United States District Court, S.D. California
[Copyrighted Material Omitted]
Anton A. Ewing, Plaintiff, Pro se, San Diego, CA.
For Bonnie Dumanis, as San Diego County District Attorney, William Gore, as San Diego County Sheriff, Defendants: Stephanie E Kish, LEAD ATTORNEY, County of San Diego Office of County Counsel, San Diego, CA.
For Kamala D. Harris, as California Attorney General, Defendant: Jonathan M Eisenberg, LEAD ATTORNEY, Office of the California Attorney General, Los Angeles, CA.
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS
(ECF Nos. 18, 19)
Hon. Cynthia Bashant, United States District Judge.
Plaintiff Anton Ewing (" Plaintiff" ) commenced this civil rights action on July 5, 2013. (ECF No. 1.) On August 2, 2013, Plaintiff filed a First Amended Complaint (ECF No. 7 (" FAC" )) against Defendants Bonnie Dumanis, Kamala D. Harris, and William Gore (collectively " Defendants" ) under 42 U.S.C. § 1983 alleging violations of his rights under the First and Fourteenth Amendments to the United States Constitution. Defendants now move to dismiss the FAC pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (ECF Nos. 18, 19.)
The Court finds these motions suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the following reasons, the Court GRANTS Defendants' motions to dismiss (ECF Nos. 18, 19).
A. State Court Criminal Case
Plaintiff was charged with four counts of stalking in violation of California Penal Code section 646.9(a)
and four counts of extortion in violation of California Penal Code section 523, one count for each of four victims. (10/12/12 Opinion at p. 1; FAC at p. 7.) Plaintiff moved to dismiss the counts filed under section 646.9(a) alleging they were a valid exercise of his constitutional right to free speech. (10/12/12 Opinion at p. 2.) The San Diego Superior Court denied the motion. ( Id.)
Plaintiff then pled guilty to one count of stalking under section 646.9(a) with respect to victim Robert Cross, admitting as a factual basis that Plaintiff " repeatedly contacted and harassed [the] victim in an attempt to collect a debt with intent to place[that] person in fear." ( Id.; FAC at pp. 7-8.) Following his guilty plea, the Superior Court sentenced Plaintiff to two years in custody. (10/12/12 Opinion at p. 2; FAC at p. 8.)
Plaintiff appealed the conviction claiming " his communications were protected speech under the First Amendment to the federal Constitution." (10/12/12 Opinion at p. 3.) In his appeal, Plaintiff argued: (1) under the First Amendment, the " credible threat" provision of section 646.9 must be construed as requiring proof of a " true threat; " (2) the prosecution failed to show a " true threat" and thus his conviction was unconstitutional; and (3) his communications served legitimate purposes and thus were protected under the First Amendment. (10/12/12 Opinion at p. 7.) The Court of Appeal rejected these arguments. ( Id. at pp. 17-19.) Plaintiff appealed to the California Supreme Court, but petition for review was denied. (ECF No. 18-2, Ex. B.)
Plaintiff then filed a writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254. The petition was dismissed because Plaintiff had completed his state custodial sentence before filing the petition, divesting the federal court of jurisdiction. (ECF No. 19-5.)
B. First Amended Complaint
Plaintiff now files this lawsuit against the San Diego District Attorney Bonnie Dumanis, the California Attorney General Kamala Harris, and the San Diego County Sheriff William Gore under 42 U.S.C. § 1983, for " violation of his rights under the First and Fourteenth Amendments to the U.S. Constitution." (FAC at p. 1.)
Plaintiff is clearly asking this Court to declare California Penal Code, section 646.9 (otherwise known as the stalking statute) to be unconstitutional. ( See id. at p. 6.) " Unless Penal Code § 646.9 is declared unconstitutional by this Court, and its enforcement enjoined, Plaintiff will continue to be subject to arrest and prosecution" and " California Penal Code § 646.9 is unconstitutional on its face and as applied to Plaintiff, in violation of ...