Thornton v. Schwarzenegger et al

Filing 58

ORDER granting in part and denying in part 24 Defendants' Motion to Dismiss Complaint. Because Plaintiff's claims are not cognizable under § 1983, Defendants' Motion to Dismiss the Complaint is Granted. Thornton's Complaint is dismissed without prejudice so that he may bring his claims in a properly filed habeas petition. Signed by Magistrate Judge Ruben B. Brooks on 6/1/11. (All non-registered users served via U.S. Mail Service)(lao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WILLIAM CECIL THORNTON,
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Civil No. 10cv01583 RBB

)
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Plaintiff,
)
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v.
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ARNOLD SCHWARZENEGGER, Governor )
of California; MATTHEW CATE,
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Secretary of Corrections; JOHN )
DOE LEWIS, Parole Unit
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Supervisor; MARK JOSEPH, Parole )
Agent; CHRISTINE CAVALIN,
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Parole Agent; JOHN DOE #1,
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Parole Agent,
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Defendants.
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)

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS COMPLAINT
[ECF NO. 24]

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21

Plaintiff William Cecil Thornton, a state prisoner proceeding

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pro se and in forma pauperis, filed a Complaint under the Civil

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Rights Act pursuant to 42 U.S.C. § 1983 [ECF Nos. 1, 5].

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Complaint, Thornton consented to magistrate judge jurisdiction.

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(Compl. 7, ECF No. 1.)

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Notice, Consent, and Reference of a Civil Action to a Magistrate

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Judge [ECF No. 23].

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Complaint, accompanied by a Memorandum of Points and Authorities,

In his

On November 1, 2010, Defendants filed a

The next day, they filed a Motion to Dismiss

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and a Request for Judicial Notice [ECF No. 24].

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Plaintiff’s two requests for an extension of time to respond to

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Defendants’ Motion [ECF Nos. 29, 32, 43-44].

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Opposition to Motion to Dismiss Complaint on January 7, 2011, along

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with a Memorandum of Points and Authorities, and a Request for

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Judicial Notice [ECF No. 46].

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filed a Reply [ECF No. 53].

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This Court granted

Thornton filed his

On January 20, 2011, Defendants

The Court has reviewed the Complaint and exhibits, Defendants’
Motion to Dismiss and attachments, Plaintiff’s Opposition and

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attachments, and Defendants’ Reply.

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Defendants’ Motion to Dismiss is GRANTED.

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I.

For the reasons stated below,

FACTUAL BACKGROUND

The allegations in the Complaint arise from events that

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occurred while Plaintiff was incarcerated at Richard J. Donovan

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State Prison (“Donovan”), as well as after he was released on

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parole.1

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contends that on November 10, 2007, he was released from Donovan on

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parole, where he had been serving time for a parole violation.

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(Id. at 3.)

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claims he was served with papers informing him that he would not be

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allowed to live with his wife in their home because of “the

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provisions of Proposition 83, that . . . was applied to [him]

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because of [a] 1987 Tennessee case.”

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his parole conditions violate his constitutional rights to due

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process, freedom of association, and to be free from cruel and

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unusual punishment.

(Compl. 1, 3, ECF No. 1.)

In count one, Thornton

On September 17, 2007, before his release, Plaintiff

(Id.)

Thornton alleges that

(Id.)

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1

Thornton is currently incarcerated at the California
Correctional Institution in Tehachapi, California. (Id. at 1.)
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In count two, Plaintiff maintains that on November 21, 2007,

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he was assigned to a “GPS unit of parole” and was given “overbroad

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conditions of parole.”

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offender unit supervised by Parole Agent Christine Cavalin.

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As a result, his rights to due process, to be free from cruel and

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unusual punishment, and his “interest of liberty” were violated.

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(Id.)

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(Id. at 4.)

He was assigned to a sex
(Id.)

Finally, in count three, Plaintiff alleges he was “banished”

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from living with his wife in their residence because “it was not in

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compliance with Proposition 83 or California Penal Code § 3003.5.”

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(Id. at 5 (citation omitted).)

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another sex offender who had been assigned to the same parole unit,

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Richard Lilly, initiated an intimate relationship with Thornton’s

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wife and was permitted to move into the residence with her.

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Plaintiff states, “[Lilly] was allowed to move into the very home I

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was told was out of compliance to me as a sex offender.”

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Thornton argues that he was therefore discriminated against in

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violation of the Equal Protection Clause.

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II.
A.

But in 2008, Plaintiff contends,

(Id.)

(Id.)

(Id.)

APPLICABLE LEGAL STANDARDS

Motions to Dismiss Pursuant to Rule 12(b)(6)
A motion to dismiss for failure to state a claim pursuant to

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Federal Rule of Civil Procedure 12(b)(6) tests the legal

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sufficiency of the claims in the complaint.

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County Bd. of Educ., 526 U.S. 629, 633 (1999).

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that the complaint must not be dismissed unless it is beyond doubt

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without merit -- was discarded by the Bell Atlantic decision [Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007)].”

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Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803 (7th Cir. 2008).

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See Davis v. Monroe
“The old formula –-

Limestone

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A complaint must be dismissed if it does not contain “enough

2

facts to state a claim to relief that is plausible on its face.”

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Bell Atl. Corp., 550 U.S. at 570.

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when the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the

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misconduct alleged.”

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1937, 1949 (2009).

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allegations in the complaint, as well as reasonable inferences to

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be drawn from them, and must construe the complaint in the light

“A claim has facial plausibility

Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct.

The court must accept as true all material

10

most favorable to the plaintiff.

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382 F.3d 969, 973 (9th Cir. 2004) (citing Karam v. City of Burbank,

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352 F.3d 1188, 1192 (9th Cir. 2003)); Parks Sch. of Bus., Inc. v.

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Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); N.L. Indus., Inc. v.

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Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

Cholla Ready Mix, Inc. v. Civish,

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The court does not look at whether the plaintiff will

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“ultimately prevail but whether the claimant is entitled to offer

17

evidence to support the claims.”

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236 (1974); see Bell Atl. Corp., 550 U.S. at 563 n.8.

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under Rule 12(b)(6) is generally proper only where there “is no

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cognizable legal theory or an absence of sufficient facts alleged

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to support a cognizable legal theory.”

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729, 732 (9th Cir. 2001) (citing Balistreri v. Pacifica Police

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Dep’t, 901 F.2d 696, 699 (9th Cir. 1988)).

Scheuer v. Rhodes, 416 U.S. 232,
A dismissal

Navarro v. Block, 250 F.3d

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The court need not accept conclusory allegations in the

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complaint as true; rather, it must “examine whether [they] follow

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from the description of facts as alleged by the plaintiff.”

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v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (citation

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omitted); see Halkin v. VeriFone, Inc., 11 F.3d 865, 868 (9th Cir.

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Holden

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1993); see also Cholla Ready Mix, Inc., 382 F.3d at 973 (quoting

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Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.

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1994)) (stating that on a Rule 12(b)(6) motion, a court “is not

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required to accept legal conclusions cast in the form of factual

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allegations if those conclusions cannot reasonably be drawn from

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the facts alleged[]”).

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true allegations that are merely conclusory, unwarranted deductions

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of fact, or unreasonable inferences.”

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Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

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“Nor is the court required to accept as

Sprewell v. Golden State

In addition, when resolving a motion to dismiss for failure to

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state a claim, courts generally may not consider materials outside

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of the pleadings.

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1194, 1197 n.1 (9th Cir. 1998); Jacobellis v. State Farm Fire &

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Cas. Co., 120 F.3d 171, 172 (9th Cir. 1997); Allarcom Pay

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Television Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th

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Cir. 1995).

“The focus of any Rule 12(b)(6) dismissal . . . is the

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complaint.”

Schneider, 151 F.3d at 1197 n.1.

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reviewing “new” allegations that may be raised in a plaintiff’s

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opposition to a motion to dismiss brought pursuant to Rule

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12(b)(6).

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(7th Cir. 1993)).

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Schneider v. Cal. Dep’t of Corrs., 151 F.3d

This precludes

Id. (citing Harrell v. United States, 13 F.3d 232, 236

“When a plaintiff has attached various exhibits to the

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complaint, those exhibits may be considered in determining whether

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dismissal [i]s proper . . . .”

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1484 (citing Cooper v. Bell, 628 F.2d 1208, 1210 n.2 (9th Cir.

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1980)).

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alleged in a complaint and whose authenticity no party questions,

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but which are not physically attached to the [plaintiff’s]

Parks Sch. of Bus., Inc, 51 F.3d at

The court may also look to documents “‘whose contents are

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pleading.’”

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App’x 363, 365 (9th Cir. May 18, 2007) (quoting Janas v. McCracken

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(In re Silicon Graphics Inc. Sec. Litig.), 183 F.3d 970, 986 (9th

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Cir. 1999)) (alteration in original); see Stone v. Writer’s Guild

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of Am. W., Inc., 101 F.3d 1312, 1313-14 (9th Cir. 1996).

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B.

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Sunrize Staging, Inc. v. Ovation Dev. Corp., 241 F.

Standards Applicable to Pro Se Litigants
Where a plaintiff appears in propria persona in a civil rights

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case, the court must construe the pleadings liberally and afford

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the plaintiff any benefit of the doubt.

Karim-Panahi v. Los

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Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988).

The rule

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of liberal construction is “particularly important in civil rights

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cases.”

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In giving liberal interpretation to a pro se civil rights

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complaint, courts may not “supply essential elements of claims that

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were not initially pled.”

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Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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allegations of official participation in civil rights violations

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are not sufficient to withstand a motion to dismiss.”

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also Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir.

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1984) (finding conclusory allegations unsupported by facts

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insufficient to state a claim under § 1983).

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allege with at least some degree of particularity overt acts which

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defendants engaged in that support the plaintiff’s claim.”

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733 F.2d at 649 (internal quotation omitted).

Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).

Ivey v. Bd. of Regents of the Univ. of
“Vague and conclusory

Id.; see

“The plaintiff must

Jones,

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Nevertheless, the court must give a pro se litigant leave to

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amend his complaint “unless it determines that the pleading could

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not possibly be cured by the allegation of other facts.”

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Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quoting Doe

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Lopez v.

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v. United States, 58 F.3d 494, 497 (9th Cir. 1995)).

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a pro se civil rights complaint may be dismissed, the plaintiff

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must be provided with a statement of the complaint’s deficiencies.

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Karim-Panahi, 839 F.2d at 623-24.

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litigant’s complaint would be futile, denial of leave to amend is

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appropriate.

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2000).

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C.

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Thus, before

But where amendment of a pro se

See James v. Giles, 221 F.3d 1074, 1077 (9th Cir.

Stating a Claim Under 42 U.S.C. § 1983
To state a claim under § 1983, the plaintiff must allege facts

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sufficient to show (1) a person acting “under color of state law”

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committed the conduct at issue, and (2) the conduct deprived the

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plaintiff of some right, privilege, or immunity protected by the

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Constitution or laws of the United States.

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(West 2010); Shah v. County of Los Angeles, 797 F.2d 743, 746 (9th

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Cir. 1986).

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These guidelines apply to Defendants' Motion.

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42 U.S.C.A. § 1983

III.

DEFENDANTS’ MOTION TO DISMISS

All five named Defendants move to dismiss Plaintiff’s

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Complaint for failure to allege facts sufficient to state a claim.

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(Mot. Dismiss 1, ECF No. 24.)

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chosen to question the conditions of his parole.

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that the challenge to parole conditions is not cognizable under §

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1983 and should have been brought in a petition for writ of habeas

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corpus.

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Plaintiff has failed to plead facts illustrating they were

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personally involved in any violation of Thornton’s constitutional

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rights.

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to use vicarious liability to hold them responsible for his parole

They contest the path Thornton has

(Id. Attach. #1 Mem. P. & A. 4-6.)

(Id. at 6-7.)

Defendants argue

Next, they allege

Defendants contend that Plaintiff attempts

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conditions.

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qualified immunity for their actions.

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Defendants maintain that they are absolutely immune from liability

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for monetary damages related to their official actions.

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9.)

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A.

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(Id. at 6.)

They also assert they are entitled to
(Id. at 7-8.)

Finally,

(Id. at 8-

Request for Judicial Notice
Both Plaintiff and Defendants request that the Court take

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judicial notice of several items.

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judicial notice of the following records:

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Defendants ask the Court to take

1.

Notice of Sex Offender Registration Requirement,
dated January 31, 2006;

2.

Indictment for Rape, Criminal Court of Shelby
County, Tennessee case no. 86-02052;

3.

Judgment, Criminal Court of Shelby County,
Tennessee, case number 86-02052;

4.

Petition for Waiver of Trial by Jury, Criminal Court
of Shelby County, Tennessee, case number 86-02052;
[and]

5.
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Negotiated Plea Agreement, Criminal Court of Shelby
County, Tennessee, case number 86-02052.

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(Mot. Dismiss Attach. #2 Req. Judicial Notice 2, ECF No. 24.)

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Thornton requests that the Court take judicial notice of the

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following nine items:

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16

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1.

Parole Conditions Dated: November 21, 2007, June
30, September 2, and December 17, 2008;

2.

Parole Conditions Dated:

3.

Modified Conditions of Parole Dated:
and November 12, 2007;

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4.

Copies of MapQuest;

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5.

California Department of Corrections Face Sheet;

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6.

CDCR Parolee Interview Reports and Other Documents;

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7.

CDCR (602) Appeal to Agent Cavalin;

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March 24 and July 9, 2009;

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24

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September 17

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8.

Letter From Richard Lilly to Parole Agent Cavalin
and Agent Shannahan; [and]

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CDCR 602 Appeal to Supervisor Lewis.

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3
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(Opp’n Attach. #2 Req. Judicial Notice 2-3, ECF No. 46.)

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When ruling on motions to dismiss, courts may consider matters

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of which they take judicial notice.

Lovelace v. Software Spectrum

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Inc., 78 F.3d 1015, 1017-18 (5th Cir. 1996) (citing Fed. R. Evid.

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201(f)).

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subject to reasonable dispute in that it is either (1) generally

A fact subject to judicial notice is one that is “not

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known within the territorial jurisdiction of the trial court or (2)

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capable of accurate and ready determination by resort to sources

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whose accuracy cannot reasonably be questioned.”

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201(b).

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party and supplied with the necessary information.”

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201(d).

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state agencies and other undisputed matters of public record.”

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Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d

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861, 866 n.1 (9th Cir. 2004) (citing Lee v. City of Los Angeles,

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250 F.3d 668, 689 (9th Cir. 2001)).

Fed. R. Evid.

“A court shall take judicial notice if requested by a
Fed. R. Evid.

Furthermore, judicial notice may be taken of “records of

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1.

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Although unaccompanied by a declaration authenticating the

Defendants’ Request

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documents, Defendants ask the Court to take judicial notice of the

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Notice of Sex Offender Registration Requirement, as well as four

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records pertaining to Thornton’s 1986 Tennessee criminal case.

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(See Mot. Dismiss Attach. #2 Req. Judicial Notice 2, ECF No. 24.)

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Thornton has not asserted that the documents are not authentic or

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opposed taking judicial notice of the records.

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//

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a.

Notice of sex offender registration requirement

The California Department of Justice provides sex offenders

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with a notice advising them of their duty to register as a sex

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offender pursuant to California Penal Code sections 290 and 290.01.

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(Id. Ex. 1, at 5.)

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includes a copy of the Notice of Sex Offender Registration

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Requirement with Thornton’s initials, a signature, and a

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thumbprint.

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Defendants’ Request for Judicial Notice

(Id.)

Courts may take judicial notice of “the records of state

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agencies and other undisputed matters of public record.”

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Rights Action Comm., 375 F.3d at 866 n.1.

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register as a sex offender is a record of the California Department

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of Justice (“DOJ”).

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clearly a state agency.”

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Cal., No. C09-3702, 2010 U.S. Dist. LEXIS 82529, at *6 (N.D. Cal.

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June 22, 2010).

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take judicial notice of the Notice of Sex Offender Registration

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Requirement -- 290 P.C., signed by Thornton on January 31, 2006, is

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GRANTED.

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24; id. Ex. 1, at 5.)

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b.

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Disabled

Here, the notice to

“The California Department of Justice is
Faruk Cenap Yetek DDS v. Dental Bd. of

Accordingly, Defendants’ request that the Court

(Mot. Dismiss Attach. #2 Req. Judicial Notice 2, ECF No.

Documents relating to the Tennessee criminal case

The remaining four documents that Defendants ask the Court to

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judicially notice relate to Thornton’s 1986 case in the Criminal

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Court of Shelby County, Tennessee –- the indictment, the judgment,

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the petition for waiver of jury trial, and the plea agreement.

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(Mot. Dismiss Attach. #2 Req. Judicial Notice 2, ECF No. 24; id.

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Exs. 2-5.)

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charging Thornton with rape in case number 86-02052.

A grand jury returned an indictment on April 22, 1986,

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(Id. Ex. 2,

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at 7-8.)

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complaint” and warrant ordering Thornton’s arrest.

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Defendants include the 1987 judgment showing that Thornton pleaded

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guilty to sexual battery and was sentenced to one-year confinement

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at the local workhouse.

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produced a copy of a jury trial waiver requesting that the

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Tennessee court accept Thornton’s guilty plea.

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Lastly, Defendants include a negotiated plea agreement signed by

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Thornton.

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The indictment is accompanied by an “affidavit of

(Id. Ex. 3, at 11.)

(Id.)

Next,

They also have

(Id. Ex. 4, at 13.)

(Id. Ex. 5, at 15-16.)

On a motion to dismiss, a court may take judicial notice of
See Mack v. South Bay Beer Distribs.,

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“matters of public record.”

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Inc., 798 F.2d 1279, 1282 (9th Cir. 1986).

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routinely take judicial notice of documents filed in other

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courts . . . to establish the fact of such litigation and related

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filings.”

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1991).

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other courts, however, is limited.

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dismiss, when a court takes judicial notice of another court's

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opinion, it may do so ‘not for the truth of the facts recited

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therein, but for the existence of the opinion, which is not subject

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to reasonable dispute over its authenticity.’”

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690 (quoting South Cross Overseas Agencies v. Wah Kwong Shipping

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Grp. Ltd., 181 F.3d 410, 426-27 (3rd Cir. 1999)).

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Moreover, “courts

Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir.

The effect of taking judicial notice of documents filed in
“On a Rule 12(b)(6) motion to

Lee, 250 F.3d at

The records relating to Thornton’s out-of-state criminal case

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“‘[are] not subject to reasonable dispute over [their]

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authenticity.’”

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3d at 427).

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of the Criminal Court of Shelby County, Tennessee, and there is

Id. (quoting South Cross Overseas Agencies, 101 F.

These documents appear to be authentic court records

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nothing to suggest otherwise.

(See Mot. Dismiss Attach. #2 Req.

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Judicial Notice Exs. 2-5, at 7-16, ECF No. 24.)

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request that the Court take judicial notice of the indictment, the

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judgment, the petition for waiver of jury trial, and the plea

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agreement in Tennessee criminal case number 86-02052 is GRANTED.

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See Lee, 250 F.3d at 690; Mack, 798 F.2d at 1282; Kramer, 937 F.2d

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at 774.

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2.

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Plaintiff asks that the Court take judicial notice of nine

Defendants’

Plaintiff’s Request

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items, which are themselves composed of multiple documents.

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Attach. #2 Req. Judicial Notice 2-3, ECF No. 46.)2

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Defendants, Thornton has not provided the Court with a declaration

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establishing the authenticity of the items.

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dispute authenticity and do not oppose Plaintiff’s request for

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judicial notice.

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together.
a.

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(Opp’n

Like the

But Defendants do not

The Court will address related documents

Parole conditions, inmate appeals, and related
documents

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Plaintiff asks the Court to take judicial notice of parole

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20

conditions dated November 21, 2007, and June 30, September 2, and

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December 17, 2008.

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parole conditions dated March 24 and July 9, 2009.

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48.)

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Department of Corrections and Rehabilitation (“CDCR”) form, and

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they are signed by Thornton, Parole Agent Cavalin, and the Parole

(Id. at 2, 5-33.)

Thornton also includes
(Id. at 2, 35-

All of the parole conditions are printed on a California

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2

27
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Although Plaintiff refers to these records as both
“exhibits” and “attachments,” and with both letter and number
designations, the Court will cite to the records using the page
numbers assigned by the electronic case filing system (“ECF”). (See
id. at 2-82.)
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Unit Supervisor.

2

48.)

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Addendum, a notice sent to Thornton regarding Proposition 83, and

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the Special Condition Addendum Global Positioning System (GPS).

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(Id. at 2, 50-52.)

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member of the CDCR; the notice and special addendum are printed on

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CDCR forms.

8
9

(Id. at 6-7, 12-13, 19-20, 26-27, 33, 35, 41-42,

Next, Plaintiff includes a Modified Condition of Parole

These documents are signed by Thornton and a

(Id.)

Additionally, Thornton attaches a CDCR Face Sheet, which is a
log outlining Thornton’s housing and employment history.

(Id. at

10

2, 57-58.)

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290 registration receipts, a License and Certificate of Marriage, a

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Parolee Initial Interview form, and a Notification of Parolee

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Orientation.

14

April 30, 2007, is signed by Plaintiff and Parole Agent Miller.

15

(Id. at 63.)

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Appeal Form (“602"), including Agent Cavalin’s response at the

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informal level of review.

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submits a set of three administrative appeals, two of which include

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cover letters addressed to Defendants Lewis and Cavalin.

20

3, 72-81.)

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and February 3 and May 13, 2010.

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grievances relate to Thornton’s claim that he has been banished

23

from his home.

24

This is followed by two California Penal Code section

(Id. at 2, 60-64.)

The parolee interview, dated

Next, Thornton attaches a completed Inmate/Parolee

(Id. at 2, 66.)

Finally, Plaintiff

(Id. at

The initial grievances are dated September 28, 2008,
(Id. at 73, 78, 81.)

The

(Id. at 72-81.)

Some of the items are also attached to the Complaint, which

25

makes them appropriate for consideration in ruling on the

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Defendants’ Motion to Dismiss.

27

Judicial Notice 6-12, ECF No. 46, with Compl. Attach. #1 Ex. J, at

(Compare Opp’n Attach. #2 Req.

28

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1-7, ECF No. 1; compare Opp’n Attach. #2 Req. Judicial Notice 50-

2

51, ECF No. 46, with Compl. Attach. #1 Ex. C, at 1-2, ECF No. 1.)

3

As discussed previously, courts may take judicial notice of

4

records and reports of administrative bodies.

Lundquist, 394 F.

5

Supp. 2d at 1242-43.

6

generally considered ‘not to be subject to reasonable dispute.’”

7

Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue

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Shield, 630 F. Supp. 2d 842, 849 (S.D. Ohio 2003) (quoting Jackson

9

v. City of Columbus, 194 F.3d 737 (6th Cir. 1999)).

“Public records and government documents are

With the

10

exception of two handwritten letters, Opp’n Attach. #2 Req.

11

Judicial Notice 72, 76, ECF No. 46, Plaintiff’s documents consist

12

of records of either the State of California, the Department of

13

Corrections, or the County of San Diego.

14

subject of judicial notice only to establish their existence or the

15

result of an administrative process; Thornton cannot rely on them

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to establish any hearsay statements or contested facts contained in

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the documents.

18

F. Supp 2d at 1242-43 (stating that courts may take judicial notice

19

of records and reports of administrative bodies).

20

They are the proper

See Lee, 250 F.3d at 690; see also Lundquist, 394

The letters that accompany two of Thornton’s 602 grievances
(See Opp’n Attach.

21

are not public records or government documents.

22

#2 Req. Judicial Notice 72, 77, ECF No. 46.)

23

object to any of Plaintiff’s requests.

24

Dismiss 1-3, ECF No. 53.)

25

adjudicative facts.

26

governs only adjudicative facts.

27

(1) generally known within the territorial jurisdiction of the

28

trial court or (2) capable of accurate and ready determination by

Defendants do not

(See Reply Opp’n Mot.

Even so, the letters are hearsay and not

Rule 201(a) of the Federal Rules of Evidence
An adjudicative fact is “either

14

10cv01583 RBB

1

resort to sources whose accuracy cannot reasonably be questioned.”

2

Fed. R. Evid. 201(b).

3

these two letters because their content is hearsay.

4

items, Thornton’s request is DENIED.

(Opp’n Attach. #2 Req.

5

Judicial Notice 72, 77, ECF No. 46.)

But Plaintiff’s request that

6

the Court take judicial notice of the remaining items listed above

7

-- the parole conditions, the face sheet, the 602 grievances, the

8

interview report, and other documents is GRANTED.

9

#2 Req. Judicial Notice 2-52, 56-66, 73-76, 78-81, ECF No. 46.)

10

b.

11

The Court does not take judicial notice of
For these two

(Opp’n Attach.

MapQuest printout

Thornton also seeks judicial notice of a map and printout from

12

the mapping website MapQuest.

(Id. at 54.)

13

schools and the distance to each of them from Plaintiff’s wife’s

14

residence in San Marcos, California.

15

“capable of accurate and ready determination by resort to sources

16

whose accuracy cannot reasonably be questioned.”

17

201(b); see, e.g., Hays v. National Elec. Contractors Ass'n, 781

18

F.2d 1321, 1323 (9th Cir. 1985) (taking judicial notice of a map to

19

show counties included in a forty mile radius).

20

request that the Court take judicial notice of the MapQuest map and

21

printout, to which Defendants have not objected, is GRANTED.3

22

(Opp’n Attach. #2 Req. Judicial Notice 54-55, ECF No. 46.)

23

//

24

//

(Id.)

The documents show

In general, maps are

Fed. R. Evid.

Plaintiff’s

25
26
27
28

3

Plaintiff also describes the map as being created and sent
by parole agents. (Opp’n Attach. #2 Req. Judicial Notice 4, ECF No.
46.) The Court does not take judicial notice of the map’s creator
or that a specific person transmitted it. The Court takes judicial
notice only of the map’s existence and the geographical data it
contains.
15

10cv01583 RBB

1

c.

2

Letters to parole agents

Plaintiff requests that this Court take judicial notice of
(Id. at 68-70.)

The first

3

three letters dated March 2, 2009.

4

appears to be signed by Richard Lilly and is addressed to Agent

5

Shannahan.

6

wife and his mother-in-law and is addressed to Agent Cavalin.

7

at 69.)

8

the letter Lilly addressed to Agent Shannahan, except that it is

9

addressed to Agent Cavalin.

10

(Id. at 68.)

The second letter is signed by Thornton’s
(Id.

The third letter is signed by Lilly and is a duplicate of

(Id. at 70.)

Courts may deny requests to take judicial notice of letters
See, e.g., Pratt v.

11

when they contain evidentiary defects.

12

California State Bd. of Pharmacy, 268 F. App’x 600, 603 (9th Cir.

13

Feb. 14, 2008) (denying request to take judicial notice of a letter

14

containing hearsay); Contreras Family Trust v. United States Dept.

15

of Agric. Farm Service Agency, 205 F. App’x 580, 582 (9th Cir. Nov.

16

13, 2006) (finding that district court did not abuse its discretion

17

when denying a request to take judicial notice of an

18

unauthenticated letter).

19

been authenticated.

20

Court take judicial notice of the two letters signed by Lilly and

21

the letter signed by Thornton’s wife and mother-in-law is DENIED.

22

(Opp’n Attach. #2 Req. Judicial Notice 68-70, ECF No. 46.)

23

B.

24

These letters are hearsay and have not

Consequently, Plaintiff’s request that the

Whether Plaintiff’s Claims Are Cognizable Under § 1983
Thornton argues that the conditions of his parole violate his

25

constitutional rights.

(See Compl. 3-7, ECF No. 1.)

26

claim challenges the parole condition that prohibits him from

27

“liv[ing] at my home with my wife because of provisions of

28

Proposition 83 . . . .”

(See id. at 3.)

16

His first

Plaintiff attaches to his

10cv01583 RBB

1

Complaint a forty-five-day notice sent to him from the CDCR,

2

informing him that he had been given a parole condition requiring

3

him to obey all laws, including Proposition 83, the Sexual Predator

4

Punishment and Control Act (“Jessica’s Law”).

5

C, at 8.)

6

to sign up as a sex offender, you can not live within 2000 feet of

7

a park or school.

8

one-half-mile of a school.”

9

is your notice to obey the law, and to tell you that your 45-day

(Id. Attach. #1 Ex.

The notice states, “Jessica’s Law means that if you have

Also, PC 3003(g) says you cannot live within
(Id.)

It further states, “This letter

10

period starts on 9-17-07[.]”

11

Plaintiff because of his 1986 Tennessee conviction for sexual

12

battery.

13

(Id.)

Jessica’s Law was applied to

(See Compl. 3, ECF No. 1; id. Attach. #1 Ex. H, at 31.)

In Thornton’s second claim, Plaintiff asserts that on November

14

21, 2007, he was assigned to a GPS unit and a sex offender unit of

15

parole.

16

signed by Plaintiff, instructing him that as of November 21, 2007,

17

he must participate in Global Positioning System (“GPS”)

18

monitoring.

19

Special Conditions of Parole form, which requires that he register

20

as a sex offender.

21

is that these overbroad parole conditions –- electronic monitoring

22

and the registration requirement –- violate his civil rights.

23

Compl. 4, ECF No. 1.)

24

(Id. at 4.)

Thornton attaches to his Complaint a notice,

(Id. Attach. #1 Ex. E, at 18.)

(Id. Ex. J, at 41.)

He also attaches his

Plaintiff’s second claim

(See

Finally, Thornton’s third claim is directed at the disparate

25

treatment of him and Richard Lilly, a parolee who was allowed to

26

live in Plaintiff’s wife’s residence even though Thornton was not.

27

(Id. at 4-5.)

28

sex offender parole unit.

Plaintiff asserts that he and Lilly were in the same
(Id. at 5.)

17

Thornton submitted numerous

10cv01583 RBB

1

administrative grievances complaining of the discrimination against

2

him.

3

contends that the parole condition requiring him to obey Jessica’s

4

Law is being applied in a discriminatory manner.

5

No. 1.)

6

(Id. Attach. #1 Ex. D, at 11-16, Ex. F, at 21-24.)

He

(Compl. 4-5, ECF

Defendants argue that Plaintiff is challenging the fact or

7

duration of his confinement.

8

5, ECF No. 24.)

9

brought in a petition for writ of habeas corpus instead of a civil

(Mot. Dismiss Attach. #1 Mem. P. & A.

Therefore, Thornton’s claims should have been

10

rights complaint.

11

rely on the Seventh Circuit’s reasoning in Williams v. Wisconsin,

12

336 F.3d 576 (7th Cir. 2003).

13

A. 5-6, ECF No. 24.)

14

for a parolee who challenges the conditions of parole in federal

15

court is a writ of habeas corpus.

16

Defendants conclude, “Plaintiff’s challenges to his parole

17

conditions are not cognizable under 42 U.S.C. section 1983 because

18

they are considered part of his sentence.”

19

#1 Mem. P. & A. 6, ECF No. 24.)

20

(Id.)

To support their contention, Defendants

(Mot. Dismiss Attach. #1 Mem. P. &

There, the court held that the sole remedy

Williams, 336 F.3d at 580.

(Motion Dismiss Attach.

In his Opposition, Thornton argues that he is not challenging

21

his parole conditions.

22

46.)

23

constitutional rights and the discrimination being applied to him.

24

(Id.)

25

under 42 U.S.C. § 1983 and should not be brought by any other

26

means.”

27
28

(Opp’n Attach. #1 Mem. P. & A. 2, ECF No.

Rather, Plaintiff asserts he is challenging the denial of his

Thornton explains that his claims are “very much cognizable

(Id.)

In response, Defendants reiterate that challenges to parole
conditions must be brought by petition for writ of habeas corpus,

18

10cv01583 RBB

1

not a complaint under § 1983.

2

claims he is challenging the denial of his constitutional rights,

3

not his parole conditions.

4

Complaint is that his parole conditions violate his constitutional

5

rights.”

6

-– an injunction to prohibit them from applying “any type of sex

7

offender parole conditions” to him -– further indicates that

8

Plaintiff’s claims challenge his parole conditions and should be

9

raised in a habeas petition.

10

(Id.)

(Reply 2, ECF No. 53.)

“[Plaintiff]

But the gravamen of Plaintiff’s entire

Defendants state that Thornton’s requested relief

(Id. (quoting Compl. 7, ECF No. 1).)

It is well-established that when a state prisoner challenges

11

the legality or duration of his confinement, or raises

12

constitutional challenges that could entitle him to earlier

13

release, his exclusive federal remedy is a writ of habeas corpus.4

14

Heck v. Humphrey, 512 U.S. 477, 481 (1994) (citing Preiser v.

15

Rodriguez, 411 U.S. 475, 488-90 (1973)); see also Wilkinson v.

16

Dotson, 544 U.S. at 78.

17

habeas corpus jurisdiction is available to those attempting to

18

“invalidate the duration of their confinement -- either directly

19

through an injunction compelling speedier release or indirectly

20

through a judicial determination that necessarily implies the

21

unlawfulness of the State’s custody.”

22

(emphasis added).

23

barred . . . no matter the relief sought (damages or equitable

The Supreme Court has emphasized that only

Dotson, 544 U.S. at 81

“[A] state prisoner’s § 1983 action is

24
4

25
26
27
28

Although Thornton was incarcerated at the time he filed his
Complaint, (Compl. 1, ECF No. 1), it is unclear whether his
incarceration was the result of a violation of the parole
conditions he complains of here. If so, Plaintiff’s challenge will
result in a judgment that necessarily implies the invalidity of his
conviction or sentence. For that reason, a habeas petition would
be the only means available for Thornton’s constitutional challenge
to his conditions of parole, and his § 1983 Complaint would be
dismissed. See Wilkinson v. Dotson, 544 U.S. 74, 81-83 (2005).
19

10cv01583 RBB

1

relief), no matter the target of the prisoner’s suit . . . if

2

success in that action would necessarily demonstrate the invalidity

3

of confinement or its duration.”

Id. at 81-82.

In Jones v. Cunningham, 371 U.S. 236 (1963), the Supreme Court

4
5

recognized that parole conditions can “significantly restrain [the

6

parolee’s] liberty;” consequently, Jones was “in custody,” and a

7

habeas corpus petition was the appropriate vehicle to test the

8

legality of his sentence.

9

See id. at 242-43.

While petitioner’s parole
physical imprisonment, it
significantly confine and
enough to keep him in the
. . . Parole Board within
corpus statute . . . .

10
11

releases him from immediate
imposes conditions which
restrain his freedom; this is
‘custody’ of the members of the
the meaning of the habeas

12
13
14

Id.
Ten years after Jones, the Supreme Court reaffirmed the case’s

15

holding stating, “In 1963, the Court held that a prisoner released

16

on parole from immediate physical confinement was nonetheless

17

sufficiently restrained in his freedom as to be in custody for

18

purposes of federal habeas corpus.”

19

475, 486 n.7 (1973) (citing Jones v. Cunningham, 371 U.S. 236).

20

Preiser described Jones as “no more than a logical extension of the

21

traditional meaning and purpose of habeas corpus -- to effect

22

release from illegal custody.”

23

“[R]ecent cases have established that habeas relief is not limited

24

to immediate release from illegal custody, but that the writ is

25

available as well to attack future confinement and obtain future

26

releases.”

27

Court of Ky., 410 U.S. 484 (1973)); Carafas v. LaValle, 391 U.S.

28

234, 239 (1968); Walker v. Wainwright, 390 U.S. 335 (1968).

Id.

Preiser v. Rodriguez, 411 U.S.

As the Court explained,

Id. at 487; see also Braden v. 30th Judicial Circuit

20

10cv01583 RBB

1

Following this reasoning, courts in the Ninth Circuit have

2

found that parolees and probationers are “in custody” if there are

3

restraints on their freedom that are not imposed on the regular

4

public.

5

Cir. 2006) (discussing precedents holding that the person is “in

6

custody” if “the legal disability in question somehow limits the

7

putative habeas petitioner’s movement[]”); Williamson v. Gregoire,

8

151 F.3d 1180, 1182-83 (9th Cir. 1998) (determining challenge to

9

conviction while on parole); see also Cordell v. Tilton, 515 F.

10

Supp. 2d 1114, 1133 (S.D. Cal. 2007) (report & recommendation).

11

In Williamson v. Gregoire, 151 F.3d at 1183, the court

12
13
14
15
16
17
18
19
20
21
22

See, e.g., Goldyn v. Hayes, 444 F.3d 1062, 1063 n.2 (9th

explained the analysis:
Thus, the boundary that limits the “in custody”
requirement is the line between a “restraint on liberty”
and a “collateral consequence of a conviction.” . . .
. . . .
The precedents that have found a restraint on
liberty rely heavily on the notion of a physical sense of
liberty -- that is, whether the legal disability in
question somehow limits the putative habeas petitioner’s
movement. The Supreme Court justified extending habeas
corpus to aliens denied entry into the United States by
explaining the denial of entry as an impingement on
movement. And the Court relied on a similar rationale to
explain why a parolee or convict released on his own
recognizance is “in custody.” This circuit similarly
explained that mandatory attendance at an alcohol
rehabilitation program satisfies the “in custody”
requirement because it requires the petitioner’s
“physical presence at a particular place.”

23
24

Id. (internal citations omitted).

The Ninth Circuit concluded that

25

the Washington state law requirement that sex offenders register

26

with the county sheriff and notify the sheriff of any change of

27

residence did not place Williamson “in custody” for purposes of

28

federal habeas corpus.

Id. at 1181, 1184-85.

21

The court noted that

10cv01583 RBB

1

the Washington statutes did not restrict movement.

2

“[T]he law does not specify any place in Washington or anywhere

3

else where Williamson may not go. . . .

4

there is anywhere that the sex offender law prevents him from

5

going.”

6

the requirement under California law that sex offenders register

7

annually with law enforcement authorities was insufficient to place

8

them “in custody” and permit them to invoke federal habeas corpus

9

jurisdiction.

10
11

Id.

Id. at 1184.

Williamson cannot say that

Soon after Williamson, the Ninth Circuit held that

Henry v. Lungren, 164 F.3d 1240, 1241-42 (9th Cir.

1999).
The conditions of parole challenged by Thornton restrain his

12

movement.

13

permit him to return to his home and live with his wife.

14

3, ECF No. 1.)

15

or 2000 feet of a park.

16

movement is a significant restraint on his physical liberty and

17

places him “in custody.”

18

conditions falls within the recognized scope of federal habeas

19

corpus relief.

20

According to Plaintiff, his parole conditions did not
(Compl.

He could not live within one-half mile of a school
(Id. at 8.)

The limitation on Thornton’s

Thornton’s challenge to his parole

This conclusion is consistent with a more recent case, Wilson

21

v. Belleque, 554 F.3d 816, 822 (9th Cir. 2009).

22

that Wilson was “in custody” within the meaning of § 2241 “where

23

the sovereign seeking to prosecute a petitioner [the State of

24

Oregon] is currently detaining the petitioner based on convictions

25

or charges not being challenged.”

26

for habeas corpus relief and argued that his Fifth Amendment right

27

against double jeopardy barred retrying him on lesser-included

28

offenses.

Id. at 820-21.

Id.

There, court held

Wilson had filed a petition

Here, regardless of the basis of

22

10cv01583 RBB

1

Thornton’s current state custody, his federal suit may proceed

2

under § 2254.

3

petition challenging conditions of parole is a parolee’s only

4

avenue of relief.

See Cordell, 515 F. Supp. 2d at 1131-32 (report

5

& recommendation).

Thornton’s case raises the issue of whether a

6

parole condition limiting where a parolee may live can be

7

challenged in a § 1983 action.

It is not clear, however, that a habeas corpus

8

The Seventh Circuit still remains the only circuit court to

9

directly address whether habeas corpus is the exclusive means to

10

challenge parole conditions.

11

1220 (7th Cir. 1977), one of the plaintiffs was challenging several

12

of the conditions of her probation, including one “restrict[ing]

13

her ability to share her living quarters with another person . . .

14

.”

15

conditions of probation must be brought as a petition for habeas

16

corpus.

17

confining than incarceration, which blurred the distinction between

18

the fact of confinement and conditions of confinement.

19

Traditionally, the fact or duration of confinement is challenged by

20

writ of habeas corpus, but conditions of prison life are challenged

21

by civil rights complaints.

22

court stated, “The elimination or substitution, for example, of one

23

of the conditions of [Plaintiff’s] probation would free her

24

substantially from her confinement; figuratively speaking, one of

25

the ‘bars’ would be removed from her cell.”

26

Cordell, 515 F. Supp. 2d at 1132 (report and recommendation).

27
28

In Drollinger v. Milligan, 552 F.2d

The court held that her § 1983 complaint challenging the

Id. at 1225.

It acknowledged that probation is less

See id. at 1224.

Id.

Nonetheless, the

Id.; see also,

Sixteen years after Drollinger, the Seventh Circuit reaffirmed
its holding.

Williams v. Wisconsin, 336 F.3d 576 (7th Cir. 2003).

23

10cv01583 RBB

1

In Williams, the parolee brought a § 1983 complaint challenging a

2

parole condition banning international travel.

3

Relying on Drollinger, the court held that the parole conditions

4

“‘define the perimeters of [the parolee or probationer’s]

5

confinement.’”

6

The court concluded that the plaintiff should have brought a habeas

7

corpus petition rather than a civil rights complaint.

8
9

Id. at 579.

Id. at 580 (quoting Drollinger, 552 F.2d at 1224).

Id.

This Court previously addressed this question in Cordell v.
Tilton, 515 F. Supp. 2d at 1132-33.

In Cordell, a parolee brought

10

three claims under § 1983, two of which challenged conditions

11

placed on him while on parole.

12

(report & recommendation).

13

plaintiff from entering Orange County, which he argued effectively

14

banished him from his own residence, in violation of his freedom of

15

association.

16

his parole were not cognizable under § 1983.

17

“These claims force the Court to rule on the validity of the

18

restrictions placed on Cordell by the CDC as part of his sentence,

19

which can only properly be done in a habeas proceeding.”

20

(citation omitted).

21

Id.

Cordell, 515 F. Supp. 2d at 1132

One of the conditions prohibited the

The plaintiff’s challenges to the conditions of
Id. at 1132-33.

Id.

The Ninth Circuit has not addressed whether Heck v. Humphrey

22

prevents a parolee from preemptively challenging conditions of

23

parole in a § 1983 complaint.

24

remains unsettled among the district courts.

25

Washington, No. 06-CV-1455-BR, 2007 U.S. Dist. LEXIS 41232, at *12

26

(D. Or. June 1, 2007) (stating parole conditions may be challenged

27

under § 1983), and Yahweh v. U.S. Parole Comm’n, 158 F. Supp. 2d

28

1332, 1340 (S.D. Fla. 2001) (finding that plaintiffs may challenge

See id. at 1132.

24

The question

Compare Ford v.

10cv01583 RBB

1

parole conditions under either § 2254 or § 1983), with Moore v.

2

Schwarzenegger, EDCV 09-1355, 2010 U.S. Dist. LEXIS 67461, at *8

3

(C.D. Cal. May 28, 2010) (noting that plaintiff’s challenge of a

4

parole condition restricting international travel was improperly

5

brought under § 1983, and the claim should be dismissed without

6

prejudice rather than converted to a claim for habeas corpus

7

relief), and Moreno v. California, 25 F. Supp. 2d 1060, 1063 (N.D.

8

Cal. 1998) (holding that challenges to conditions of parole are not

9

cognizable under § 1983); see also Trimble v. City of Santa Rosa,

10

49 F.3d 583, 586 (9th Cir. 1995) (“When the intent to bring a

11

habeas petition is not clear, however, the district court should

12

not convert a defective section 1983 claim into a habeas

13

petition.”).

14

The Supreme Court has not “recognized habeas as the sole

15

remedy, or even an available one, where the relief sought would

16

‘neither terminat[e] custody, accelerat[e] the future date of

17

release from custody, nor reduc[e] the level of custody.”

18

v. Switzer, __ U.S. __,

19

Dotson, 544 U.S. at 86 (Scalia, J., concurring)) (alterations in

20

original).

21

a judgment in favor of the plaintiff would “necessarily imply” the

22

invalidity of his conviction or sentence, the plaintiff may not

23

proceed under § 1983.

24

82; Heck, 512 U.S. at 487).

25

Skinner

131 S. Ct. 1289, 1299 (2011) (quoting

The Court explained that under existing case law, when

Id. at 1298-99 (citing Dotson, 544 U.S. at

The parole conditions restricting where Thornton may live

26

should be considered part of his sentence.

27

Supp. at 1132 (report & recommendation); see also, Cordell, 515 F.

28

Supp. at 1121-22 (order adopting report & recommendation).

25

See Cordell, 515 F.

The

10cv01583 RBB

1

claims in Plaintiff’s Complaint will require that the Court

2

determine the validity of the conditions placed on him as part of

3

his previous sentence.

4

“necessarily imply” the invalidity of his sentence.

5

__ U.S. at __, 131 S. Ct. at 1298-99 (citing Nelson v. Campbell,

6

541 U.S. 637, 647 (2004)).

7

seeks relief that would free him from the custody of the California

8

Parole Board, habeas corpus is the traditional and appropriate

9

remedy.

10

A judgment in Plaintiff’s favor would
See Skinner,

Because each of Plaintiff’s claims

See Jones v. Cunningham, 371 U.S. at 243.

Whether habeas relief is available to challenge conditions of

11

parole and whether it should be the parolee’s sole federal remedy

12

raise overlapping questions.

13

dilemma.

14
15
16
17
18

In Preiser, the Court explained the

The broad language of § 1983, however, is not
conclusive of the issue before us. The statute is a
general one, and, despite the literal applicability of
its terms, the question remains whether the specific
federal habeas corpus statute, explicitly and
historically designed to provide the means for a state
prisoner to attack the validity of his confinement, must
be understood to be the exclusive remedy available in a
situation like this where it so clearly applies.

19

Preiser, 411 U.S. at 489.

20

exclusive vehicle for Thornton’s challenge.

21

general terms of section 1983 must necessarily yield to the

22

narrower terms of the habeas statute; limitations contained within

23

the more specific statute also limit the availability of remedies

24

under the more general statute.”

25

Judicial Circuit, 591 F.2d 404, 410 (7th Cir. 1979).

26

if Thornton is “in custody” so that he can bring a habeas petition

27

under § 2254, he must comply with the habeas statute of

Habeas corpus jurisdiction should be the
First, “[t]he broad,

Hanson v. Circuit Ct. of First
For example,

28

26

10cv01583 RBB

1

limitations.

2

Cir. 2004)(discussing § 2255).

3
4

See Ospina v. United States, 386 F.3d 750, 752 (6th

Next, considerations of federal-state comity support this
conclusion.

5

See id. at 490.

[T]he reason why only habeas corpus can be used to
challenge a state prisoner’s underlying conviction is the
strong policy requiring exhaustion of state remedies
. . . to avoid the unnecessary friction between the
federal and state court systems that would result if a
lower federal court upset a state court conviction
without first giving the state court system an
opportunity to correct its own constitutional errors.

6
7
8
9
10

Id.

11

whether Thornton’s challenge to the parole restrictions mandated by

12

California’s sex offender laws pass constitutional muster.

13

exhaustion requirement of the habeas statutes promotes that

14

interest.

15

that habeas relief should be the sole federal remedy available to

16

Thornton.

17

two, and three is GRANTED.

18

California courts have an important interest in determining

The

These policy considerations reinforce the conclusion

Accordingly, Defendants’ Motion to Dismiss counts one,

Although Thornton may not pursue his claims pursuant to §

19

1983, he should be free to do so in a habeas corpus petition.

20

Trimble, 49 F.3d at 586.

21

should be dismissed without prejudice for failure to state a claim.

22

Id.

23

dismissed without prejudice to bringing a habeas corpus petition.

24

C.

25

See

When an action is barred by Heck, it

Thornton’s claims in counts one, two, and three are therefore

Failure to Allege the Personal Involvement of Defendants
Even if Plaintiff’s allegations are cognizable under § 1983,

26

they nonetheless fail to state a claim upon which relief may be

27

granted.

28

Joseph alternatively argue that the Complaint should be dismissed

Defendants Schwarzenegger, Cate, Lewis, Cavalin, and

27

10cv01583 RBB

1

because Thornton failed to allege their personal involvement in the

2

purported constitutional violation or a causal connection between

3

any wrongful conduct and the deprivation.

4

Mem. P. & A. 6, ECF No. 24.)

5

allegations “simply state in what capacity the defendants are

6

employed.”

7

be attempting to hold [Defendants] vicariously liable for

8

conditions of parole placed on him before he was released from

9

prison.”

10
11

(Id. at 7.)

(Id.)

(Mot. Dismiss Attach. #1

Defendants contend that Thornton’s

They further argue, “[Plaintiff] seems to

Therefore, Defendants contend, Thornton’s claim is

inadequate to establish liability.

(Id.)

In response, Plaintiff asserts he has stated a claim against

12

the Defendants, and the Court must construe his Complaint in the

13

light most favorable to him.

14

No. 46.)

15

constitutionally protected rights.”

16

the Constitution and the California Constitution allow him to live

17

at his wife’s residence.

18

that struck down conditions that too broadly restricted

19

probationers’ and parolees’ “important rights.”

20

Plaintiff does not otherwise address Defendants’ argument that he

21

failed to allege their personal involvement.

(Opp’n Attach. #1 Mem. P. & A. 2, ECF

He argues that the “parole agents did imping[e] on [his]
(Id. at 3.)

(Id. at 3-6.)

Plaintiff claims

Thornton relies on cases

(Id. at 4-5.)

22

“A person ‘subjects’ another to the deprivation of a

23

constitutional right . . . if he does an affirmative act,

24

participates in another’s affirmative act, or omits to perform an

25

act which he is legally required to do that causes the deprivation

26

of which complaint is made.”

27

(9th Cir. 1978) (citing Sims v. Adams, 537 F.2d 829 (5th Cir.

28

1976)).

Johnson v. Duffy, 588 F.2d 740, 743

To state a claim for monetary damages under § 1983, a

28

10cv01583 RBB

1

litigant must allege that each defendant committed some act, or

2

failed to act in some way, which caused the plaintiff’s injury.

3

See Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007) (citing

4

Leer v. Murphy, 844 F.2d 628, 633-34 (9th Cir. 1988)).

5

inquiry into causation must be individualized and focus on the

6

duties and responsibilities of each individual defendant whose acts

7

or omissions are alleged to have caused a constitutional

8

deprivation.”

9

Moreover, respondeat superior or vicarious liability is not

10

available in a civil rights action, absent a state law that

11

authorizes its application.

12

F.2d 1435, 1446 (9th Cir. 1991); see also Samonte v. Bauman, 264 F.

13

App’x 634, 636 (9th Cir. 2008) (finding that governor was not

14

liable merely because of her position).

15

“The

Leer, 844 F.2d at 633 (citations omitted).

Redman v. County of San Diego, 942

In his Complaint, Thornton names Arnold Schwarzenegger, former

16

governor of California, because he “has control of state laws and

17

enforcement of laws.”

18

that Matthew Cate, secretary of the California Department of

19

Corrections, is liable because he is director of the department and

20

has “control over [CDCR] policies and procedures.”

21

sues “John Doe” Lewis, a parole unit supervisor, because he “is in

22

control over the parole unit in Escondido, California.”

23

Thornton also names Mark Joseph, a parole agent, who acted under

24

color of law “as a parole agent.”

25

Christine Cavalin, another parole agent, because she “was acting

26

under color of law as [his] parole agent of record.”

27
28

(Compl. 2, ECF No. 1.)

(Id.)

Plaintiff states

Thornton

(Id.)

(Id.)

Finally, he names

(Id.)

Although each Defendant is sued in his or her individual
capacity, Plaintiff does not include individualized allegations

29

10cv01583 RBB

1

describing the specific acts of each Defendant.

2

No. 1.)

3

released from custody for a previous parole violation, he received

4

a notice informing him that he would not be allowed to live at his

5

wife’s residence because of Proposition 83.

6

basis, he claims that his rights to due process, freedom of

7

association, and to be free from cruel and unusual punishment were

8

violated.

9

(Compl. 3-5, ECF

In count one, Plaintiff alleges that before he was

(Id. at 3.)

On that

(Id.)

In count two, Thornton alleges that he was assigned to a sex

10

offender and GPS units of parole.

11

was given overbroad parole conditions that were unrelated to his

12

California criminal history.

13

assigned to Parole Agent Christine Cavalin.

14

parole conditions and parole unit assignments, Thornton claims that

15

his rights to be free from cruel and unusual punishment, due

16

process, and “interest of liberty” were violated.

17

not identify any other Defendant in count two.

18

(Id. at 4.)

(Id.)

He states that he

Plaintiff alleges that he was
(Id.)

Because of his

(Id.)

He does

Finally, Thornton contends in count three that he was told he

19

could not live at his wife’s residence because of Proposition 83

20

and California Penal Code section 3003.5.

21

another member of the same sex offender unit of parole was allowed

22

to live with Thornton’s wife at her residence.

23

Plaintiff asserts this constitutes unconstitutional discrimination.

24

(Id. at 4-5.)

25

with specific acts of discrimination.

26

(Id. at 5.)

Yet,

(Id. at 5.)

Count three does not identify the Defendant charged
(See id.)

Nonetheless, the Court must “construe the pleadings liberally

27

and afford the plaintiff any benefit of the doubt.”

28

839 F.2d at 623.

Karim-Panahi,

When ruling on motions to dismiss, the Court is

30

10cv01583 RBB

1

aided in its determination by documents the plaintiff attaches to

2

the complaint.

3

583 F.2d 426, 430 (9th Cir. 1978); see Schneider, 151 F.3d at 1197

4

n.1 (stating that the face of the complaint, and the exhibits

5

attached to it, “control the Rule 12(b)(6) inquiry[]”).

6

is not limited by the mere allegations contained in the complaint .

7

. . .

8

properly a part of the court’s review as to whether plaintiff can

9

prove any set of facts in support of its claim . . . .”

Amfac Mortg. Corp. v. Arizona Mall of Tempe, Inc.,

“The court

These [attached] documents, as part of the complaint, are

Amfac

10

Mortg. Corp., 583 F.2d at 429; see also Quinn v. Ocwen Federal

11

Bank, 470 F.3d 1240, 1244 (8th Cir. 2006) (finding that the court

12

may use exhibits attached to the complaint for “all purposes”).

13

Although Thornton’s allegations are scant, when construed with

14

the exhibits attached to the Complaint and items of which the Court

15

takes judicial notice, they may be sufficient to survive the Motion

16

to Dismiss.

17

documents attached to the complaint when determining the

18

sufficiency of a claim); Marshall v. Burden, No. 5:09-cv-00128-BSM-

19

JJV, 2009 U.S. Dist. LEXIS 125174, at *4 (E.D. Ark. Feb. 22, 2010)

20

(considering inmate grievances attached to pleadings to give pro se

21

plaintiff the “full benefit of a liberal construction”).

22

Nonetheless, when liberally construing the Complaint, the Court

23

does not “supply essential elements of a claim that were not

24

initially pled.”

See Amfac Mortg. Corp., 583 F.2d at 429-30 (reviewing

Ivey, 673 F.2d at 268.

25

1.

Count One

26

Thornton, currently housed at the California Correctional

27

Institution at Tehachapi, alleges that before his 2007 release from

28

a parole violation, he received a notice informing him he could not

31

10cv01583 RBB

1

live at his wife’s residence.

(Compl. 1, 3, ECF No. 1.)

The

2

Complaint does not identify who Plaintiff believes is responsible

3

for the claimed constitutional violations.

4

not assert that he is precluded from establishing a home and living

5

with his wife at some other location.

6

assumes that the imposition of the restrictions on where Plaintiff

7

may live is the basis for the violations, Plaintiff’s allegations

8

are insufficient.

9

one does not state that any of the named Defendants are responsible

Notably, Thornton does

(Id.)

Even if the Court

The notice is signed by James Tilton, and count

10

for the parole restrictions.

11

ECF No. 1.)

12

(See Compl. Attach. #1 Ex. C, at 1,

Plaintiff names Defendants Schwarzenegger, Cate, and Lewis

13

because they hold supervisory positions as the governor, secretary

14

of the department of corrections, or supervisor of the parole unit

15

to which Plaintiff was assigned.

16

1983 of the Civil Rights Act does not authorize a plaintiff to

17

bring a cause of action based on respondeat superior liability.

18

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 692 (1978) (“[T]he

19

fact that Congress did specifically provide that A’s tort became

20

B’s liability if B ‘caused’ A to subject another to a tort suggests

21

that Congress did not intend § 1983 liability to attach where such

22

causation was absent.”); see also Motley v. Parks, 432 F.3d 1072,

23

1081 (9th Cir. 2005).

24

personal capacities if “they play an affirmative part in the

25

alleged deprivation of constitutional rights.”

26

F.2d 565, 568 (9th Cir. 1987); see also Redman, 942 F.2d at 1446.

27
28

(Compl. 2, ECF No. 1.)

But §

State officials are subject to suit in their

King v. Atiyeh, 814

Thornton’s Complaint does not describe the conduct he
attributes to Parole Agents Joseph and Cavalin.

32

His Complaint must

10cv01583 RBB

1

“link each defendant to specific conduct.”

See Karim-Panahi, 839

2

F.2d at 625 n.3.

3

the Complaint.

4

at 1-3, ECF No. 1.)

5

was enforcing the parole conditions prohibiting him from living in

6

his wife’s residence.

7

released from parole on Nov. 9, 2007, was told by Agent Joseph that

8

I could not live at my wife’s house . . . .”

9

Again, in a subsequent appeal, Plaintiff explained he was told by

10

Joseph that he could no longer live with his wife at her residence

11

and that Thornton had been assigned to Parole Agent Cavalin of the

12

“Inland GPS Unit.”

13

Plaintiff stated that Cavalin imposed the same conditions on him,

14

over his objection, after he was transferred to her supervision.

15

(Id.; see also id. Ex. A, at 2.)

Plaintiff attaches several inmate grievances to

(See Compl. Attach. #1 Ex. D, at 2-3, 5-6, Ex. F,
In his inmate appeals, Thornton identifies who

(Id.)

In one appeal he wrote, “When

(Id. Ex. F, at 21.)

(Id. Ex. A, at 2.)

In another grievance,

16

The allegations in the Complaint, the contents of the

17

documents attached to it, and records judicially noticed fail to

18

show that Defendants Schwarzenegger, Cate, or Lewis played a part

19

in the alleged deprivations.

20

id. Attach. #1 Exs. A-K; Opp’n Attach. #2 Req. Judicial Notice 2-3,

21

ECF No. 46.)

22

held liable under section 1983 ‘only if they play an affirmative

23

part in the alleged deprivation of constitutional rights.’”

24

v. City of Coeur D’Alene, 339 F.3d 828, 848 (9th Cir. 2003)

25

(quoting another source), abrogated in part on other grounds by

26

Hiibel v. Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177 (2004).

27

Defendants’ Motion to Dismiss count one based on Thornton’s failure

28

to allege the personal involvement of Schwarzenegger, Cate, and

(See generally Compl. 1-7, ECF No. 1;

“[State officials and] supervising officers can be

33

Graves

10cv01583 RBB

1

Lewis is GRANTED.

Conversely, the allegations in the Complaint,

2

supplemented by the attachments to it, are sufficient to state a

3

claim against Defendants Joseph and Cavalin.

4

Motion to Dismiss is DENIED.

As a result, their

5

2.

Count Two

6

Thornton alleges he was assigned to a GPS parole unit, given

7

overbroad parole conditions, and was assigned to Parole Agent

8

Cavalin’s sex offender unit.

9

maintains that this violated his rights to be free from cruel and

10

(Compl. 4, ECF No. 1.)

unusual punishment and to due process.

Plaintiff

(Id.)

11

Assuming the assignment to these parole units or the

12

imposition of overbroad parole conditions violated Thornton’s

13

constitutional rights, count two fails to allege which Defendant

14

made the assignments or imposed the conditions.

15

exhibits to the Complaint and the judicially noticed items show

16

that Thornton contends that Defendants Joseph and Cavalin are

17

responsible for his parole assignments and conditions.

18

4, ECF No. 1.)

19

Even so, the

(See Compl.

Plaintiff alleges that Defendant Cavalin was his parole agent
(Id.)

Her name and signature appear on several

20

of record.

21

attachments to the Complaint and in documents judicially noticed.

22

(See Compl. Attach. #1 Exs. A at 2, B at 6, E at 19, G at 26, J at

23

36-42, K at 44-50; Opp’n Attach. #2 Req. Judicial Notice 5-48, 52,

24

66, 69-70, 81.)

25

allegations against Defendant Joseph.

26

the Complaint contain statements that Joseph was responsible for

27

imposing a residency restriction on Thornton.

28

#1 Exs. A, at 2, Ex. F, at 21.)

In the Complaint, Plaintiff does not make any

34

Nevertheless, attachments to

(See Compl. Attach.

10cv01583 RBB

1

Thornton’s assertions against Defendants Schwarzenegger, Cate,

2

and Lewis are deficient.

A plaintiff may not bring a civil rights

3

claim based on respondeat superior liability.

4

692.

5

Schwarzenegger, Cate, and Lewis liable for the violations he

6

alleges in count two, he must show that they played an affirmative

7

part in any violation.

8

facts included in the Complaint, the attachments, or items

9

judicially noticed showing the involvement of the supervisory

Monell, 436 U.S. at

To the extent Thornton wishes to hold defendants

See King, 814 F.2d at 568.

There are no

10

Defendants.

(See generally Compl. 1-7, ECF No. 1; id. Attach. #1

11

Exs. A-K; Opp’n Attach. #2 Req. Judicial Notice 1-82, ECF No. 46.)

12

Consequently, Plaintiff has failed to state a claim against

13

Defendants Schwarzenegger, Cate, and Lewis in count two, and their

14

Motion to Dismiss on this basis is GRANTED.

15

count two against Defendants Cavalin and Joseph is DENIED.

The Motion to Dismiss

16

3.

17

Thornton claims he was banished from his home because living

Count Three

18

there would violate Proposition 83 and California Penal Code

19

section 3003.5.

20

Richard Lilly, a parolee in the same parole unit as Thornton, was

21

allowed to live with Thornton’s estranged wife in the same

22

residence Thornton was banned from.

23

claims that he was subjected to unconstitutional discrimination.

24

(Id.)

(Compl. 5, ECF No. 1.)

According to Plaintiff,

(Id. at 4-5.)

Plaintiff

On its face, Count three lacks allegations specifying who was

25
26

responsible for the parole conditions preventing Thornton from

27

living at his wife’s residence and allowing Lilly to do so.

28

id.)

(See

Unlike counts one and two, however, the attachments provide

35

10cv01583 RBB

1

no additional facts supporting count three.

2

Attach. #1 Ex. D, at 12-13.)

3

grievance submitted on May 13, 2010, Thornton stated that Richard

4

Lilly was assigned to Parole Agent Shannahan of the Inland GPS

5

Unit.

6

(See, e.g., Compl.

On the contrary, in an inmate

Although Plaintiff has alleged that Cavalin and Joseph engaged

7

in some conduct related to his claim in count three, Thornton must

8

also allege enough facts to state a claim against them.

9

R. Civ. P. 12(b)(6).

See Fed.

After reviewing the Complaint, the materials

10

attached to the Complaint, as well as the materials of which the

11

Court takes judicial notice, Thornton has not included facts

12

sufficient to allege the involvement of Defendants Cavalin and

13

Joseph in the purported discrimination.

14

D, at 2-3, 5-6, Ex. F, at 1-3, ECF No. 1.)

15

Joseph told him he could not live in the residence, and Cavalin

16

imposed the same condition on him despite his objections.

17

Attach. #1 Ex. A, at 2, Ex. F, at 21, ECF No. 1.)

18

presents no facts demonstrating that Defendants Joseph or Cavalin

19

had control over, or were responsible for, the terms of Lilly’s

20

parole.

21

Thornton’s claim against Cavalin and Joseph in count three.

22

Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736, 740 (9th

23

Cir. 2000) (“To succeed on a § 1983 equal protection claim, the

24

plaintiffs must prove that the defendants acted in a discriminatory

25

manner and that the discrimination was intentional.”)

26

(See Compl. Attach. #1 Ex.
Plaintiff contends that

(Compl.

But Plaintiff

Without more, the allegations are insufficient to support
(See

Similarly, as to Defendants Schwarzenegger, Cate, and Lewis,

27

Thornton fails to allege facts demonstrating their personal

28

involvement in any discrimination.

36

Neither the Complaint, its

10cv01583 RBB

1

exhibits, nor the judicially noticed materials provide any facts

2

related to these supervisory Defendants’ conduct.

3

Compl. 3-5, ECF No. 1; id. Attach. #1 Exs. A-K; Opp’n Attach. #2

4

Req. Judicial Notice 1-82, ECF No. 46.)

5

Plaintiff must allege that they played an affirmative part in the

6

violation.

7

include any claims directed at the Defendants.

8

Motion to Dismiss Thornton’s claims in count three against each of

9

the Defendants is GRANTED.

10
11

D.

See King, 814 F.2d at 568.

(See generally

To state a claim,

Thornton has failed to
Accordingly, the

Qualified Immunity
Defendants argue that they are entitled to qualified immunity

12

because they did not violate Plaintiff’s constitutional rights.

13

(See Mot. Dismiss Compl. Attach. #1 Mem. P. & A. 7-8, ECF No. 24.)

14

“[E]ven if any of Defendants’ actions could somehow be construed as

15

a violation of Plaintiff’s constitutional rights, such rights were

16

not clearly established, and Defendants would not have been on

17

notice that they were acting unlawfully.”

18

(Id. at 8.)

In response, Plaintiff argues that the Complaint “clearly

19

shows a violation of his constitutional rights.”

20

Mem. P. & A. 6, ECF No. 46.)

21

Fourteenth Amendments and concludes, “All of the above is clearly

22

established to have been violated when parole agents forced

23

Plaintiff to be banished from his home but allowed another sex

24

offender to live there.”

25

state court decisions recognizing liberty and property interests in

26

continuing to live in one’s home.

27
28

(Opp’n Attach. #1

He quotes from the First, Fifth, and

Thornton discusses California

(Id.)

(Id. at 4-5.)

“[G]overnment officials performing discretionary functions,
generally are shielded from liability for civil damages insofar as

37

10cv01583 RBB

1

their conduct does not violate clearly established statutory or

2

constitutional rights of which a reasonable person would have

3

known.”

4

constitutional right is “clearly established” if it is

5

“‘sufficiently clear that a reasonable official would understand

6

that what he is doing violates that right.’”

7

U.S. 730, 739 (2002) (quoting Anderson v. Creighton, 483 U.S. 635,

8

640 (1987)).

9

on notice of the illegality of their conduct before they are

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

A

Hope v. Pelzer, 536

This standard ensures that government officials are

10

subjected to suit.

11

(2001)).

12

by qualified immunity unless the very action in question has

13

previously been held unlawful . . . .”

14

protects “all but the plainly incompetent or those who knowingly

15

violate the law.”

16

Court should attempt to resolve threshold immunity questions at the

17

earliest possible stage in the litigation.

18

502 U.S. 224, 227 (1991); see also Crawford-El v. Britton, 523 U.S.

19

574, 598 (1998) (noting that the purpose of resolving immunity

20

issues early is so that officials are not subjected to unnecessary

21

discovery or trial proceedings).

22

Id. (citing Saucier v. Katz, 533 U.S. 194, 206

“This is not to say that an official action is protected

Id.

Qualified immunity

Malley v. Briggs, 475 U.S. 335, 341 (1986).

The

See Hunter v. Bryant,

“The threshold inquiry a court must undertake in a qualified

23

immunity analysis is whether plaintiff’s allegations, if true,

24

establish a constitutional violation.”

25

also Saucier, 533 U.S. at 201.

26

constitutional violation, the Court must also determine whether the

27

right alleged to have been violated is “clearly established.”

28

Saucier, 533 U.S. at 201.

Hope, 536 U.S. at 736; see

If the allegations make out a

The Supreme Court recently

38

10cv01583 RBB

1

“reconsider[ed] the procedure required in Saucier, [and]

2

conclude[d] that, while the sequence set forth there is often

3

appropriate, it should no longer be regarded as mandatory.”

4

Pearson v. Callahan, 555 U.S. 223, __ 129 S. Ct. 808, 818 (2009).

5

To overcome a defense of qualified immunity, the Plaintiff

6

“must claim the defendants committed a constitutional violation

7

under current law.”

8

245, 253 (9th Cir. 2005).

9

defendants’ actions were objectively unreasonable in light of the

Atteberry v. Nocona General Hosp., 430 F.3d
In addition, “he must claim that the

10

law that was clearly established at the time of the actions

11

complained of.”

12

law.

13
14
15

Id.

Objective reasonableness is a question of

Id. at 256.
In determining if a right is clearly established,
[this Court] looks to whether (1) it was defined with
reasonable clarity, (2) the Supreme Court or the [circuit
court of appeals for the jurisdiction] confirmed the
existence of the right, and (3) a reasonable defendant
would have understood that his conduct was unlawful.

16
17

Doninger v. Niehoff, Nos. 09-1452-cv (L), 09-1601-cv (XAP), 09-

18

2261-cv (CON), 2011 U.S. App. LEXIS 8441, at *25 (2d Cir. Apr. 25,

19

2011) (citing Young v. Cnty. of Fulton, 160 F.3d 899, 903 (2d Cir.

20

1998); see Dunn v. Castro, 621 F.3d 1196, 1201 (9th Cir. 2010)

21

(looking to Supreme Court and Ninth Circuit precedent).

22

Thornton does not cite Supreme Court or Ninth Circuit case law

23

to support his claim that the Defendants are not entitled to

24

qualified immunity because the residency restrictions they imposed

25

violated clearly established law.

26

A. 6, ECF No. 46.)

27

Fourteenth Amendments, and People v. Pointer, 151 Cal. App. 3d

28

1128, 1139-41, 199 Cal. Rptr. 357, 364-66 (1984) (finding that

(See Opp’n Attach. #1 Mem. P. &

Instead, he cites the First, Fifth, and

39

10cv01583 RBB

1

probation condition prohibiting conception was unconstitutional),

2

and People v. Beach, 147 Cal. App. 3d 612, 622-23, 195 Cal. Rptr.

3

381, 387 (1983) (holding that “removing an elderly woman from her

4

home of 24 years” as a condition of probation was

5

unconstitutional).

6

Neither the Plaintiff nor the Court has identified any Supreme

7

Court or Ninth Circuit Court of Appeals case authority that clearly

8

establishes that in 2007 imposing residency restrictions required

9

by Jessica’s Law, or analogous laws, violated parolees’

10

constitutional rights.

11

California Supreme Court decided In re E.J., 47 Cal. 4th 1258, 223

12

P.3d 31, 104 Cal. Rptr. 3d 165 (2010), the constitutionality of the

13

parole conditions mandated by Jessica’s Law still had not been

14

decided by the state supreme court.

Indeed, as of February 1, 2010, when the

15

When the law is uncertain, there are guideposts for the Court.

16

Absent binding precedent, we look to the all
available decisional law, including the law of other
circuits and district courts, to determine whether the
right was clearly established. We also evaluate the
likelihood that this circuit or the Supreme Court would
have reached the same result.

17
18
19
20

Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996) (citations

21

omitted).

22

they “could not have ‘established’ the law retroactively.”

23

v. Racansky, 887 F.2d 183, 187 (9th Cir. 1989).

24

cases that determine whether the law was clearly established at the

25

time of the incident are persuasive.

26

Post-incident cases are generally not considered because
Baker

But post-incident

Id.

In 2005, the Eighth Circuit decided Doe v. Miller, 405 F.3d

27

700, 704 (8th Cir. 2005), and upheld an Iowa statute “that

28

prohibits a person convicted of certain sex offenses involving

40

10cv01583 RBB

1

minors from residing within 2000 feet of a school or a registered

2

child care facility.”

3
4
5
6

Because we conclude that the Constitution of the
United States does not prevent the State of Iowa from
regulating the residency of sex offenders in this manner
in order to protect the health and safety of the citizens
of Iowa, we reverse the judgment of the district court.
We hold unanimously that the residency restriction is not
unconstitutional on its face.

7

Id. at 704-05.

8

California, that had some form of residency restriction applicable

9

to sex offenders.

10

The court identified twelve other states, including

Id. at 714, 714 n.4.

The Eighth Circuit considered the issue again in a 2006

11

challenge to an Arkansas law.

12

453 F.3d 1010, 1013 (8th Cir. 2006).

13

Arkansas restriction, “[Sex] [o]ffenders in these classes are not

14

permitted ‘to reside within two thousand feet (2000') of the

15

property on which any public or private elementary or secondary

16

school or daycare facility is located.’”

17

Ann. § 5-14-128(a)).

18

provided for a “particularized risk assessment of sex offenders,”

19

“Arkansas law is on even stronger constitutional footing than the

20

Iowa statute.”

21

violation.

Weems v. Little Rock Police Dep’t,
The court described the

Id. (quoting Ark. Code

Because the state statutes and guidelines

Id. at 1017.

The court found no due process

Id. at 1019-20.

22

More recently, in Hattar v. Poulos, No. ED CV 09-01722-DOC

23

(VBK), 2010 U.S. Dist. LEXIS 99879, at *19 (C.D. Cal. Aug. 3, 2010)

24

(report & recommendation), adopted in 2010 U.S. Dist. LEXIS 98880,

25

at *1-2 (C.D. Cal. Sept. 15, 2010) (order adopting report &

26

recommendation), the habeas petitioner challenged “the residency

27

restriction set forth in Penal Code § 3003.5(b) and incorporated in

28

his parole conditions . . . .”

Judge Kenton concluded that there

41

10cv01583 RBB

1

was no clearly established Supreme Court law acknowledging “the

2

right of a paroled sex offender to live wherever he wishes.”

3

at *22-23.

4

longer live in his family residence, he has not alleged that he is

5

unable to establish a home or live with his family members

6

elsewhere.”

7

Id.

The court noted, “Although he alleges that he can no

Id. at *23.

Thornton has not sufficiently alleged that Defendants engaged

8

in conduct that violated his constitutional rights.

The

9

constitutional right claimed by Thornton was not “clearly

10

established” at the time he was subjected to the parole conditions.

11

Accordingly, Defendants are entitled to qualified immunity, and

12

their Motion to Dismiss on this basis is GRANTED.

13

E.

Absolute Immunity

14

All of the Defendants argue that to the extent they were

15

imposing parole conditions, they are entitled to absolute immunity.

16

(Mot. Dismiss Attach. #1 Mem. P. & A. 8-9, ECF No. 24.)

17

assert that the imposition of parole conditions is a quasi-judicial

18

function, and parole agents who impose the conditions are

19

absolutely immune from liability.

20

address Defendants’ absolute immunity argument in his Opposition.

21

(See generally Opp’n Attach. #1 Mem. P. & A. 1-8, ECF No. 46.)

22

(Id. at 9.)

They

Plaintiff does not

“The proponent of a claim to absolute immunity bears the

23

burden of establishing the justification for such immunity.”

24

Antoine v. Byers & Anderson, 508 U.S. 429, 432 (1993).

25

Eleventh Amendment grants the states immunity from private civil

26

suits.

27

512, 517 (9th Cir. 1997), as amended, 137 F.3d 1372 (9th Cir.

28

1998).

The

U.S. Const. amend. XI; Henry v. County of Shasta, 132 F.3d

It also provides immunity for state officials sued in their

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1

official capacities.

2

her official capacity is not a suit against the official but rather

3

is a suit against the official’s office.”

4

State Police, 491 U.S. 58, 71 (1989) (citing Brandon v. Holt, 469

5

U.S. 464, 471 (1985)).

6

against the State itself.”

7

U.S. 159, 165-66 (1985)); Monell, 436 U.S. at 690 n.55.

8
9

“[A] suit against a state official in his or

Will v. Mich. Dep’t of

“As such, it is no different from a suit
Id. (citing Kentucky v. Graham, 473

Probation and parole officers are entitled to absolute
immunity when performing quasi-judicial functions.

Swift v.

10

California, 384 F.3d 1184, 1189 (9th Cir. 2004).

11

entitled to absolute immunity, however, when performing functions

12

similar to those of a police officer, such as taking a parolee into

13

custody.

14

absolute quasi-judicial immunity for decisions ‘to grant, deny, or

15

revoke parole’ because these tasks are ‘functionally comparable’ to

16

tasks performed by judges.”

17

Procunier, 641 F.2d 1295, 1303 (9th Cir. 1981)).

18

has also been extended to parole officers “for the ‘imposition of

19

parole conditions’ and the ‘execution of parole revocation

20

procedures’” because the Ninth Circuit treats such tasks as

21

“integrally related to an official’s decision to grant or revoke

22

parole.”

23

Cir. 1983)).

24

Id. at 1191-92.

They are not

Parole officers “are entitled to

Id. at 1189 (quoting Sellars v.
Absolute immunity

Id. (quoting Anderson v. Boyd, 714 F.2d 906, 909 (9th

Indeed, a state officer sued in his official capacity is

25

entitled to Eleventh Amendment immunity.

See Hafer v. Melo, 502

26

U.S. 21, 25 (1991); Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir.

27

1999).

28

immunity when he is sued in his individual capacity only.

But a state officer is not entitled to Eleventh Amendment

43

Hafer,

10cv01583 RBB

1

502 U.S. at 31; Romano, 169 F.3d at 1185; see Smith v. Kitzhaber,

2

No. CV-00-326-ST, 2000 U.S. Dist. LEXIS 6998, at *6-7 (D. Or. Mar.

3

20, 2000); AIDS Healthcare Found. v. Belshe, No. CV97-3235 LGB

4

(MCx), 1998 U.S. Dist. LEXIS 21367, at *31 (C.D. Cal. Dec. 8,

5

1998).

6

capacities, are ‘persons’ within the meaning of § 1983.

7

Eleventh Amendment does not bar such suits, nor are state officers

8

absolutely immune from personal liability under § 1983 solely by

9

virtue of the ‘official’ nature of their acts.”

10

“We hold that state officials, sued in their individual
The

Hafer, 502 U.S. at

31.

11

To determine whether a state officer is sued in his individual

12

or official capacity, the court must examine “the capacity in which

13

the state officer is sued, not the capacity in which the officer

14

inflicts the alleged injury.”

15

added); Romano, 169 F.3d at 1185; Ashker v. California Dept. of

16

Corrections, 112 F.3d 392, 395 (9th Cir. 1997).

17

not entitled to immunity from suit simply because a plaintiff

18

alleges they injured him while acting in their official capacities

19

as employees of the state.

20

Hafer, 502 U.S. at 26 (emphasis

State officers are

Hafer, 502 U.S. at 26-27.

Thornton has not sued any of the Defendants in their official

21

capacities.

(Compl. 1-2, ECF No. 1.)

Although his claims are

22

related to the imposition and enforcement of his parole conditions,

23

which is part of a parole officer’s official duties, their immunity

24

depends on the capacity in which the defendants are sued.

25

Hafer, 502 U.S. at 26; Cordell, 515 F. Supp. 2d at 1120 (order

26

adopting report & recommendation); (see also Compl. 1-2, ECF No.

27

1.)

See

Because Thornton has explicitly sued Defendants in their

28

44

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1

individual capacities, they are not entitled to absolute immunity.5

2

See Hafer, 502 U.S. at 31; Romano, 169 F.3d at 1185.

3

Defendants’ Motion to Dismiss based on absolute immunity is DENIED.

4
5

IV.

Accordingly,

CONCLUSION

Because Plaintiff’s claims are not cognizable under § 1983,

6

Defendants’ Motion to Dismiss the Complaint is GRANTED.

7

challenge to his conditions of parole must be prosecuted in a

8

petition for habeas relief.

Thornton’s

9

Defendants’ Request for Judicial Notice is also GRANTED.

10

outlined above, Plaintiff’s Request for Judicial Notice is GRANTED

11

in part and DENIED in part.

12

As

Defendants’ Motion to Dismiss the Complaint against Defendants

13

Schwarzenegger, Cates, and Lewis for failing to allege their

14

personal involvement is GRANTED.

15

counts one and two against Defendants Cavalin and Joseph for

16

failing to allege their individual involvement is DENIED; the

17

Motion to Dismiss count three against them is GRANTED.

18

Furthermore, Defendants’ Motion to Dismiss Plaintiff’s claims

19

against all Defendants based on qualified immunity is GRANTED.

20

Finally, because Defendants are sued in their individual capacities

21

only, they are not entitled to absolute immunity, and their Motion

22

to Dismiss the Complaint on this basis is DENIED.

Defendants’ Motion to Dismiss

23
5

24
25
26
27
28

Thornton cannot cure other defects in this action by
asserting a claim against these Defendants in their official
capacities for the setting of parole conditions. “The imposition
of parole conditions is an integral part of a decision to grant
parole.” Anderson v. Boyd, 714 F.2d 906, 909 (9th Cir. 1983)
(citing Morrissey v. Brewer, 408 U.S. 471, 478 (1972)). “It
follows that the defendants cannot be held liable [because of their
absolute immunity] for conduct relating to the imposition of parole
conditions.” Id.; accord Fulton v. Thayer, No. CV 10-0137-GAF
(MAN) 2010 U.S. Dist. LEXIS 25935, at *11 (C.D. Cal. Mar. 19,
2010).
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Thornton’s Complaint is dismissed without prejudice so that he

2

may bring his claims in a properly filed habeas petition.

3

Trimble

v. City of Santa Rosa, 49 F.3d at 586.

4
5

DATE: June 1, 2011
Ruben B. Brooks, Magistrate Judge
United States District Court

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cc:

All Parties of Record

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K:\COMMON\BROOKS\CASES\1983\PRISONER\THORNTON1583\Order re MTDv4.wpd

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