The opinion of the court was delivered by: Ruben B. Brooks, Magistrate Judge United States District Court
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS COMPLAINT ) [ECF NO. 24]
Plaintiff William Cecil Thornton, a state prisoner proceeding pro se and in forma pauperis, filed a Complaint under the Civil Rights Act pursuant to 42 U.S.C. § 1983 [ECF Nos. 1, 5]. In his Complaint, Thornton consented to magistrate judge jurisdiction. (Compl. 7, ECF No. 1.) On November 1, 2010, Defendants filed a Notice, Consent, and Reference of a Civil Action to a Magistrate Judge [ECF No. 23]. The next day, they filed a Motion to Dismiss Complaint, accompanied by a Memorandum of Points and Authorities, and a Request for Judicial Notice [ECF No. 24]. This Court granted Plaintiff's two requests for an extension of time to respond to Defendants' Motion [ECF Nos. 29, 32, 43-44]. Thornton filed his Opposition to Motion to Dismiss Complaint on January 7, 2011, along with a Memorandum of Points and Authorities, and a Request for Judicial Notice [ECF No. 46]. On January 20, 2011, Defendants filed a Reply [ECF No. 53].
The Court has reviewed the Complaint and exhibits, Defendants' Motion to Dismiss and attachments, Plaintiff's Opposition and attachments, and Defendants' Reply. For the reasons stated below, Defendants' Motion to Dismiss is GRANTED.
The allegations in the Complaint arise from events that occurred while
Plaintiff was incarcerated at Richard J. Donovan State Prison
("Donovan"), as well as after he was released on parole.*fn1
(Compl. 1, 3, ECF No. 1.) In count one, Thornton contends
that on November 10, 2007, he was released from Donovan on parole,
where he had been serving time for a parole violation. (Id. at 3.) On
September 17, 2007, before his release, Plaintiff claims he was served
with papers informing him that he would not be allowed to live with
his wife in their home because of "the provisions of Proposition 83,
that . . . was applied to [him] because of [a] 1987 Tennessee case."
(Id.) Thornton alleges that his parole conditions violate his
constitutional rights to due process, freedom of association, and to
be free from cruel and unusual punishment. (Id.)
In count two, Plaintiff maintains that on November 21, 2007, he was assigned to a "GPS unit of parole" and was given "overbroad conditions of parole." (Id. at 4.) He was assigned to a sex offender unit supervised by Parole Agent Christine Cavalin. (Id.) As a result, his rights to due process, to be free from cruel and unusual punishment, and his "interest of liberty" were violated. (Id.)
Finally, in count three, Plaintiff alleges he was "banished" from living with his wife in their residence because "it was not in compliance with Proposition 83 or California Penal Code § 3003.5." (Id. at 5 (citation omitted).) But in 2008, Plaintiff contends, another sex offender who had been assigned to the same parole unit, Richard Lilly, initiated an intimate relationship with Thornton's wife and was permitted to move into the residence with her. (Id.) Plaintiff states, "[Lilly] was allowed to move into the very home I was told was out of compliance to me as a sex offender." (Id.) Thornton argues that he was therefore discriminated against in violation of the Equal Protection Clause. (Id.)
II. APPLICABLE LEGAL STANDARDS
A. Motions to Dismiss Pursuant to Rule 12(b)(6)
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633 (1999). "The old formula ---that the complaint must not be dismissed unless it is beyond doubt without merit -- was discarded by the Bell Atlantic decision [Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007)]." Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803 (7th Cir. 2008).
A complaint must be dismissed if it does not contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp., 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." Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009). The court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) (citing Karam v. City of Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003)); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); N.L. Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).
The court does not look at whether the plaintiff will "ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Bell Atl. Corp., 550 U.S. at 563 n.8. A dismissal under Rule 12(b)(6) is generally proper only where there "is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)).
The court need not accept conclusory allegations in the complaint as true; rather, it must "examine whether [they] follow from the description of facts as alleged by the plaintiff." Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (citation omitted); see Halkin v. VeriFone, Inc., 11 F.3d 865, 868 (9th Cir. 1993); see also Cholla Ready Mix, Inc., 382 F.3d at 973 (quoting Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994)) (stating that on a Rule 12(b)(6) motion, a court "is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged"). "Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
In addition, when resolving a motion to dismiss for failure to state a claim, courts generally may not consider materials outside of the pleadings. Schneider v. Cal. Dep't of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998); Jacobellis v. State Farm Fire & Cas. Co., 120 F.3d 171, 172 (9th Cir. 1997); Allarcom Pay Television Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). "The focus of any Rule 12(b)(6) dismissal . . . is the complaint." Schneider, 151 F.3d at 1197 n.1. This precludes reviewing "new" allegations that may be raised in a plaintiff's opposition to a motion to dismiss brought pursuant to Rule 12(b)(6). Id. (citing Harrell v. United States, 13 F.3d 232, 236 (7th Cir. 1993)).
"When a plaintiff has attached various exhibits to the complaint, those exhibits may be considered in determining whether dismissal [i]s proper . . . ." Parks Sch. of Bus., Inc, 51 F.3d at 1484 (citing Cooper v. Bell, 628 F.2d 1208, 1210 n.2 (9th Cir. 1980)). The court may also look to documents "'whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading.'" Sunrize Staging, Inc. v. Ovation Dev. Corp., 241 F. App'x 363, 365 (9th Cir. May 18, 2007) (quoting Janas v. McCracken (In re Silicon Graphics Inc. Sec. Litig.), 183 F.3d 970, 986 (9th Cir. 1999)) (alteration in original); see Stone v. Writer's Guild of Am. W., Inc., 101 F.3d 1312, 1313-14 (9th Cir. 1996).
B. Standards Applicable to Pro Se Litigants
Where a plaintiff appears in propria persona in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, courts may not "supply essential elements of claims that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.; see also Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (finding conclusory allegations unsupported by facts insufficient to state a claim under § 1983). "The plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim." Jones, 733 F.2d at 649 (internal quotation omitted).
Nevertheless, the court must give a pro se litigant leave to amend his complaint "unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). Thus, before a pro se civil rights complaint may be dismissed, the plaintiff must be provided with a statement of the complaint's deficiencies. Karim-Panahi, 839 F.2d at 623-24. But where amendment of a pro se litigant's complaint would be futile, denial of leave to amend is appropriate. See James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000).
C. Stating a Claim Under 42 U.S.C. § 1983
To state a claim under § 1983, the plaintiff must allege facts sufficient to show (1) a person acting "under color of state law" committed the conduct at issue, and (2) the conduct deprived the plaintiff of some right, privilege, or immunity protected by the Constitution or laws of the United States. 42 U.S.C.A. § 1983 (West 2010); Shah v. County of Los Angeles, 797 F.2d 743, 746 (9th Cir. 1986).
These guidelines apply to Defendants' Motion.
III. DEFENDANTS' MOTION TO DISMISS
All five named Defendants move to dismiss Plaintiff's Complaint for failure to allege facts sufficient to state a claim. (Mot. Dismiss 1, ECF No. 24.) They contest the path Thornton has chosen to question the conditions of his parole. Defendants argue that the challenge to parole conditions is not cognizable under § 1983 and should have been brought in a petition for writ of habeas corpus. (Id. Attach. #1 Mem. P. & A. 4-6.) Next, they allege Plaintiff has failed to plead facts illustrating they were personally involved in any violation of Thornton's constitutional rights. (Id. at 6-7.) Defendants contend that Plaintiff attempts to use vicarious liability to hold them responsible for his parole conditions. (Id. at 6.) They also assert they are entitled to qualified immunity for their actions. (Id. at 7-8.) Finally, Defendants maintain that they are absolutely immune from liability for monetary damages related to their official actions. (Id. at 8-9.)
A. Request for Judicial Notice
Both Plaintiff and Defendants request that the Court take judicial notice of several items. Defendants ask the Court to take judicial notice of the following records:
1. Notice of Sex Offender Registration Requirement, dated January 31, 2006;
2. Indictment for Rape, Criminal Court of Shelby County, Tennessee case no. 86-02052;
3. Judgment, Criminal Court of Shelby County, Tennessee, case number 86-02052;
4. Petition for Waiver of Trial by Jury, Criminal Court of Shelby County, Tennessee, case number 86-02052; [and]
5. Negotiated Plea Agreement, Criminal Court of Shelby County, Tennessee, case number 86-02052.
(Mot. Dismiss Attach. #2 Req. Judicial Notice 2, ECF No. 24.) Thornton requests that the Court take judicial notice of the following nine items:
1. Parole Conditions Dated: November 21, 2007, June 30, September 2, and December 17, 2008;
2. Parole Conditions Dated: March 24 and July 9, 2009;
3. Modified Conditions of Parole Dated: September 17 and November 12, 2007;
5. California Department of Corrections Face Sheet;
6. CDCR Parolee Interview Reports and Other Documents;
7. CDCR (602) Appeal to Agent Cavalin;
8. Letter From Richard Lilly to Parole Agent Cavalin and Agent Shannahan; [and]
9. CDCR 602 Appeal to Supervisor Lewis.
(Opp'n Attach. #2 Req. Judicial Notice 2-3, ECF No. 46.)
When ruling on motions to dismiss, courts may consider matters of which they take judicial notice. Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017-18 (5th Cir. 1996) (citing Fed. R. Evid. 201(f)). A fact subject to judicial notice is one that is "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). "A court shall take judicial notice if requested by a party and supplied with the necessary information." Fed. R. Evid. 201(d). Furthermore, judicial notice may be taken of "records of state agencies and other undisputed matters of public record." Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 866 n.1 (9th Cir. 2004) (citing Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001)).
Although unaccompanied by a declaration authenticating the documents, Defendants ask the Court to take judicial notice of the Notice of Sex Offender Registration Requirement, as well as four records pertaining to Thornton's 1986 Tennessee criminal case. (See Mot. Dismiss Attach. #2 Req. Judicial Notice 2, ECF No. 24.) Thornton has not asserted that the documents are not authentic or opposed taking judicial notice of the records.
a. Notice of sex offender registration requirement
The California Department of Justice provides sex offenders with a notice advising them of their duty to register as a sex offender pursuant to California Penal Code sections 290 and 290.01. (Id. Ex. 1, at 5.) Defendants' Request for Judicial Notice includes a copy of the Notice of Sex Offender Registration Requirement with Thornton's initials, a signature, and a thumbprint. (Id.)
Courts may take judicial notice of "the records of state agencies and other undisputed matters of public record." Disabled Rights Action Comm., 375 F.3d at 866 n.1. Here, the notice to register as a sex offender is a record of the California Department of Justice ("DOJ"). "The California Department of Justice is clearly a state agency." Faruk Cenap Yetek DDS v. Dental Bd. of Cal., No. C09-3702, 2010 U.S. Dist. LEXIS 82529, at *6 (N.D. Cal. June 22, 2010). Accordingly, Defendants' request that the Court take judicial notice of the Notice of Sex Offender Registration ...