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Bowman v. Schwarzenegger

March 23, 2009

GARY STEVEN BOWMAN,*FN1 PLAINTIFF,
v.
ARNOLD SCHWARZENEGGER, ET AL., DEFENDANTS.



ORDER

Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983, challenging the application of the restrictive residence condition of California's "Jessica's Law," and onerous conditions of parole and high supervision levels flowing from his status as a registered sex offender. Defendants have filed a motion to dismiss or to stay pending resolution of the legal issues implicated by plaintiff's motion by the California Supreme Court. Plaintiff has filed two motions for injunctive relief along with a string of other motions and requests.

I. Motion To Disqualify The Magistrate Judge (Docket No. 60)

Plaintiff seeks to withdraw his consent to the jurisdiction of the undersigned; he explains he would prefer to have the assigned district judge "hear the complaint." Because this action has not yet been reassigned to the undersigned for all purposes including trial, plaintiff may withdraw his consent without demonstrating good cause or extraordinary circumstances. See 28 U.S.C. § 636(c); Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993) ("Once a civil case is referred to a magistrate judge under section 636(c), the reference can be withdrawn by the court only 'for good cause shown on its own motion, or under extraordinary circumstances shown by any party.'"). Accordingly, in the interests of justice, the court will grant plaintiff's request to rescind his consent, and his consent to the jurisdiction of the undersigned magistrate judge will be deemed withdrawn. Nevertheless, under the Local Rule 72-302(c)(17), the undersigned will continue to issue orders on non-dispositive motions and findings and recommendations on dispositive motions.

To the extent plaintiff seeks to disqualify the undersigned from further participation in this case, the motion is not well-taken. His reason for the request is his displeasure over the undersigned's denial of an earlier motion for a temporary restraining order. Under 28 U.S.C. § 144, if "the judge before whom the matter is pending has a personal bias or prejudice either against [the complaining party] or in favor of any adverse party, ... [she] shall proceed no further...." Under 28 U.S.C. § 455(a), "[a]ny ... judge ... shall disqualify [herself] in any proceeding in which [her] impartiality might reasonably be questioned." Under both recusal statutes, the substantive standard is whether there is a reasonable question about the judge's impartiality. United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997)

In Liteky v. United States, 510 U.S. 540 (1994), the Supreme Court held that alleged bias must usually stem from an extra-judicial source. Id. at 554-56. The Court said:

First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. In and of themselves ... they cannot possibly show reliance upon an extra-judicial source.... Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible Id. at 555 (internal citations omitted). In this case, the only basis for plaintiff's motion is the court's prior ruling. This is insufficient grounds to grant the motion.

II. Plaintiff's Motion For Summary Judgment (Docket No. 32)

Plaintiff has filed a two page motion for summary judgment, suggesting that the court has already ruled on the legal question presented in the complaint.

As the person seeking summary judgment, plaintiff bears the burden of showing the absence of genuine issues of material fact and doing so by the use of specific allegations and admissible evidence. Adickes v. S.H. Kress, 398 U.S. 144, 160 (1970); Nissan Fire & Marine Ins. Co, Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1105 (9th Cir. 2000). He has failed to point to those things in the record he believes support his request for the entry of judgment in his favor. See generally Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029-31 (9th Cir. 2001) (any evidence a party wants the court to consider for a specific purpose should be brought to the attention of the court). This court is not required to comb the record in order to develop plaintiff's argument. See Stuard v. Stewart, 401 F.3d 1064, 1066-67 (9th Cir. 2005). His motion should be denied.

III. Defendants' Motion To Dismiss (Docket No. 24)

Defendants argue that this action should be dismissed because plaintiff lacks standing to challenge the residency requirements imposed by Jessica's Law and the restrictions on his parole imposed because he must register as a sex offender under California Penal Code § 290. They also argue that the challenges to Jessica's Law should be stayed under the doctrine of Pullman abstention if not dismissed.

A. Standards On A Motion To Dismiss

Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197 (2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). However, "[s]pecific facts are not necessary; the statement [of facts] need only '"give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."'" Erickson, 127 S.Ct. at 2200. Although a motion to dismiss is generally decided on the pleadings only, "[a] court may, . . ., consider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into a motion for summary judgment." United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003).

B. Background

On November 7, 2006, California voters approved Proposition 83, known as "Jessica's Law," which amended many provisions of California's Penal Code. Among the amendments was an addition to Penal Code Section 3003.5, which restricts residence locations for parolees who must also register as sex offenders under Penal Code section 290; the provision at issue provides:

Notwithstanding any other provision of law, it is unlawful for any person for whom registration is required pursuant to Section 290 to reside within 2000 feet of any public or private school, or park where children gather regularly.

Cal. Penal Code § 3003.5(b).

Subdivision (a) of the statute, which was not amended by Jessica's Law, provides that the residence restriction contained in that subdivision applies only "when a person is released on parole after having served a term of imprisonment in state prison for any offense for which registration is required pursuant to Section 290. . . ." Cal. Penal Code § 3003.5(a).

Penal Code section 3008*fn2 gives the California Department of Corrections and Rehabilitation (CDCR) the authority to "place any . . . parolee convicted of an offense that requires him or her to register as a sex offender pursuant to Section 290 who is on active supervision on intensive and specialized supervision and require him or her to report frequently to designated parole officers." Before September 19, 2006, the requirement of intensive supervision applied only to "all parolees under active supervision and deemed to pose a high risk to the public of committing violent sex crimes . . . ." Penal Code § 3005(a) (2006).

In the California Administrative Code, "high control" means "the highest supervision category of a person on parole" based on commitment offense and prior criminal history and requires the "high control" parolee to have face-to-face contact with his parole agent by the first working day following release, one field contact at the parolee's residence, and at least one drug test per month, among other things. 15 Cal. Code Regs. §§ 3000, 3504(a)(1)(A)-(D). Cases designated as high control "shall be reserved for persons with violent felony commitments . . . PC section 290 registrants; cases generating extensive media or public attention; or cases involving membership in gangs. . . ." 15 Cal. Code Regs. § 3504(a)(1).

In 1987, plaintiff was convicted of indecent exposure in violation of Penal Code section 314.1. He received a misdemeanor term of six months in jail, and was thereafter required to register under section 290. Am. Compl. at 3 & Ex. 2. In 2005, he was convicted of possession of a controlled substance, sentenced to a term of two years, and paroled in March 2006. Id. at 3 & Ex. 1. It appears that plaintiff has been paroled and returned to prison at least once on a parole violation. Id., Ex. 5; see also Docket Nos. 20, 61, 67 (notices of change of address).

Plaintiff alleges that before he was paroled in October 2007, he was required to sign a special condition of parole, acknowledging the residence restrictions of Penal Code section 3003.5. Id. at 4 & Ex. 3. In addition, because of his status as a section 290 registrant without a fixed address, he was required to report to the parole officer daily until he secured a stable residence. Moreover, he was subject to eight restrictive conditions of parole, including a nightly curfew, a prohibition against contacting the victim of his crime and associating with other sex offenders, participation in psychological counseling and a requirement that he carry his section 290 registration card with him. Id. at 5-6 & Exs. 4, 6.

C. Standing

The requirement that a party have "standing" to bring an action is part of the case- or-controversy provisions of Article III of the Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). There are three elements:

First, the plaintiff must have suffered an injury in fact--an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of--the injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] independent action of some third party not before the court. Third it must be likely as opposed to merely speculative that the injury will be redressed by a favorable decision.

Id. (internal quotations & citations omitted). When a plaintiff seeks injunctive and declaratory relief against a state agency, he must also show "a very significant possibility of future harm." Stevens v. Harper, 213 F.R.D. 358, 367 (E.D. Cal. 2002).

Thus, "the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment."

Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981) (quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)).

It is plaintiff's burden to establish his standing to sue "for each challenge he wishes to bring and each form of relief he seeks. To survive a Rule 12(b)(6) motion to dismiss, [plaintiff] must allege facts in his [complaint] that, if proven, would confer standing upon him." Sacks v. Office of Foreign Assets Control, 466 F.3d 764, 771 (9th Cir. 2006), cert. denied, 549 U.S. 1338 (2007). This court need not accept "allegations of future injury which are overly generalized, conclusory, or speculative." Stevens, 213 F.R.D. at 370. It must evaluate the question of standing "as of the date the complaint was filed." Sacks, 466 F.3d at 774.

1. Residency Requirements (Section 3003.5)

Defendants argue that plaintiff lacks standing to challenge the application of section 3003.5 because plaintiff secured a stay of that law's enforcement from the Butte County Superior Court. In support of this contention, defendants have presented copies of plaintiff's petition for a writ of habeas corpus filed in Butte County Superior Court and the Superior Court's order. In that petition, assigned number CM019056, plaintiff argued that the residency restrictions of Jessica's Law were applied to him improperly because he was not on parole for a sex offense, but ...


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