the provisions of the Antiterrorism and Effective Death Penalty Act which became effective on April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Under the AEDPA, an application for habeas corpus will not be granted unless the adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding." 28 U.S.C. § 2254(d); see Lockyer, 538 U.S. at 70-71; Williams, 529 U.S. at 413.
"[A] federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409. Petitioner has the burden of establishing that the decision of the state court is contrary to or involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is objectively unreasonable. See Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.2003); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir.1999).
II. Review of Petition
There is no independent right to parole under the United States Constitution; rather, the right exists and is created by the substantive state law which defines the parole scheme. Hayward v. Marshall, 603 F.3d 546, 559, 561 (9th Cir. 2010) (en banc) (citing Bd. of Pardons v. Allen, 482 U.S. 369, 371 (1987); Pearson v. Muntz, No. 08-55728, 2010 WL 2108964, * 2 (9th Cir. May 24, 2010) (citing Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005)); Cooke v. Solis, No. 06-15444, 2010 WL 2330283, *6 (9th Cir. June 4, 2010). "[D]espite the necessarily subjective and predictive nature of the parole-release decision, state statutes may create liberty interests in parole release that are entitled to protection under the Due Process Clause." Bd. of Pardons v. Allen, 482 U.S. at 371.
In California, the Board of Parole Hearings' determination of whether an inmate is suitable for parole is controlled by the following regulations:
(a) General
The panel shall first determine whether the life prisoner is suitable for release on parole. Regardless of the length of time served, a life prisoner shall be found unsuitable for a denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.
(b) Information Considered
All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.
Cal. Code Regs. tit. 15, §§ 2402(a) and (b). Section 2402(c) sets forth circumstances tending to demonstrate unsuitability for release. "Circumstances tending to indicate unsuitability include:
(1) Commitment Offense
The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered include:
(A) Multiple victims were attacked, injured or killed in the same or separate incidents.
(B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder.
(C) The victim was abused, defiled or mutilated during or after the offense.
(D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering.
(E) The motive for the crime is inexplicable or very trivial in relation to the offense.
(2) Previous Record of Violence
The prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age.
(3) Unstable Social History
The prisoner has a history of unstable or tumultuous relationships with others.'
(4) Sadistic Sexual Offenses
The prisoner has previously sexually assaulted another in a manner calculated to inflict unusual pain or fear upon the victim.
(5) Psychological Factors
The prisoner has a lengthy history of severe mental problems related to the offense.
(6) Institutional Behavior
The prisoner has engaged in serious misconduct in prison or jail.
Cal. Code Regs. tit. 15, § 2402(c)(1)(A)-(E),(2)-(9).
Section 2402(d) sets forth the circumstances tending to show suitability which include:
(1) No Juvenile Record. The prisoner does not have a record of assaulting others as a juvenile or committing crimes with a potential of personal harm to victims.
(2) Stable Social History. The prisoner has experienced reasonably stable relationships with others.
(3) Signs of Remorse. The prisoner performed acts which tend to indicate the presence of remorse, such as attempting to repair the damage, seeking help for or relieving suffering of the victim, or indicating that he understands the nature and magnitude of the offense.
(4) Motivation for Crime. The prisoner committed his crime as a result of significant stress in his life, especially if the stress has built over a long period of time.
(5) Battered Woman Syndrome. At the time of the commission of the crime, the prisoner suffered from Battered Woman Syndrome, as defined in section 2000(b), and it appears the criminal behavior was the result of that victimization.
(6) Lack of Criminal History. The prisoner lacks any significant history of violent crime.
(7) Age. The prisoner's present age reduces the probability of recidivism.
(8) Understanding and Plans for Future. The prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release.
(9) Institutional Behavior. Institutional activities indicate an enhanced ability to function within the law upon release.
Cal. Code Regs. tit. 15, § 2402(d)(1)-(9)
The California parole scheme entitles the prisoner to a parole hearing and various procedural guarantees and rights before, at, and after the hearing. Cal. Penal Code § 3041.5. If denied parole, the prisoner is entitled to subsequent hearings at intervals set by statute. Id. In addition, if the Board or Governor find the prisoner unsuitable for release, the prisoner is entitled to a written explanation. Cal. Penal Code §§ 3041.2, 3041.5. The denial of parole must also be supported by "some evidence," but review of the Board's or Governor's decision is extremely deferential. In re Rosenkrantz, 29 Cal.4th 616, 128 Cal.Rptr.3d 104, 59 P.3d 174, 210 (2002).
Because California's statutory parole scheme guarantees that prisoners will not be denied parole absent some evidence of present dangerousness, the Ninth Circuit Court of Appeals recently held California law creates a liberty interest in parole that may be enforced under the Due Process Clause. Hayward v. Marshall, 602 F.3d at 561-563; Pearson v. Muntz, 606 F.3d 606, 608-609 (9th Cir. 2010). Therefore, under 28 U.S.C. § 2254, this Court's ultimate determination is whether the state court's application of the some evidence rule was unreasonable or was based on an unreasonable determination of the facts in light of the evidence. Hayward v. Marshall. 603 F.3d at 563; Pearson v. Muntz, 606 F.3d at 608.
The applicable California standard "is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings." In re Lawrence, 44 Cal.4th 1181, 1212 (2008) (emphasis in original and citations omitted). As to the circumstances of the commitment offense, the Lawrence Court concluded that although the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.
Id. at 1214.
In addition, "the circumstances of the commitment offense (or any of the other factors related to unsuitability) establish unsuitability if, and only if, those circumstances are probative to the determination that a prison remains a danger to the public. It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public." In re Lawrence, 44 Cal.4th at 1212.
"In sum, a reviewing court must consider 'whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor.'" Cooke v. Solis, 606 F.3d 1206, 1214 (9th Cir. 2010) (emphasis in original) (citing Hayward v. Marshall, 603 F.3d at 560).
A. Last Reasoned State Court Decision
In the last reasoned decision, the Los Angeles County Superior Court rejected Petitioner's claims as follows:
The Board found the Petitioner unsuitable for parole after a parole consideration hearing held on March 10, 2008. The Petitioner was denied parole for three years. The Board concluded that the Petitioner was unsuitable for parole and would pose an unreasonable risk of danger to society and a threat to public safety. The Board based its decision on several factors, including the commitment offense and his institutional behavior.
The Court finds that there is some evidence to support the Board's finding that the commitment offense was carried out in a dispassionate and calculated manner. Cal Code Regs., tit. 15 § 2402, subd. (c)(1)(B). Although the Petitioner had been attacked by the victim previously, the victim had not encountered him in any way on the day of the offense. Nevertheless, the Petitioner armed himself with a gun in order to confront the victim and then shot him in the back as he was walking away. The Petitioner then stood over the wounded victim and shot him in an execution-style manner, killing him. After a long period of time, a commitment offense may no longer indicate a current risk of danger to society in light of a lengthy period of positive rehabilitation. [Citation.] However, as discussed below the Petitioner's institutional behavior demonstrates continued violence and misconduct and a lack of substantial rehabilitation. In cases, such as this one, where other factors indicate a lack of rehabilitation, the aggravated circumstances of the offense may provide some evidence of current dangerousness, even decades after it is committed. [Citation.]
The Court finds that there is some evidence to support the Board's finding that the Petitioner's institutional behavior weighs against his suitability. Cal. Code Regs., tit. 15, § 2402, subd. (c)(6). The Petitioner has received four serious 115s in prison, including three for violent, or potentially violent conduct. He was cited for possessing a dangerous weapon in 1988, for fighting in 1991 and for mutual combat as recently as 2003. The Petitioner's continued and somewhat recent violence in prison demonstrates a lack of rehabilitation.
The Board also considered the Petitioner's limited substance abuse programming, given his history of alcohol abuse, his failure to create a reasonable relapse-prevention plan, as well as his psychological report, which indicated that he presents a moderate risk of future violence. While these factors, alone, may not justify a finding of unsuitability, the Board may properly consider them as they are relevant to a determination of whether the Petitioner is suitable for parole. Cal. Code Regs., tit. 15, § 2402(b).
The Board also considered the Petitioner's post-conviction gains, including obtaining his GED, earning a vocation in mill and cabinet and a partial vocation in computers, receiving exceptional work reports, participating in some self-help correspondence courses and sporadically participating in Alcoholics or Narcotics Anonymous. However, they still concluded that the Petitioner would pose an unreasonable threat to public safety. Penal Code § 3041(b). The Court finds that there is some evidence to support this determination because of his commitment offense, in light of his continued pattern of violence and lack of substantial rehabilitation in prison.
The Court finds that the Board did not err in denying the Petitioner parole for a period of three years. The Board must articulate reasons that justify a postponement, but those reasons need not be completely different from those justifying the denial of parole. [Citation.] The Board indicated that the Petitioner was denied parole for three years because of his commitment offense, his limited programming, the Board's finding that he was not forthcoming at the hearing, as well as his psychological report's conclusion that a longer period of observation was necessary. These reasons were sufficient to justify a three-year denial. (See Attachments to Petition.)
B. 2008 Board Hearing
As discussed by the superior court, supra, the Board found Petitioner unsuitable for parole at his March 10, 2008, parole consideration hearing based on the circumstances of the commitment offense, unstable social history, institutional misconduct, lack of programming, and unsupportive psychological evaluation.
The commitment offense involved Petitioner arming himself beforehand and confronting the victim. Petitioner shot the victim in the back as the victim was retreating. As the victim fell to the ground, Petitioner stood over him and shot him in the head, killing him. The Board determined the offense was carried out in a calculated, dispassionate, and execution-style manner. Cal. Code Regs. tit. 15, § 2402(c)(1)(B).
The Board further noted Petitioner had an unstable social history. Cal. Code Regs. tit. 15, § 2402(c)(3). Petitioner had been subjected to sexual abuse as a child, had run away, and had committed a couple of thefts.
The Board next determined that Petitioner had not programmed sufficiently while incarcerated. He had a history of alcohol abuse, but he had only limited substance abuse programming. In addition, the psychological report was not supportive of release. Petitioner was placed in the moderate risk range for future violence. These factors can be considered as they are relevant to a finding of suitability. Cal. Code Regs. tit. 15, § 2402(b).
Finally, the Board determined that Petitioner's negative institutional behavior which included violence demonstrated he was not suitable for parole. Cal. Code Regs. tit. 15, § 2402(c)(6). He committed four serious rules violations, three of them for violent or potentially violent conduct. In 1988, he was cited for possession of a weapon. In 1991, he was cited for fighting. More recently in 2003, he was found guilty of mutual combat.
After the considering the factors in favor of suitability, the Board concluded that the positive aspects of Petitioner's behavior did not outweigh the factors of unsuitability. In light of the circumstances of Petitioner's commitment offense, his institutional misconduct, his limited programming, his unstable social history, and the unfavorable psychological report, the state courts' determination that there was some evidence to support the Board's 2008 decision is not an unreasonable application of California's some evidence standard, nor an unreasonable determination of the facts in light of the record. Although Petitioner maintains that factors such as the commitment offense and unstable social history are too old to offer any value, they are relevant to predicting a risk of future violence when tied to Petitioner's violent institutional misconduct and unfavorable psychological report. Accordingly, federal habeas corpus relief is unavailable.
Petitioner also complains the Board was biased in its determination. Petitioner does have a due process right to a parole board that is composed of neutral and impartial decision-makers. O'Bremski v. Maas, 915 F.2d 418, 422 (9th Cir.1990) (an inmate is "entitled to have his release date considered by a Board that [is] free from bias or prejudice"). However, Petitioner's claim must be substantiated by the record. Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir.1995) ("[c]onclusory allegations which are not supported by a statement of facts do not warrant habeas relief."). Here, petitioner offers no specific factual allegations with respect to the commissioners who presided over his hearing. Further, neither petitioner nor his attorney objected to the presiding commissioners when given the opportunity to do so at the hearing. Petitioner's claim is unfounded.
Petitioner also claims the board's regulations regarding parole suitability are unconstitutionally vague. Petitioner specifically objects to the terms "especially heinous, callous, cruel, and brutal," found in Cal.Code Regs. tit. 15, § 2402(c).
A statute or regulation is void for vagueness "if it fails to give adequate notice to people of ordinary intelligence concerning the conduct it proscribes or if it invites arbitrary and discriminatory enforcement." United States v. Doremus, 888 F.2d 630, 634 (9th Cir.1989). See also Humanitarian Law Project v. Mukasey, 509 F.3d 1122, 1134 (9th Cir.2007) ("To survive a vagueness challenge, the statute must be sufficiently clear to put a person of ordinary intelligence on notice that his or her contemplated conduct is unlawful.") "[A] party challenging the facial validity of [a law] on vagueness grounds outside the domain of the First Amendment must demonstrate that the enactment is impermissibly vague in all of its applications." Hotel & Motel Ass'n of Oakland v. City of Oakland, 344 F.3d 959, 972 (9th Cir.2003) (internal quotation marks omitted). Moreover, "[t]he Due Process Clause does not require the same precision in the drafting of parole release statutes as is required in the drafting of penal laws." Hess v. Board of Parole and Post-Prison Supervision, 514 F.3d 909, 914 (9th Cir.2008), citing Glauner v. Miller, 184 F.3d 1053, 1055 (9th Cir.1999).
The California parole release statute provides a list of five factors to be considered in determining whether a crime is especially "heinous, atrocious or cruel," including whether the offense was carried out in a dispassionate and calculated manner and whether the motive for the crime is inexplicable or very trivial in relation to the offense. California Code of Regulation Title 15, § 2402(c)(1)(A)-(E). Because the term "especially heinous, atrocious, or cruel" is further limited by these five detailed factors, it is not constitutionally vague. See, e.g., Arave v. Creech, 507 U.S. 463, 470-78 (1993) (Idaho death penalty statute which cited as an aggravating factor that the crimes were carried out in "utter disregard for human life" was not impermissibly vague because limiting construction had been adopted defining this factor as demonstrating "the utmost disregard for human life, i.e., the cold-blooded pitiless slayer"). Further, California Code of Regulation Title 15, § 2402(c)(1) has not been found to be unduly vague or overbroad under federal law. Nor has clearly established federal law been found to preclude the use of terms such as "especially cruel" or "callous" as guidelines in parole suitability evaluations.
Petitioner's reliance on the California superior court decision in In re Criscione is misplaced. Since Criscione is a state superior court case, it is not binding on this Court. In addition, Criscione was reversed by the appellate court in In re Donald Ray Lewis, 172 Cal.App.4th 13 (2009). For the above reasons, Petitioner's challenge to California's parole statute on vagueness grounds must fail.
Based on the foregoing, it is HEREBY RECOMMENDED that:
1. The instant petition for writ of habeas corpus be DENIED; and
2. The Clerk of Court be directed to enter judgment in favor of Respondent.
This Findings and Recommendation is submitted to the assigned United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Replies to the objections shall be served and filed within fourteen (14) days after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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|Property type
|Minimum Stay
|3 nights
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