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Navarro v. State

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 25, 2010

PETER NAVARRO JR., PLAINTIFF,
v.
STATE OF CALIFORNIA, ET AL., DEFENDANTS.

FINDINGS AND RECOMMENDATIONS

Plaintiff, proceeding pro se, is suing for money damages for alleged violations of his constitutional rights arising out of his prosecution for a charge of sexual activity with a minor.*fn1

Presently pending are three motions to dismiss plaintiff's complaint*fn2 , submitted for decision on the papers on January 29, 2009. Dckt. Nos. 7, 9, 21, 33. For the following reasons, this court recommends that the motions be granted in part.

BACKGROUND

Plaintiff filed this action for damages following a decision of the California Court of Appeal, First Appellate District, reversing plaintiff's conviction on a charge of sexual misconduct with a minor for failure of the trial court to give a unanimity instruction to the jury. Dckt. No. 1. Plaintiff seeks damages only, for the alleged violation of his civil rights associated with his conviction, confinement, medical care while incarcerated and required registration as a sex offender.

The complaint (which is more than 150 pages in length, including exhibits) is hardly a model of clarity. It fails to conform to the pleading requirements of Fed. R. Civ. P. 8, as it lacks a straightforward and complete statement of the pertinent facts, and the legal claims fail generally to identify the defendants to whom the claims are directed. Although no specific cause of action is identified, it appears from the complaint that plaintiff is attempting sue under 42 U.S.C. § 1983 for alleged violations of his constitutional rights and the complaint will be construed accordingly. Nonetheless, the complaint is both vague and rambling. Particularly lacking is a coherent chronology explaining plaintiff's repeated reference to his "three trials." The following facts are therefore pieced together from the complaint, the motions to dismiss and plaintiff's oppositions and additional exhibits. The court has attempted to match the appropriate defendants to the proper claims.

On March 24, 2004, in Solano County Superior Court, plaintiff was charged with four counts of sexual misconduct with a minor. See Felony Complaint, People v. Navarro, Solano County Superior Court Case No. FCR 214694 (Ex. A to Defendants' Request for Judicial Notice, Dckt. No. 7).*fn3 On February 6, 2006, plaintiff was convicted by a jury of only one count, violation of California Penal Code § 288(c)(1) (lewd act on a minor 14 or 15 years of age). Id., Ex. B. On March 13, 2006, plaintiff appealed the conviction. Id., Ex. C. On October 9, 2007, the California Court of Appeal, First Appellate District, reversed the conviction on the ground that the trial court had prejudicially erred in failing to give an unanimity instruction to the jury, requiring the jury to agree upon a specific act underlying the conviction rather than a continuous course of conduct. Id., Ex. D (People v. Navarro, California Court of Appeal, First Appellate District Case No. A113201; see also People v. Navarro, 2007 WL 2923974 at *8 (Cal. App. 1 Dist. October 9, 2007)).*fn4

Plaintiff served time in prison and was released around August or September 2007.*fn5

Dckt. No. 22 at 9. At some point in this time period Solano County Superior Court refused to hear plaintiff's habeas petition. Compl. at 32.

Plaintiff was retried in March 2008. Compl. at 3. The court assumes it was solely on the § 288(c)(1) charge and that the jury deadlocked, as a third trial was held in May 2008. Id. In that third trial the jury deadlocked on the single charge under § 288(c)(1), and the District Attorney's office dismissed the case in the interest of justice. Dckt. No. 31 at 6.

On August 8, 2008, in compliance with the California Tort Claims Act, plaintiff filed a claim with the California Victim Compensation and Government Claims Board. By letter dated September 2, 2008, plaintiff was informed that his claim would be placed on the Board's consent agenda. On October 23, 2008, the Board rejected plaintiff's claim and stated: "Board staff believes that the court system is the appropriate means for resolution of these claims, because the issues presented are complex and outside the scope of analysis and interpretation typically undertaken by the Board." Compl. at 150.

Thereafter, plaintiff filed the instant suit alleging that the Solano County District Attorney's office secured plaintiff's criminal conviction by knowingly relying on false or misleading evidence, including the allegedly perjured testimony of Vacaville Police Officers Donaldson and Datzman; that plaintiff was wrongly incarcerated and, while incarcerated, denied adequate medical care, causing plaintiff pain and suffering, including a heart attack shortly after his release; that plaintiff was subjected to unreasonable and vague parole conditions; and that plaintiff's name was improperly and incorrectly placed on the state's Sex Offender Registry, and not promptly removed from the registry at the appropriate time. Plaintiff claims multiple violations of his civil rights and seeks $459,000 in compensatory damages, $3,000,000 in general damages and punitive damages.

Motions to dismiss the complaint have been filed by all of the named defendants, as follows: (1) County of Solano, Solano County District Attorney David Paulson and Solano County Deputy District Attorney Julie Underwood ("Solano County Defendants"), Dckt. No. 7; (2) City of Vacaville, Vacaville Police Department, Vacaville Police Chief Richard Word and Vacaville Police Officers Raye Donaldson and Jeffrey Datzman ("Vacaville City Defendants"), Dckt. No. 9; and (3) State of California; California Governor Arnold Schwarzenegger, California Department of Justice; California Attorney General Edmund G. Brown, Jr.; California Department of Corrections, and its Secretary, Matthew Cate; and California Board of Prison Terms, and its Chairman, Robert Doyle ("State Defendants"), Dckt. No. 21.*fn6

LEGAL STANDARD

In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972).

The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987), and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

DISCUSSION

As a threshold matter, plaintiff's conviction was reversed on appeal. Thus, this lawsuit generally meets the criteria for pursuing a civil rights action based upon the overturned conviction, its prosecution, plaintiff's incarceration and other allegedly related injuries. "[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).

SOLANO COUNTY DEFENDANTS

Plaintiff alleges that Solano County District Attorney David Paulson and Solano County Deputy District Attorney Julie Underwood (the attorney who prosecuted plaintiff) improperly pursued charges in all three trials against him. Compl. at 4-5. Plaintiff states that the defendants should have known that a unanimity instruction was required. He also claims that these defendants presented perjured testimony, knowingly turned over false evidence in discovery and aided the mother of the victim in a civil case. Compl. at 4-5, 8; Dckt. No. 17 at 22. It appears that plaintiff alleges his Due Process rights were violated as well as the Double Jeopardy clause of the Fifth Amendment. Compl. at 32, 36-37. Plaintiff contends that these district attorney defendants acted outside the scope of their professional duties, thus shedding the protection of absolute prosecutorial immunity. Compl. at 4-5. Plaintiff also names Solano County as a defendant because the Solano County Superior Court did not hear plaintiff's habeas case.*fn7

Compl. at 32.

Defendants Paulson and Underwood argue that claims against them should be dismissed with prejudice because they are immune from liability. "Prosecutors are absolutely immune from liability under § 1983 for their conduct insofar as it is 'intimately associated' with the judicial phase of the criminal process." Botello v. Gammick, 413 F.3d 971, 975 (9th Cir. 2005); Burns v. Reed, 500 U.S. 478, 486 (1991). Prosecutors are fully protected by absolute immunity when performing traditional activities related to the initiation and presentation of criminal prosecutions. Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976); Botello, 413 F.3d at 976 (it is "well established that a prosecutor has absolute immunity for the decision to prosecute a particular case."). Thus, even claims of malicious prosecution, falsification of evidence, coercion of perjured testimony and concealment of exculpatory evidence will be dismissed on grounds of prosecutorial immunity. See Stevens v. Rifkin, 608 F. Supp. 710, 728 (N.D. Cal. 1984). However, this immunity protects prosecutor only when acting in their roles in the initiation and presentation of criminal prosecutions. Thus, in Ewing v. City of Stockton, __ F. 3d __ , 2009 WL 4641736 (9th Cir. Dec. 9, 2009), the Ninth Circuit emphasized that prosecutors are only entitled to qualified immunity, not absolute immunity, when advising police in an investigation. Id. at * 12-13.

Here, plaintiff alleges that prosecutors Paulson and Underwood engaged in the following conduct for which they should not be immune: (1) not giving a unanimity instruction; (2) presenting perjured testimony; (3) Underwood was in contact with the victim's mother regarding a civil case; and (4) turning over backdated emails. Judges instruct juries, not the attorneys. Construing plaintiff's allegation to be that the prosecutors failed to ask for a unanimity instruction, the failure to seek a particular jury instruction is clearly part of the judicial proceedings and the defendants are entitled to absolute immunity. The same is true as to the allegations of perjured testimony. The presentation of witnesses and the direct and cross-examination of witnesses are acts plainly within the role of prosecutors as participants in the judicial proceedings and plaintiff's claims in this regard are barred by absolute prosecutorial immunity.

Plaintiff notes that defendant Underwood was in contact with the mother of the victim regarding a civil matter against plaintiff. Dckt. No. 17 at 22. The exact nature of Underwood's contact with the mother of the victim and the scope of the time period is difficult to discern from plaintiff's pleadings, though it seems to have involved obtaining a restraining order and also a deposition.*fn8 Dckt. No. 17 at 22, 66. Neither of these allegations articulate facts or specific conduct that deprived plaintiff of a federally-protected right.

Plaintiff also alleges that defendants Paulson and Underwood turned over emails during discovery that they knew were backdated. Yet, it is not clear from plaintiff's complaint at what point in the investigation the backdating occurred or if these defendants were even involved in the backdating.*fn9 The allegation that discovery was turned over in the course of the prosecution of the criminal case that was altered in some way asserts conduct that was performed within the course of the judicial proceeding and is not adequate to overcome absolute immunity. To be sure, there are remedies and sanctions that pertain to such conduct, when it actually occurs, but an action for damages under Section 1983 is not among them.

Plaintiff's claims against Paulson and Underwood, as currently drafted, are barred by the doctrine of absolute prosecutorial immunity. A review of plaintiff's pleadings*fn10 indicates that the conduct plaintiff describes was associated with the judicial phase of the proceedings. However, to the extent it might be possible for plaintiff to articulate facts showing that Underwood's alleged contact with the mother of the victim and the alleged backdating of emails occurred during the police investigation and outside to scope of the judicial proceedings only qualified immunity rather than absolute immunity would apply. Ewing, 2009 WL 4641736 (9th Cir. Dec. 9, 2009). Because the complaint contains no such allegation and it is unclear whether plaintiff could allege such facts, the court does not separately analyze qualified immunity. However, plaintiff will be given an opportunity to amend his complaint.

There are other flaws in the complaint as it pertains to the county defendants. To state a claim against Solano County under § 1983, plaintiff must allege facts to support a violation of his constitutional rights pursuant to a policy or custom of the municipality. Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2001) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978)). A plaintiff cannot therefore state a § 1983 claim against a municipal defendant unless he alleges that the municipal defendant maintained a policy or custom pertinent to the plaintiff's alleged injury and explains how such policy or custom caused his injury. Sadoski v. Mosley, 435 F.3d 1076, 1080 (9th Cir. 2006) (affirming dismissal of a municipal defendant pursuant to Fed. R. Civ. P. 12(b)(6)).

Plaintiff's alleged injury arises due to Solano County Superior Court refusing to "hear" his writ of habeas corpus. The complaint is not clear as to plaintiff's allegation. It is not apparent if Solano County Superior Court dismissed the writ of habeas corpus or if the writ was denied as moot before it could be reviewed. Regardless of plaintiff's precise claim, he has failed to articulate any facts demonstrating that Solano County maintained a policy or custom that caused injury to plaintiff. Therefore, plaintiff has not stated a § 1983 claim against Solano County.

This court cannot discern any manner by which plaintiff could cure the defects of his claims against Solano County so this defendant should be dismissed with prejudice. Plaintiff will be permitted leave to amend his complaint with respect to Paulson and Underwood, but only to the extent that plaintiff can allege facts regarding their involvement in the pre-trial investigation and that, in the course of the investigation, they engaged in specific acts that deprived plaintiff of a federally-protected right. Instructions regarding plaintiff's amended complaint will be discussed below.

VACAVILLE CITY DEFENDANTS

The Vacaville City Defendants consist of the City of Vacaville, Vacaville Police Department, Vacaville Police Chief Richard Word, and Vacaville Police Officers Raye Donaldson and Jeffrey Datzman ("Vacaville City Defendants").*fn11 Plaintiff alleges that the Vacaville Police Officers provided perjured testimony at trial and falsified evidence against him. Plaintiff has made no specific allegations against the City of Vacaville, the Vacaville Police Department or Vacaville Police Chief Richard Word.

As with defendant Solano County, to state a claim against the City of Vacaville, plaintiff must allege facts to support a violation of his constitutional rights pursuant to a policy or custom of the municipality. Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2001) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978)).

The Vacaville Police Department, on the other hand, is a department of the City and is not a separate "person" under Section 1983. See United States v. Kama, 394 F.3d 1236, 1239-40 (9th Cir. 2005) ( "[M]unicipal police departments and bureaus are generally not considered 'persons' within the meaning of 42 U.S.C. § 1983."); Vance v. County of Santa Clara, 928 F. Supp. 993, 996 (N.D.Cal.1996) ("The County is a proper defendant in a § 1983 claim, an agency of the County is not."); Brockmeier v. Solano County Sheriff's Dept., 2006 WL 3760276, *4 (E.D. Cal. 2006) ("Because the Solano County's Sheriff's Department is a municipal department of Solano County, the court therefore finds that the Sheriff's Department is not a properly named defendant for purposes of plaintiff's § 1983 claims."). Accordingly, the Vacaville Police Department is not a proper defendant and must be dismissed with prejudice.

To state a claim against Vacaville Police Chief Richard Word, plaintiff must allege sufficient facts to connect Chief Word to this case; plaintiff has alleged no facts. "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

With respect to Vacaville Police Officers Donaldson and Datzman ("Officers"), plaintiff's complaint references these officers many times and plaintiff has reproduced numerous sections of trial testimony of the Officers. The court has attempted, with very limited success, to correlate the excerpts of testimony, interviews and email transcripts set forth in plaintiff's prolix and disorganized complaint, along with the many exhibits submitted by the parties, in order to make a preliminary assessment of plaintiff's claims against the Officers. Plaintiff's claims seem to involve a great deal of alleged perjured testimony and the altering of dates on an email that may have been submitted as evidence.

A witness, including a police witness, has absolute immunity from civil liability for his or her testimony, including perjury, and from allegations of conspiracy to commit perjury. Paine v. City of Lompoc, 265 F.3d 975, 981 (9th Cir. 2001). However, this immunity "does not shield non-testimonial conduct" nor shield conduct that is not "inextricably tied" to the testimony, such as fabricating or tampering with evidence, or "effort[s] to keep certain witnesses or physical evidence from the opposing party." Id. at 981-82. A witness is not "insulated from liability" for all of his or her conduct simply because of his or her role as a witness. Id.

Although the Officers have immunity with regard to their testimony at plaintiff's trials, they may not be immune from liability for the non-testimonial conduct plaintiff alleges they engaged in during the investigation of his case. However, with current state of plaintiff's pleadings, the court cannot make a determination what specific non-testimonial conduct plaintiff relies of for asserting a claim under § 1983. His allegations as currently stated simply do not meet the standards set forth in Iqbal and Twombly. Therefore, the claims must be dismissed with leave to amend. Plaintiff will be given the opportunity to amend his complaint to specifically allege the non-testimonial conduct that the officers engaged in and what specific federally-protected right he was deprived because of that conduct .

Finally, as to the City Defendants, plaintiff has not made any specific allegation regarding the City of Vacaville or Vacaville Police Chief Richard Word in his official or individual capacity and those claims must be dismissed for failure to state a claim. However, in light of plaintiff's allegations regarding the Officers, plaintiff will be allowed to amend his complaint as to these defendants, but only to the extent that plaintiff can allege facts to support a violation of his federal rights pursuant to a policy or custom of the municipality or any conduct on behalf of Chief Word. For the reasons addressed above, the undersigned recommends that the Vacaville Police Department be dismissed with prejudice.

STATE DEFENDANTS

The "State Defendants" named by plaintiff are the State of California, Governor Arnold Schwarzenegger, California Department of Justice, Attorney General Edmund G. Brown, Jr., the California Department of Corrections and Rehabilitation ("CDCR"), CDCR Secretary Matthew Cate, CDCR Commissioner Robert Doyle and the Board of Prison Terms ("BPT"). The face of the complaint states that all defendants are sued both in their individual and official capacities.

Plaintiff's claims against the State Defendants appear to be that: (1) plaintiff was denied adequate medical care while incarcerated by CDCR; (2) plaintiff was denied equal protection by being forced to register on the Sex Offender Registry, and because the State of California, California Department of Justice and Governor Schwarzenegger erroneously reported plaintiff's committing offense information on the Sex Offender Registry and failed to timely remove his name after the conviction was reversed; and (3) the BPT or CDCR subjected plaintiff to unreasonable and vague parole conditions that constituted cruel and unusual punishment.

a. Eleventh Amendment Immunity

The State Defendants contend that they are immune from suit pursuant to the Eleventh Amendment to the U.S. Constitution. The government entities allege they are immune altogether and the individuals contend they are immune in their official capacities. Plaintiff responds that these defendants have each implicitly waived their Eleventh Amendment immunity by participating in federally funded programs.

States are protected by the Eleventh Amendment from suits brought by citizens in federal court. College Sav. Bank v. Florida Prepaid Post-secondary Educ. Expense Bd., 527 U.S. 666, 669 (1999). There are only three exceptions to this general rule. First, a state may waive its Eleventh Amendment defense. College Sav. Bank, 527 U.S. at 670 (citing Clark v. Barnard, 108 U.S. 436, 447-48 (1883)). Second, Congress may abrogate the States' sovereign immunity by acting pursuant to a grant of constitutional authority. Kimel v. Florida Board of Regents, 528 U.S. 62, 80 (2000). Third, under the Ex parte Young doctrine, the Eleventh Amendment does not bar a "suit against a state official when that suit seeks . . . prospective injunctive relief." Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 73 (1996).

Suits are also barred against an "arm of the state" or its agencies. Durning v. Citibank, N.A., 950 F.2d 1419, 1422-23 (9th Cir. 1991). "'States or governmental entities that are considered "arms of the State" for Eleventh Amendment purposes' are not 'persons' under § 1983." Doe v. Lawrence Livermore Nat. Laboratory, 131 F.3d 836, 839 (9th Cir. 1997) (quoting Will v. Michigan Dept. of State Police, 491 U.S. 58, 70 (1989)).

Plaintiff essentially argues that either the state or Congress created a specific private right of action in federal court against the state and state agencies for sex offenders or those whose offenses are incorrectly cited on the sexual offender registry.*fn12 Plaintiff contends that these state agencies waived their Eleventh Amendment immunity by participating in federally funded programs such as the Adam Walsh Act, Megan's Law and the Jessica Lunsford Act. Dckt. No. 22 at 16. Plaintiff asserts that the state also receives federal funding pursuant to the Pam Lyncher Sexual Offender Tracking and Identification Act, the Wetterling Act, the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, the Family Educational Rights and Privacy Act of 1974 and Operation Predator. Id. at 16-18. Plaintiff argues that "[a] violation . . . of Federal Constitutional Rights having to do with the sex offender registry and the funded programs subjects the State to suit in Federal Court by consent." Id. at 18.

Plaintiff's waiver argument is novel. While states do have the ability to waive an Eleventh Amendment defense and Congress can abrogate sovereign immunity, plaintiff fails to direct the court to any authority to demonstrate that either situation exists here. The court has found no authority of state waiver or Congressional abrogation with respect to sexual offender registration, Eighth Amendment medical claims or parole conditions. In addition, several of the programs and acts plaintiff describes are not federal laws or have no involvement with the claims in the instant case. There has been no clear waiver or abrogation of immunity here. Thus, the court finds the state government/institutional defendants immune to suit pursuant to the Eleventh Amendment. Accordingly, the State of California, California Department of Justice, California Department of Corrections and Rehabilitation, and Board of Prison Terms -- are immune from suit in this action pursuant to the Eleventh Amendment, and must be dismissed with prejudice.

The individuals associated with these state entities and named herein in their official capacities -- Governor Arnold Schwarzenegger, Attorney General Edmund G. Brown, Jr., CDCR Secretary Matthew Cate and CDCR Commissioner Robert Doyle -- must also be dismissed in their official capacities. A suit for damages against a state official, in his or her official capacity, is tantamount to a suit against the state itself and is therefore also barred by the Eleventh Amendment. Pennhurst v. Halderman, 465 U.S. 89, 101-102 (1984); Will, 491 U.S. at 71. A state official, acting in his or her official capacity, is not a "person" for purposes of a section 1983 damages action. Will, at 71.

Accordingly, the court finds that these state officials -- Governor Schwarzenegger, Attorney General Brown, Jr., CDCR Secretary Cate, and CDCR Commissioner Doyle -- are immune from suit pursuant to the Eleventh Amendment, and must be dismissed with prejudice from this action in their official capacities.

The remaining question is whether plaintiff may sue any of the state officials in their individual capacities. Aside from naming these officials as defendants on the cover page, they are not referenced in the complaint. Plaintiff has failed to set forth any specific allegations against these defendants. The complaint clearly fails to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009). While the court is skeptical that plaintiff can allege sufficient facts against these defendants in their individual capacities, plaintiff will be granted leave to amend to identify the actions of these defendants in their individual capacities regarding the claims discussed below.

b. Medical Claims

Plaintiff also challenges the medical care he received while incarcerated. Compl. at 38-39. The State Defendants have moved to have this claim dismissed as plaintiff failed to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a), which requires that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Id.

While plaintiff did not exhaust administrative remedies, he did not commence this action until after he was released from prison. The Ninth Circuit recently held that "only those individuals who are prisoners (as defined by 42 U.S.C. § 1997e(h)) at the time they file suit must comply with the exhaustion requirements of 42 U.S.C. § 1997e(a)." Talamantes v. Leyva, 575 F.3d 1021, 1024 (9th Cir. 2009). As plaintiff was released from custody approximately one year before filing this action, he was not a prisoner at that time and therefore was not required to exhaust administrative remedies.

Nonetheless, the state agency defendants are immune from suit as are the individuals in their official capacities. Plaintiff does not identify the actions of any specific individuals with regard to his claims that he received inadequate medical care while incarcerated. Plaintiff contends that several prison guards ignored his requests for medical attention after his gout condition worsened but does not identify the guards by name and does not specify when this occurred. Plaintiff also makes general allegations about not receiving cholesterol medication which he claims led to a heart attack, but again, plaintiff makes no specific allegations against any individual.

In order to state a § 1983 claim for violation of the Eighth Amendment based on inadequate medical care, plaintiff must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). To prevail, plaintiff must show both that his medical needs were objectively serious, and that defendants possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 299 (1991); McKinney v. Anderson, 959 F.2d 853 (9th Cir. 1992) (on remand). The requisite state of mind for a medical claim is "deliberate indifference." Hudson v. McMillian, 503 U.S. 1, 4 (1992).

A serious medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain. Indications that a prisoner has a serious need for medical treatment are the following: the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain. See, e.g., Wood v. Housewright, 900 F. 2d 1332, 1337-41 (9th Cir. 1990) (citing cases); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989). McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds, WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

To the extent plaintiff can identify specific individual defendants who denied him medical care or were indifferent to his medical needs and specific facts in support thereof, plaintiff will be granted leave to amend his complaint to do so.

c. Sex Offender Registration

Plaintiff makes several claims associated with the requirement that he register as a sex offender. Although, as with the former, the chronology and exact facts remain unclear, plaintiff generally describes the relevant fact as follows. Presumably, although not stated, plaintiff was required to register as a sex offender upon his release from incarceration in August or September 2007. Dckt. No. 22 at 9. It appears the registry originally identified plaintiff's conviction as two counts of oral copulation with a person under the age of 16 or 18 years-old, pursuant to California Penal Code §§ 288(b)(2) and 288a(b)(1), which apparently could lead people to believe that the victim was quite young. Compl. at 87. However, plaintiff was found guilty of violating only section 288(c)(1) which specifies lewd or lascivious act with a 14 or 15 year-old. The registry was partially corrected at some unknown date,*fn13 but retained a reference to "acts" (rather than "act"). Compl. at 6, 89. On June 6, 2008, plaintiff was notified by letter from DOJ's Sex Offender Tracking Program that the requirement of his registration had been terminated. Compl. at 94.

Plaintiff contends that, despite reversal of his conviction on October 9, 2007, he was not released from the Registry until June 6, 2008, and contends that this was an unreasonable period of time, therefore a violation of the Equal Protection Clause.

"The Equal Protection Clause ... is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). "'To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class.'" Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)).

Plaintiff has not alleged that he is a member of a protected class. Nor has he articulated any basis for a claim of disparate treatment. Accordingly, plaintiff fails to state a claim for relief under the Fourteenth Amendment for violation of the Equal Protection Clause. In addition, the majority of defendants that plaintiff identifies with respect to this claim are immune from suit as government entities or officials in their official capacities. To the extent plaintiff can identify specific individual defendants who were responsible for the errors on the Registry and specific facts in support thereof, plaintiff will be granted leave to amend his complaint to do so.

d. Parole Conditions

Plaintiff also contends that his parole conditions were unreasonable, vague and constituted cruel and unusual punishment under the Eighth Amendment. The circumstances and conditions of plaintiff's parole are gleaned from the attachments to his complaint which are properly considered on these Rule 12(b)(6) motions. It should be noted that plaintiff was placed on parole by the Board of Prison Terms prior to the reversal of his conviction.*fn14 Plaintiff objects to the conditions that were applied to him when the Board of Prison Terms issued conditions based on plaintiff's conviction for sexual misconduct. The parole conditions restricted plaintiff from interacting with minors, possessing sexually explicit materials, mandated drug testing and restricted the use of alcohol. Compl. at 151-155.

Plaintiff argues that alcohol and drugs played no part in his conviction and therefore should not have been involved in the parole conditions. Compl. at 6. Plaintiff also states he had to remove his wife's Barbie doll collection as one of the conditions that prevented him from possessing children's toys. Id.

Pursuant to California law, the Board of Prison Terms upon granting parole may impose "any conditions that it may deem proper." Cal. Penal Code § 3053. There are limits, as the California Court of Appeal stated:

Parole conditions, like conditions of probation, must be reasonable since parolees retain constitutional protection against arbitrary and oppressive official action. Conditions of parole must be reasonably related to the compelling state interest of fostering a law-abiding lifestyle in the parolee. Thus, a condition that bars lawful activity will be upheld only if the prohibited conduct either 1) has a relationship to the crime of which the offender was convicted, or 2) is reasonably related to deter future criminality.

In re Corona, 160 Cal.App.4th 315, 321 (2008) (citations and quotation marks omitted). The Ninth Circuit held in Bagley v. Harvey, 718 F.2d 921 (9th Cir. 1983), that "parole conditions must be sustained if there is a rational basis in the record for them." Id. at 925.

The parole conditions plaintiff challenges were all reasonable based on the factors set forth in Corona. See Bagley, 718 F.2d at 925 (parole condition upheld where petitioner was restricted from entering Washington State except for purpose of litigation or child visitation). Plaintiff's argument consists solely of conclusory statements. Although his conviction may have ultimately been reversed, at the time the conditions were imposed plaintiff had been convicted of committing a lewd act on a minor 14 or 15 years of age. The parole conditions imposed that restricted his access to minors and locations such as schools and playgrounds were rationally related to that conviction. Additionally, restrictions on drugs and alcohol are also reasonably related to deter future criminal behavior and aid in fostering a law-abiding lifestyle. Because plaintiff's own exhibits show that he cannot allege sufficient facts with respect to this claim, the claim must be dismissed without leave to amend.

AMENDED COMPLAINT

As noted with respect to several of plaintiff's claims arising under § 1983, he failed to allege specific facts or identify appropriate defendants. The Civil Rights Act provides as follows:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

In an amended complaint, plaintiff must demonstrate how the conditions complained of have resulted in a deprivation of plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

Fed. R. Civ. P. 8 sets forth general rules of notice pleading in the Federal Courts. See Swierkiewicz v. Sorema, 534 U.S. 506, 122 S.Ct. 992 (2002). Complaints are required to set a forth (1) the grounds upon which the court's jurisdiction rests, (2) a short and plain statement of the claim showing entitlement to relief; and (3) a demand for the relief plaintiff seeks. Rule 8 requires only "sufficient allegations to put defendants fairly on notice of the claims against them." McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

Even if the factual elements of the cause of action are present, but are scattered throughout the complaint and are not organized into a "short and plain statement of the claim," dismissal for failure to satisfy Rule 8(a)(2) is proper. McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996) (stating that a complaint should set forth "who is being sued, for what relief, and on what theory, with enough detail to guide discovery" (emphasis added)). A complaint that fails to comply with rules 8(a) and 8(e) may be dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b). Rule 8; Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981)). Further, "[t]he propriety of dismissal for failure to comply with Rule 8 does not depend on whether the complaint is wholly without merit," McHenry, 84 F.3d at 1179.

The complaint in this action illustrates the "unfair burdens" imposed by complaints, "prolix in evidentiary detail, yet without simplicity, conciseness and clarity" which "fail to perform the essential functions of a complaint." McHenry, 84 F.3d at 1179-80.

In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.

If plaintiff files an amended complaint it may be no longer than 25 pages. Plaintiff should not rely on exhibits to state his claims. If plaintiff files an amended complaint, he should clearly identify each defendant and include a short statement regarding what each defendant did which allegedly violated his constitutional rights.

Accordingly, IT IS HEREBY RECOMMENDED that:

1. The motion to dismiss, Dckt. No. 7, be granted in part, in that Solano County be dismissed with prejudice and that Solano County District Attorney David Paulson and Solano County Deputy District Attorney Julie Underwood be dismissed without prejudice.

2. The motion to dismiss, Dckt No. 9, be granted in part, in that the Vacaville Police Department be dismissed with prejudice and the City of Vacaville, Vacaville Police Chief Richard Word and Vacaville Police Officers Raye Donaldson and Jeffrey Datzman be dismissed without prejudice;

3. The motion to dismiss, Dckt. No. 21, be granted in part, in that the State of California, the California Department of Justice, the California Department of Corrections and Rehabilitation, and the Board of Prison Terms be dismissed with prejudice;

4. Governor Arnold Schwarzenegger, Attorney General Edmund G. Brown, Jr., CDCR Secretary Matthew Cate, and CDCR Commissioner Robert Doyle, each in their official capacities be dismissed with prejudice;

5. Governor Arnold Schwarzenegger, Attorney General Edmund G. Brown, Jr., CDCR Secretary Matthew Cate, and CDCR Commissioner Robert Doyle, each in their individual capacities be dismissed without prejudice;

6. Plaintiff's claim regarding unreasonable parole conditions be dismissed without leave to amend.

Further, it is HEREBY ORDERED that:

1. Plaintiff's remaining claims are dismissed with leave to file an amended complaint, as discussed above.

2. If plaintiff files an amended complaint it may be no longer than 25 pages. Plaintiff should not rely on exhibits to state his claims.

3. Any amended complaint must be submitted within 14 days of any order adopting these findings and recommendations. Failure to file an amended complaint will result in a recommendation that this action be dismissed with prejudice.

4. Plaintiff's motion requesting a decision, Dckt No. 38, is denied as moot.

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 fourteen 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." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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