(PC) Johnson v. California Department of Corrections and Rehabilitation

• Court: District Court, E.D. California
• Decided: October 29, 2021
• Docket: 1:20-cv-00119
• Status: Unknown

Opinion

6 UNITED STATES DISTRICT COURT

7 EASTERN DISTRICT OF CALIFORNIA

9 DARRYL JOHNSON, 1:20-cv-00119-GSA-PC

10 Plaintiff, ORDER FOR CLERK TO RANDOMLY ASSIGN A UNITED STATES DISTRICT 11 vs. JUDGE TO THIS CASE

12 CALIFORNIA DEPARTMENT OF FINDINGS AND RECOMMENDATIONS, CORRECTIONS AND RECOMMENDING THAT THIS CASE BE 13 REHABILITATION, et al., DISMISSED AS MOOT (ECF No. 16.) 14 Defendants. OBJECTIONS DUE WITHIN FOURTEEN 15 DAYS

17 18 I. BACKGROUND 19 Darryl Johnson (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 20 with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 21 commencing this case on January 23, 2000. (ECF No. 1.) On September 11, 2020, the court 22 dismissed the Complaint for failure to state a claim, with leave to amend. (ECF No. 14.) On 23 October 9, 2020, Plaintiff filed the First Amended Complaint, which is now before the court for 24 screening. 28 U.S.C. § 1915. (ECF No. 16.) 25 II. SCREENING REQUIREMENT 26 The Court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 28 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 1 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 2 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 3 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 4 dismiss the case at any time if the court determines that the action or appeal fails to state a claim 5 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 6 A complaint is required to contain “a short and plain statement of the claim showing that 7 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 8 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 9 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 10 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 11 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 12 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state 13 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim 14 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 15 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal 16 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this 17 plausibility standard. Id. 18 III. SUMMARY OF FIRST AMENDED COMPLAINT 19 Plaintiff is presently incarcerated at the California Substance Abuse Treatment Facility 20 and State Prison (SATF) in Corcoran, California, in the custody of the California Department of 21 Corrections and Rehabilitation (CDCR), where the events at issue in the First Amended 22 Complaint allegedly occurred. Plaintiff names as defendants the CDCR, Ralph Diaz (CDCR 23 Secretary), and Stu Sherman (Warden, SATF) (collectively, “Defendants”). A summary of 24 Plaintiff’s allegations follows: 25 Claim 1: Violation of the Right to Equal Protection - Fourteenth Amendment 26 Plaintiff was convicted in 2018 of two non-violent felonies under California Penal Code 27 273 (Child Endangerment) and California Penal Code 594(D) (Vandalism) for a term of 5 years 28 and 4 months, to be served in state prison. 1 Proposition 57, approved by voters in November 2016, makes parole more available for 2 certain felons convicted of non-violent crimes. Proposition 57 added Article 1, Section 32 to the 3 California Constitution. That section provides in relevant part, “Parole Consideration”: Any 4 person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for 5 parole consideration after completing the full term for his or her primary offense. . . Section 32, 6 Subdivision (a)(1). 7 The CDCR improperly denied Plaintiff consideration under the Non-Violent Parole 8 Process (NVPP) because he is a sex offender for which he must register as a sex offender. The 9 CDCR promulgated the regulation, Cal.Code Regs. tit 15 section 3491(b)(3) that disallows NVPP 10 consideration for certain sex offenders like Plaintiff. That regulation is inconsistent with 11 Proposition 57, which did not exclude sex offenders from the NVPP. 12 The CDCR violated Plaintiff’s rights to Equal Protection and to be free of ex post facto 13 laws by promulgating the regulation and relying on it to deny Plaintiff’s consideration under the 14 NVPP. 15 Plaintiff alleges that in implementing the new regulation disallowing participation in 16 NVPP for certain sex offenders, the CDCR is treating sex offenders, including Plaintiff, 17 differently from other prisoners of the same category of crime, which constitutes a cognizable 18 claim under the Fourteenth Amendment right to equal protection of the laws. 19 Claim 2: Ex Post Facto Laws 20 Article 1, section 10 of the U.S. Constitution prohibits the states from passing any ex post 21 facto laws. 22 “To fall within the ex post facto prohibition, a law must be retrospective – 23 that is, ‘it must apply to events occurring before its enactment’ and it ‘must 24 disadvantage the offender affected by it’ by altering the definition of criminal 25 conduct or increasing the punishment for the crime.” 26 Some retroactive changes in parole laws may violate the ex post facto clause, but “not 27 every retroactive procedural change creating a risk of affecting an inmate’s terms or conditions. 28 The critical inquiry in examining a change to a parole law is “whether retroactive application of 1 change. . . creates a sufficient risk of increasing the measure of punishment attached to the 2 covered crimes.” 3 Plaintiff alleges that the regulation promulgated and implemented by the CDCR that has 4 caused Plaintiff to be deemed ineligible for the NVPP has resulted in the infliction of a greater 5 punishment than that to which he otherwise was subject to under the law as it existed before that 6 regulation was promulgated. 7 Relief Requested 8 As relief, Plaintiff seeks (1) an injunction invalidating the state policy rules and 9 regulations used to deny parole consideration in violation of the Fourteenth Amendment and 10 Article 1 Section 10 of the U.S. Constitution; (2) a declaratory judgment that Ralph Diaz’s 11 policies, rules and regulations denied Plaintiff substantive and procedural due process and equal 12 protection of the law under the Fifth, Sixth, and Fourteenth Amendments; (3) a declaratory 13 judgment that the Secretary’s defendants assisted in perpetuating an unconstitutional policy and 14 violated Plaintiff’s substantive and procedural due process rights and equal protection rights 15 under the Fifth, Sixth, and Fourteenth Amendments; (4) an injunction ordering Ralph Diaz to 16 correct the unconstitutional rules and regulations by removing Cal.Code Regs. Tit 15 section 17 3491(a)(3) from the descriptive list of eligibility review; (5) an injunction ordering [sic] or his 18 agents to grant Plaintiff a parole hearing immediately; and (6) punitive damages. 19 IV. PLAINTIFF’S CLAIMS 20 The Civil Rights Act under which this action was filed provides:

21 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 22 be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 23 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 . . . . 24

25 42 U.S.C. § 1983. 26 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 27 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 28 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. 1 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 2 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v. 3 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of a state law 4 amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the 5 federal Constitution, Section 1983 offers no redress.” Id. 6 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 7 color of state law and (2) the defendant deprived him or her of rights secured by the Constitution 8 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 9 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 10 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 11 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act 12 which he is legally required to do that causes the deprivation of which complaint is made.’” 13 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 14 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 15 established when an official sets in motion a ‘series of acts by others which the actor knows or 16 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 17 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles 18 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 19 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 20 1026 (9th Cir. 2008). 21 A. Proposition 57 22 Proposition 57 was approved by California voters on November 8, 2016 and went into 23 effect the next day. Rodriguez v. Anderson, No. EDCV181181JGBAGR, 2021 WL 2343346, at 24 *1 (C.D. Cal. Mar. 31, 2021), report and recommendation adopted, No. EDCV181181JGBAGR, 25 2021 WL 2336944 (C.D. Cal. June 7, 2021). In pertinent part, Proposition 57 added section 32 26 to article I of the California Constitution. Id. Section 32(a) provides that “[a]ny person convicted 27 of a nonviolent felony offense and sentenced to state prison shall be eligible for parole 28 consideration after completing the full term for his or her primary offense,” defined as “the 1 longest term of imprisonment imposed by the court for any offense, excluding the imposition of 2 an enhancement, consecutive sentence, or alternative sentence.” Cal. Const. art I, § 32(a)(1). Id. 3 Section 32(b) directs the California Department of Corrections and Rehabilitation 4 (“CDCR”) to “adopt regulations in furtherance of these provisions.” Id. at *2 (citing Cal. Const. 5 art I, § 32(b)). The CDCR subsequently promulgated regulations that excluded persons convicted 6 of a sex offense requiring registration as a sex offender from the definition of “nonviolent 7 offender.” 15 Cal. Code Regs. § 3490(a)(3) (2017). Id. Under the implementing regulations, 8 inmates convicted of registrable sex offenses were ineligible for early parole consideration under 9 Proposition 57. Id. 10 In the action Alliance for Constitutional Sex Offense Laws v. CDCR, Case No. 34-2017- 11 80002581, filed in the Sacramento County Superior Court on April 27, 2017 (“ACSOL”), the 12 petitioners challenged the exclusion of inmates convicted of registrable sex offenses from the 13 definition of “nonviolent offender” as inconsistent with the California Constitution and the 14 voters’ intent in approving Proposition 57. Id. On March 20, 2018, the Superior Court issued a 15 peremptory writ of mandate directing the CDCR and Secretary Kernan to set aside the regulations 16 (at that time 15 Cal. Code Regs. §§ 3490(a)(3) and 2449.1(a)(3)), which exclude individuals 17 convicted of a registrable sex offense from the definition of “nonviolent offender,” and to define 18 the term “nonviolent” in a manner consistent with Article I, Section 32(a)(1). Id. (citing ACSOL, 19 https://services.saccourt.ca.gov/PublicCaseAccess (search for Case No. 34-2017-80002581).1 20 The California Court of Appeal affirmed. Id. (citing ACSOL v. CDCR, 45 Cal. App. 5th 225 21 (2020)). The California Supreme Court granted the petition for review. Id. (citing ACSOL v. 22 CDCR, 2020 Cal. LEXIS 3628 (May 27, 2020)). Subsequently, the California Supreme Court 23 dismissed review in light of its decision in Gadlin discussed below. Id. (citing ACSOL v. CDCR, 24 2021 Cal. LEXIS 1146 (Feb. 10, 2021)).

25 1 The court may take judicial notice of the dockets and documents on file in other courts. 26 See Fed. R. Evid. 201; Rosales-Martinez v. Palmer, 753 F.3d 890, 894 (9th Cir. 2014) (“It is well established that we may take judicial notice of judicial proceedings in other courts.”); Harris v. County of 27 Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (court may take judicial notice of and consider “documents 28 on file in federal or state courts”). 1 B. In re Gregory Gadlin on Habeas Corpus2 2 The currently operative regulations implementing Proposition 57 no longer exclude 3 inmates convicted of a registrable sex offense from the definition of “nonviolent offender” in 4 Section 3490(a) but provide in Section 3491(b)(3) that an inmate is nevertheless not eligible for 5 parole consideration if “[t]he inmate is convicted of a sexual offense that currently requires or 6 will require registration as a sex offender . . . .” 15 Cal. Code Regs. § 3491(b)(3). Id. 7 In In re Gadlin on Habeas Corpus, the California Supreme Court addressed the validity 8 of the regulations excluding from nonviolent offender parole consideration an inmate who is 9 convicted of a sexual offense that currently requires or will require registration as a sex offender. 10 Id. (citing Gadlin, 10 Cal. 5th at 919; 15 Cal. Code Regs. §§ 3491(b)(3), 3496(b)). The California 11 Supreme Court held that (1) “nonviolent offender parole eligibility must be based on an inmate’s 12 current conviction” and (2) “an inmate may not be excluded from nonviolent offender parole 13 consideration based on a current conviction for a registrable felony offense that the Department’s 14 regulations have defined as nonviolent.” Id. (citing Gadlin, 10 Cal. 5th at 943). The Court 15 directed the Department to “void and repeal” Cal. Code Regs. § 3491(b)(3) and § 3496(b) and 16 make any conforming changes necessary. Id. (citing Gadlin, 10 Cal. 5th at 943.) 17 It is unknown whether Plaintiff in this case has requested nonviolent offender parole 18 consideration under any new regulations and, if so, whether he has been granted a parole hearing. 19 However, the court finds that the California Supreme Court’s decision in Gadlin renders this case 20 moot. 21 B. Mootness 22 Mootness is jurisdictional. Rodriguez, 2021 WL 2343346, at *6 (citing See Koppers 23 Indus. v. U.S.E.P.A., 902 F.2d 756, 758 (9th Cir. 1990)). The fundamental issue in deciding 24 mootness is whether there is a current controversy to which effective relief can be granted. Id. 25 (citing see American Rivers v. National Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 26

27 2In re Gadlin, 10 Cal. 5th 915, 943, 477 P.3d 594, 612 (2020), the Court held, “that an 28 inmate may not be excluded from nonviolent offender parole consideration based on a current conviction for a registerable felony offense that the Department’s regulations have defined as nonviolent.” 1 1997) (“If an event occurs that prevents the court from granting effective relief, the claim is moot 2 and must be dismissed.”)). To avoid dismissal on mootness grounds, “throughout the litigation, 3 the Plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant 4 and likely to be redressed by a favorable judicial decision.” Id. (quoting Spencer v. Kemna, 523 5 U.S. 1, 7, 118 S. Ct. 978, 140 L. Ed. 2d 43 (1998) (citation and quotation marks omitted)). 6 “A case might become moot if subsequent events made it absolutely clear that the 7 allegedly wrongful behavior could not reasonably be expected to recur.” Id. (quoting United 8 States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203, 89 S. Ct. 361, 21 L. Ed. 2d 9 344 (1968)). Mootness requires that “interim relief or events have completely and irrevocably 10 eradicated the effects of the alleged violation.” Id. (quoting Los Angeles Cnty. v. Davis, 440 11 U.S. 625, 631, 99 S. Ct. 1379, 59 L. Ed. 2d 642 (1979) (citations and quotations omitted)). The 12 party asserting mootness bears the “heavy burden” of persuading the court that the challenged 13 conduct cannot reasonably be expected to recur. Id. (quoting see Concentrated Phosphate Export 14 Ass’n, 393 U.S. at 203)). 15 Plaintiff’s First Amended Complaint seeks injunctive relief to invalidate the regulations 16 deeming ineligible, for early parole consideration under Proposition 57, persons convicted of 17 registrable sex offenses. (ECF No. 16 at 7-8.) While this case was pending, the California 18 Supreme Court decided Gadlin and directed the CDCR to “void and repeal” the challenged 19 regulations. Id.; 10 Cal. 5th at 943. Gadlin rendered Plaintiff’s First Amended Complaint 20 moot. Id. (citing see Twitter, Inc. v. Lynch, 139 F. Supp. 3d 1075, 1081 (N.D. Cal. 2015) 21 (“[W]hen subsequent legislation or rulemaking supersedes challenged regulations or rules, the 22 challenge is moot.”)). 23 An exception to the mootness doctrine allows the court to entertain an otherwise moot 24 matter when the alleged constitutional violation is capable of repetition but is evading review. 25 Id. (citing see, e.g., Honig v. Doe, 484 U.S. 305, 318-20, 108 S. Ct. 592, 98 L. Ed. 2d 686 (1988)). 26 The exception applies when: “(1) the challenged action was in its duration too short to be fully 27 litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the 28 1 same complaining party would be subjected to the same action again.” Id. (quoting Murphy v. 2 Hunt, 455 U.S. 478, 482, 102 S. Ct. 1181, 71 L. Ed. 2d 353 (1982)). 3 This exception does not apply here because there is no reasonable expectation that 4 Plaintiff will be subjected to the void regulations in the future. There is no reasonable expectation 5 that the CDCR will defy the California Supreme Court and continue to apply the voided and 6 repealed regulations. Id. (citing see, e.g., United States v. W. T. Grant Co., 345 U.S. 629, 633, 7 73 S. Ct. 894, 97 L. Ed. 1303 (1953)). 8 Because there no longer exists any claim or controversy over which this court can fashion 9 a remedy, the First Amended Complaint is moot. Id. at *7 (citing see Giraldes v. Kernan, 707 10 Fed. Appx. 937, 937 (9th Cir. 2017) (affirming dismissal of action challenging CDCR regulation 11 as moot when it was no longer enforced due to change arising from statutory 12 amendment); McGhee v. Diaz, 2020 U.S. Dist. LEXIS 148118, *5-*6 (N.D. Cal. Aug. 17, 2020) 13 (finding action for declaratory relief moot after state courts held that regulations precluding 14 parole consideration for inmate were invalid); Barron v. Madden, 2019 U.S. Dist. LEXIS 38886, 15 *7 (N.D. Cal. Mar. 11, 2019) (finding challenge to CDCR regulations that were no longer 16 operative was moot; stating inmate could file new action if he did not receive parole within 17 reasonable time); see also Andreozzi v. CDCR, 262 Fed. Appx. 771, 772 (9th Cir. 2007) 18 (affirming summary judgment in action challenging CDCR regulation that was subsequently 19 modified)). 20 V. ORDER, RECOMMENDATIONS, AND CONCLUSION 21 Order: 22 Accordingly, IT IS HEREBY ORDERED that the Clerk shall randomly assign a District 23 Judge to this case. 24 Recommendations and Conclusion: 25 For the reasons discussed above, IT IS HEREBY RECOMMENDED that: 26 1. This case be dismissed as moot; and 27 2. The Clerk be directed to close this case. 28 /// 1 These Findings and Recommendations will be submitted to the United States District 2 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 3 fourteen days after the date of service of these Findings and Recommendations, Plaintiff may 4 file written objections with the Court. The document should be captioned “Objections to 5 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 6 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 7 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 8 (9th Cir. 1991)). 9 IT IS SO ORDERED. 10

11 Dated: October 29, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 12

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