Carter v. San Diego, County of et al

Filing 12

ORDER Granting the County's 6 Motion to Dismiss for failure to state a claim. The Court also dismisses the Complaint as to defendant San Diego County Department of Probation and defendant Marice Gallon on the same grounds. Plaintiff's Com plaint is Dismissed in its entirety. Plaintiff may file an amended complaint within 30 days of the filing of this Order. Plaintiff's failure to do so will result in the closing of this case. Signed by Judge Barry Ted Moskowitz on 8/6/2013. (All non-registered users served via U.S. Mail Service)(rlu)(jrd)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 SUSAN CARTER, v. Case No. 13cv289 BTM(JMA) Plaintiff, ORDER GRANTING MOTION TO DISMISS 13 14 15 THE COUNTY OF SAN DIEGO, et al., Defendant. 16 17 Defendant County of San Diego (“Defendant” or the “County”) has filed 18 a motion to dismiss Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 8(a), 19 12(b)(1), and 12(b)(6). For the reasons discussed below, Defendant’s motion 20 to dismiss under Fed. R. Civ. P. 12(b)(6) is GRANTED. 21 22 I. BACKGROUND 23 Plaintiff alleges that in 2010 and 2013, she served a 13-month prison 24 sentence for technical probation violations in two 2009 San Diego cases. 25 (Compl. ¶ 15.) She was released from prison or about September 8, 2011 to 26 non-revocable parole for 12 months. (Id.) According to Plaintiff, at the time of 27 the San Diego probation violations, she was also on probation on an eleven- 28 year old Orange County case. (Compl. ¶ 17.) The San Diego violations 1 13cv289 BTM(JMA) 1 triggered a violation in the Orange County case. (Id.) According to Plaintiff, the 2 Orange County DA agreed to dismiss the Orange County probation violation 3 petition and to run the probation violation case concurrently with the San Diego 4 case. (Id.) Upon Plaintiff’s release from prison, probation was reinstated in the 5 Orange County case (Plaintiff believes this was improper) and the probation 6 proceeding was transferred to San Diego. (Compl. ¶¶ 18-19.) 7 In May of 2012, Plaintiff briefly met with her San Diego probation officer, 8 defendant Maurice Gallon. (Compl. ¶ 20.) He told Plaintiff that the transfer 9 process from Orange County was incomplete and that she would have to wait 10 before a meeting could be set up. (Id.) Eventually, Plaintiff obtained a 11 probation appointment for August 29, 2012. (Compl. ¶ 22.) 12 On or about July 26, 2012, Gallon telephoned Plaintiff and told her that 13 she had to be in his office within an hour that morning to fill out some 14 paperwork because he was going on vacation. (Compl. ¶ 23.) Plaintiff told 15 Gallon that she had to take her sister, who was terminally ill, to a doctor’s 16 appointment that morning. (Compl. ¶¶ 23-24.) Gallon told Plaintiff that the 17 probation appointment was not negotiable and that if she did not show up, he 18 would have a warrant put out for her arrest. (Id.) Plaintiff did not attend the 19 probation meeting, but wrote and faxed a letter to Gallon and the head 20 probation officer explaining why she did not attend the meeting. (Compl. ¶ 25.) 21 Plaintiff’s sister passed away on August 11. (Compl. ¶ 26.) About two 22 weeks later, Gallon was able to get a judge to issue a warrant for Plaintiff’s 23 arrest. (Id.) A law enforcement task force, including about 35 police cars, 24 showed up at the La Jolla home of Plaintiff’s mother, looking for Plaintiff. 25 (Compl. ¶ 27.) The police also came to the San Diego home of Plaintiff’s son, 26 who has two young children, and threatened to keep coming back until he 27 turned his mother over to law enforcement authorities. (Compl. ¶ 29.) 28 According to Plaintiff, the situation with the arrest warrant has caused 2 13cv289 BTM(JMA) 1 Plaintiff’s entire family to disown her. (Compl. ¶ 30.) Plaintiff also alleges that 2 because of the arrest warrant, her business colleagues and clients at the 3 Foundation for Inmate Advocacy have refused to work with her, she has had 4 to delay her application and testing for readmission to the California State Bar, 5 she has had to withdraw her applications for graduate school, and she may 6 lose Social Security and Medicare benefits. (Compl. ¶¶ 32-36.) 7 Plaintiff “is informed and believes” that the probation appointment was a 8 “set-up,” that was arranged maliciously with the purpose and intent to 9 prosecute Plaintiff for her political activities. (Compl. ¶ 39.) Plaintiff alleges 10 that she was involved in a civil rights organization which targeted corruption in 11 the local criminal justice system, including corruption of County prosecutors 12 and probation officers. (Id.) Plaintiff also alleges that she had previously filed 13 a lawsuit against the County for civil rights violations. (Id.) According to 14 Plaintiff, because she has been released from non-revocable parole and 15 intended to seek release from probation as well, Defendants wanted to make 16 an example of her and retaliate against her for her political activities. (Id.) 17 In her Complaint, Plaintiff names as defendants the County, San Diego 18 County Department of Probation, and Maurice Gallon. Plaintiff asserts claims 19 for: (1) violation of the Fifth and Sixth Amendments; (2) malicious prosecution; 20 (3) defamation; and (4) harassment. 21 22 II. DISCUSSION 23 The County moves to dismiss Plaintiff’s Complaint on the ground that it 24 fails to establish subject matter jurisdiction and fails to state a claim. As 25 discussed below, the Court agrees that Plaintiff’s Complaint fails to state a 26 claim and that dismissal is therefore warranted. 27 28 3 13cv289 BTM(JMA) 1 A. Constitutional Claims 2 In Count One, Plaintiff alleges that Defendants violated her rights under 3 the Fifth Amendment by maliciously setting her up to violate the terms and 4 conditions of her probation and prosecuting her and depriving her of her 5 freedom without due process of law. Because this case involves state actors, 6 the due process clause of the Fourteenth Amendment applies. Duesenbery v. 7 United States, 534 U.S. 161, 167 (2002) (“The Due Process clause of the Fifth 8 Amendment prohibits the United States, as the Due Process Clause of the 9 Fourteenth Amendment prohibits the States, from depriving any person of 10 property without “due process of law.”) 11 It appears that Plaintiff is attempting to allege a § 1983 claim for 12 malicious prosecution. Malicious prosecution “constitutes a deprivation of 13 liberty without due process of law . . . when it is ‘conducted with the intent to 14 deprive a person of equal protection of the laws or is otherwise intended to 15 subject a person to a denial of constitutional rights.’” Lacey v. Maricopa 16 County, 649 F.3d 1118, 1133 (9th Cir. 2011) (quoting Bretz v. Kelman, 773 17 F.2d 1026, 1031 (9th Cir. 1985)). To state a claim for malicious prosecution, 18 a plaintiff “must show that the defendants prosecuted her with malice and 19 without probable cause, and that they did so for the purpose of denying her 20 equal protection or another specific constitutional right.” Freeman v. City of 21 Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995). The plaintiff must also allege 22 that criminal proceedings were instituted against her and that the proceedings 23 terminated in her favor. Lacey v. Maricopa County, 693 F.3d 896, 919 (9th Cir. 24 2012). 25 Plaintiff has not stated a claim for malicious prosecution because Plaintiff 26 has not alleged that she was subjected to a criminal prosecution that 27 terminated in her favor. Plaintiff has not even alleged that she was arrested. 28 Even if Plaintiff had been arrested, a claim for malicious prosecution “will not 4 13cv289 BTM(JMA) 1 lie unless some further step is taken, such as bringing the accused before a 2 magistrate for determination whether he is to be held.” 3 Restatement (Second) of Torts § 654(2)(c)). Id. (quoting 4 To the extent Plaintiff’s due process claim is premised on injuries to her 5 reputation, resulting in strained relationships with family members and work 6 colleagues and clients as well as other negative consequences, Plaintiff fails 7 to state a claim. As explained by the Supreme Court, a plaintiff’s interest in her 8 reputation “is neither ‘liberty’ nor ‘property’ guaranteed against state deprivation 9 without due process of law.” Paul v. Davis, 424 U.S. 693, 712 (1976). 10 To the extent Plaintiff intends to assert a claim for false arrest in violation 11 of her Fourth Amendment rights, this claim fails as well. A claim for unlawful 12 arrest lies under § 1983 when the arrest was without probable cause or other 13 justification. Dubner v. City & Cnty. of S.F., 266 F.3d 959, 964 (9th Cir. 2001). 14 Here, the facts alleged in the Complaint do not establish a lack of probable 15 cause for the issuance of the bench warrant. Plaintiff admits that the probation 16 officer required her to attend a meeting and that she failed to do so. Although 17 Plaintiff claims that the meeting was set up maliciously and that she had good 18 reasons for not going to the meeting, Plaintiff has not established that she did 19 not in fact violate a term or condition of her probation. 20 In her opposition, Plaintiff cites to People v. Zaring, 8 Cal. App. 4th 362 21 (1992), and argues that the violation of probation must be willful to warrant the 22 revocation of probation. It is true that a court may abuse its discretion in 23 revoking probation if the probationer did not willfully violate probation. Id. at 24 375. But the issue of willfulness or the absence thereof, pertains to the court’s 25 determination whether to revoke probation. Plaintiff’s assertion that she had 26 a good excuse for not attending the probation meeting does not mean that 27 there was no probable cause for obtaining an arrest warrant for violation of the 28 terms and conditions of probation. 5 13cv289 BTM(JMA) 1 It is unclear whether Plaintiff wishes to assert a claim for retaliation in 2 violation of her First Amendment rights. In the Ninth Circuit, an individual has 3 a right “to be free of police action for which retaliation is a but-for cause even 4 if probable cause exists for that action.” Skoog v. County of Clackamas, 469 5 F.3d 1221 (9th Cir. 2006). The plaintiff must establish that the “officers’ desire 6 to chill his speech was a but-for cause of their allegedly unlawful conduct.” 7 Ford v. City of Yakima, 706 F.3d 1188, 1193 (9th Cir. 2013). Plaintiff alleges 8 on information and belief that the probation meeting was maliciously set up to 9 punish Plaintiff for her political activities, including involvement in a civil rights 10 organization and a prior law suit against the County. (Compl. ¶ 39.) However, 11 Plaintiff does not allege any facts showing that her probation officer, Gallon, 12 had any knowledge of her political activities. Accordingly, Plaintiff has not 13 established a plausible claim for First Amendment retaliation. See, e.g., Craft 14 v. Middleton, 2012 WL 3903424, at * 2 (W.D. Okla. Aug. 20, 2012) (dismissing 15 First Amendment retaliation claim because plaintiff failed to allege facts 16 supporting causation); Manago v. Gonzalez, 2012 WL 6628902, at * 6 (E.D. 17 Cal. Dec. 19, 2012) (“Thus, mere allegations that Plaintiff engaged in protected 18 activity, without knowledge resulting in animus by a Defendant, is insufficient 19 to show that Plaintiff’s protected activity was the motivating factor behind 20 Defendant’s actions.”) 21 Plaintiff alleges that Defendants subjected her to double jeopardy in 22 violation of her Fifth Amendment rights by attempting to prosecute and 23 incarcerate her for a ten-year-old offense for which she had already been tried, 24 convicted, and punished. 25 established that the imposition of confinement upon violation of probation does 26 not offend double jeopardy principles. United States v. DiFrancesco, 449 U.S. 27 117, 137 (1980). 28 (Compl. ¶ 48.) However, it has been clearly Plaintiff also alleges that Defendants violated her rights under the Sixth 6 13cv289 BTM(JMA) 1 Amendment Due Process provisions by setting her up for arrest without 2 probable cause and without informing her of the nature and cause of the 3 accusation as required by the Sixth Amendment. (Compl. ¶¶ 49, 50). Under 4 the Sixth Amendment, an accused has the right “to be informed of the nature 5 and cause of the accusation against him.” In the context of revocation of 6 probation, the minimum due process requirements include, inter alia, written 7 notice of the claimed violation of probation, disclosure of the evidence against 8 the probationer, an opportunity to be heard in person and to present witnesses 9 and documentary evidence, the right to confront and cross-examine adverse 10 witnesses unless the government shows good cause for not producing the 11 witness, a neutral and detached hearing body, and a written statement by the 12 fact-finders as to the evidence relied on and the reasons for revoking probation. 13 Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). However, these due process 14 requirements do not apply until actual seizure of the individual has occurred, 15 after which due process requires that the individual be accorded both 16 preliminary and formal hearings along with the due process safeguards. 17 People v. Vickers, 8 Cal. 3d 451, 460 (1972). 18 requirement of notice of the claimed violation of probation prior to arrest. 19 Plaintiff does not allege that she was arrested or that she was deprived of her 20 Sixth Amendment due process rights after she was arrested. Therefore, 21 Plaintiff has not stated a claim under the Sixth Amendment. There is no due process 22 Plaintiff has not stated a claim under the Fifth Amendment, Sixth 23 Amendment, or any other provision of the United States Constitution. 24 Therefore, Defendant’s motion is granted as to Count One. 25 26 B. Injunctive Relief 27 Although the Complaint does not include a separate count for an 28 injunction, the caption page indicates that the complaint seeks “temporary and 7 13cv289 BTM(JMA) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 permanent restraining orders,” and Paragraph 2 of the Complaint states: Plaintiff is entitled to immediate relief in the form of recall of a bench warrant issued against her by the County of San Diego Superior Court and the San Diego County Probation Department; an injunction against continuing harassment . . . . To the extent Plaintiff seeks an injunction requiring recall of the bench warrant or enjoining enforcement of the bench warrant, the Court abstains under Younger v. Harris, 401 U.S. 37, 41 (1971). Younger abstention is required if the state proceedings are (1) ongoing; (2) implicate important state interests; and (3) provide the plaintiff an adequate opportunity to litigate federal claims. H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 613 (9th Cir. 2000). It appears that the probation violation proceedings are ongoing.1 The proceedings implicate the important state interest of monitoring defendants on probation and enforcing the terms and conditions of probation. Plaintiff’s concerns regarding the legitimacy of the last-minute probation appointment and her lack of willfulness in not attending the meeting can and should be raised before the state court. Therefore, Plaintiff’s claim for injunctive relief is dismissed. 17 18 19 20 21 C. State Claims Count Two of the Complaint is for malicious prosecution. Under California law, to establish a claim for malicious prosecution, the plaintiff must prove that the prior action (1) was commenced by or at the direction of the 22 23 1 24 25 26 27 28 In connection with its 12(b)(1) motion, the County asks the Court to take judicial notice of Superior Court felony minutes dated October 24, 2012 and October 29, 2012, filed in People v. Carter, Case No. SCD 240017. (Request for Judicial Notice, Exs. B, C.) The Court takes judicial notice of the documents, although the Court’s decision does not rely on them. According to the October 24 minutes, Plaintiff was ordered to be present or to have her counsel submit medical documentation at a hearing on October 29, 2012. The initial bench warrant was recalled, and another bench warrant was issued but was ordered to be withheld to October 29. The October 29 minutes reflect that a bench warrant was issued that day because Plaintiff did not appear at the hearing, and her attorney was unable to provide medical documentation. In her opposition, Plaintiff states that she was arrested, but it is unclear if anything else has happened in her state criminal case. 8 13cv289 BTM(JMA) 1 defendant and was pursued to a legal termination in the plaintiff’s favor; (2) was 2 brought without probable cause; and (3) was initiated with malice. Crowley v. 3 Katleman, 8 Cal. 4th 666, 676 (1994). As discussed above, Plaintiff has not 4 alleged facts showing that probable cause was lacking or that criminal 5 proceedings took place and terminated in her favor. Moreover, Gallon, the 6 Department of Probation, and the County would be immune from liability under 7 Cal. Gov’t Code 821.6 and Cal. Gov’t Code 815.2(b).2 See Taylor v. Jones, 8 121 Cal. App. 3d 885 (1981) (holding that County and employees of the county 9 district attorney’s office were immune from liability for any injury caused in 10 prosecuting probation revocation proceeding against the plaintiff). 11 Count Three alleges that the arrest warrant issued against Plaintiff 12 destroyed her reputation and asserts that Defendants are liable for defamation. 13 (Compl. ¶ 59.) Count Four is labeled “Harassment,” but appears to be a claim 14 for intentional infliction of emotional distress resulting from malicious 15 prosecution. These claims also fail because they arise out of the prosecution 16 of a probation violation, and Defendants are immune from injury resulting from 17 such acts. See Gillan v. City of San Marino, 147 Cal. App. 4th 1033, 1048 18 (2007) (“Immunity under Government Code section 821.6 is not limited to 19 claims for malicious prosecution, but also extends to other causes of action 20 arising from conduct protected under the statute, including defamation and 21 intentional infliction of emotional distress.”) 22 /// 23 /// 24 25 26 27 28 2 Cal. Gov’t Code § 821.6 provides, “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” Section 821.6 applies to suits against government employees who file charges or swear out affidavits of criminal activity against individuals. Sullivan v. County of Los Angeles, 12 Cal. 3d 710, 720 (1974). Cal. Gov’t Code § 815.2(b) provides, “Except as otherwise provided by statute, a public entity is not liable for any injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” 9 13cv289 BTM(JMA) III. CONCLUSION 1 2 For the reasons discussed above, the County’s motion to dismiss for 3 failure to state a claim is GRANTED. The Court also dismisses the Complaint 4 as to defendant San Diego County Department of Probation and defendant 5 Marice Gallon on the same grounds. Plaintiff’s Complaint is DISMISSED in its 6 entirety. Plaintiff may file an amended complaint within 30 days of the filing of 7 this Order. Plaintiff’s failure to do so will result in the closing of this case. 8 9 10 11 12 IT IS SO ORDERED. DATED: August 6, 2013 BARRY TED MOSKOWITZ, Chief Judge United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 13cv289 BTM(JMA)

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