United States District Court, E.D. California
MEMORANDUM DECISION AND ORDER RE DEFENDANTS'
MOTIONS TO DISMISS (ECF NO. 24, 26)
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE.
Manuel Robert Lucero (“Plaintiff” or
“Lucero”) is a non-prisoner litigant proceeding
pro se and in forma pauperis. Lucero sues under 42 U.S.C.
§ 1983 seeking declaratory and injunctive relief from
special conditions of parole imposed upon him after his
transfer from Massachusetts to California pursuant to the
terms of Interstate Compact for Adult Offender Supervision
(the “Interstate Compact” or
“Compact”). Lucero has sued the Interstate
Commission for Adult Offender Supervision
(“ICAOS” or the “Commission”), as
well as Anthony Robert Pennella, Jerry Powers, G. Hoffman,
and B. Rodriguez (the “individual Defendants”),
in their individual and official capacities, claiming that
his Fourth, Fifth, and Fourteenth Amendment rights have been
violated as a result of actions taken by the Commission and
the individual Defendants after his move to California.
Interstate Commission and the individual Defendants moved to
dismiss the complaint in two separate motions. ECF Nos. 24
& 26. Plaintiff opposed the motions, ECF Nos. 28 &
29, and the Commission replied while the individual
Defendants did not. ECF No. 30. The matter was taken under
submission on the papers pursuant to Local Rule 230(g). For
reasons set forth below, Defendants' motions to dismiss
are granted in part and denied in part.
about December 20, 2017, Plaintiff was found guilty by a jury
of two felony counts for rape under Massachusetts Gen. Law c.
265, §22(b). ECF No. 1, “Compl.”, at ¶
14 & Ex. A. Plaintiff was sentenced on December 27, 2017
in the Worcester County Superior Court in Massachusetts to 18
months of prison time for the first count and three years of
probation for the second count to be served consecutively.
Id., Ex. A at p. 10; see also Id. at
¶¶ 15-16. Plaintiff alleges that the only
conditions of probation imposed by the Massachusetts judge
were: 1) to provide a DNA sample to the state police
database; 2) to comply with a “no contact” and
“stay away” order with regard to the victim; 3)
participation in a sex offender evaluation and treatment
program as recommended; 4) registration as a sex offender; 5)
GPS monitoring with no exclusion zones; and 6) reporting to
probation biweekly in person. Id.
February 20, 2018, Plaintiff was released from incarceration
and placed on probation supervision by the Worcester County
Probation Department. Id. at ¶ 17. Plaintiff
requested his probation officer initiate the process to
transfer Plaintiff pursuant to the Interstate Compact to his
home state of California. Id. at ¶18. Plaintiff
spoke with Ms. Donna Reed of the Massachusetts ICAOS office
who told Plaintiff that California, the receiving state, was
not able to impose any conditions other than those ordered by
the trial judge and imposed by the sending state's
probation office since Plaintiff was on probation not parole.
Id. at ¶ 20. Plaintiff never received any
notification, directly or from a third-party, that California
would modify the conditions ordered by the Massachusetts
court or add additional conditions. Id. at ¶
mother who sought to provide her son with residence upon his
return to California eventually was contacted by Agent
Guadalupe Capozzi in the Hanford Office of the California
Department of Corrections and Rehabilitation's
(“CDCR”) Division of Adult Parole Operations
(“DAPO”) in order to set up a time for an
inspection of the residence for the purposes of the transfer.
Id. at ¶¶ 23, 25. Plaintiff's mother
indicated to Agent Capozzi that Plaintiff was sentenced to
probation, not parole, to which Agent Capozzi responded that
it was her understanding that Plaintiff was on parole.
Id. at ¶ 26. After his mother indicated the
involvement of DAPO in the transfer, Plaintiff contacted his
probation officer in Massachusetts who indicated there must
be some sort of administrative confusion and recommended that
Plaintiff contact the California ICAOS office. Id.
at ¶29. Plaintiff contacted the ICAOS office in
Sacramento twice by telephone. Id. at ¶¶
30-31. After explaining his issue of being a probationer in
Massachusetts but being assigned as a parolee in California,
a woman indicated that if he was on probation he would remain
on probation after the transfer. Id. at ¶ 30.
The second time he called Plaintiff was transferred to a man
identified as Chris who told Plaintiff he was unable to
provide Plaintiff with any information on the status or
stages of his transfer request. Id. at ¶ 32.
about March 28, 2018 Plaintiff received a notification from
his probation officer in Massachusetts that his interstate
transfer request was approved and he was able to return to
California. Id. at ¶ 33. Plaintiff signed paper
work agreeing to the issuance of a travel permit and he
arrived in California on March 29, 2018. Id. at
¶¶ 33-34. On March 30, he reported in-person to the
address indicated on the ICAOS instructions given to him by
his Massachusetts probation officer. Id. at ¶
35. Upon arriving at the address, Plaintiff learned that the
address was for the Division of Adult Parole Operations unit
serving Hanford. Id. While there, Plaintiff was
outfitted with a GPS monitoring system and told by a parole
agent that he must sign a list of over 40 separate
“special conditions” in addition to the typical
conditions of California parole. Id. at ¶ 36.
Plaintiff specifically alleges that these 40 “special
conditions” applied specifically to him and were not
common conditions of parole. Plaintiff further alleges that
he signed, under duress, indicating he would obey these
conditions for the length of the supervision period under
duress. Id. at ¶ 36. Plaintiff attached a
complete list of the numerous special conditions imposed as
an exhibit to his Complaint, but by way of example some of
the special conditions imposed by California that go beyond
the probation conditions imposed by the Massachusetts state
• No. alcohol consumption or over the counter medication
which includes alcohol
• Requirement to submit to urine or breath sample at any
• Prohibition against entering any business whose
primary purpose is serving alcoholic beverages
• Requirement to enroll and successfully complete a
substance abuse treatment program
• Requirement to submit to a psychological assessment
• Requirement to submit to polygraph examination,
questioning Plaintiff about his treatment, crimes which he
was convicted, and related criminal behavior
• Requirement to waive psychotherapist-patient privilege
to allow full disclosure of communication to parole agent
• Prohibition against traveling beyond 50 miles of home
• Prohibition against obtaining employment which is not
pre-approved by supervising parole agent
• Prohibition against viewing or possessing pornographic
• Prohibition against being outside of approved
residence after 10 p.m. and before 6 a.m.
• Requirement that software be installed to monitor or
limit Plaintiff's computer usage
• Prohibition against access to social media
Compl. at ¶ 37; see also Id. Ex. D.
alleges that none of the special conditions imposed on him
bears any legitimate relationship to circumstances
surrounding his conviction and that DAPO is unreasonably
restricting his life. Id. at ¶ 38. Plaintiff
has no prior criminal history (besides the two-count
conviction in Massachusetts) and has no pattern or history of
alcohol abuse. Id. at ¶ 39. In addition,
Plaintiff was never afforded a hearing or evaluation before
the imposition of these additional conditions to justify the
necessity of such conditions. Id. None of the
imposed conditions are mandated by state or municipal law but
rather they are discretionary conditions imposed by DAPO.
Id. at ¶ 41. On April 13, 2018, Plaintiff sent
letters to Defendants detailing the issues with the
circumstances of his transfer and he has received no
response. Id. at ¶ 45.
contends that the entities or agencies involved are
exercising extrajudicial power in declaring conditions of
parole without notification and without judicial
intervention, in violation of the due process clause.
Id. at ¶ 22. In the same vein, Plaintiff
contends that DAPO lacks the authority to increase his
punishment beyond what the Worcester Court deemed sufficient
via the imposed probation conditions without any judicial
process. Id. at ¶ 42. Plaintiff alleges that
the ICAOS, DAPO, and the Interstate Compact Administrator of
California, Defendant Pennella, have exercised an
unconstitutional power to modify court orders as they see
fit, without notification to the affected party or judicial
review of any sort in violation of his substantive and
procedural due process rights. Id. at ¶ 46. In
addition, Plaintiff submits that because he is a probationer
and not a parolee he is not subject to weight of the
government's interest to rehabilitate prisoners through
parole and that the nature and purposes of probation are
different than that of parole. Id. at ¶ 42.
Plaintiff served his term of incarceration and now is serving
a sentence of probation, which had minimal terms attached to
it and so he should not be subject to the more restrictive
aims of incarceration and the parole system. Id.
Plaintiff alleges that such transfer from probation to parole
also violated his substantive and procedural due process
rights. Id. at ¶ 46. Plaintiff also alleges
that the interstate transfer which involved a transfer of
probation to parole, despite the similar structure of the
Massachusetts and California parole and probation systems,
shows discrimination against him with regard to the nature of
his offense or personal bias of a member of ICAOS or its
agents towards him, his race, or sexual orientation but does
not elaborate further elaboration. Id. at ¶ 43.
Lastly, Plaintiff also submits that the requirements to
submit to polygraph and waive his privilege during his
mandated therapist session is a violation of his Fourth and
Fifth Amendment rights. Id. at ¶¶ 40, 51.
has sued the ICAOS; Anthony Robert Pennella, alleged to be
the administrator for the Interstate Compact for the State of
California; Jerry E. Powers, the director of CDCR's DAPO,
an agency devised by the State of California to enforce
standards related to lawful re-incarceration, rehabilitation,
and supervision of convicted prisoners who have been
conditionally released; G. Hoffman, the supervising parole
agent for the Hanford Office for the DAPO; and B. Rodriguez,