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Lucero v. Pennella

United States District Court, E.D. California

July 25, 2019

ANTHONY ROBERT PENNELLA, Individually and in his Official Capacities; JERRY E. POWERS, Individually and in his Official Capacities; G. HOFFMAN, Parole Agent Supervisor, Individually and in his Official Capacities; B. RODRIGUEZ, Parole Agent, Individually and in his Official Capacities; and INTERSTATE COMMISSION FOR ADULT OFFENDER SUPERVISION, Individually and in his Official Capacities Defendants.




         Plaintiff 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”).[1] 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.

         The 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.


         On or 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.

         On 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 ¶ 22.

         Plaintiff's 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.

         On or 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 court include:

• No. alcohol consumption or over the counter medication which includes alcohol
• Requirement to submit to urine or breath sample at any time
• 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 and treatment
• 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 address
• Prohibition against obtaining employment which is not pre-approved by supervising parole agent
• Prohibition against viewing or possessing pornographic material
• 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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, the ...

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