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John William Thompson v. Gary Swarthout

May 11, 2012

JOHN WILLIAM THOMPSON, PLAINTIFF,
v.
GARY SWARTHOUT, DEFENDANT.



FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. This matter is before the court on a motion to dismiss brought on behalf of defendant Swarthout. Plaintiff has filed an opposition to the motion. Counsel for defendant Swarthout has filed a reply.

BACKGROUND

Plaintiff is proceeding on his original complaint against defendant Warden Swarthout. Therein, he alleges that on February 9, 1990, the Humboldt County Superior Court sentenced him to a term of 25 years to life in state prison and imposed a $10,000.00 restitution fine on him. The court stayed the initial sentence pending the filing of a writ. On March 4, 1991, the Humboldt County Superior Court conducted formal sentencing hearing, but according to plaintiff, did not address his restitution fine. In plaintiff's view, the Superior Court's failure to address the restitution fine means that the restitution fine was stayed. Plaintiff alleges that he entered the California Department of Corrections (CDCR) on March 6, 1991, and on November 7, 2008, the department began collecting restitution monies from his inmate account. Plaintiff claims that the Humboldt County Superior Court never held a hearing to determine his ability to pay a fine and, in any event, the state has violated the "statute of limitations" by waiting seventeen years to collect the restitution fine. In terms of relief, plaintiff seeks a court order declaring that his restitution fine is stayed. He also seeks a court order requiring the CDCR to return any monies already collected with respect to the restitution fine. (Compl. at 5 & Attachs.)

DEFENDANT'S MOTION TO DISMISS

I. Defendant's Motion

Pursuant to Rule 12(b)(6), defense counsel moves to dismiss plaintiff's complaint on the grounds that plaintiff has failed to state a claim that the defendant violated his right to due process under the Fourteenth Amendment. Specifically, defense counsel contends that restitution is not subject to any statute of limitations period. In fact, according to defendant, restitution is enforceable even after a criminal defendant is no longer on parole. Defense counsel also argues that plaintiff has failed to allege facts showing how defendant Swarthout in particular was involved in a violation of plaintiff's constitutional rights. Finally, defense counsel argues that defendant Swarthout is entitled to qualified immunity. (Def.'s Mot. to Dismiss at 4-6.)

II. Plaintiff's Opposition

In a brief opposition to defendant's motion to dismiss, plaintiff argues that restitution is not legally justifiable in his case. According to plaintiff, his abstract of judgment does not incorporate a restitution order. In addition, plaintiff contends that the County of Humboldt's "Revenue Recovery" does not reflect that any court has issued a restitution order against him. (Pl.'s Opp'n to Def.'s Mot. to Dismiss at 1 & Exs. A & B.)

III. Defendants' Reply

In reply, defense counsel reiterates that plaintiff's complaint fails to state a cognizable claim for relief because the recovery of restitution is not subject to any statute of limitations. In addition, counsel contends that even if the County of Humboldt does not have a record of judgments or debts plaintiff owes, it would be irrelevant because the CDCR collects restitution. Finally, defense counsel reiterates that plaintiff has failed to allege specific facts showing how defendant Swarthout was involved in any violation of plaintiff's constitutional rights and, in any event, defendant Swarthout is entitled to qualified immunity. (Def.'s Reply at 3-6.)

ANALYSIS

I. Legal Standards Governing a Motion Pursuant to Rule 12(b)(6)

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the sufficiency of the complaint. North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). Dismissal of the complaint, or any claim within it, "can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). See also Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). In order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

In determining whether a pleading states a claim, the court accepts as true all material allegations in the complaint and construes those allegations, as well as the reasonable inferences that can be drawn from them, in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In the context of a motion to dismiss, the court also resolves doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, the court need not ...


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