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Carter v. County of San Diego

United States District Court, Ninth Circuit

August 6, 2013

SUSAN CARTER, Plaintiff,
v.
THE COUNTY OF SAN DIEGO, et al., Defendant.

ORDER GRANTING MOTION TO DISMISS

BARRY TED MOSKOWITZ, Chief District Judge.

Defendant County of San Diego ("Defendant" or the "County") has filed a motion to dismiss Plaintiff's Complaint pursuant to Fed.R.Civ.P. 8(a), 12(b)(1), and 12(b)(6). For the reasons discussed below, Defendant's motion to dismiss under Fed.R.Civ.P. 12(b)(6) is GRANTED.

I. BACKGROUND

Plaintiff alleges that in 2010 and 2013, she served a 13-month prison sentence for technical probation violations in two 2009 San Diego cases. (Compl. ¶ 15.) She was released from prison or about September 8, 2011 to non-revocable parole for 12 months. (Id.) According to Plaintiff, at the time of the San Diego probation violations, she was also on probation on an eleven-year old Orange County case. (Compl. ¶ 17.) The San Diego violations triggered a violation in the Orange County case. (Id.) According to Plaintiff, the Orange County DA agreed to dismiss the Orange County probation violation petition and to run the probation violation case concurrently with the San Diego case. (Id.) Upon Plaintiff's release from prison, probation was reinstated in the Orange County case (Plaintiff believes this was improper) and the probation proceeding was transferred to San Diego. (Compl. ¶¶ 18-19.)

In May of 2012, Plaintiff briefly met with her San Diego probation officer, defendant Maurice Gallon. (Compl. ¶ 20.) He told Plaintiff that the transfer process from Orange County was incomplete and that she would have to wait before a meeting could be set up. (Id.) Eventually, Plaintiff obtained a probation appointment for August 29, 2012. (Compl. ¶ 22.)

On or about July 26, 2012, Gallon telephoned Plaintiff and told her that she had to be in his office within an hour that morning to fill out some paperwork because he was going on vacation. (Compl. ¶ 23.) Plaintiff told Gallon that she had to take her sister, who was terminally ill, to a doctor's appointment that morning. (Compl. ¶¶ 23-24.) Gallon told Plaintiff that the probation appointment was not negotiable and that if she did not show up, he would have a warrant put out for her arrest. (Id.) Plaintiff did not attend the probation meeting, but wrote and faxed a letter to Gallon and the head probation officer explaining why she did not attend the meeting. (Compl. ¶ 25.)

Plaintiff's sister passed away on August 11. (Compl. ¶ 26.) About two weeks later, Gallon was able to get a judge to issue a warrant for Plaintiff's arrest. (Id.) A law enforcement task force, including about 35 police cars, showed up at the La Jolla home of Plaintiff's mother, looking for Plaintiff. (Compl. ¶ 27.) The police also came to the San Diego home of Plaintiff's son, who has two young children, and threatened to keep coming back until he turned his mother over to law enforcement authorities. (Compl. ¶ 29.)

According to Plaintiff, the situation with the arrest warrant has caused Plaintiff's entire family to disown her. (Compl. ¶ 30.) Plaintiff also alleges that because of the arrest warrant, her business colleagues and clients at the Foundation for Inmate Advocacy have refused to work with her, she has had to delay her application and testing for readmission to the California State Bar, she has had to withdraw her applications for graduate school, and she may lose Social Security and Medicare benefits. (Compl. ¶¶ 32-36.)

Plaintiff "is informed and believes" that the probation appointment was a "set-up, " that was arranged maliciously with the purpose and intent to prosecute Plaintiff for her political activities. (Compl. ¶ 39.) Plaintiff alleges that she was involved in a civil rights organization which targeted corruption in the local criminal justice system, including corruption of County prosecutors and probation officers. (Id.) Plaintiff also alleges that she had previously filed a lawsuit against the County for civil rights violations. (Id.) According to Plaintiff, because she has been released from non-revocable parole and intended to seek release from probation as well, Defendants wanted to make an example of her and retaliate against her for her political activities. (Id.)

In her Complaint, Plaintiff names as defendants the County, San Diego County Department of Probation, and Maurice Gallon. Plaintiff asserts claims for: (1) violation of the Fifth and Sixth Amendments; (2) malicious prosecution; (3) defamation; and (4) harassment.

II. DISCUSSION

The County moves to dismiss Plaintiff's Complaint on the ground that it fails to establish subject matter jurisdiction and fails to state a claim. As discussed below, the Court agrees that Plaintiff's Complaint fails to state a claim and that dismissal is therefore warranted.

A. Constitutional Claims

In Count One, Plaintiff alleges that Defendants violated her rights under the Fifth Amendment by maliciously setting her up to violate the terms and conditions of her probation and prosecuting her and depriving her of her freedom without due process of law. Because this case involves state actors, the due process clause of the Fourteenth Amendment applies. Duesenbery v. United States , 534 U.S. 161, 167 (2002) ("The Due Process clause of the Fifth Amendment prohibits the United States, as the Due ...


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