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William Cecil Thornton v. Arnold Schwarzenegger

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


June 1, 2011

WILLIAM CECIL THORNTON,
PLAINTIFF,
v.
ARNOLD SCHWARZENEGGER, GOVERNOR OF CALIFORNIA; MATTHEW CATE, SECRETARY OF CORRECTIONS; JOHN DOE LEWIS, PAROLE UNIT SUPERVISOR; MARK JOSEPH, PAROLE AGENT; CHRISTINE CAVALIN, PAROLE AGENT; JOHN DOE #1, PAROLE AGENT,
DEFENDANTS.

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.

I. FACTUAL BACKGROUND

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;

4. Copies of MapQuest;

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)).

1. Defendants' Request

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 Requirement -- 290 P.C., signed by Thornton on January 31, 2006, is GRANTED. (Mot. Dismiss Attach. #2 Req. Judicial Notice 2, ECF No. 24; id. Ex. 1, at 5.)

b. Documents relating to the Tennessee criminal case

The remaining four documents that Defendants ask the Court to judicially notice relate to Thornton's 1986 case in the Criminal Court of Shelby County, Tennessee --- the indictment, the judgment, the petition for waiver of jury trial, and the plea agreement. (Mot. Dismiss Attach. #2 Req. Judicial Notice 2, ECF No. 24; id. Exs. 2-5.) A grand jury returned an indictment on April 22, 1986, charging Thornton with rape in case number 86-02052. (Id. Ex. 2, at 7-8.) The indictment is accompanied by an "affidavit of complaint" and warrant ordering Thornton's arrest. (Id.) Next, Defendants include the 1987 judgment showing that Thornton pleaded guilty to sexual battery and was sentenced to one-year confinement at the local workhouse. (Id. Ex. 3, at 11.) They also have produced a copy of a jury trial waiver requesting that the Tennessee court accept Thornton's guilty plea. (Id. Ex. 4, at 13.) Lastly, Defendants include a negotiated plea agreement signed by Thornton. (Id. Ex. 5, at 15-16.)

On a motion to dismiss, a court may take judicial notice of "matters of public record." See Mack v. South Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Moreover, "courts routinely take judicial notice of documents filed in other courts . . . to establish the fact of such litigation and related filings." Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991). The effect of taking judicial notice of documents filed in other courts, however, is limited. "On a Rule 12(b)(6) motion to dismiss, when a court takes judicial notice of another court's opinion, it may do so 'not for the truth of the facts recited therein, but for the existence of the opinion, which is not subject to reasonable dispute over its authenticity.'" Lee, 250 F.3d at 690 (quoting South Cross Overseas Agencies v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410, 426-27 (3rd Cir. 1999)).

The records relating to Thornton's out-of-state criminal case "'[are] not subject to reasonable dispute over [their] authenticity.'" Id. (quoting South Cross Overseas Agencies, 101 F. 3d at 427). These documents appear to be authentic court records of the Criminal Court of Shelby County, Tennessee, and there is nothing to suggest otherwise. (See Mot. Dismiss Attach. #2 Req. Judicial Notice Exs. 2-5, at 7-16, ECF No. 24.) Defendants' request that the Court take judicial notice of the indictment, the judgment, the petition for waiver of jury trial, and the plea agreement in Tennessee criminal case number 86-02052 is GRANTED. See Lee, 250 F.3d at 690; Mack, 798 F.2d at 1282; Kramer, 937 F.2d at 774.

2. Plaintiff's Request

Plaintiff asks that the Court take judicial notice of nine items, which are themselves composed of multiple documents. (Opp'n Attach. #2 Req. Judicial Notice 2-3, ECF No. 46.)*fn2 Like the Defendants, Thornton has not provided the Court with a declaration establishing the authenticity of the items. But Defendants do not dispute authenticity and do not oppose Plaintiff's request for judicial notice. The Court will address related documents together.

a. Parole conditions, inmate appeals, and related documents

Plaintiff asks the Court to take judicial notice of parole conditions dated November 21, 2007, and June 30, September 2, and December 17, 2008. (Id. at 2, 5-33.) Thornton also includes parole conditions dated March 24 and July 9, 2009. (Id. at 2, 35-48.) All of the parole conditions are printed on a California Department of Corrections and Rehabilitation ("CDCR") form, and they are signed by Thornton, Parole Agent Cavalin, and the Parole Unit Supervisor. (Id. at 6-7, 12-13, 19-20, 26-27, 33, 35, 41-42, 48.) Next, Plaintiff includes a Modified Condition of Parole Addendum, a notice sent to Thornton regarding Proposition 83, and the Special Condition Addendum Global Positioning System (GPS). (Id. at 2, 50-52.) These documents are signed by Thornton and a member of the CDCR; the notice and special addendum are printed on CDCR forms. (Id.)

Additionally, Thornton attaches a CDCR Face Sheet, which is a log outlining Thornton's housing and employment history. (Id. at 2, 57-58.) This is followed by two California Penal Code section 290 registration receipts, a License and Certificate of Marriage, a Parolee Initial Interview form, and a Notification of Parolee Orientation. (Id. at 2, 60-64.) The parolee interview, dated April 30, 2007, is signed by Plaintiff and Parole Agent Miller. (Id. at 63.) Next, Thornton attaches a completed Inmate/Parolee Appeal Form ("602"), including Agent Cavalin's response at the informal level of review. (Id. at 2, 66.) Finally, Plaintiff submits a set of three administrative appeals, two of which include cover letters addressed to Defendants Lewis and Cavalin. (Id. at 3, 72-81.) The initial grievances are dated September 28, 2008, and February 3 and May 13, 2010. (Id. at 73, 78, 81.) The grievances relate to Thornton's claim that he has been banished from his home. (Id. at 72-81.)

Some of the items are also attached to the Complaint, which makes them appropriate for consideration in ruling on the Defendants' Motion to Dismiss. (Compare Opp'n Attach. #2 Req. Judicial Notice 6-12, ECF No. 46, with Compl. Attach. #1 Ex. J, at 1-7, ECF No. 1; compare Opp'n Attach. #2 Req. Judicial Notice 50-51, ECF No. 46, with Compl. Attach. #1 Ex. C, at 1-2, ECF No. 1.)

As discussed previously, courts may take judicial notice of records and reports of administrative bodies. Lundquist, 394 F. Supp. 2d at 1242-43. "Public records and government documents are generally considered 'not to be subject to reasonable dispute.'" Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 630 F. Supp. 2d 842, 849 (S.D. Ohio 2003) (quoting Jackson v. City of Columbus, 194 F.3d 737 (6th Cir. 1999)). With the exception of two handwritten letters, Opp'n Attach. #2 Req. Judicial Notice 72, 76, ECF No. 46, Plaintiff's documents consist of records of either the State of California, the Department of Corrections, or the County of San Diego. They are the proper subject of judicial notice only to establish their existence or the result of an administrative process; Thornton cannot rely on them to establish any hearsay statements or contested facts contained in the documents. See Lee, 250 F.3d at 690; see also Lundquist, 394 F. Supp 2d at 1242-43 (stating that courts may take judicial notice of records and reports of administrative bodies).

The letters that accompany two of Thornton's 602 grievances are not public records or government documents. (See Opp'n Attach. #2 Req. Judicial Notice 72, 77, ECF No. 46.) Defendants do not object to any of Plaintiff's requests. (See Reply Opp'n Mot. Dismiss 1-3, ECF No. 53.) Even so, the letters are hearsay and not adjudicative facts. Rule 201(a) of the Federal Rules of Evidence governs only adjudicative facts. An adjudicative fact 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). The Court does not take judicial notice of these two letters because their content is hearsay. For these two items, Thornton's request is DENIED. (Opp'n Attach. #2 Req. Judicial Notice 72, 77, ECF No. 46.) But Plaintiff's request that the Court take judicial notice of the remaining items listed above -- the parole conditions, the face sheet, the 602 grievances, the interview report, and other documents is GRANTED. (Opp'n Attach. #2 Req. Judicial Notice 2-52, 56-66, 73-76, 78-81, ECF No. 46.)

b. MapQuest printout

Thornton also seeks judicial notice of a map and printout from the mapping website MapQuest. (Id. at 54.) The documents show schools and the distance to each of them from Plaintiff's wife's residence in San Marcos, California. (Id.) In general, maps are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b); see, e.g., Hays v. National Elec. Contractors Ass'n, 781F.2d 1321, 1323 (9th Cir. 1985) (taking judicial notice of a map to show counties included in a forty mile radius). Plaintiff's request that the Court take judicial notice of the MapQuest map and printout, to which Defendants have not objected, is GRANTED.*fn3

(Opp'n Attach. #2 Req. Judicial Notice 54-55, ECF No. 46.)

c. Letters to parole agents

Plaintiff requests that this Court take judicial notice of three letters dated March 2, 2009. (Id. at 68-70.) The first appears to be signed by Richard Lilly and is addressed to Agent Shannahan. (Id. at 68.) The second letter is signed by Thornton's wife and his mother-in-law and is addressed to Agent Cavalin. (Id. at 69.) The third letter is signed by Lilly and is a duplicate of the letter Lilly addressed to Agent Shannahan, except that it is addressed to Agent Cavalin. (Id. at 70.)

Courts may deny requests to take judicial notice of letters when they contain evidentiary defects. See, e.g., Pratt v. California State Bd. of Pharmacy, 268 F. App'x 600, 603 (9th Cir. Feb. 14, 2008) (denying request to take judicial notice of a letter containing hearsay); Contreras Family Trust v. United States Dept. of Agric. Farm Service Agency, 205 F. App'x 580, 582 (9th Cir. Nov. 13, 2006) (finding that district court did not abuse its discretion when denying a request to take judicial notice of an unauthenticated letter). These letters are hearsay and have not been authenticated. Consequently, Plaintiff's request that the Court take judicial notice of the two letters signed by Lilly and the letter signed by Thornton's wife and mother-in-law is DENIED. (Opp'n Attach. #2 Req. Judicial Notice 68-70, ECF No. 46.)

B. Whether Plaintiff's Claims Are Cognizable Under § 1983

Thornton argues that the conditions of his parole violate his constitutional rights. (See Compl. 3-7, ECF No. 1.) His first claim challenges the parole condition that prohibits him from "liv[ing] at my home with my wife because of provisions of Proposition 83 . . . ." (See id. at 3.) Plaintiff attaches to his Complaint a forty-five-day notice sent to him from the CDCR, informing him that he had been given a parole condition requiring him to obey all laws, including Proposition 83, the Sexual Predator Punishment and Control Act ("Jessica's Law"). (Id. Attach. #1 Ex. C, at 8.) The notice states, "Jessica's Law means that if you have to sign up as a sex offender, you can not live within 2000 feet of a park or school. Also, PC 3003(g) says you cannot live within one-half-mile of a school." (Id.) It further states, "This letter is your notice to obey the law, and to tell you that your 45-day period starts on 9-17-07[.]" (Id.) Jessica's Law was applied to Plaintiff because of his 1986 Tennessee conviction for sexual battery. (See Compl. 3, ECF No. 1; id. Attach. #1 Ex. H, at 31.)

In Thornton's second claim, Plaintiff asserts that on November 21, 2007, he was assigned to a GPS unit and a sex offender unit of parole. (Id. at 4.) Thornton attaches to his Complaint a notice, signed by Plaintiff, instructing him that as of November 21, 2007, he must participate in Global Positioning System ("GPS") monitoring. (Id. Attach. #1 Ex. E, at 18.) He also attaches his Special Conditions of Parole form, which requires that he register as a sex offender. (Id. Ex. J, at 41.) Plaintiff's second claim is that these overbroad parole conditions --- electronic monitoring and the registration requirement --- violate his civil rights. (See Compl. 4, ECF No. 1.)

Finally, Thornton's third claim is directed at the disparate treatment of him and Richard Lilly, a parolee who was allowed to live in Plaintiff's wife's residence even though Thornton was not. (Id. at 4-5.) Plaintiff asserts that he and Lilly were in the same sex offender parole unit. (Id. at 5.) Thornton submitted numerous administrative grievances complaining of the discrimination against him. (Id. Attach. #1 Ex. D, at 11-16, Ex. F, at 21-24.) He contends that the parole condition requiring him to obey Jessica's Law is being applied in a discriminatory manner. (Compl. 4-5, ECF No. 1.)

Defendants argue that Plaintiff is challenging the fact or duration of his confinement. (Mot. Dismiss Attach. #1 Mem. P. & A. 5, ECF No. 24.) Therefore, Thornton's claims should have been brought in a petition for writ of habeas corpus instead of a civil rights complaint. (Id.) To support their contention, Defendants rely on the Seventh Circuit's reasoning in Williams v. Wisconsin, 336 F.3d 576 (7th Cir. 2003). (Mot. Dismiss Attach. #1 Mem. P. & A. 5-6, ECF No. 24.) There, the court held that the sole remedy for a parolee who challenges the conditions of parole in federal court is a writ of habeas corpus. Williams, 336 F.3d at 580. Defendants conclude, "Plaintiff's challenges to his parole conditions are not cognizable under 42 U.S.C. section 1983 because they are considered part of his sentence." (Motion Dismiss Attach. #1 Mem. P. & A. 6, ECF No. 24.)

In his Opposition, Thornton argues that he is not challenging his parole conditions. (Opp'n Attach. #1 Mem. P. & A. 2, ECF No. 46.) Rather, Plaintiff asserts he is challenging the denial of his constitutional rights and the discrimination being applied to him. (Id.) Thornton explains that his claims are "very much cognizable under 42 U.S.C. § 1983 and should not be brought by any other means." (Id.)

In response, Defendants reiterate that challenges to parole conditions must be brought by petition for writ of habeas corpus, not a complaint under § 1983. (Reply 2, ECF No. 53.) "[Plaintiff] claims he is challenging the denial of his constitutional rights, not his parole conditions. But the gravamen of Plaintiff's entire Complaint is that his parole conditions violate his constitutional rights." (Id.) Defendants state that Thornton's requested relief --- an injunction to prohibit them from applying "any type of sex offender parole conditions" to him --- further indicates that Plaintiff's claims challenge his parole conditions and should be raised in a habeas petition. (Id. (quoting Compl. 7, ECF No. 1).)

It is well-established that when a state prisoner challenges the legality or duration of his confinement, or raises constitutional challenges that could entitle him to earlier release, his exclusive federal remedy is a writ of habeas corpus.*fn4

Heck v. Humphrey, 512 U.S. 477, 481 (1994) (citing Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973)); see also Wilkinson v. Dotson, 544 U.S. at 78. The Supreme Court has emphasized that only habeas corpus jurisdiction is available to those attempting to "invalidate the duration of their confinement -- either directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the State's custody." Dotson, 544 U.S. at 81 (emphasis added). "[A] state prisoner's § 1983 action is barred . . . no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit . . . if success in that action would necessarily demonstrate the invalidity of confinement or its duration." Id. at 81-82.

In Jones v. Cunningham, 371 U.S. 236 (1963), the Supreme Court recognized that parole conditions can "significantly restrain [the parolee's] liberty;" consequently, Jones was "in custody," and a habeas corpus petition was the appropriate vehicle to test the legality of his sentence. See id. at 242-43.

While petitioner's parole releases him from immediate physical imprisonment, it imposes conditions which significantly confine and restrain his freedom; this is enough to keep him in the 'custody' of the members of the . . . Parole Board within the meaning of the habeas corpus statute . . . .

Id.

Ten years after Jones, the Supreme Court reaffirmed the case's holding stating, "In 1963, the Court held that a prisoner released on parole from immediate physical confinement was nonetheless sufficiently restrained in his freedom as to be in custody for purposes of federal habeas corpus." Preiser v. Rodriguez, 411 U.S. 475, 486 n.7 (1973) (citing Jones v. Cunningham, 371 U.S. 236). Preiser described Jones as "no more than a logical extension of the traditional meaning and purpose of habeas corpus -- to effect release from illegal custody." Id. As the Court explained, "[R]ecent cases have established that habeas relief is not limited to immediate release from illegal custody, but that the writ is available as well to attack future confinement and obtain future releases." Id. at 487; see also Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973)); Carafas v. LaValle, 391 U.S. 234, 239 (1968); Walker v. Wainwright, 390 U.S. 335 (1968).

Following this reasoning, courts in the Ninth Circuit have found that parolees and probationers are "in custody" if there are restraints on their freedom that are not imposed on the regular public. See, e.g., Goldyn v. Hayes, 444 F.3d 1062, 1063 n.2 (9th Cir. 2006) (discussing precedents holding that the person is "in custody" if "the legal disability in question somehow limits the putative habeas petitioner's movement[]"); Williamson v. Gregoire, 151 F.3d 1180, 1182-83 (9th Cir. 1998) (determining challenge to conviction while on parole); see also Cordell v. Tilton, 515 F. Supp. 2d 1114, 1133 (S.D. Cal. 2007) (report & recommendation).

In Williamson v. Gregoire, 151 F.3d at 1183, the court explained the analysis:

Thus, the boundary that limits the "in custody" requirement is the line between a "restraint on liberty" and a "collateral consequence of a conviction." . . .

The precedents that have found a restraint on liberty rely heavily on the notion of a physical sense of liberty -- that is, whether the legal disability in question somehow limits the putative habeas petitioner's movement. The Supreme Court justified extending habeas corpus to aliens denied entry into the United States by explaining the denial of entry as an impingement on movement. And the Court relied on a similar rationale to explain why a parolee or convict released on his own recognizance is "in custody." This circuit similarly explained that mandatory attendance at an alcohol rehabilitation program satisfies the "in custody" requirement because it requires the petitioner's "physical presence at a particular place."

Id. (internal citations omitted). The Ninth Circuit concluded that the Washington state law requirement that sex offenders register with the county sheriff and notify the sheriff of any change of residence did not place Williamson "in custody" for purposes of federal habeas corpus. Id. at 1181, 1184-85. The court noted that the Washington statutes did not restrict movement. Id. at 1184. "[T]he law does not specify any place in Washington or anywhere else where Williamson may not go. . . . Williamson cannot say that there is anywhere that the sex offender law prevents him from going." Id. Soon after Williamson, the Ninth Circuit held that the requirement under California law that sex offenders register annually with law enforcement authorities was insufficient to place them "in custody" and permit them to invoke federal habeas corpus jurisdiction. Henry v. Lungren, 164 F.3d 1240, 1241-42 (9th Cir. 1999).

The conditions of parole challenged by Thornton restrain his movement. According to Plaintiff, his parole conditions did not permit him to return to his home and live with his wife. (Compl. 3, ECF No. 1.) He could not live within one-half mile of a school or 2000 feet of a park. (Id. at 8.) The limitation on Thornton's movement is a significant restraint on his physical liberty and places him "in custody." Thornton's challenge to his parole conditions falls within the recognized scope of federal habeas corpus relief.

This conclusion is consistent with a more recent case, Wilson v. Belleque, 554 F.3d 816, 822 (9th Cir. 2009). There, court held that Wilson was "in custody" within the meaning of § 2241 "where the sovereign seeking to prosecute a petitioner [the State of Oregon] is currently detaining the petitioner based on convictions or charges not being challenged." Id. Wilson had filed a petition for habeas corpus relief and argued that his Fifth Amendment right against double jeopardy barred retrying him on lesser-included offenses. Id. at 820-21. Here, regardless of the basis of Thornton's current state custody, his federal suit may proceed under § 2254. It is not clear, however, that a habeas corpus petition challenging conditions of parole is a parolee's only avenue of relief. See Cordell, 515 F. Supp. 2d at 1131-32 (report & recommendation). Thornton's case raises the issue of whether a parole condition limiting where a parolee may live can be challenged in a § 1983 action.

The Seventh Circuit still remains the only circuit court to directly address whether habeas corpus is the exclusive means to challenge parole conditions. In Drollinger v. Milligan, 552 F.2d 1220 (7th Cir. 1977), one of the plaintiffs was challenging several of the conditions of her probation, including one "restrict[ing] her ability to share her living quarters with another person . . . ." The court held that her § 1983 complaint challenging the conditions of probation must be brought as a petition for habeas corpus. Id. at 1225. It acknowledged that probation is less confining than incarceration, which blurred the distinction between the fact of confinement and conditions of confinement. Id. Traditionally, the fact or duration of confinement is challenged by writ of habeas corpus, but conditions of prison life are challenged by civil rights complaints. See id. at 1224. Nonetheless, the court stated, "The elimination or substitution, for example, of one of the conditions of [Plaintiff's] probation would free her substantially from her confinement; figuratively speaking, one of the 'bars' would be removed from her cell." Id.; see also, Cordell, 515 F. Supp. 2d at 1132 (report and recommendation).

Sixteen years after Drollinger, the Seventh Circuit reaffirmed its holding. Williams v. Wisconsin, 336 F.3d 576 (7th Cir. 2003).

In Williams, the parolee brought a § 1983 complaint challenging a parole condition banning international travel. Id. at 579. Relying on Drollinger, the court held that the parole conditions "'define the perimeters of [the parolee or probationer's] confinement.'" Id. at 580 (quoting Drollinger, 552 F.2d at 1224). The court concluded that the plaintiff should have brought a habeas corpus petition rather than a civil rights complaint. Id.

This Court previously addressed this question in Cordell v. Tilton, 515 F. Supp. 2d at 1132-33. In Cordell, a parolee brought three claims under § 1983, two of which challenged conditions placed on him while on parole. Cordell, 515 F. Supp. 2d at 1132 (report & recommendation). One of the conditions prohibited the plaintiff from entering Orange County, which he argued effectively banished him from his own residence, in violation of his freedom of association. Id. The plaintiff's challenges to the conditions of his parole were not cognizable under § 1983. Id. at 1132-33. "These claims force the Court to rule on the validity of the restrictions placed on Cordell by the CDC as part of his sentence, which can only properly be done in a habeas proceeding." Id. (citation omitted).

The Ninth Circuit has not addressed whether Heck v. Humphrey prevents a parolee from preemptively challenging conditions of parole in a § 1983 complaint. See id. at 1132. The question remains unsettled among the district courts. Compare Ford v. Washington, No. 06-CV-1455-BR, 2007 U.S. Dist. LEXIS 41232, at *12 (D. Or. June 1, 2007) (stating parole conditions may be challenged under § 1983), and Yahweh v. U.S. Parole Comm'n, 158 F. Supp. 2d 1332, 1340 (S.D. Fla. 2001) (finding that plaintiffs may challenge parole conditions under either § 2254 or § 1983), with Moore v. Schwarzenegger, EDCV 09-1355, 2010 U.S. Dist. LEXIS 67461, at *8 (C.D. Cal. May 28, 2010) (noting that plaintiff's challenge of a parole condition restricting international travel was improperly brought under § 1983, and the claim should be dismissed without prejudice rather than converted to a claim for habeas corpus relief), and Moreno v. California, 25 F. Supp. 2d 1060, 1063 (N.D. Cal. 1998) (holding that challenges to conditions of parole are not cognizable under § 1983); see also Trimble v. City of Santa Rosa,

49 F.3d 583, 586 (9th Cir. 1995) ("When the intent to bring a habeas petition is not clear, however, the district court should not convert a defective section 1983 claim into a habeas petition.").

The Supreme Court has not "recognized habeas as the sole remedy, or even an available one, where the relief sought would 'neither terminat[e] custody, accelerat[e] the future date of release from custody, nor reduc[e] the level of custody." Skinner v. Switzer, __ U.S. __, 131 S. Ct. 1289, 1299 (2011) (quoting Dotson, 544 U.S. at 86 (Scalia, J., concurring)) (alterations in original). The Court explained that under existing case law, when a judgment in favor of the plaintiff would "necessarily imply" the invalidity of his conviction or sentence, the plaintiff may not proceed under § 1983. Id. at 1298-99 (citing Dotson, 544 U.S. at 82; Heck, 512 U.S. at 487).

The parole conditions restricting where Thornton may live should be considered part of his sentence. See Cordell, 515 F. Supp. at 1132 (report & recommendation); see also, Cordell, 515 F. Supp. at 1121-22 (order adopting report & recommendation). The claims in Plaintiff's Complaint will require that the Court determine the validity of the conditions placed on him as part of his previous sentence. A judgment in Plaintiff's favor would "necessarily imply" the invalidity of his sentence. See Skinner, __ U.S. at __, 131 S. Ct. at 1298-99 (citing Nelson v. Campbell, 541 U.S. 637, 647 (2004)). Because each of Plaintiff's claims seeks relief that would free him from the custody of the California Parole Board, habeas corpus is the traditional and appropriate remedy. See Jones v. Cunningham, 371 U.S. at 243.

Whether habeas relief is available to challenge conditions of parole and whether it should be the parolee's sole federal remedy raise overlapping questions. In Preiser, the Court explained the dilemma.

The broad language of § 1983, however, is not conclusive of the issue before us. The statute is a general one, and, despite the literal applicability of its terms, the question remains whether the specific federal habeas corpus statute, explicitly and historically designed to provide the means for a state prisoner to attack the validity of his confinement, must be understood to be the exclusive remedy available in a situation like this where it so clearly applies.

Preiser, 411 U.S. at 489. Habeas corpus jurisdiction should be the exclusive vehicle for Thornton's challenge. First, "[t]he broad, general terms of section 1983 must necessarily yield to the narrower terms of the habeas statute; limitations contained within the more specific statute also limit the availability of remedies under the more general statute." Hanson v. Circuit Ct. of First Judicial Circuit, 591 F.2d 404, 410 (7th Cir. 1979). For example, if Thornton is "in custody" so that he can bring a habeas petition under § 2254, he must comply with the habeas statute of limitations. See Ospina v. United States, 386 F.3d 750, 752 (6th Cir. 2004)(discussing § 2255).

Next, considerations of federal-state comity support this conclusion. See id. at 490.

[T]he reason why only habeas corpus can be used to challenge a state prisoner's underlying conviction is the strong policy requiring exhaustion of state remedies . . . to avoid the unnecessary friction between the federal and state court systems that would result if a lower federal court upset a state court conviction without first giving the state court system an opportunity to correct its own constitutional errors.

Id. California courts have an important interest in determining whether Thornton's challenge to the parole restrictions mandated by California's sex offender laws pass constitutional muster. The exhaustion requirement of the habeas statutes promotes that interest. These policy considerations reinforce the conclusion that habeas relief should be the sole federal remedy available to Thornton. Accordingly, Defendants' Motion to Dismiss counts one, two, and three is GRANTED.

Although Thornton may not pursue his claims pursuant to § 1983, he should be free to do so in a habeas corpus petition. See Trimble, 49 F.3d at 586. When an action is barred by Heck, it should be dismissed without prejudice for failure to state a claim. Id. Thornton's claims in counts one, two, and three are therefore dismissed without prejudice to bringing a habeas corpus petition.

C. Failure to Allege the Personal Involvement of Defendants

Even if Plaintiff's allegations are cognizable under § 1983, they nonetheless fail to state a claim upon which relief may be granted. Defendants Schwarzenegger, Cate, Lewis, Cavalin, and Joseph alternatively argue that the Complaint should be dismissed because Thornton failed to allege their personal involvement in the purported constitutional violation or a causal connection between any wrongful conduct and the deprivation. (Mot. Dismiss Attach. #1 Mem. P. & A. 6, ECF No. 24.) Defendants contend that Thornton's allegations "simply state in what capacity the defendants are employed." (Id. at 7.) They further argue, "[Plaintiff] seems to be attempting to hold [Defendants] vicariously liable for conditions of parole placed on him before he was released from prison." (Id.) Therefore, Defendants contend, Thornton's claim is inadequate to establish liability. (Id.)

In response, Plaintiff asserts he has stated a claim against the Defendants, and the Court must construe his Complaint in the light most favorable to him. (Opp'n Attach. #1 Mem. P. & A. 2, ECF No. 46.) He argues that the "parole agents did imping[e] on [his] constitutionally protected rights." (Id. at 3.) Plaintiff claims the Constitution and the California Constitution allow him to live at his wife's residence. (Id. at 3-6.) Thornton relies on cases that struck down conditions that too broadly restricted probationers' and parolees' "important rights." (Id. at 4-5.) Plaintiff does not otherwise address Defendants' argument that he failed to allege their personal involvement.

"A person 'subjects' another to the deprivation of a constitutional right . . . if he does an affirmative act, participates in another's affirmative act, 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) (citing Sims v. Adams, 537 F.2d 829 (5th Cir. 1976)). To state a claim for monetary damages under § 1983, a litigant must allege that each defendant committed some act, or failed to act in some way, which caused the plaintiff's injury. See Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007) (citing Leer v. Murphy, 844 F.2d 628, 633-34 (9th Cir. 1988)). "The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Leer, 844 F.2d at 633 (citations omitted). Moreover, respondeat superior or vicarious liability is not available in a civil rights action, absent a state law that authorizes its application. Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991); see also Samonte v. Bauman, 264 F. App'x 634, 636 (9th Cir. 2008) (finding that governor was not liable merely because of her position).

In his Complaint, Thornton names Arnold Schwarzenegger, former governor of California, because he "has control of state laws and enforcement of laws." (Compl. 2, ECF No. 1.) Plaintiff states that Matthew Cate, secretary of the California Department of Corrections, is liable because he is director of the department and has "control over [CDCR] policies and procedures." (Id.) Thornton sues "John Doe" Lewis, a parole unit supervisor, because he "is in control over the parole unit in Escondido, California." (Id.) Thornton also names Mark Joseph, a parole agent, who acted under color of law "as a parole agent." (Id.) Finally, he names Christine Cavalin, another parole agent, because she "was acting under color of law as [his] parole agent of record." (Id.)

Although each Defendant is sued in his or her individual capacity, Plaintiff does not include individualized allegations describing the specific acts of each Defendant. (Compl. 3-5, ECF No. 1.) In count one, Plaintiff alleges that before he was released from custody for a previous parole violation, he received a notice informing him that he would not be allowed to live at his wife's residence because of Proposition 83. (Id. at 3.) On that basis, he claims that his rights to due process, freedom of association, and to be free from cruel and unusual punishment were violated. (Id.)

In count two, Thornton alleges that he was assigned to a sex offender and GPS units of parole. (Id. at 4.) He states that he was given overbroad parole conditions that were unrelated to his California criminal history. (Id.) Plaintiff alleges that he was assigned to Parole Agent Christine Cavalin. (Id.) Because of his parole conditions and parole unit assignments, Thornton claims that his rights to be free from cruel and unusual punishment, due process, and "interest of liberty" were violated. (Id.) He does not identify any other Defendant in count two.

Finally, Thornton contends in count three that he was told he could not live at his wife's residence because of Proposition 83 and California Penal Code section 3003.5. (Id. at 5.) Yet, another member of the same sex offender unit of parole was allowed to live with Thornton's wife at her residence. (Id. at 5.) Plaintiff asserts this constitutes unconstitutional discrimination. (Id. at 4-5.) Count three does not identify the Defendant charged with specific acts of discrimination. (See id.)

Nonetheless, the Court must "construe the pleadings liberally and afford the plaintiff any benefit of the doubt." Karim-Panahi, 839 F.2d at 623. When ruling on motions to dismiss, the Court is aided in its determination by documents the plaintiff attaches to the complaint. Amfac Mortg. Corp. v. Arizona Mall of Tempe, Inc., 583 F.2d 426, 430 (9th Cir. 1978); see Schneider, 151 F.3d at 1197 n.1 (stating that the face of the complaint, and the exhibits attached to it, "control the Rule 12(b)(6) inquiry[]"). "The court is not limited by the mere allegations contained in the complaint . . . . These [attached] documents, as part of the complaint, are properly a part of the court's review as to whether plaintiff can prove any set of facts in support of its claim . . . ." Amfac Mortg. Corp., 583 F.2d at 429; see also Quinn v. Ocwen Federal Bank, 470 F.3d 1240, 1244 (8th Cir. 2006) (finding that the court may use exhibits attached to the complaint for "all purposes").

Although Thornton's allegations are scant, when construed with the exhibits attached to the Complaint and items of which the Court takes judicial notice, they may be sufficient to survive the Motion to Dismiss. See Amfac Mortg. Corp., 583 F.2d at 429-30 (reviewing documents attached to the complaint when determining the sufficiency of a claim); Marshall v. Burden, No. 5:09-cv-00128-BSMJJV, 2009 U.S. Dist. LEXIS 125174, at *4 (E.D. Ark. Feb. 22, 2010) (considering inmate grievances attached to pleadings to give pro se plaintiff the "full benefit of a liberal construction"). Nonetheless, when liberally construing the Complaint, the Court does not "supply essential elements of a claim that were not initially pled." Ivey, 673 F.2d at 268.

1. Count One

Thornton, currently housed at the California Correctional Institution at Tehachapi, alleges that before his 2007 release from a parole violation, he received a notice informing him he could not live at his wife's residence. (Compl. 1, 3, ECF No. 1.) The Complaint does not identify who Plaintiff believes is responsible for the claimed constitutional violations. Notably, Thornton does not assert that he is precluded from establishing a home and living with his wife at some other location. (Id.) Even if the Court assumes that the imposition of the restrictions on where Plaintiff may live is the basis for the violations, Plaintiff's allegations are insufficient. The notice is signed by James Tilton, and count one does not state that any of the named Defendants are responsible for the parole restrictions. (See Compl. Attach. #1 Ex. C, at 1, ECF No. 1.)

Plaintiff names Defendants Schwarzenegger, Cate, and Lewis because they hold supervisory positions as the governor, secretary of the department of corrections, or supervisor of the parole unit to which Plaintiff was assigned. (Compl. 2, ECF No. 1.) But § 1983 of the Civil Rights Act does not authorize a plaintiff to bring a cause of action based on respondeat superior liability. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 692 (1978) ("[T]he fact that Congress did specifically provide that A's tort became B's liability if B 'caused' A to subject another to a tort suggests that Congress did not intend § 1983 liability to attach where such causation was absent."); see also Motley v. Parks, 432 F.3d 1072, 1081 (9th Cir. 2005). State officials are subject to suit in their personal capacities if "they play an affirmative part in the alleged deprivation of constitutional rights." King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987); see also Redman, 942 F.2d at 1446. Thornton's Complaint does not describe the conduct he attributes to Parole Agents Joseph and Cavalin. His Complaint must "link each defendant to specific conduct." See Karim-Panahi, 839 F.2d at 625 n.3. Plaintiff attaches several inmate grievances to the Complaint. (See Compl. Attach. #1 Ex. D, at 2-3, 5-6, Ex. F, at 1-3, ECF No. 1.) In his inmate appeals, Thornton identifies who was enforcing the parole conditions prohibiting him from living in his wife's residence. (Id.) In one appeal he wrote, "When released from parole on Nov. 9, 2007, was told by Agent Joseph that I could not live at my wife's house . . . ." (Id. Ex. A, at 2.) Again, in a subsequent appeal, Plaintiff explained he was told by Joseph that he could no longer live with his wife at her residence and that Thornton had been assigned to Parole Agent Cavalin of the "Inland GPS Unit." (Id. Ex. F, at 21.) In another grievance, Plaintiff stated that Cavalin imposed the same conditions on him, over his objection, after he was transferred to her supervision. (Id.; see also id. Ex. A, at 2.)

The allegations in the Complaint, the contents of the documents attached to it, and records judicially noticed fail to show that Defendants Schwarzenegger, Cate, or Lewis played a part in the alleged deprivations. (See generally Compl. 1-7, ECF No. 1; id. Attach. #1 Exs. A-K; Opp'n Attach. #2 Req. Judicial Notice 2-3, ECF No. 46.) "[State officials and] supervising officers can be held liable under section 1983 'only if they play an affirmative part in the alleged deprivation of constitutional rights.'" Graves v. City of Coeur D'Alene, 339 F.3d 828, 848 (9th Cir. 2003) (quoting another source), abrogated in part on other grounds by Hiibel v. Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177 (2004). Defendants' Motion to Dismiss count one based on Thornton's failure to allege the personal involvement of Schwarzenegger, Cate, and Lewis is GRANTED. Conversely, the allegations in the Complaint, supplemented by the attachments to it, are sufficient to state a claim against Defendants Joseph and Cavalin. As a result, their Motion to Dismiss is DENIED.

2. Count Two

Thornton alleges he was assigned to a GPS parole unit, given overbroad parole conditions, and was assigned to Parole Agent Cavalin's sex offender unit. (Compl. 4, ECF No. 1.) Plaintiff maintains that this violated his rights to be free from cruel and unusual punishment and to due process. (Id.)

Assuming the assignment to these parole units or the imposition of overbroad parole conditions violated Thornton's constitutional rights, count two fails to allege which Defendant made the assignments or imposed the conditions. Even so, the exhibits to the Complaint and the judicially noticed items show that Thornton contends that Defendants Joseph and Cavalin are responsible for his parole assignments and conditions. (See Compl. 4, ECF No. 1.)

Plaintiff alleges that Defendant Cavalin was his parole agent of record. (Id.) Her name and signature appear on several attachments to the Complaint and in documents judicially noticed. (See Compl. Attach. #1 Exs. A at 2, B at 6, E at 19, G at 26, J at 36-42, K at 44-50; Opp'n Attach. #2 Req. Judicial Notice 5-48, 52, 66, 69-70, 81.) In the Complaint, Plaintiff does not make any allegations against Defendant Joseph. Nevertheless, attachments to the Complaint contain statements that Joseph was responsible for imposing a residency restriction on Thornton. (See Compl. Attach. #1 Exs. A, at 2, Ex. F, at 21.)

Thornton's assertions against Defendants Schwarzenegger, Cate, and Lewis are deficient. A plaintiff may not bring a civil rights claim based on respondeat superior liability. Monell, 436 U.S. at 692. To the extent Thornton wishes to hold defendants Schwarzenegger, Cate, and Lewis liable for the violations he alleges in count two, he must show that they played an affirmative part in any violation. See King, 814 F.2d at 568. There are no facts included in the Complaint, the attachments, or items judicially noticed showing the involvement of the supervisory Defendants. (See generally Compl. 1-7, ECF No. 1; id. Attach. #1 Exs. A-K; Opp'n Attach. #2 Req. Judicial Notice 1-82, ECF No. 46.) Consequently, Plaintiff has failed to state a claim against Defendants Schwarzenegger, Cate, and Lewis in count two, and their Motion to Dismiss on this basis is GRANTED. The Motion to Dismiss count two against Defendants Cavalin and Joseph is DENIED.

3. Count Three

Thornton claims he was banished from his home because living there would violate Proposition 83 and California Penal Code section 3003.5. (Compl. 5, ECF No. 1.) According to Plaintiff, Richard Lilly, a parolee in the same parole unit as Thornton, was allowed to live with Thornton's estranged wife in the same residence Thornton was banned from. (Id. at 4-5.) Plaintiff claims that he was subjected to unconstitutional discrimination. (Id.)

On its face, Count three lacks allegations specifying who was responsible for the parole conditions preventing Thornton from living at his wife's residence and allowing Lilly to do so. (See id.) Unlike counts one and two, however, the attachments provide no additional facts supporting count three. (See, e.g., Compl. Attach. #1 Ex. D, at 12-13.) On the contrary, in an inmate grievance submitted on May 13, 2010, Thornton stated that Richard Lilly was assigned to Parole Agent Shannahan of the Inland GPS Unit.

Although Plaintiff has alleged that Cavalin and Joseph engaged in some conduct related to his claim in count three, Thornton must also allege enough facts to state a claim against them. See Fed. R. Civ. P. 12(b)(6). After reviewing the Complaint, the materials attached to the Complaint, as well as the materials of which the Court takes judicial notice, Thornton has not included facts sufficient to allege the involvement of Defendants Cavalin and Joseph in the purported discrimination. (See Compl. Attach. #1 Ex. D, at 2-3, 5-6, Ex. F, at 1-3, ECF No. 1.) Plaintiff contends that Joseph told him he could not live in the residence, and Cavalin imposed the same condition on him despite his objections. (Compl. Attach. #1 Ex. A, at 2, Ex. F, at 21, ECF No. 1.) But Plaintiff presents no facts demonstrating that Defendants Joseph or Cavalin had control over, or were responsible for, the terms of Lilly's parole. Without more, the allegations are insufficient to support Thornton's claim against Cavalin and Joseph in count three. (See Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000) ("To succeed on a § 1983 equal protection claim, the plaintiffs must prove that the defendants acted in a discriminatory manner and that the discrimination was intentional.")

Similarly, as to Defendants Schwarzenegger, Cate, and Lewis, Thornton fails to allege facts demonstrating their personal involvement in any discrimination. Neither the Complaint, its exhibits, nor the judicially noticed materials provide any facts related to these supervisory Defendants' conduct. (See generally Compl. 3-5, ECF No. 1; id. Attach. #1 Exs. A-K; Opp'n Attach. #2 Req. Judicial Notice 1-82, ECF No. 46.) To state a claim, Plaintiff must allege that they played an affirmative part in the violation. See King, 814 F.2d at 568. Thornton has failed to include any claims directed at the Defendants. Accordingly, the Motion to Dismiss Thornton's claims in count three against each of the Defendants is GRANTED.

D. Qualified Immunity

Defendants argue that they are entitled to qualified immunity because they did not violate Plaintiff's constitutional rights. (See Mot. Dismiss Compl. Attach. #1 Mem. P. & A. 7-8, ECF No. 24.) "[E]ven if any of Defendants' actions could somehow be construed as a violation of Plaintiff's constitutional rights, such rights were not clearly established, and Defendants would not have been on notice that they were acting unlawfully." (Id. at 8.)

In response, Plaintiff argues that the Complaint "clearly shows a violation of his constitutional rights." (Opp'n Attach. #1 Mem. P. & A. 6, ECF No. 46.) He quotes from the First, Fifth, and Fourteenth Amendments and concludes, "All of the above is clearly established to have been violated when parole agents forced Plaintiff to be banished from his home but allowed another sex offender to live there." (Id.) Thornton discusses California state court decisions recognizing liberty and property interests in continuing to live in one's home. (Id. at 4-5.)

"[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A constitutional right is "clearly established" if it is "'sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). This standard ensures that government officials are on notice of the illegality of their conduct before they are subjected to suit. Id. (citing Saucier v. Katz, 533 U.S. 194, 206 (2001)). "This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful . . . ." Id. Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). The Court should attempt to resolve threshold immunity questions at the earliest possible stage in the litigation. See Hunter v. Bryant, 502 U.S. 224, 227 (1991); see also Crawford-El v. Britton, 523 U.S. 574, 598 (1998) (noting that the purpose of resolving immunity issues early is so that officials are not subjected to unnecessary discovery or trial proceedings).

"The threshold inquiry a court must undertake in a qualified immunity analysis is whether plaintiff's allegations, if true, establish a constitutional violation." Hope, 536 U.S. at 736; see also Saucier, 533 U.S. at 201. If the allegations make out a constitutional violation, the Court must also determine whether the right alleged to have been violated is "clearly established." Saucier, 533 U.S. at 201. The Supreme Court recently "reconsider[ed] the procedure required in Saucier, [and] conclude[d] that, while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory." Pearson v. Callahan, 555 U.S. 223, __ 129 S. Ct. 808, 818 (2009).

To overcome a defense of qualified immunity, the Plaintiff "must claim the defendants committed a constitutional violation under current law." Atteberry v. Nocona General Hosp., 430 F.3d 245, 253 (9th Cir. 2005). In addition, "he must claim that the defendants' actions were objectively unreasonable in light of the law that was clearly established at the time of the actions complained of." Id. Objective reasonableness is a question of law. Id. at 256.

In determining if a right is clearly established, [this Court] looks to whether (1) it was defined with reasonable clarity, (2) the Supreme Court or the [circuit court of appeals for the jurisdiction] confirmed the existence of the right, and (3) a reasonable defendant would have understood that his conduct was unlawful.

Doninger v. Niehoff, Nos. 09-1452-cv (L), 09-1601-cv (XAP), 09-2261-cv (CON), 2011 U.S. App. LEXIS 8441, at *25 (2d Cir. Apr. 25, 2011) (citing Young v. Cnty. of Fulton, 160 F.3d 899, 903 (2d Cir. 1998); see Dunn v. Castro, 621 F.3d 1196, 1201 (9th Cir. 2010) (looking to Supreme Court and Ninth Circuit precedent).

Thornton does not cite Supreme Court or Ninth Circuit case law to support his claim that the Defendants are not entitled to qualified immunity because the residency restrictions they imposed violated clearly established law. (See Opp'n Attach. #1 Mem. P. & A. 6, ECF No. 46.) Instead, he cites the First, Fifth, and Fourteenth Amendments, and People v. Pointer, 151 Cal. App. 3d 1128, 1139-41, 199 Cal. Rptr. 357, 364-66 (1984) (finding that probation condition prohibiting conception was unconstitutional), and People v. Beach, 147 Cal. App. 3d 612, 622-23, 195 Cal. Rptr. 381, 387 (1983) (holding that "removing an elderly woman from her home of 24 years" as a condition of probation was unconstitutional).

Neither the Plaintiff nor the Court has identified any Supreme Court or Ninth Circuit Court of Appeals case authority that clearly establishes that in 2007 imposing residency restrictions required by Jessica's Law, or analogous laws, violated parolees' constitutional rights. Indeed, as of February 1, 2010, when the California Supreme Court decided In re E.J., 47 Cal. 4th 1258, 223 P.3d 31, 104 Cal. Rptr. 3d 165 (2010), the constitutionality of the parole conditions mandated by Jessica's Law still had not been decided by the state supreme court.

When the law is uncertain, there are guideposts for the Court.

Absent binding precedent, we look to the all available decisional law, including the law of other circuits and district courts, to determine whether the right was clearly established. We also evaluate the likelihood that this circuit or the Supreme Court would have reached the same result.

Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996) (citations omitted). Post-incident cases are generally not considered because they "could not have 'established' the law retroactively." Baker v. Racansky, 887 F.2d 183, 187 (9th Cir. 1989). But post-incident cases that determine whether the law was clearly established at the time of the incident are persuasive. Id.

In 2005, the Eighth Circuit decided Doe v. Miller, 405 F.3d 700, 704 (8th Cir. 2005), and upheld an Iowa statute "that prohibits a person convicted of certain sex offenses involving minors from residing within 2000 feet of a school or a registered child care facility."

Because we conclude that the Constitution of the United States does not prevent the State of Iowa from regulating the residency of sex offenders in this manner in order to protect the health and safety of the citizens of Iowa, we reverse the judgment of the district court.

We hold unanimously that the residency restriction is not unconstitutional on its face.

Id. at 704-05. The court identified twelve other states, including California, that had some form of residency restriction applicable to sex offenders. Id. at 714, 714 n.4.

The Eighth Circuit considered the issue again in a 2006 challenge to an Arkansas law. Weems v. Little Rock Police Dep't, 453 F.3d 1010, 1013 (8th Cir. 2006). The court described the Arkansas restriction, "[Sex] [o]ffenders in these classes are not permitted 'to reside within two thousand feet (2000') of the property on which any public or private elementary or secondary school or daycare facility is located.'" Id. (quoting Ark. Code Ann. § 5-14-128(a)). Because the state statutes and guidelines provided for a "particularized risk assessment of sex offenders," "Arkansas law is on even stronger constitutional footing than the Iowa statute." Id. at 1017. The court found no due process violation. Id. at 1019-20.

More recently, in Hattar v. Poulos, No. ED CV 09-01722-DOC (VBK), 2010 U.S. Dist. LEXIS 99879, at *19 (C.D. Cal. Aug. 3, 2010) (report & recommendation), adopted in 2010 U.S. Dist. LEXIS 98880, at *1-2 (C.D. Cal. Sept. 15, 2010) (order adopting report & recommendation), the habeas petitioner challenged "the residency restriction set forth in Penal Code § 3003.5(b) and incorporated in his parole conditions . . . ." Judge Kenton concluded that there was no clearly established Supreme Court law acknowledging "the right of a paroled sex offender to live wherever he wishes." Id. at *22-23. The court noted, "Although he alleges that he can no longer live in his family residence, he has not alleged that he is unable to establish a home or live with his family members elsewhere." Id. at *23.

Thornton has not sufficiently alleged that Defendants engaged in conduct that violated his constitutional rights. The constitutional right claimed by Thornton was not "clearly established" at the time he was subjected to the parole conditions. Accordingly, Defendants are entitled to qualified immunity, and their Motion to Dismiss on this basis is GRANTED.

E. Absolute Immunity

All of the Defendants argue that to the extent they were imposing parole conditions, they are entitled to absolute immunity. (Mot. Dismiss Attach. #1 Mem. P. & A. 8-9, ECF No. 24.) They assert that the imposition of parole conditions is a quasi-judicial function, and parole agents who impose the conditions are absolutely immune from liability. (Id. at 9.) Plaintiff does not address Defendants' absolute immunity argument in his Opposition. (See generally Opp'n Attach. #1 Mem. P. & A. 1-8, ECF No. 46.)

"The proponent of a claim to absolute immunity bears the burden of establishing the justification for such immunity." Antoine v. Byers & Anderson, 508 U.S. 429, 432 (1993). The Eleventh Amendment grants the states immunity from private civil suits. U.S. Const. amend. XI; Henry v. County of Shasta, 132 F.3d 512, 517 (9th Cir. 1997), as amended, 137 F.3d 1372 (9th Cir. 1998). It also provides immunity for state officials sued in their official capacities. "[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office." Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (citing Brandon v. Holt, 469 U.S. 464, 471 (1985)). "As such, it is no different from a suit against the State itself." Id. (citing Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)); Monell, 436 U.S. at 690 n.55.

Probation and parole officers are entitled to absolute immunity when performing quasi-judicial functions. Swift v. California, 384 F.3d 1184, 1189 (9th Cir. 2004). They are not entitled to absolute immunity, however, when performing functions similar to those of a police officer, such as taking a parolee into custody. Id. at 1191-92. Parole officers "are entitled to absolute quasi-judicial immunity for decisions 'to grant, deny, or revoke parole' because these tasks are 'functionally comparable' to tasks performed by judges." Id. at 1189 (quoting Sellars v. Procunier, 641 F.2d 1295, 1303 (9th Cir. 1981)). Absolute immunity has also been extended to parole officers "for the 'imposition of parole conditions' and the 'execution of parole revocation procedures'" because the Ninth Circuit treats such tasks as "integrally related to an official's decision to grant or revoke parole." Id. (quoting Anderson v. Boyd, 714 F.2d 906, 909 (9th Cir. 1983)).

Indeed, a state officer sued in his official capacity is entitled to Eleventh Amendment immunity. See Hafer v. Melo, 502 U.S. 21, 25 (1991); Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir. 1999). But a state officer is not entitled to Eleventh Amendment immunity when he is sued in his individual capacity only. Hafer, 502 U.S. at 31; Romano, 169 F.3d at 1185; see Smith v. Kitzhaber, No. CV-00-326-ST, 2000 U.S. Dist. LEXIS 6998, at *6-7 (D. Or. Mar. 20, 2000); AIDS Healthcare Found. v. Belshe, No. CV97-3235 LGB (MCx), 1998 U.S. Dist. LEXIS 21367, at *31 (C.D. Cal. Dec. 8, 1998). "We hold that state officials, sued in their individual capacities, are 'persons' within the meaning of § 1983. The Eleventh Amendment does not bar such suits, nor are state officers absolutely immune from personal liability under § 1983 solely by virtue of the 'official' nature of their acts." Hafer, 502 U.S. at 31.

To determine whether a state officer is sued in his individual or official capacity, the court must examine "the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury." Hafer, 502 U.S. at 26 (emphasis added); Romano, 169 F.3d at 1185; Ashker v. California Dept. of Corrections, 112 F.3d 392, 395 (9th Cir. 1997). State officers are not entitled to immunity from suit simply because a plaintiff alleges they injured him while acting in their official capacities as employees of the state. Hafer, 502 U.S. at 26-27.

Thornton has not sued any of the Defendants in their official capacities. (Compl. 1-2, ECF No. 1.) Although his claims are related to the imposition and enforcement of his parole conditions, which is part of a parole officer's official duties, their immunity depends on the capacity in which the defendants are sued. See Hafer, 502 U.S. at 26; Cordell, 515 F. Supp. 2d at 1120 (order adopting report & recommendation); (see also Compl. 1-2, ECF No.

1.) Because Thornton has explicitly sued Defendants in their individual capacities, they are not entitled to absolute immunity.*fn5

See Hafer, 502 U.S. at 31; Romano, 169 F.3d at 1185. Accordingly, Defendants' Motion to Dismiss based on absolute immunity is DENIED.

IV. CONCLUSION

Because Plaintiff's claims are not cognizable under § 1983, Defendants' Motion to Dismiss the Complaint is GRANTED. Thornton's challenge to his conditions of parole must be prosecuted in a petition for habeas relief.

Defendants' Request for Judicial Notice is also GRANTED. As outlined above, Plaintiff's Request for Judicial Notice is GRANTED in part and DENIED in part.

Defendants' Motion to Dismiss the Complaint against Defendants Schwarzenegger, Cates, and Lewis for failing to allege their personal involvement is GRANTED. Defendants' Motion to Dismiss counts one and two against Defendants Cavalin and Joseph for failing to allege their individual involvement is DENIED; the Motion to Dismiss count three against them is GRANTED. Furthermore, Defendants' Motion to Dismiss Plaintiff's claims against all Defendants based on qualified immunity is GRANTED. Finally, because Defendants are sued in their individual capacities only, they are not entitled to absolute immunity, and their Motion to Dismiss the Complaint on this basis is DENIED.

Thornton's Complaint is dismissed without prejudice so that he may bring his claims in a properly filed habeas petition. Trimble v. City of Santa Rosa, 49 F.3d at 586.

cc: All Parties of Record


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