ALLISON CLAIRE, Magistrate Judge.
On November 12, 2014, the court held a hearing on defendants' motion for judgment on the pleadings. Keith Wattley appeared for the plaintiff class and Heather Heckler appeared for defendants. On review of the motion, the documents filed in support and opposition, upon hearing the arguments of counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
Plaintiff Sam Johnson is a California inmate serving an indeterminate life sentence, who seeks declaratory and injunctive relief pursuant to 42 U.S.C. § 1983. Defendants are the Governor of California, the Executive Officer of the Board of Parole Hearings ("BPH"), and other officials of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff challenges the constitutionality of the protocol adopted by the Board of Parole Hearings' Forensic Assessment Division ("the FAD protocol") for the preparation of psychological evaluations to be considered in determining prisoners' suitability for parole.
Plaintiff's First Amended Complaint ("Complaint") was filed November 15, 2012 (ECF No. 18). The Complaint asserts (a) twelve claims for violations of plaintiff's due process rights under the Fourteenth Amendment to the U.S. Constitution, (b) one claim for a violation of plaintiff's equal protection rights under the Fourteenth Amendment, and (c) four claims under California law. The gravamen of the complaint is that "the FAD protocols were adopted (and operate) to create an evidentiary basis for the denial of parole by generating unreliable future dangerousness findings, rendering the suitability evaluation process biased and inherently unreliable." ECF No. 40 at 12.
On August 21, 2013, defendant moved for summary judgment. ECF No. 30.
Defendants made three arguments for dismissing all of plaintiff's Section 1983 due process claims. First, they argued that all the claims were subject to summary dismissal under
On November 1, 2013, the undersigned issued a recommendation, subsequently adopted by the district judge, that defendant's motion for summary judgment be denied as to the due process claims.
Plaintiff's motion for class certification, ECF No. 29, was heard together with defendants' motion for summary judgment. The district judge adopted the recommendation of the undersigned that class certification be granted. ECF Nos. 40, 44. Accordingly, the due process claims — the only surviving claims in the case — proceed on behalf of all California prisoners who are serving life sentences and are eligible for parole consideration after having served their minimum terms. ECF No. 40 at 14.
Defendants have now filed this motion for judgment on the pleadings.
The allegations of the complaint are set out at length in the November 1, 2013 Findings & Recommendations.
The BPH has long considered psychological evaluations when evaluating prisoners' suitability for parole, but prior to 2007 those evaluations were routinely conducted by mental health professionals on staff at the various institutions. In the spring of 2007, BPH issued a memo forbidding prison-based staff psychologists from conducting lifer evaluations and requiring a newly constituted FAD team to handle all of them. BPH hired its own FAD psychologists to prepare evaluations because evaluations prepared by prison-based clinicians were too often favorable to prisoners and too frequently supported judicial rejections of BPH decisions denying parole.
The FAD protocol requires the use of three specific risk assessment tools to predict future violence: the Psychopathy Checklist-Revised ("PCL-R"); the 20-item Historical, Clinical, Risk Management tool ("HCR-20"); and the Level of Service/Case Management Inventory ("LS/CMI"). In August 2006, BPH convened a panel of forensic psychologists and other experts to assess the validity of these tools for use in California's parole consideration process. The invited experts advised against use of these tools, on grounds they are scientifically unreliable and have not been validated for predicting violence among long-term prisoners like California lifers. BPH mandated the use of these tools despite this expert advice, knowing and intending that the tools would result in unreliable findings of dangerousness and thus provide a basis for denial of parole. BPH officials lied to the public and to the state's regulatory agency about the advice they had received from their expert consultants.
In late 2005 and early 2006, prior to the imposition of centralized FAD evaluations, the BPH had sought to limit the focus of prison-based psychological reports to the presence or absence of mental illness. The Board discouraged assessment of "remorse" and "insight" into the commitment offenses, on grounds these were matters for the commissioners to assess rather than proper subjects of psychological reports. However, Board findings regarding lack of insight were frequently criticized in judicial opinions, particularly where they were at odds with the reports of psychologists working in the institutions. The FAD protocol places renewed emphasis on the "clinical" evaluation of remorse and insight, despite BPH knowledge that these factors do not statistically correlate with risk in the lifer population and that clinicians are incapable of assessing such matters. The emphasis on remorse and insight in the FAD evaluations is intended to support parole denials and insulate them from judicial review.
Plaintiffs also allege that BPH established the FAD before attempting to promulgate regulations to authorize it. When BPH did attempt to promulgate such regulations, it lied about the opinions of its expert consultants to the state agency responsible for certifying compliance with the applicable rule-making procedures. BPH has continued to shield the FAD's systematic deficiencies and biases from public scrutiny. In July 2010, California's Office of the Inspector General ("OIG") issued a Special Report on BPH's Psychological Evaluations. The OIG determined that BPH has no system for tracking or otherwise monitoring the number of errors in psychological evaluations, no system for determining whether FAD psychologists are assessing higher levels of risk than were found in previous evaluations of the same prisoners, an inadequate oversight system for senior FAD psychologists to review the reports of FAD staff psychologists, and inadequate training of its psychologists. In essence, senior psychologists routinely rubberstamp staff psychologists' reports without verifying the validity of anything written. Due to these deficiencies, the OIG was unable to conduct the kind of review requested by the California Legislature, which provides oversight for BPH appointments and operations.
The named plaintiff, Sam Johnson, sets forth the facts of his own case to illustrate the impact of the FAD protocol on California parole-eligible life prisoners. Johnson is an inmate at San Quentin State Prison, serving a sentence of life with the possibility of parole. Prior to his commitment offense plaintiff had no history of violence and no juvenile record; all three of his prior convictions were misdemeanors. Both prior to and throughout 19 years of incarceration, he has maintained steady employment. He is currently in his third term as chair of the prison's Men's Advisory Council, a leadership position that involves regular interaction with prison officials and with inmates of all races. His only disciplinary infraction in 19 years was a Division "F" offense six years prior to his 2010 parole hearing. He has no history of mental illness or substance abuse. Plaintiff's risk assessment evaluation was performed by FAD psychologist Richard Hayward, Ph.D. in 2009. Dr. Hayward administered the three risk assessment tools used by the FAD to project future dangerousness. Dr. Hayward's resulting report to the BPH concluded that plaintiff lacked insight and posed a high risk of recidivism. These conclusions are incorrect, and resulted from the use of unreliable tools and a biased evaluation process. Plaintiff identifies numerous specific errors and misstatements in Dr. Hayward's report that demonstrate its unreliability. The BPH relied on the report to deny plaintiff parole.
Plaintiff Johnson alleges that his situation is typical of that faced by parole-eligible lifers throughout California's prisons. Plaintiff's counsel has been contacted by lifers at 27 of the 32 California prisons that house lifers, including all eight of the prisons with the highest concentrations of parole-eligible lifers, all of whom have similar complaints. Because BPH requires the FAD to conduct a psychological evaluation prior to every single parole consideration hearing, all of the roughly 10,000 life prisoners who have served their minimum terms and are therefore eligible for parole consideration are directly impacted by the protocol.
The First Amended Complaint contains twelve surviving claims, all asserted under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. Since defendants now attack each claim separately, they are set out briefly below. Many of the claims are pled specifically as to named plaintiff Johnson, with the further allegation that Johnson's experience is representative of the parole hearing process as it incorporates the FAD protocol and is applied to parole-eligible prisoners generally. Because the class has been certified, the undersigned construes those claims as being alleged by the class.
It is apparent from plaintiff's opposition brief, and was confirmed by plaintiff's counsel at hearing on the motion, that these separately denominated "claims" do not in fact allege twelve distinct causes of action or even separate due process violations. Claims 4, 5, 9 and 12 involve the procedural safeguards afforded to inmates in the context of their individual hearings. These claims are fairly construed as alleging discrete due process violations. All of plaintiff's other due process "claims," however, are best understood as components of the overarching claim that the FAD protocol deprives plaintiffs of a fair and unbiased parole consideration process. Claim 10 focuses on the bias of individual parole hearing panels. Claims 1 and 11, which constitute the core of plaintiff's case, focus on the systematic bias that the FAD protocol allegedly builds into the parole consideration process. Claims 2, 3, 6, 7, and 8 are here construed as alleging additional facts in support of the systemic bias claim principally embodied in Claims 1 and 11.
Under Federal Rule of Civil Procedure 12(c), "[a]fter the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). In a 12(c) motion, the court "assume[s] that the facts that [plaintiff] alleges are true."
Where, as here, the 12(c) motion is based upon defendants' assertion that the complaint fails to state a claim, the court's analysis "is `substantially identical' to analysis under Rule 12(b)(6) because, under both rules, "a court must determine whether the facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy."
The court must accept as true the allegations of the complaint.
Pursuant to the Fourteenth Amendment to the U.S. Constitution,
U.S. Const. amend. XIV, § 1. "A section 1983 claim based upon procedural due process thus has three elements: (1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; (3) lack of process."
Plaintiffs allege that California's parole scheme creates in them a constitutionally protected liberty interest in being released on parole.
In any event, the assertion is well supported by the statutes governing parole in California, and by Supreme Court and Ninth Circuit authority.
Plaintiff has sufficiently alleged the first element of a Due Process violation.
Plaintiffs sufficiently allege that they were deprived of their liberty interest in parole, and this is not contested by defendants.
To satisfy the final element of a Due Process violation, plaintiffs must sufficiently allege that the procedures used to deprive them of parole are deficient under the Due Process Clause. As noted above, plaintiffs' claims may be grouped into two categories.
The first group — Claims 1, 2, 3, 6, 7, 8, 10 and 11 — targets bias in the parole decision-making process, both systemically and at the level of individual decision-makers (i.e., parole panels). The "parole decision-making process" challenged by the systemic bias allegations is not limited to the parole hearings themselves, but focuses on the overall process of assessing suitability. Plaintiffs contend that this process is rigged by use of the FAD protocol to result in denial of parole even when an inmate is entitled to it. In these claims, plaintiffs allege that defendants deliberately and knowingly use unreliable, biased evidence, including FAD reports riddled with substantial errors, in order to ensure that parole is denied in nearly every case. Below, the court separately addresses the related but conceptually distinct issues of systemic bias (the right to a fair and unbiased parole process
The second group — Claims 4, 5, 9 and 12 — alleges that defendants unfairly deny inmates evidence and procedures that they need to challenge the biased FAD inputs at individual hearings. These claims focus on how individual parole hearings are conducted, and challenge the process provided during and in relation to those hearings. Plaintiffs allege that they are entitled to, but denied, the raw data underlying the FAD reports, and that they are denied the right to call witnesses and to confront and cross-examine the experts who produce the FAD reports. Following discussion of plaintiff's bias theories, the court considers the claims that due process requires these specific procedures.
The core requirement of due process is a fair and unbiased decision-making process.
Plaintiffs allege that they are denied parole in an unfair, systemically biased parole determination process. Specifically, plaintiffs allege that the parole authorities use risk assessment tools which defendants know are invalid, and which are biased against parole by producing "impermissibly elevated" risk assessments. In addition, the FAD reports, upon which individual hearing panels rely in determining parole suitability, contain risk assessments which defendants know were made by people incapable of making such assessments. Moreover, defendants have structured the process to ensure that the invalidity of the risk assessment tools will never be discovered, and that errors in FAD reports over-predicting risk will not be discovered and otherwise will be ignored.
Plaintiffs are not simply alleging that there are errors in the way that individual parole hearings are conducted. Rather, they are alleging that defendants are knowingly producing erroneous determinations by systematically requiring the panels to rely on reports and evidence known by defendants to be unreliable. Moreover, plaintiffs are not alleging random errors. Rather, they allege that these forced, known errors create a process that is biased against parole by producing invalid, and impermissibly elevated, risk assessments. Like customers in a deli whose scale reads "two pounds" before anything is placed on it, plaintiffs allege that they are the victims of a rigged process that can err in only one direction — always against them.
Defendants argue that the only type of "bias" cognizable in a Due Process claim is bias on the part of individual parole hearing panels or their members against individual inmates. Defendants seek judgment on the pleadings on grounds that the named plaintiff "makes no allegation that individual parole board members were biased against him specifically," and that his allegation of systemic bias "is insufficient to state a bias claim because Johnson does not allege bias by a specific decision-maker." Opposition at 18-19. According to defendants, systemic bias is "novel as a due process claim." ECF No. 55 at 19. The only due process claim that lies on grounds of "bias," they argue, is one in which plaintiff alleges "that the individual or individuals rendering the decision were themselves biased in some manner," and moreover, "that individual board members were biased against him specifically." ECF No. 55 at 18 (emphasis added).
Defendants cite no authority that precludes systemic bias as the basis for a Due Process claim, and the court is unable to find any. Rather, defendants argue that no binding authority explicitly recognizes systemic bias as the basis of a Due Process violation. In the context of a § 1983 action, however, relief is not rendered unavailable where a claim presents an issue of first impression or one which requires application of general principles to a new set of facts.
Of course it is true that the parole decision must be made by panel members who are not personally biased against a specific inmate.
We deal here, of course, with a parole hearing and not a criminal trial; accordingly the quantum of Due Process protections afforded plaintiffs in this case differs from than in
Due process requires fair-minded people on the hearing panel, and it requires that the procedures that govern (and, as alleged here, largely determine) their decision-making must also be fair.
In response to a question at oral argument, defendants asserted that Due Process would not be offended by a parole system that is designed to produce a specific outcome, as long as the particular parole panel in any given case retains the discretion to reach a different outcome. According to defendants, the only way a rigged hearing process could violate Due Process is if a particular panel (or panel member) pre-judged the outcome of an individual case. Defendants cite
In
There are two ways in which a plaintiff may establish that he has been denied his constitutional right to a fair hearing before an impartial tribunal. In some cases, the proceedings and surrounding circumstances may demonstrate actual bias on the part of the adjudicator. In other cases, the adjudicator's pecuniary or personal interest in the outcome of the proceedings may create an appearance of partiality that violates due process, even without any showing of actual bias.
There is another reason why a systemic bias that essentially forces the outcome of parole hearings against parole could be a Due Process violation. The California statute that creates the protected liberty interest in parole states that it is the parole panel that decides whether or not to grant parole:
Cal. Penal Code § 3041(b) (emphasis added). Plaintiffs' allegation of systemic bias against parole means that, in violation of this statute, the parole panel is only the nominal decision-maker, and that defendants are actually determining outcomes by their creation and adoption of the FAD protocol.
Defendants argue elsewhere that such a theory is precluded because the Due Process Clause is not implicated by State violation of state law. In support of that argument, defendants cite cases holding that violations of state law or local laws do not generally amount to violations of the Due Process clause.
The cited cases however, address the violation of state laws that, as far as the court can tell, do not create the liberty interest being litigated. Here, plaintiffs allege that defendants are in violation of the very state statute that creates their liberty interest in parole. The rule in such a case is quite different, because "[o]nce a state creates a liberty interest, it can't take it away without due process."
It is worth noting at this point the obstacle to plaintiffs' case that defendants believe is posed by
Neither
Even a decision-maker who harbors no personal biases cannot be considered "free from bias or prejudice,"
Defendants argue that even if a systemic bias claim were legally viable, the complaint here does not sufficiently allege facts that would support it. The court concludes to the contrary that plaintiffs have sufficiently alleged the existence and knowing use by defendants of unreliable evidence, designed to implement their bias against parole.
Plaintiffs allege that the board itself "convened a panel of forensic psychologists and other experts to assess the validity of three risk assessment tools for use in California's parole consideration process." Complaint ¶ 25. That panel "argued against the BPH's use of" the protocol. Complaint ¶ 25 (emphasis added). The panel criticized the protocol because it "had never been validated for predicting violence among long-term prisoners like California's lifers." Complaint ¶ 25. Notwithstanding the panning the protocol received from the board's own experts, the board adopted the protocol. Complaint ¶ 32.
Plaintiffs further have alleged several ways in which the risk assessment tools are invalid. Among them, plaintiffs allege that the "PCL-R" is used recklessly "by inadequately-trained and inexperienced psychologists to predict violence." Complaint ¶ 22. They allege that "HCR-20" is "not a formal measurement instrument," even though defendants, knowing of this limitation, use it as a measurement instrument, and in any event, its use is not governed by any scientific standards or norms. Complaint ¶ 23. They allege that the "LS/CMI" is not a valid predictor of violence, yet that is what defendants use it for, knowing of its invalidity. Complaint ¶ 24. This sufficiently alleges a failure of due process, inasmuch as plaintiffs allege that this "knowing" reliance on invalid instruments that overstate inmates' risks of future violence, deprives them of a fair and unbiased hearing.
Defendants argue that plaintiffs "admit" that the PCL-R tool is "`only moderately predictive of future violence,'" and therefore that plaintiffs are conceding that the tool is valid because it provides "some measure of predicting an inmate's future violence." Motion at 19. Defendants' argument does not undermine plaintiffs' allegation that the tool is invalid. A tool that wildly overstates a risk of future violence for a hypothetical inmate with a miniscule, or statistically zero chance of future violence, provides "some" measure of prediction, but it is an invalid measure.
Defendants argue that plaintiffs concede that the HCR-20 tool is left to the psychologists' "clinical judgment," and therefore fail to allege that its use is invalid. However, plaintiff alleges that these psychologists are "relatively inexperienced," and "untrained," such that their "clinical judgment" is no more accurate "than flipping a coin."
Defendants argue that plaintiffs concede that the LS/CMI tool "only moderately predicts general recidivism," even though it "has not been established to predict violence." They argue that plaintiffs are therefore conceding that the tool is valid. Plaintiffs are not conceding any such thing. Plaintiffs allege that the tool is invalid as a predictor of violence, and that it is nevertheless used as a predictor of violence.
Plaintiff has adequately alleged that these three tools are invalid. They further allege that defendants use these tools against them, knowing that they are invalid and that because of their invalidity, they over-predict risk. This, they allege, evidences defendants' systemic bias against parole.
Plaintiffs further allege that defendants rely on FAD reports that they know contain substantial errors. To the degree (if any) that plaintiffs claim a Due Process right to have only error-free consideration of their parole hearing, the claim is precluded because "there simply is no constitutional guarantee that all executive decisionmaking must comply with standards that assure error-free determinations."
In sum, these allegations are sufficient to allege that the board knowingly infected the parole hearing process with a protocol that would over-predict the risk of future violence, thus skewing the entire process toward the denial of parole, even in cases where parole was warranted.
Named plaintiff Johnson alleges that in considering his individual parole application, the hearing panel relied upon a report created by Dr. Hayward. Complaint ¶ 39. That report contained nine substantial errors, with each error tending to support a conclusion that parole should be denied. Complaint ¶ 38. For example, the report claims that plaintiff "`had significant problems with previous violence, psychopathy (sic) and Antisocial Personality Disorder' prior to the commitment offense," even though none of that is true. Complaint ¶ 38(c).
Plaintiff further alleges that the board withheld from the deciding parole panel his correspondence pointing out the substantial errors. Complaint ¶¶ 40 & 74. The panel eventually learned of the communication "after the hearing had already begun," when plaintiff provided it to the "presiding commissioner." Complaint ¶ 40. Thereupon, the panel "actually agreed with Plaintiff that Dr. Hayward's report contained substantial errors." Complaint ¶¶ 39 & 74. Neither the panel nor the board itself sought a delay to consider the errors, nor required submission of a new or revised report, although the FAD protocol itself required it. Complaint ¶¶ 39, 74 & 80. Instead, the panel, knowing of the FAD report's substantial, uncorrected errors — all supporting the denial of parole — "simply overlooked" them, and relied on that report to deny plaintiff parole. Complaint ¶¶ 39, 74 & 80.
These allegations raise a strong inference that the panel itself was biased toward a denial of parole. It is reasonable to conclude that a neutral panel would have insisted upon revisions or a new report that was not plagued with substantial errors, all slanted toward the denial of parole. If no such report or revision was forthcoming, it is reasonable to believe that a neutral panel would not have relied on the flawed report it did receive — or at least would have noted the panelists' objection, even if they felt compelled to rely on it. Since an inference of actual bias is reasonable from plaintiff's allegations, the court is obliged to draw it on this Rule 12(c) motion.
Defendants argue that plaintiff "does not allege that his 2009 Board panel was specifically biased against him," or that they "prejudged his case." ECF No. 55 at 17. It is true that plaintiff does not explicitly allege that the individual panel members were biased against him personally. Such allegations are not necessary here since, as discussed above, plaintiff alleges facts supporting the inference that the panel was biased against him. Plaintiff's inability to read the minds of the individual panel members, or to prove that they had an interest in denying him parole, does not prevent him from showing that the panel's conduct betrays their bias.
Defendants argue that plaintiff's allegations are "conclusory." This grossly over-used term is entirely inapplicable here. As discussed above, plaintiff has set forth exactly what the specific circumstances are that he relies upon in asking the court to infer bias on the part of the panel. Defendants do not even attempt to explain what is "conclusory" about plaintiff's allegations.
Defendants next argue that the bias claim "is nothing more than an attempt to challenge the sufficiency of the evidence," an attempt that is precluded by
Finally, defendants misrepresent plaintiff's allegations. According to defendants, the Complaint alleges that "the panel acknowledged the existence of certain errors in the report and considered them when reaching the decision." ECF No. 55 at 18 (emphasis added) (citing Complaint ¶ 80). The Complaint alleges no such thing. Both at Paragraph 80 and elsewhere, the Complaint refutes the idea that the board "considered" the substantial errors in the report, and alleges instead that the panel deliberately "overlooked" them.
The complaint expressly alleges that the facts supporting an inference of bias in plaintiff Johnson's case are "routine" examples of defendants' general "practice" that "reflect a clear bias against Plaintiff [Johnson] and others like him." Complaint ¶ 80-81;
The court now turns to the second group of claims, those which allege denial of specific procedural protections in relation to parole hearings. The complaint alleges that due process is violated by defendants' refusal to: (1) produce the data and raw test scores underlying the FAD reports (Claims 4 and 5); (2) permit inmates to confront and cross-examine the psychologists who prepare the reports (Claim 9); and (3) permit inmates to call adverse witnesses, including the FAD psychologists, at the hearings (Claim 12).
Unlike plaintiffs' bias-related claims, these claims all address the process that is due within the context of the parole hearing itself. That is territory defined by
In light of
Defendants contend that all defendants other than the Governor and the Executive Officer of the BPH should be dismissed from this lawsuit. All defendants here are sued only in their official capacities, and defendants argue that only the Governor and the Executive Officer could possibly "carry out or enforce a Court ordered injunction against the Board." ECF No. 55 at 22. However, the Complaint does not only ask for injunctive relief, it seeks declaratory relief, namely "that Defendants have denied Plaintiff's rights under the due process and equal protection clauses of the state and federal Constitution." Complaint Prayer for Relief ¶ 1.
In summary, plaintiffs' complaint consists of two basic claims that survive the motion for judgment on the pleadings: (1) a Due Process violation predicated upon the denial of a fair and unbiased parole procedure (the "systemic bias" claim), as principally embodied in the First and Eleventh Claims; and (2) a Due Process violation predicated upon the denial of fair and unbiased parole panels, as principally embodied in the Tenth Claim. Claims Two, Three, Six, Seven, and Eight are construed not as independent causes of action but as additional factual predicates for the overarching bias claims.
For the reasons set forth above, the undersigned RECOMMENDS as follows:
(1) That defendants' motion for judgment on the pleadings be GRANTED as to Claims Four, Five, Nine and Twelve, and otherwise DENIED;
(2) That plaintiffs be granted 30 days of the date of this order to file an amended complaint alleging only the two remaining claims, or to file a statement that it will stand on the surviving claims of the current complaint's construed by the court; and
(3) That defendants' motion to dismiss defendants be DENIED.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, 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 Recommendations." Any reply to the objections shall be served and filed within twenty-eight days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.
