Humes v. State of California et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/15/2018 RECOMMENDING defendant's 16 motion to dismiss be granted; and this case be closed. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JON HUMES,
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No. 2:18-cv-0244 TLN CKD P
Plaintiff,
v.
FINDINGS AND RECOMMENDATIONS
STATE OF CALIFORNIA, et al.,
Defendants.
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Plaintiff is a Sacramento County Jail prisoner proceeding pro se against defendant Xavier
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Beccera in his official capacity as the Attorney General of the State of California. Plaintiff’s
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remaining claim arises under the Due Process Clause of the Fourteenth Amendment and concerns
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plaintiff’s name appearing in California’s Sex and Arson Registry. Plaintiff claims his name
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should be removed. Defendant has filed a motion to dismiss.
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The court reviews defendant’s motion pursuant to Federal Rule of Civil Procedure
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12(b)(6) which authorizes dismissal if a complaint fails to state a claim upon which relief can be
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granted. Dismissal for failure to state a claim is proper only if it is clear plaintiff cannot prove
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any set of facts in support of the claim that would entitle him or her to relief. See Morley v.
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Walker, 175 F.3d 756, 759 (9th Cir. 1999). When considering a Rule 12(b)(6) motion, the court
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takes as true all allegations of material fact stated in the complaint, and construes them in the light
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most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996).
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Also, the court generally considers only the complaint and attached documents. Van Buskirk v.
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CNN, Inc., 284 F.3d 977, 980 (9th Cir. 2002). However, as here, the court may also consider
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facts it judicially notices under Federal Rule of Civil Procedure 201 such as “matters of public
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record.” Lee v. City of L.A., 250 F.3d 668, 688-89 (9th Cir. 2001).
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In his complaint, plaintiff alleges that convictions for crimes he does not identify were
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expunged by the Superior Court of Placer County on April 11, 2012. Plaintiff alleges that the
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expungement of these convictions releases him of the requirement under California Penal Code
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§290 to register as a sex offender, and therefore his name should be removed from the Sex and
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Arson Registry.
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Defendant has provided the court with case records from Placer County Superior Court
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Case No. 62-042890. After a review of those records, the court takes judicial notice, pursuant to
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Federal Rule of Civil Procedure 201, of the following facts:
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1. Plaintiff was convicted of possession of child pornography and child molestation in
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violation of California Penal Code sections 311.11(a) and 647.6(a) and sentenced on March 15,
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2005.
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2. Convictions for these offenses were dismissed on April 11, 2012 pursuant to a motion
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submitted by plaintiff in accordance with California Penal Code § 1203.4, thereby releasing
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plaintiff “from all penalties and disabilities resulting from” his offenses.
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Petitioner’s convictions require that he register with the chief of police in the city where
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he lives. Cal. Penal Code §290. Under California Penal Code § 290.5, a person convicted of a
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violation of section 311.11(a) or 647.6(a), can be relieved of the requirement to register if they
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obtain a “certificate of rehabilitation” under California Penal Code 4852.01, et seq.
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Based on the records filed by defendant, the court also judicially notices that plaintiff
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sought a “Certificate of Rehabilitation” from the Superior Court of Placer County, but his petition
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was never adjudicated and was dropped from the court’s calendar on January 14, 2013. Plaintiff
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fails to allege, or point to anything in his pleadings or opposition to defendant’s motion to dismiss
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which suggests that he has obtained a “Certificate of Rehabilitation.”
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In his pleadings, plaintiff does point to Kelly v. Municipal Court of City & County of
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S.F., 160 Cal. App. 2d 38, 44 (1st Dist. 1958), in which the California Court of Appeal held that
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California Penal Code § 290 is “criminal in character” and imposes a penalty expiring upon
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fulfillment of the conditions of probation. However, in People v. Hamdon, 225 Cal. App. 4th
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1065, 1073 (1st Dist. 2014) the same court found “Kelly is no longer good law.” Specifically,
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“the subsequent enactment of section 290.5 evinces a legislative determination that the need for
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registration continues until the registrant obtains a certificate of rehabilitation or pardon.” Id.
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Plaintiff’s claim for violation of due process under the Fourteenth Amendment is
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premised upon plaintiff’s assertion that, under California law, he has been relieved of the
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requirement to register under California Penal Code §290. Since that is not the case, and plaintiff
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fails to state a claim for an independent violation of the Due Process Clause, the court will
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recommend that defendant’s motion to dismiss be granted, and this case be closed.
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In accordance with the above, IT IS HEREBY RECOMMENDED that
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1. Defendant’s motion to dismiss (ECF No. 16) be granted; and
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2. This case be closed.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
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objections shall be served and filed within fourteen days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to
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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: November 15, 2018
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CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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