Mitchell v. Harris et al

Filing 64

ORDER RE MOTIONS TO DISMISS. Signed by Judge James Donato on 3/11/2019. (jdlc2S, COURT STAFF) (Filed on 3/11/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MATTHEW SCOTT MITCHELL,

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Plaintiff,

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ORDER RE MOTIONS TO DISMISS

v.

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Re: Dkt. Nos. 51, 53, 54
KAMALA HARRIS, et al.,

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Defendants.

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United States District Court
Northern District of California

Case No. 15-cv-05122-JD

Defendants in this case -- the United States Attorney General, California Attorney General,

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and Alameda County Sheriff -- have separately moved to dismiss plaintiff Matthew Scott

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Mitchell’s first amended complaint. Dkt. Nos. 51, 53, 54. Plaintiff’s amended complaint asserts

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four claims. He alleges against the United States Attorney General that 18 U.S.C. § 922(g)(8) is

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(1) unconstitutional as applied to plaintiff and (2) unconstitutionally overbroad; and against the

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California Attorney General and Alameda Sheriff that California Family Code § 3044 is

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(3) unconstitutional as applied to plaintiff and (4) unconstitutionally overbroad. Dkt. No. 47.
The first and second claims challenging 18 U.S.C. § 922(g)(8) are dismissed for lack of a

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justiciable case or controversy, which Article III of the United States Constitution demands as a

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predicate to federal court jurisdiction. Plaintiff alleges that 18 U.S.C. § 922(g)(8)

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unconstitutionally bars him from possessing a firearm on the basis of the domestic violence

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protective order that was issued against him and in favor of his ex-wife by the Contra Costa

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Superior Court. But as plaintiff has acknowledged, he was subsequently convicted in May 2016

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for a violation of California Penal Code § 417(a)(1), for exhibiting a deadly weapon. Dkt.

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Nos. 46, 55.1 The conviction now appears to be final, as indicated by the federal defendant’s

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The Court grants the California Attorney General’s unopposed request for judicial notice,
Dkt. No. 52, which includes documents going to plaintiff’s Penal Code § 417(a)(1) conviction.
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submission, Dkt. No. 63, without objection by plaintiff. This conviction separately and

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independently “prohibits plaintiff from possessing firearms in California” under California Penal

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Code § 29805. Dkt. No. 55 at 9. As the federal defendant correctly states, this means that

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plaintiff is barred from possessing a firearm regardless of the constitutionality vel non of 18

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U.S.C. § 922(g)(8), whether considered as applied or otherwise. Dkt. No. 53 at 6.

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Consequently, the challenges to 18 U.S.C. § 922(g)(8) do not raise an actual case or

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controversy for the Court to resolve at this time. See Steel Co. v. Citizens for a Better

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Environment, 523 U.S. 83, 107 (1998) (“Relief that does not remedy the injury suffered cannot

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bootstrap a plaintiff into federal court; that is the very essence of the redressability requirement.”);
Gonzales v. Gorsuch, 688 F.2d 1263, 1267 (9th Cir. 1982) (“The focus . . . is always upon the

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United States District Court
Northern District of California

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ability of the court to redress the injury suffered by the plaintiff; . . . if the court is unable to grant

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the relief that relates to the harm, the plaintiff lacks standing.”) (citations omitted).

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Plaintiff suggests that his claims nevertheless should proceed because he might move to

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another state where he could escape the ban under California law and maintain the Section

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922(g)(8) challenges. That speculative possibility does not create Article III jurisdiction here. See

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Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992) (“‘[S]ome day’ intentions -- without any

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description of concrete plans, or indeed even any specification of when the some day will be -- do

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not support a finding of the ‘actual or imminent’ injury that our cases require.”) (emphasis in

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original). In addition, he does not say when he will move or to which state, and he also insists that

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he “greatly desires the[] custody and companionship” of his children, who appear to reside in

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California. Dkt. No. 47 ¶ 23; Dkt. No. 52-1.

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The third and fourth claims against the California Attorney General and the Alameda

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County Sheriff challenging the constitutionality of California Family Code § 3044 are also

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dismissed. As Section 3044 provides, “Upon a finding by the court that a party seeking custody of

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a child has perpetrated domestic violence within the previous five years against the other party

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seeking custody of the child, . . . , there is a rebuttable presumption that an award of sole or joint

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physical or legal custody of a child to a person who has perpetrated domestic violence is

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detrimental to the best interests of the child.” This presumption may be “rebutted by a
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preponderance of the evidence.” Cal. Family Code § 3044(a). Plaintiff says that this section and

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the presumption it establishes, unlawfully infringes his “fundamental right to the care, custody,

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and control of his children as recognized by the Due Process Clause of the Fourteenth Amendment

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to the Constitution of the United States.” Dkt. No. 47 ¶ 31.

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Plaintiff’s only allegation of injury is that he “has been deprived of the ability to live and

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spend time with [his children] since joint custody of them was taken away by the family court.

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The custody award was based on the court’s finding that plaintiff did not rebut the presumption

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provided by Family Code section 3044. But for the presumption created by Family Code section

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3044, plaintiff can demonstrate he is a caring and fit parent who should be permitted joint custody
of his children.” Dkt. No. 47 ¶ 23. This lays bare the fact that plaintiff’s Family Code claims

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United States District Court
Northern District of California

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present a child custody dispute, which is outside the jurisdiction of the federal courts. See Coats v.

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Woods, 819 F.2d 236, 237 (9th Cir. 1987) (“This case, while raising constitutional issues, is at its

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core a child custody dispute. . . . If the constitutional claims in the case have independent merit,

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the state courts are competent to hear them.”).

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While that is enough to warrant dismissal, plaintiff also failed to adequately allege and

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establish the redressability element of Article III standing for these claims as well, given that all

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that the challenged Family Code section does is establish a mere presumption, which plaintiff

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could have rebutted (but did not). The Court need not take as true plaintiff’s conclusory allegation

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that but for this presumption, he “can demonstrate he is a caring and fit parent who should be

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permitted joint custody of his children,” Dkt. No. 47 ¶ 23, especially when that allegation is flatly

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contradicted by the judicially noticed state court records. See, e.g., Dkt. Nos. 52-1, 52-2. Plaintiff

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has further failed to state a claim against the California Attorney General and the Alameda County

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Sheriff for this allegedly unconstitutional California Family Code presumption, which a is

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deficiency the Court noted previously. Dkt. No. 38.

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Defendants’ motions are granted, and the first amended complaint is dismissed. The Court

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declines to give plaintiff yet another opportunity to amend his complaint because he has failed to

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fix deficiencies the Court identified previously and it does not appear likely he can do so. See

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Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989); Chodos v. West
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Publishing Co., 292 F.3d 992, 1003 (9th Cir. 2002). The complaint is dismissed without

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prejudice, see In re Hall, Bayoutree Assocs., Ltd., 939 F.2d 802, 804 (9th Cir. 1991), and the Clerk

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will close the case.

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IT IS SO ORDERED.
Dated: March 11, 2019

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JAMES DONATO
United States District Judge

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United States District Court
Northern District of California

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