United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is proceeding in this action pro se, and the case was
accordingly referred to the Magistrate Judge by Local Rule
302(c)(21). There are seven defendants in this case (Amanda
Gentry, Cindy McDonald, Shannon Cluney, Noel Barlow-Hust,
Sandy Jones, Judy Mesick, and Mark Alan Kubinski) all of whom
work in an official capacity for the Idaho Department of
Correction (“IDOC”) or the Idaho Attorney
General's Office. ECF No. 1. Plaintiff sues defendants in
both their official capacities and their individual
capacities. Before the court is a motion to dismiss from all
defendants. ECF No. 12. Plaintiff has opposed defendants'
motion. ECF No. 17. Defendants filed an untimely reply brief
on March 26, 2018, which was not considered due to its
untimely filing. Local Civil Rule 422(e), ECF No. 24.
Plaintiff filed a motion to strike defendants' untimely
reply brief. ECF No. 25. As the court did not consider
defendants' reply brief, plaintiff's motion is denied
as moot. The court held a hearing on this matter in open
court on March 28, 2018. Plaintiff appeared telephonically
and defendants were present via their counsel. ECF No. 26.
on a review of the briefing and the relevant law, the court
recommends that defendants' motion to dismiss for lack of
personal jurisdiction, ECF No. 12, be GRANTED and that this
case be dismissed in its entirety for lack of personal
jurisdiction and pursuant to the doctrine of forum non
filed her complaint on October 23, 2017. ECF No. 1. The
complaint states that she is bringing this case under 42
U.S.C. § 1983. Id. at 1. Plaintiff was
incarcerated at various IDOC facilities between August 12,
2012 and December 14, 2012. Id. at 4. She was again
incarcerated between May 25, 2016 and November 1, 2016.
Id. Upon her arrival to an IDOC facility she noted
“numerous civil rights violations, as well as instances
of financial fraud, falsification of records, staff
misconduct with inmates, and negligence.” Id.
She claims that when she sought to file grievances regarding
these violations, prison staff harassed her and retaliated
against her. This harassment and retaliation included
transfer to administrative segregation, loss of personal
property, transfer to other facilities, verbal and
psychological abuse, intimidation and threats, loss of prison
employment, and denial of access to courts. Id. at
5. Plaintiff claims that defendants also denied her the
opportunity to go to a minimum security facility.
Id. at 6.
November 3, 2016, after she served her term of imprisonment
in IDOC, “two private security officers hired by Yolo
County arrived and transported Plaintiff back to California
on the Yolo County detainer.” Id. at 13.
Plaintiff alleges she was not provided food or water for the
13hour trip, and that the transporting officers told her that
IDOC was the entity responsible for supplying food and water
so they had not made provisions. Id.
claims that on or about January 26, 2017, an IDOC employee
contacted plaintiff in California and directed her to apply
for an interstate compact (a mechanism that allows for
transferring adult offenders on supervision from one state to
another) to transfer her supervision to California because
plaintiff had been released from Yolo County Jail.
Id. Plaintiff responded in writing that she declined
to apply for Interstate transfer, asserting she was still
under the jurisdiction of the Yolo County detainer and under
Interstate Compact rules she was not eligible to apply for
Interstate Compact. Id.
February 6, 2017, plaintiff was ordered to report to Sylvia
Diaz of the Yolo County Probation Department for her Idaho
parole check-in by an IDOC employee. Id. at 14.
Plaintiff claims this decision came from defendants Mesick,
Jones, and Kubinski. Id. Plaintiff took issue with
defendants' demand that she apply for an interstate
compact. Id. Despite an interstate compact being
forwarded to Yolo County Probation, plaintiff claims she
never initiated nor signed an application. Id.
to plaintiff, defendant Judy Mesick forwarded plaintiff an
email on February 14, 2017 which stated that if plaintiff did
not consent from the transfer of her parole from Idaho to
California plaintiff would receive a parole violation and be
re-incarcerated. Id. at 15. On March 8, 2017,
plaintiff “reluctantly and belatedly” signed the
“fraudulent Interstate Compact Application.”
Plaintiff alleges that on March 2, 2017 defendant Cindy
McDonald had a telephone conversation with Yolo County
District Attorney Larry Eichele, who had contacted Ms.
McDonald in preparation for his “Opposition to
Plaintiff's Motion to Dismiss.” Id. at 16.
Plaintiff alleges that defendant McDonald “was advised
to make the aforementioned misrepresentation of material
fact” to Eichele by Defendant Mark Alan Kubinski.
Id. at 16.
complaint sets forth four claims: (1) “Failure to
Follow the Established Law of the [Interstate Agreement on
Detainers (“IAD”)];” (2)
“Unconstitutional and Unlawful Transport Order,
Interstate Compact Acts and Parole
Conditions;” (3) “Violations of Rules of
Professional Responsibility;” (4) “First Amendment
Retaliation and Eighth Amendment Calculated
Harassment.” ECF No. 1 at 17-26.
defendants move to dismiss plaintiff's four causes of
action. ECF No. 12. Defendants seek to dismiss all of
plaintiff's claims pursuant to Fed.R.Civ.P. 12(b)(2) on
the grounds that this court does not have personal
jurisdiction over them. Id. Alternatively,
defendants allege plaintiff's claims should be dismissed
pursuant to Fed.R.Civ.P. 12(b)(3), arguing that the Eastern
District of California is not a proper venue as
“defendants are Idaho residents and the substantial
events alleged in the complaint occurred in Idaho.”
Id. at 13.
Dismissal Standard Under Fed.R.Civ.P. 12(b)(2)
Rule of Civil Procedure 12(b)(2) prevents a district court
with a “lack of jurisdiction” over defendants
from exercising its power over them. “Where a defendant
moves to dismiss a complaint for lack of personal
jurisdiction, the plaintiff bears the burden of demonstrating
that jurisdiction is appropriate.” Schwarzenegger
v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir.
2004). Uncontroverted facts in the complaint are accepted as
true for purposes of assessing personal jurisdiction.
Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d
1218, 1223 (9th Cir. 2011). Jurisdictional facts cannot,
however, be established by nonspecific, conclusory
statements. Butcher's Union Local No. 498, United
Food & Commercial Workers v. SDC Inv., Inc., 788
F.2d 535, 540 (9th Cir. 1986) (citing Kaylor v.
Fields, 661 F.2d 1177, 1182-83 (8th Cir. 1981) (although
liberally construed, the complaint “must contain
something more than mere conclusory statements that are
unsupported by specific facts”)). Additionally,
plaintiff cannot solely rely on allegations in the complaint
when they have been challenged by affidavit, Taylor v.
Portland Paramount Corp., 383 F.2d 634, 639 (9th Cir.
1967), although conflicts between affidavits are resolved in
plaintiff's favor, Mavrix, 647 F.3d at 1223.
Rule of Civil Procedure 4(k), which sets the territorial
limits of effective service, states service can establish
personal jurisdiction over defendants who would be
“subject to the jurisdiction of a court of general
jurisdiction in the state where the district court is
located.” Fed.R.Civ.P. 4(k)(2). In California,
“[a] court … may exercise jurisdiction on any
basis not inconsistent with the Constitution of this state or
of the United States.” Cal. Civ. P. Code § 410.10.
Thus, California's long-arm statute extends as far as the
requirements of due process allow. Schwarzenegger,
374 F.3d at 801. Due process allows the exercise of personal
jurisdiction over an out-of-state-defendant if the defendant
has “certain minimum contacts with [the state] such
that the maintenance of the suit does not offend traditional
notions of fair play and substantial justice.”
Int'l Shoe Co. v. Washington, 326 U.S. 310,
31695 (1945). Depending on the type and breadth of a
defendant's contacts with the forum, jurisdiction may be
either general or specific to the claim. Roth v. Garcia
Marquez, 942 F.2d 617, 620 (9th Cir. 1991).
an individual, the paradigm forum for the exercise of general
jurisdiction is the individual's domicile.”
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564
U.S. 915, 924 (2011). “[A] court may assert
jurisdiction … to hear any and all claims against [a
defendant] only when the [defendant's] affiliations with
the State in which suit is brought are so constant and
pervasive as to render it essentially at home in the forum
State.” Daimler AG v. Bauman, 565 U.S. 915,
case, defendants are all residents of Idaho. ECF No. 12 at 2.
This does not appear to be disputed by plaintiff. ECF No. 17.
Plaintiff has not provided any details that would refute
defendants' claim that they are domiciled in Idaho. All
are sued in their capacities as Idaho state officials. As the
defendants are not domiciled in California, and there is no
evidence that their contacts with California have been so
constant and pervasive as to establish a ...