govinfo:USCOURTS-cand-5_24-cv-07184-0

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United States District Court 
Northern District of California 
 
 
 
 
UNITED STATES DISTRICT COURT 
 
 
THOMAS MICHAEL COLT, 
Plaintiff, 
v. 
 
JENNIFER SHAFFER, et al., 
Defendants. 
 

 
 
ORDER SCREENING AMENDED 
COMPLAINT, DISMISSING CERTAIN 
CLAIMS, AND ORDERING SERVICE 
 
 
 
Plaintiff Thomas Michael Colt, a state prisoner proceeding pro se, filed the instant civil 
rights lawsuit alleging interference with his First Amendment right to access the courts when 
certain defendants altered the written transcript of his parole hearing and deleted the audio 
recording. On October 15, 2025, the Court dismissed Colt’s amended complaint with leave to 
amend. See ECF No. 19. The second amended complaint (ECF No. 21) is now before the Court 
for screening pursuant to 28 U.S.C. § 1915A(a). For the reasons set forth below, the Court 
DISMISSES certain claims as specified below and ORDERS SERVICE of the second amended 
complaint. 
I. LEGAL STANDARDS 
A. Standard of Review 
Federal courts engage in a preliminary screening of cases in which prisoners seek redress 
from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 
§ 1915A(a). In its review, the Court must identify any cognizable claims and dismiss any claims, 
which are frivolous or malicious, fail to state a claim upon which relief may be granted, or seek 
monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1)-(2). Pro se 

 
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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 
Cir. 1990). 
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 
claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed 
factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 
relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a 
cause of action will not do . . . . Factual allegations must be enough to raise a right to relief above 
the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). 
A complaint must proffer “enough facts to state a claim to relief that is plausible on its face.” Id. 
at 570. “While legal conclusions can provide the framework of a complaint, they must be 
supported by factual allegations. When there are well-pleaded factual allegations, a court should 
assume their veracity and then determine whether they plausibly give rise to an entitlement to 
relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 
B. Section 1983 
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by 
the Constitution or laws of the United States was violated, and (2) the alleged deprivation was 
committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 
Liability may be imposed on an individual defendant under Section 1983 if the plaintiff can show 
that the defendant’s actions actually and proximately caused the deprivation of a federally 
protected right. Lemire v. Cal. Dep’t of Corrections & Rehabilitation, 726 F.3d 1062, 1074 (9th 
Cir. 2013); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). A person deprives another of a 
constitutional right within the meaning of Section 1983 if he does an affirmative act, participates 
in another’s affirmative act, or fails to perform an act that he is legally required to do, causing the 
deprivation of which the plaintiff complains. Leer, 844 F.2d at 633. 
II. PLAINTIFF’S ALLEGATIONS 
Colt alleges in his second amended complaint that Defendants—all employees of the 
Board of Parole Hearings (“BPH”)—violated his constitutional rights when they altered his parole 
hearing transcript and destroyed the audio recording of his hearing despite his request to obtain a 

 
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copy. ECF No. 21 at 2. 
The factual allegations in the second amended complaint are substantially similar to those 
in his prior complaint and focus on BPH’s parole denial and imposition of a 10-year bar to parole 
consideration. ECF No. 21 at 7. As relevant here, Colt alleges that Defendant Dianne Dobbs, a 
Commissioner during his 2019 parole hearing, falsely accused him of smirking during the hearing, 
denied his request to present evidence related to cocaine psychosis, expressed anger throughout 
the hearing, and denied Colt’s parole in a biased decision. Id. at 2-6. Colt also asserts that he 
received an altered transcript of his parole hearing, and that Defendant Philip Thomas, a Legal 
Analyst at BPH, failed to preserve the original audio recording of the hearing despite Colt’s 
repeated requests and petition for writ of mandate in state court, in which Colt sought a copy of 
the recording. Id. at 3. 
Colt argues that the transcript was modified in order to frustrate his ability to challenge the 
denial of his parole. See ECF No. 21 at 10-11. The alterations in the hearing transcript allegedly 
included Colt’s response to Dobbs’ comment that Colt was smirking as he explained why his 
parole was previously denied: 
 
INMATE COLT: I —I had a smirk on my face? You’re—is that a 
comment by the commissioner at the last hearing? 
 
PRESIDING COMMISSIONER DOBBS: That’s my comment, sir. 
 
INMATE COLT: Oh, I see. I didn’t understand. 
 
PRESIDING COMMISSIONER DOBBS: You had a smirk on your 
face w hen you explained the denial reasons from the last Panel. 
That’s my observation. 
 
INMATE COLT: Oh, oh. 
 
PRESIDING COMMISSIONER DOBBS: So I’m — 
 
INMATE COLT: Okay. Well, I—I was unaware that I was smirking. 
Id. at 4. 
Colt states that the “fabricated dialogue makes [Colt] (1) appear stupid or confused by 
Dobbs’ ‘smirk’ remark, and (2) concede[s] the validity of that remark by claiming he was 
‘unaware’ of the smirk.” ECF No. 21 at 4. Further, Colt states that the fabricated testimony “was 

 
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‘designed to (1) provide justification for Dobbs’ outburst of anger, (2) eliminate the appearance of 
bias on the Panel, and . . . (3) provide evidentiary support for Dobbs’ use of the ‘smirk’ as a reason 
to deny parole.’” Id. (ellipsis in original). Colt describes the actual exchange between him and 
Dobbs as limited to the following: 
 
PRESIDING COMMISSIONER DOBBS: All right. Very good. 
Alright, so since your last hearing—well, let me back up. When you 
were explaining your denial reasons, you had a little smirk on your 
face. I’m assuming that you didn’t agree with the Panel’s decision. 
 
INMATE COLT: Did, uh—did anyone else see a smirk on my face? 
 
PRESIDING COMMISSIONER DOBBS: Sir, direct your comments 
to me? 
Id. at 3. 
Other allegedly altered language in the transcript included an exchange during which Colt 
attempted to introduce two medical studies about cocaine psychosis and paranoid ideation into 
evidence during the hearing. Specifically, Colt alleges that the words “medical studies” were 
replaced by the word “literature.” Id. at 5. He argues that the changes were made “to provide 
defendant Dobbs a plausible basis for discrediting [Colt’s] ‘paranoid ideation’ testimony.” Id. at 
6. Colt also alleges that based on his conversations with other prisoners, BPH has a pattern and 
practice of altering parole hearing transcripts. 
In addition to Dobbs and Thomas, Colt also names as defendants Jennifer Shaffer, 
Executive Director for BPH; Keith Betchley, Deputy BPH Commissioner; and Does 1 through 10, 
who are unknown BPH employees. ECF No. 21 at 2. Colt asserts his claims against Defendants 
in their personal and official capacities.1 He seeks a variety of injunctive and monetary relief, 
including “a court order vacating [his] 2019 parole denial . . . and the scheduling of a new hearing 
 
1 To the extent Colt is asserting 42 U.S.C. § 1983 claims for monetary damages against defendants 
in their “official capacities,” he does not state cognizable claims because state agencies and state 
officials acting in their official capacities are not “persons” against whom a civil rights claim for 
money damages may be asserted. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). 
Accordingly, all 42 U.S.C. § 1983 claims for money damages against defendants in their official 
capacities are DISMISSED WITHOUT LEAVE TO AMEND. See Wheeler v. City of Santa 
Clara, 894 F.3d 1046, 1059 (9th Cir. 2018) (“Leave to amend may be denied if the proposed 
amendment is futile or would be subject to dismissal.”). 

 
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within six months.”2 Id. at 19. 
III. ANALYSIS 
The Court addresses Colt’s claims below. 
A. Access to the Courts 
Colt alleges that Defendants interfered with his First Amendment right to access the courts 
in violation of the First and Fourteenth Amendments.3 As part of his First Amendment claim, Colt 
references his allegations that the parole hearing transcript was purposefully altered in various 
ways, that he was not provided a verbatim copy of the transcript, and that the audio recording of 
the hearing was deleted. See ECF No. 21 at 2-17. 
As the Court explained in its prior order, Colt appears to allege that Defendants essentially 
engaged in a cover-up of evidence to render his state remedies ineffective. See Delew v. Wagner, 
143 F.3d 1219, 1222-23 (9th Cir. 1998). “[I]f a party engages in actions that effectively cover-up 
evidence and this action renders a plaintiff’s state court remedy ineffective, they have violated his 
right of access to the courts.” Swekel v. City of River Rouge, 119 F.3d 1259, 1262 (6th Cir. 1997); 
see also Christopher v. Harbury, 536 U.S. 403, 413-17 (2002) (holding that claims of cover-ups 
that cause “the loss of an opportunity to sue,” as in Swekel, are cognizable claims for denial of 
access to the courts). To adequately plead such a claim, the “plaintiff must identify a 
nonfrivolous, arguable underlying claim . . . [and] must identify a remedy that may be awarded as 
recompense but not otherwise available in some suit that may yet be brought.” Harbury, 536 U.S. 
at 415. 
 
2 Throughout the second amended complaint, Colt makes factual allegations and arguments related 
to statements and actions taken at his parole hearing. See ECF No. 21. Although his allegations 
are relevant to his First Amendment claim, the Court once again notes that Colt must seek any 
relief related to the outcome of his parole hearing through habeas corpus. See ECF No. 19 at 6 
(citing McQuillon v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002), overruled on other grounds by, 
Swarthout v. Cooke, 562 U.S. 216 (2011)). The Court therefore will not address Colt’s renewed 
request for a new parole hearing as relief in this matter. 
3 In articulating violations of his First Amendment right to access the courts, Colt cites to the 
Equal Protection Clause of the Fourteenth Amendment; however, he does not allege that he 
received disparate treatment as required to maintain an equal protection claim. See Shakur v. 
Schriro, 514 F.3d 878, 891 (9th Cir. 2008). The appropriate analysis of Colt’s allegations is 
therefore under the First Amendment. 

 
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Here, Colt argues that Defendants’ actions in altering the transcript and deleting the audio 
recording of his parole hearing prevented him from challenging the denial of his parole—and the 
imposition of a 10-year bar to reconsideration—on the basis that he was wrongfully prevented 
from presenting medical studies in support of his release, and that the BPH panel was biased and 
denied parole by relying on false evidence of a smirk. See ECF No. 21 at 7-8. While the Court 
questions whether Colt can show, beyond the pleading stage, either causation or prejudice from 
the alleged interference, liberally construed, Colt raises an arguable First Amendment claim based 
on his allegations that Doe Defendants’ alterations to his transcript and Thomas’s failure to 
preserve the audio recording of the hearing prevented him from challenging his parole denial and 
10-year bar due to the BPH panel’s alleged bias, refusal to allow him to submit certain evidence, 
and reliance on false statements regarding a smirk. See In re Lawrence, 44 Cal. 4th 1181, 1205 
(Cal. 2008) (“the judiciary is empowered to review a decision by the [BPH] . . . to ensure that the 
decision reflects ‘an individualized consideration of the specific criteria’ and is not ‘arbitrary and 
capricious.’”); see also Delew, 143 F.3d at 1222 (reversing district court’s dismissal of claim 
alleging violations of plaintiff’s access to the courts where complaint alleged defendants’ cover-up 
rendered state court remedies ineffective and stated arguable claim). Colt therefore states a 
cognizable claim that Thomas and Doe Defendants violated his First Amendment right to access 
the courts. 
Colt does not, however, allege that any defendants other than Doe Defendants and Thomas 
participated in the alleged alteration of the transcript or deletion of the audio recording. See ECF 
No. 21 at 9, 13. He therefore does not state a First Amendment claim against Dobbs, Shaffer, or 
Betchley, and the claims against them are DISMISSED. See Lemire, 726 F.3d at 1074. Because 
Colt has already twice amended his complaint and has yet to state a cognizable claim against these 
defendants, the Court concludes that any further opportunity for amendment would be futile, and 
the dismissal of claims against Dobbs, Shaffer, and Betchley is without leave to amend. See 
Wheeler v. City of Santa Clara, 894 F.3d 1046, 1059 (9th Cir. 2018) (“Leave to amend may be 
denied if the proposed amendment is futile or would be subject to dismissal.”). 
In addition, although Colt states a cognizable claim against Doe Defendants for their 

 
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alleged role in altering his hearing transcript, the use of Doe defendants is generally disfavored by 
courts within the Ninth Circuit. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Where 
the identity of alleged defendants cannot be known prior to the filing of a complaint, the plaintiff 
should be given an opportunity through discovery to identify them. Id. Failure to afford the 
plaintiff such an opportunity is error. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 
1999). Accordingly, in order to afford Colt an opportunity to discover the identity of the Doe 
Defendants without further delaying resolution of this matter, the claims against all Doe 
Defendants are DISMISSED WITHOUT PREJUDICE to Colt naming these defendants in an 
amended complaint, within 120 days of this Order, once Colt learns their identity through 
discovery.4 See Brass v. County of Los Angeles, 328 F.3d 1192, 1195-98 (9th Cir. 2003). 
B. Declaratory Relief Act 
Colt alleges claims under the Declaratory Relief Act; in support, he points to his allegation 
that Doe Defendants altered his and other prisoners’ parole hearing transcripts.5 See ECF No. 21 
at 18. The Declaratory Judgment Act creates a remedy for litigants, not an independent cause of 
action. See Ajetunmobi v. Clarion Mortg. Capital, Inc, 595 Fed. App’x 680, 684 (9th Cir. 2014) 
(“Declaratory and injunctive relief are remedies, not causes of action.”). Even if an independent 
claim was appropriate, it is not clear that Colt would be entitled to pursue one given the nature of 
his accompanying First Amendment claim. See United States v. Schlenker, 24 F.4th 1301, 1307-
08 (9th Cir. 2022) (holding that “a would-be habeas petitioner” cannot use the Declaratory 
Judgment Act as “an alternative forum to carve out legal issues that [could be] embedded in an 
underlying habeas proceeding”); Fitzpatrick v. Gates, No. CV 00-4101-GAF, 2001 WL 630534, at 
*5 (C.D. Cal. Apr. 18, 2001) (“Where a plaintiff seeks damages or relief for an alleged 
 
4 Colt also alleges that Doe Defendants engaged in a pattern or practice of altering prisoners’ 
parole hearing transcripts; however, as these defendants’ identity is unknown at this time, the 
Court will defer consideration of this claim until they have been identified and named in an 
amended pleading. 
5 To the extent Colt may be attempting to pursue a claim on behalf of other prisoners, he is 
reminded that he cannot do so as a pro se prisoner. See, e.g., Russell v. United States, 308 F.2d 
78, 79 (9th Cir. 1962) (“[A] litigant appearing in propria persona has no authority to represent 
anyone other than himself.”). 

 
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constitutional injury that has already occurred[,] declaratory relief generally is inappropriate”); 
Rhodes v. Robinson, 408 F.3d 559, 566 n.8 (9th Cir. 2005) (because claim for damages necessarily 
entailed determination regarding whether defendants’ alleged conduct violated plaintiff’s rights, 
plaintiff’s separate request for declaratory relief was subsumed by damages action). Nevertheless, 
the Court will consider, when appropriate, whether declaratory relief is warranted pursuant to 
Colt’s First Amendment claim. 
IV. CONCLUSION 
The Court orders as follows: 
1. Colt states a cognizable claim that Thomas violated his First Amendment right to 
access the courts; 
2. Although Colt states a cognizable claim that Doe Defendants violated his First 
Amendment right to access the courts, all claims against Doe Defendants are 
DISMISSED WITHOUT PREJUDICE to naming these defendants in an amended 
complaint, within 120 days, after he has an opportunity for discovery. If needed, 
Colt may request additional time to name these defendants in a motion for 
extension of time. 
3. The claims against Dobbs, Shaffer, Betchley, and all damages claims against 
Defendants in their official capacity are DISMISSED WITHOUT LEAVE TO 
AMEND. 
4. Defendant Thomas shall be served. 
a. Service shall proceed under CDCR’s e-service pilot program for civil rights 
cases from prisoners in CDCR custody. In accordance with the program, 
the Clerk of the Court is directed to serve on CDCR via email the following 
documents: the operative complaint (ECF No. 21), this order, a CDCR 
Report of E-Service Waiver form, and a summons. 
b. No later than 45 days after service of this order via email on CDCR, CDCR 
shall provide the Court a completed CDCR Report of E-Service Waiver 
advising the Court whether defendant will be waiving service of process 

 
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without the need for service by the United States Marshal Service 
(“USMS”) or whether any defendant declined to waive service. CDCR also 
shall provide a copy of the CDCR Report of E-Service Waiver to the 
California Attorney General’s Office, which, within 21 days of service, 
shall file with the Court a waiver of service of process for the defendant 
waiving service. 
c. Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall 
prepare, if Defendant has not waived service according to the CDCR Report 
of E-Service Waiver, a USM-285 Form. The Clerk shall then provide to the 
USMS the completed USM-285 form and copies of this order, summons, 
and operative complaint for service upon Defendant if he has not waived 
service. The Clerk also shall provide to the USMS a copy of the CDCR 
Report of E-Service Waiver. 
d. Additionally, the Clerk shall mail a copy of this order to Colt. 
5. In order to expedite the resolution of this case, the Court orders the following 
briefing schedule: 
e. No later than 120 days from the date of service, Defendant will file a 
motion for summary judgment or other dispositive motion. The motion will 
be supported by adequate factual documentation, shall conform in all 
respects to Federal Rule of Civil Procedure 56, and will include as exhibits 
all records and incident reports stemming from the events at issue. If 
Defendant is of the opinion that this case cannot be resolved by summary 
judgment or other dispositive motion, he will inform the Court prior to the 
date the dispositive motion is due. All papers filed with the Court will be 
promptly served on Colt.  
f. At the time the dispositive motion is served, Defendant will also serve, on a 
separate paper, the appropriate notice or notices required by Rand v. 
Rowland, 154 F.3d 952, 953-54 (9th Cir. 1998) (en banc), and Wyatt v. 

 
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Terhune, 315 F.3d 1108, 1120 n.4 (9th Cir. 2003). See Woods v. Carey, 
684 F.3d 934, 940-41 (9th Cir. 2012) (Rand and Wyatt notices must be 
given at the time motion for summary judgment or motion to dismiss for 
non-exhaustion is filed, not earlier); Rand, 154 F.3d at 960 (separate paper 
requirement). 
g. Colt’s opposition to the dispositive motion, if any, will be filed with the 
Court and served upon Defendant no later than 28 days from the date the 
motion was served upon him. Colt must read the attached page headed 
“NOTICE -- WARNING,” which is provided to him pursuant to Rand, 154 
F.3d at 953-54, and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 
1988). If Defendant files a dispositive motion claiming that Colt failed to 
exhaust his available administrative remedies as required by 42 U.S.C. 
§ 1997e(a), Colt should take note of the attached page headed “NOTICE -- 
WARNING (EXHAUSTION),” which must be provided to him as required 
by Wyatt, 315 F.3d at 1120 n.4.  
h. If Defendant wishes to file a reply brief, he shall do so no later than 14 days 
after the opposition is served upon them. 
i. The motion shall be deemed submitted as of the date the reply brief is due. 
Absent a further order of the Court, no hearing will be held on the motion.   
6. All communications by Colt with the Court must be served on Defendant’s counsel 
by mailing a true copy of the document to Defendant’s counsel.  
7. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 
No further Court order is required before the parties may conduct discovery. 
8. It is Colt’s responsibility to prosecute this case. Colt must keep the Court informed 
of any change of address by filing a separate paper with the Clerk headed “Notice 
of Change of Address,” and must comply with the Court’s orders in a timely 
fashion. Failure to do so may result in the dismissal of this action for failure to 

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prosecute pursuant to Federal Rule of Civil Procedure 41(b). 
IT IS SO ORDERED. 
Dated: 
Eumi K. Lee 
United States District Judge 
June 16, 2026

 
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NOTICE -- WARNING (SUMMARY JUDGMENT) 
 If defendants move for summary judgment, they are seeking to have your case dismissed. 
A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if 
granted, end your case. 
 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 
Generally, summary judgment must be granted when there is no genuine issue of material fact--
that is, if there is no real dispute about any fact that would affect the result of your case, the party 
who asked for summary judgment is entitled to judgment as a matter of law, which will end your 
case. When a party you are suing makes a motion for summary judgment that is properly 
supported by declarations (or other sworn testimony), you cannot simply rely on what your 
complaint says. Instead, you must set out specific facts in declarations, depositions, answers to 
interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts 
shown in the defendant’s declarations and documents and show that there is a genuine issue of 
material fact for trial. If you do not submit your own evidence in opposition, summary judgment, 
if appropriate, may be entered against you. If summary judgment is granted, your case will be 
dismissed and there will be no trial. 
NOTICE -- WARNING (EXHAUSTION) 
If defendants file a motion for summary judgment for failure to exhaust, they are seeking 
to have your case dismissed. If the motion is granted it will end your case. 
You have the right to present any evidence you may have which tends to show that you did 
exhaust your administrative remedies. Such evidence may be in the form of declarations 
(statements signed under penalty of perjury) or authenticated documents, that is, documents 
accompanied by a declaration showing where they came from and why they are authentic, or other 
sworn papers, such as answers to interrogatories or depositions. 
If defendants file a motion for summary judgment for failure to exhaust and it is granted, 
your case will be dismissed and there will be no trial. 
 

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