Opinion
Case No. 05 CV 0423 BTM (BLM).
February 16, 2006
REPORT AND RECOMMENDATION FOR ORDER GRANTING DEFENDANTS' MOTION TO DISMISS THE COMPLAINT WITH LEAVE TO AMEND [DOC. NO. 9]
Plaintiff Daniel Nicholas Taze, proceeding in pro se, brings his complaint pursuant to the Civil Rights Act, 42 U.S.C. § 1983. Plaintiff claims that the named state officials' failure (1) to follow various procedures upon notification of his incarceration in Mexico (2) to conduct a parole revocation hearing in a timely manner, and (3) to issue a prompt determination with regard to concurrent sentencing resulted in a de facto revocation of his parole in violation of his Fourteenth Amendment rights.
Upon review of the pleadings and the evidence presented in this case, and for the reasons set forth below, this Court RECOMMENDS that Defendants' Motion to Dismiss the Complaint be GRANTED. Moreover, this Court RECOMMENDS that Plaintiff's request for leave to amend the complaint be GRANTED.
PROCEDURAL BACKGROUND
Plaintiff instituted this action on March 2, 2005, naming as defendants Gray Davis, former governor of the State of California; C.A. Terhune, Director of the California Department of Corrections; Alfred R. Angele, Commissioner of the California Board of Prison Terms; Edward McNair, Chief Deputy Commissioner of the California Board of Prison Terms; and Robert J. Hernandez, Warden of the Richard J. Donovan Correctional Facility (Defendants). Doc. No. 1. On June 13, 2005, Judge Barry Ted Moskowitz authorized Plaintiff to substitute as counsel and appear in pro se. Doc. No. 4. On August 17, 2005, Defendants Terhune, Angele, McNair, and Hernandez moved to dismiss the complaint for failure to state a claim for which relief may be granted. Doc. No. 9. This Court accepted the motion to dismiss for filing and issued a special briefing schedule. Doc. No. 11.On September 14, 2005, Plaintiff filed an ex parte application to enlarge time to file his opposition. Doc. No. 12. In support, Plaintiff represented that he inadvertently miscalculated the date on which he was required to file his opposition under the Local Rules. Doc. Nos. 12-13. On September 14, 2005, this Court granted Plaintiff's ex parte application, allowing him the additional time requested to file his opposition. Doc. No. 14. As such, Plaintiff timely filed his opposition on September 23, 2005. Doc. No. 16. Defendants filed their reply on October 4, 2005, and this Court took the motion under submission pursuant to Civil Local Rule 7.1(d)(1).
FACTUAL BACKGROUND
Plaintiff alleges that he suffered unjustified and unnecessary imprisonment, economic harm, and emotional distress as a result of Defendants' alleged failure to conduct a parole revocation hearing and to render a determination regarding concurrent sentencing in a timely manner. Cmplt. at ¶¶ 19, 31, 33, 38, 40, 46-48. According to Plaintiff, from August 1999 through March 2002, he submitted no less than five written requests that a parole revocation hearing be conducted on his behalf. Id. at ¶¶ 20-23. Because no hearing of any kind was convened until June 3, 2003, Plaintiff contends that Defendants violated his Fourteenth Amendment right to a prompt parole revocation hearing and concurrent sentencing determination. Id. at ¶ 1.
In August 1999, Plaintiff, then on parole from a previous conviction in California, traveled to Tijuana, Mexico. See Plf's Opp. at 2. Soon thereafter, Plaintiff apparently was arrested, convicted of an unidentified crime, and sentenced to an unspecified prison term in Mexico. Cmplt. at ¶¶ 20, 22. During that same month, Plaintiff, through United States Customs officials, informed his parole officer and Defendants Davis, Terhune, Angele, and McNair in writing of his Mexican incarceration. Id. at ¶¶ 20-23; see also Plf's Opp. at 2. In that correspondence, Plaintiff maintains he requested that a warrant for his arrest be executed, and that a parole revocation hearing be conducted on his behalf. Cmplt. at ¶ 23. Plaintiff also contends that he formally waived any right to personal appearance at the hearing, asking that all such proceedings be conducted in abstentia and that a determination be made enabling him to serve his Mexican prison term concurrently with his parole violation sentence. Id. Over the course of the next two and one-half years, Plaintiff claims that he reiterated his request for a parole revocation hearing in abstentia at least four times. Id. at ¶¶ 20-21, 23.
Plaintiff notes that the California Department of Corrections' Parole and Community Services Division was made aware of his Mexican incarceration as early as August 1999. Plf's Opp. at 2.
Plaintiff also states that he notified the California Board of Prison Terms that "he accepted the screening offer." Cmplt. at ¶ 23. Plaintiff, however, does not elaborate on this contention in his complaint, and fails to address same in his opposition. Defendant similarly fails to address this allegation. The Court, however, notes that "[a] `screening offer' tenders to the parolee a specific term of incarceration in exchange for the disposition of the case and a waiver of the parolee's right to have a revocation hearing." Valdivia v. Davis, 206 F. Supp. 2d 1068, 1070 (E.D. Cal. 2002).
In addition to Defendants, Plaintiff claims that he informed the California Adult Authority that he waived his right to personal appearance at the parole revocation hearing. Id.
In particular, Plaintiff alleges that on October 10, 1999, he notified Defendants Davis, Terhune, Angele, and McNair of his location and incarceration through United States Customs agents.Id. at ¶¶ 20-21, 23. Next, in October 2000, Plaintiff states that these Defendants were again informed of these facts by United States Department of Justice Agent V. Viesendez. Id. Finally, Plaintiff insists that these Defendants were similarly alerted by State Department Vice Consuls Michelle Biskup and Lori A. Stubbs, on February 14, 2002 and March 12, 2002, respectively.Id.
On March 3, 2003, Mexican authorities transferred Plaintiff to La Tuna Federal Prison in El Paso, Texas to serve the remainder of his Mexican prison term. Id. at ¶ 24. Upon arrival in Texas, Plaintiff maintains that Federal Bureau of Prisons representatives advised him that the remainder of his Mexican sentence had been discharged, and that his California parole had been suspended. Id. According to Plaintiff, he then was immediately transferred to the custody of the California Department of Corrections, and extradited to California. Id.
On approximately June 3, 2003, Plaintiff appeared at his parole violation hearing, where he was charged with absconding. Id. at ¶ 25. At the conclusion of that hearing, Plaintiff was sentenced to a one-year prison term. Id.; see also Plf's Opp. at 2 (Plaintiff asserts in his opposition that he also was sentenced for possession of a controlled substance.). Plaintiff was released from the custody of the State of California on approximately September 10, 2003. Cmplt. at ¶ 47.
Plaintiff argues that despite his repeated written requests, Defendants knowingly and willfully failed to conduct a parole revocation hearing on his behalf for nearly four years. Id. at ¶¶ 25, 34, 41, 49. Plaintiff contends that after having received multiple notices of his location and status in Mexico, Defendants Terhune, Angele, and McNair disregarded their mandatory duties (1) to execute a warrant for his arrest, (2) to extradite him to California or to waive his extradition, (3) to conduct promptly a parole revocation hearing in abstentia, and (4) to allow him to serve concurrently his Mexican prison term and his parole violation sentence. Id. at ¶¶ 28-30, 37, 44-45. According to Plaintiff, these failures violated his federal due process rights (First Claim) and state due process rights (Second and Third Claims), and resulted in not only his unjustified and unnecessary imprisonment, but also his economic harm and emotional distress.Id. at ¶¶ 31-34, 37-41, 44, 48-49. With regard to remedy, Plaintiff seeks compensatory damages, punitive damages, attorney's fees, and costs. Id. at 5; see also Plf's Opp. at 8.
Plaintiff alleges that Defendant Davis deprived him of his constitutional rights in the same manner. Cmplt. at ¶¶ 27, 31-49. As noted above, Defendants Terhune, Angele, McNair, and Hernandez do not address the allegations asserted against Defendant Davis in the instant motion to dismiss.
Although Plaintiff included compensatory damages in his prayer for relief, he failed to identify the specific monetary amount sought. Cmplt. at 10. In his opposition, however, Plaintiff requests leave to amend his complaint to state the amount of general and special damages sought, namely, one million dollars. Plf's Opp. at 8.
LEGAL STANDARD
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12 (b) (6) tests the legal sufficiency of a claim. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations."Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (quoting Hishon v. King Spalding, 467 U.S. 69, 73 (1984));Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 338 (9th Cir. 1996). In deciding such a motion, the Court accepts as true all material factual allegations of the complaint, including all reasonable inferences to be drawn from them, and construes them in the light most favorable to the non-moving party. See Rhodes v. Robinson, 408 F.3d 559, 563 n. 1 (9th Cir. 2005). Dismissal is proper only where the complaint lacks a cognizable legal theory or fails to allege facts sufficient to support a cognizable legal theory. See Navarro, 250 F.3d at 732 (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)).
In addition, when resolving a motion to dismiss for failure to state a claim, the court generally may not consider materials outside the pleadings. See Schneider v. California Dep't of Corrs., 151 F.3d 1194, 1197 n. 1 (9th Cir. 1998). "The focus of any Rule 12(b) (6) dismissal . . . is the complaint." Id. A court may consider, however, documents attached to the complaint or on which the complaint specifically relies when no party questions the authenticity of those documents. See Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998).
Notably, where a plaintiff appears in propria persona in a civil rights case, the court must be careful to construe the pleadings liberally and to afford plaintiff any benefit of the doubt. See Morrison v. Hall, 261 F.3d 896, 899 n. 2 (9th Cir. 2001) (citing Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988)); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (noting that the rule of liberal construction is "particularly important in civil rights cases"). Nevertheless, when giving liberal interpretation to a pro se civil rights complaint, a court may not "supply essential elements of the claim that were not initially plead."Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Moreover, "[v]ague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.;see also Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984) (explaining that conclusory allegations unsupported by facts are insufficient to state a civil rights claim). In other words, the plaintiff "must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim." Jones, 733 F.2d at 649 (internal citation omitted).
Finally, the court should allow a pro se plaintiff leave to amend his complaint "unless the pleading `could not possibly be cured by the allegation of other facts.'" Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (citing Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc)). Moreover, before dismissing a pro se civil rights complaint for failure to state a claim, the court must provide plaintiff a statement of the complaint's deficiencies, without which the pro se plaintiff will inevitably repeat previous errors. See Karim-Panahi, 839 F.2d at 623-24. Nevertheless, where the amendment of a pro se plaintiff's complaint would be futile, denial of leave to amend is appropriate. See Cahill, 80 F.3d at 339.
DISCUSSION
Defendants Terhune, Angele, McNair, and Hernandez contend that Plaintiff's complaint must be dismissed pursuant to Federal Rule 12 (b) (6) for a number of reasons. See generally Defs' Mem. at 3-9. First, Defendants Terhune, Angele, and McNair insist that the decision of whether and when to conduct a parole revocation hearing and whether to revoke Plaintiff's parole was within their discretion, and that they are protected by absolute immunity from Plaintiff's due process claims when making such decisions. Id. at 3-4. Second, these same three Defendants maintain that they are not bound by the extradition treaty between the United States and Mexico, arguing that because the State of California is not a party to that treaty, they, as officers of that state, cannot be bound by its language or requirements. Id. at 4-5. Third, Defendants Terhune, Angele, McNair, and Hernandez declare that Plaintiff can neither establish a protected liberty interest in having his parole revoked, nor demonstrate that Defendants denied him any right afforded by the United States or California Constitutions. Id. at 5-7.
In their original motion, Defendants asserted two additional grounds for dismissal: failure to allege an actual injury and that a writ of habeas corpus is the correct vehicle for challenging the fact and duration of his confinement. Defs' Mem. at 7-8. In their reply, Defendants abandon both of these arguments (for purposes of the motion to dismiss only). Defs' Reply at 5. Although Defendants provide no justification for the withdrawal of their arguments, the Court assumes that they withdrew their habeas argument based on Plaintiff's representation that he was not challenging the fact and duration of his confinement. Plf's Opp. at 8. However, the complaint clearly alleges that "[b]y the acts and omissions described in this complaint, defendants unjustifiable and unreasonably held plaintiff in custody from March 3, 2003, until September 10, 2003." Cmplt. at ¶ 47. Because Defendants have withdrawn these arguments, this Report and Recommendation will not address them. The Court, however, notes that if Plaintiff files an amended complaint, Plaintiff must establish that his claims are not barred by the doctrine set forth in Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641 (1997).
Defendant Hernandez also argues that the complaint should be dismissed against him because it fails to set forth sufficient details regarding his role in the alleged violations. Id. at 1, 7. Defendant Hernandez asserts that the complaint simply identifies him as Warden of the Richard J. Donovan Correctional Facility, see Cmplt. at ¶¶ 8, 16, and generally alleges that he, along with all other Defendants, deprived Plaintiff of his liberty without due process in violation of the California Constitution. Defs' Mem. at 1; see also Cmplt. at ¶¶ 44, 46-49. Defendant Hernandez highlights that on its face, the complaint fails to include any specific allegation that Defendant Hernandez was notified of Plaintiff's incarceration in Mexico, informed of Plaintiff's requests for a parole revocation hearing, or participated in any decision-making process. Def's Mem. at 1, 7. Defendant Hernandez argues that such vague and conclusory allegations are insufficient to state a claim and warrant the complaint's dismissal against him. Id. at 7.
A. Absolute Immunity
Defendants Terhune, Angele, and McNair argue that they are afforded absolute immunity under both federal and state law when making decisions to grant, deny, or revoke an individual's parole, and therefore are protected against Plaintiff's civil rights claims. Defs' Mem. at 3; see also Defs' Reply at 2. In support, these Defendants explain that their decision whether to revoke parole is a determination functionally comparable to a task performed by judges. Defs' Mem. at 3. They maintain that having assumed such a quasi-judicial role, they are entitled to absolute immunity under federal law from any and all claims challenging the manner in which they exercise this quasi-judicial discretion. Id. (citing Swift v. State of Cal., 384 F.3d 1184, 1189 (9th Cir. 2004)). These Defendants assert that any failure to conduct a parole revocation hearing or refusal to revoke Plaintiff's parole was well within their discretion, and as such, they dispute that Plaintiff's alleged notification of his Mexican incarceration triggered a mandatory duty to commence revocation proceedings. Defs' Mem. at 3; see also Defs' Reply at 2. Moreover, these Defendants insist that state law similarly immunizes public entities and their employees from such liability; they therefore claim an entitlement to absolute immunity on Plaintiff's state due process allegations. Defs' Mem. at 4 (citing Cal. Gov. Code § 845.8 (1995)); see also Defs' Reply at 2-3. These Defendants further declare that any argument by Plaintiff that California law provides immunity only for discretionary acts is incorrect. Defs' Reply at 2-3.
In contrast, Plaintiff argues that qualified and not absolute immunity is presumed sufficient to protect government officials in the exercise of their duties. Plf's Opp. at 5. Plaintiff contends that these Defendants bear the burden of establishing an entitlement to the protections of absolute immunity, which, Plaintiff presumably claims they have not done in this case.Id. Moreover, Plaintiff alleges that California law endows government officials with immunity only where their acts or omissions are the result of the exercise of discretion. Id. (citing Cal. Gov. Code § 820.2 (1995)). According to Plaintiff, the California Code of Regulations imposes upon Defendants a mandatory duty to commence parole revocation proceedings in a timely manner; Plaintiff asserts that Defendants' four-year failure to adhere to these regulations' requirements resulted in the violation of his federal and state rights to due process.Id. at 5-6. (citing Cal. Code Regs. tit. 15 § 2731 (1981); Cal. Penal Code § 669 (1999); In re Shapiro, 14 Cal. 3d 711 (Cal. 1975)).
Although 42 U.S.C. § 1983 does not expressly incorporate an immunity defense, the Supreme Court has repeatedly recognized two types of immunity for government officials under that statute: absolute and qualified. See Kalina v. Fletcher, 522 U.S. 118, 120-31 (1997) (summarizing the doctrines of absolute and qualified immunity); Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993); Imbler v. Pachtman, 424 U.S. 409, 417 (1976). Of these two types of immunity, the presumption is that "qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties." Burns v. Reed, 500 U.S. 478, 486-87 (1991). Notwithstanding this presumption, the Supreme Court has acknowledged that some officials perform "special functions" deserving of absolute protection from damages liability. See Buckley, 509 U.S. at 268-69. "[T]he official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question." Burns, 500 U.S. at 486; Antoine v. Byers Anderson, Inc., 508 U.S. 429, 432 (1993).
When determining whether the particular action of a government official warrants the protections of absolute immunity, the Supreme Court requires a "functional approach." See, e.g., Burns, 500 U.S. at 486. In other words, courts must analyze "the nature of the function performed, not the identity of the actor who performed it." Buckley, 509 U.S. at 269; see also Kalina, 522 U.S. 129-31. Government officials who perform a particular function "critical to the judicial process itself,"see Miller v. Gammie, 335 F.3d 889, 896 (9th Cir. 2003) (citing Imbler, 424 U.S. at 430), or who exercise discretionary judgment functionally comparable to that of judges, are entitled to absolute immunity. See Antoine, 508 U.S. at 436. Nevertheless, because the specific function performed, and not the role or title of the official, is the touchstone of absolute immunity, officials performing the duties of an advocate or judge may enjoy absolute immunity for some, but not all, functions they perform. See Kalina, 522 U.S. at 127.
The policy considerations justifying absolute immunity reflect an "interest in protecting the proper functioning of the office, rather than the interest in protecting its occupant." Kalina, 522 U.S. at 125. To that end, the Ninth Circuit has held that parole board members are entitled to absolute immunity when they perform "quasi-judicial" functions. See Anderson v. Boyd, 714 F.2d 906, 909-10 (9th Cir. 1983), implied overruling on other grounds, Swift v. State of Cal., 384 F.3d 1184 (9th Cir. 2004). Specifically, "parole board officials of the [Board of Prison Terms] are entitled to absolute quasi-judicial immunity for decisions `to grant, deny, or revoke parole' because these tasks are `functionally comparable' to tasks performed by judges." Swift, 384 F.3d at 1189 (citing Sellars v. Procunier, 641 F.2d 1295, 1303 (9th Cir. 1981); Bermudez v. Duenas, 936 F.2d 1064, 1066 (9th Cir. 1991) (holding Sellers immunity encompasses actions "taken when processing parole applications")); see also Allison v. Cal. Adult Auth., 419 F.2d 822, 823 (9th Cir. 1969) (explaining that "state officials are immune from suit under the Civil Rights Act for actions taken in the processing of parole applications"); Silver v. Dickson, 403 F.2d 642, 643 (9th Cir. 1968) (same). Similarly, the Ninth Circuit has extended absolute immunity to parole officials for "tasks integrally related to an official's decision to grant or revoke parole," see Swift, 384 F.3d at 1189, such as the "imposition of parole conditions," and the "execution of parole revocation procedures." Anderson, 714 F.2d at 909. Consistent with the Supreme Court's functional approach, however, parole officials are "not entitled to absolute immunity for conduct not requiring the exercise of quasi-judicial discretion." Id. 1. Appropriate Immunity for Defendants Angele and McNair
In the complaint, Plaintiff alleges that the Defendants violated his due process rights by failing to hold promptly a parole revocation hearing in absentia, by failing to execute an arrest warrant, by failing to extradite Plaintiff or waive his extradition, and by failing to award Plaintiff concurrent sentencing. Cmplt. at ¶¶ 28-30. In his opposition, Plaintiff does not perform a functional analysis with regard to Defendants' immunity claim. However, in subsequent sections of his opposition, Plaintiff attempts to modify the allegations which he claims give rise to the due process violations. In a motion to dismiss, the focus is on the allegations set forth in the complaint.Schneider, 151 F.3d at 1197 n. 1. While the court must accept all material, factual allegations as true and construe them in the light most favorable to the plaintiff, the court may not supply essential elements of the claim that were not pled.Rhodes, 408 F.3d at 563 n. 1; Ivey, 673 F.3d at 1261. Applying the Supreme Court's "functional approach" to the conduct alleged in the complaint, this Court finds that Defendants Angele and McNair, both parole board members, are entitled to absolute immunity.
In his opposition, Plaintiff repeatedly asserts that he is not claiming due process violations based on Defendants' failure to extradite him and/or failure to revoke his parole. Plf's Opp. at 6-8. Rather, Plaintiff contends that the violations are due to Defendants' failures to "carry out their mandatory duty under Penal Code § 669, In Re Shapiro, and Title 15, Cal. C. Reg. § 2731, which resulted in the de facto revocation of Plaintiff's parole without a hearing." Id. These specific allegations are not set forth in the complaint, and therefore, are not addressed nor resolved in this Report and Recommendation.
The Ninth Circuit has held that parole board members are entitled to absolute immunity for "decisions `to grant, deny, or revoke parole'" and for "the `execution of parole revocation procedures,' tasks integrally related to an official's decision to grant or revoke parole." Swift, 384 F.3d at 1189. In reaching this decision, the court contrasted such decisions with those arising from the duty to supervise parolees, which are protected only by qualified immunity. Id. The court also explained that an official who makes the discretionary decision to initiate revocation proceedings is entitled to absolute immunity. Id. at 1192.
In the instant complaint, the alleged unconstitutional conduct involves discretionary decisions about whether to initiate revocation proceedings, when to initiate revocation proceedings, and what sentence is appropriate upon revocation. These decisions are "tasks integrally related to an official's decision to grant or revoke parole." Swift, 384 F.3d at 1189. Indeed, without an initial determination whether to institute parole revocation proceedings, the parole board's ultimate decision to grant, deny, or revoke parole cannot be made. Such a determination by parole board members is inevitably encompassed in those actions taken when processing parole applications, and therefore is a determination absolutely immune from challenge. See Sellars, 641 F.2d at 1303.
Moreover, to the extent that any of the challenged conduct does not constitute part of the decision to grant, deny, or revoke parole, the conduct still requires the exercise of quasi-judicial discretion akin to an advocate's decision to institute legal proceedings, which also is afforded absolute immunity. See Kalina, 522 U.S. at 129-31; see also Imbler, 424 U.S. at 431 (declaring that prosecutors are entitled to absolute immunity in "initiating a prosecution and in presenting the State's case"); In re Castillo, 297 F.3d 940, 951 (9th Cir. 2002) (in the bankruptcy context, explaining that "the scheduling and giving of notice of hearings are part of the judicial function of managing the . . . court's docket in the resolution of disputes" and are functions "unquestionably discretionary in nature");Meyers v. Contra Costa County Dep't of Soc. Servs., 812 F.2d 1154, 1157 (9th Cir. 1987) (characterizing social workers' decisions to institute court dependency proceedings to take custody away from parents as discretionary, quasi-prosecutorial decisions entitled to absolute immunity). Like these other types of advocates, Defendants Angele and McNair, in making the determination to suspend Plaintiff's parole and not to institute parole revocation proceedings until Plaintiff completed his Mexican sentence and was remanded to United States' custody, invoked the power of decision in the judicial sense. See Antoine, 508 U.S. at 437. As such, these Defendants made decisions "`functionally comparable' to tasks performed by judges," Swift, 384 F.3d at 1189 (citing Sellars, 641 F.2d at 1303), or, in the very least, exercised an advocate's judgment. See Kalina, 522 U.S. at 129-31. The fact that these Defendants resolved not to institute parole revocation proceedings as quickly as Plaintiff might have liked does not negate the fact that in doing so, these Defendants exercised quasi-judicial discretion. Having assumed such a quasi-judicial role with regard to these particular functions, Defendants Angele and McNair are entitled to absolute immunity from Plaintiff's claims. 2. Appropriate immunity for Defendant Terhune
This conclusion is equally correct with regard to Plaintiff's state due process claims. See Cal. Gov't Code § 845.8(a) (1995) (explaining that "[n]either a public entity nor a public employee is liable for [a]ny injury resulting from determining whether to parole or release a prisoner or from determining the terms and conditions of his parole or release or from determining whether to revoke his parole or release.");see also Swift v. Dep't of Corrs., 11 Cal. Rptr. 3d 406, 409 (Cal.Ct.App. 2004) (noting that section 845.8 "has been interpreted to provide immunity to a parole officer for making discretionary decisions and for taking action as a parole officer which ultimately leads to the revocation of a person's parole").
As an initial matter, this Court acknowledges that California's parole system is implemented by two distinct entities: the California Department of Corrections (CDC) and the California Board of Prison Terms (BPT). See Swift, 384 F.3d at 1190. The CDC "is authorized to supervise parolees and to detain them pending a revocation hearing . . . while the [BPT] makes the decision as to whether or not to revoke parole." Swift, 11 Cal. Rptr. 3d at 410.
In this case, one of the officials whom Plaintiff has sued is C.A. Terhune, Director of the CDC. As Director, Defendant Terhune is the CDC's chief administrative officer charged with "the supervision, management, and control of the state prisons, and [responsible] for the care, custody, treatment, training, discipline, and employment of persons confined therein." 49 Cal. Jur. 3d Penal, Etc., Institutions One II A Refs. (citing 49 Cal. Jur. 3d Penal, Etc., Institutions § 7 (enumerating the powers and duties of the CDC's director)). Within this extensive list of duties and responsibilities, noticeably absent is any indication that the CDC's director plays any role in the parole revocation process. In fact, to the extent that this list encompasses all duties performed by Defendant Terhune in his capacity as CDC Director, those "functions" appear relegated solely to parolee supervision, which, as noted above, are functions that cannot benefit from the protections of absolute immunity. See Swift, 384 F.3d at 1191; Anderson, 714 F.2d at 909-10.
However, in determining whether Defendant Terhune is entitled to absolute immunity, this Court is obligated to examine the functions allegedly performed by Defendant Terhune, not merely his title. See, e.g., Burns, 500 U.S. at 486; Buckley, 509 U.S. at 269 (the functional approach requires the court to analyze the nature of the function performed, not the identity of the actor who performed it). In his complaint, Plaintiff asserts that Defendant Terhune violated Plaintiff's rights by engaging in the same conduct as Defendants Angele and McNair. Compare Cmplt. at ¶ 28 with ¶¶ 29-30. Specifically, Plaintiff states that Defendant Terhune failed to conduct promptly a parole revocation hearing, failed to execute a warrant for his arrest, failed to extradite Plaintiff or waive his extradition, and failed to provide concurrent sentencing. Cmplt. at ¶¶ 28, 37, 44-45. These are precisely the same failures Plaintiff asserts against Defendants Angele and McNair. Id. at ¶¶ 29, 30, 37, 44-45.
In light of these considerations, this Court finds that Defendant Terhune is absolutely immune from Plaintiff's claims for the same reasons Defendants Angele and McNair are so immune. Assuming Defendant Terhune performed those functions attributed to him in Plaintiff's complaint, Defendant Terhune, like Defendants Angele and McNair, exercised quasi-judicial discretion in determining whether and when to institute parole revocation proceedings and the terms of any revocation. As explained above, officials exercising such quasi-judicial decisions are absolutely immune from suit because these decisions are "tasks integrally related to an official's decision to grant or revoke parole,"see Swift, 384 F.3d at 1189, or alternatively, functions requiring the exercise of judgment akin to that engaged in by judges. Id. (citing Sellars, 641 F.2d at 1303). As a result, Defendant Terhune is entitled to absolute immunity from Plaintiff's claims.
Although the instant motion is not made on behalf of Defendant Gray Davis, the Court notes that Plaintiff asserts essentially the same allegations against Defendant Davis. Specifically, Plaintiff alleges that Defendant Davis violated his rights by failing to execute the warrant for Plaintiff's arrest and by failing to extradite Plaintiff or grant Plaintiff's waiver of extradition. Cmplt. at ¶ 27.
In conclusion, Defendants Terhune, Angele, and McNair correctly argue that any failure to institute parole revocation proceedings promptly, and to render a determination with regard to concurrent sentencing was well within their quasi-judicial discretion as arbiters of the California parole system. As a result, this Court determines that these Defendants have met their burden of showing they are protected by absolute immunity from any and all claims challenging the manner in which they exercised this quasi-judicial discretion. Consequently, this Court RECOMMENDS that the instant motion to dismiss for failure to state a claim be GRANTED as to Defendants Terhune, Angele, and McNair on grounds that they are entitled to absolute immunity for the conduct alleged in the complaint.
B. The Extradition Treaty between the United States and Mexico
Defendants Terhune, Angele and McNair argue that to the extent that Plaintiff's complaint alleges that they violated Plaintiff's due process rights by failing to effectuate his extradition to California in order for him to attend parole revocation proceedings and/or to serve his Mexican sentence in an American prison, it fails to state a claim. Defs' Mem. at 4. Although not referenced in Plaintiff's complaint (except potentially in the paragraph relating solely to Defendant Davis), Defendants assume that Plaintiff intended to implicate the Extradition Treaty Between the United States of America and the United Mexican States, May 4, 1978, 31 U.S.T. 5059, in support of this claim.Id. Defendants argue that their failure to seek extradition under this treaty is not actionable under 42 U.S.C. § 1983 because California is not a party to that treaty, and therefore California officials are not bound by its requirements. Id. at 4-5 (citing Hogan v. Koenig, 920 F.2d 6 (9th Cir. 1990)). Moreover, these Defendants assert that even where the California Government Code provides for the transfer of offenders between the United States and a foreign country, see Cal. Gov't Code § 12012.1, the California official appointed to authorize such transfers also is endowed with the discretion to approve or deny them. Defs' Mem. at 5 n. 1; see also Cal. Code Regs. tit. 15 2870 (2006). As such, these Defendants maintain that regardless of whether Plaintiff was eligible to request this type of transfer, it was within their discretion to approve or deny his request. Defs' Mem. at 5 n. 1 (citing United States ex rel. Rickard v. Sternes, 149 F. Supp. 2d 437, 447 (N.D. Ill. 2001) for the proposition that there exists no constitutional right to a transfer between prisons).
In response, Plaintiff emphasizes that the gravamen of his complaint is not that Defendants failed to extradite him from Mexico. Plf's Opp. at 6. Instead, Plaintiff explains that his claims are predicated on Defendants' failure to execute their mandatory duties under both statutory authority and case law, a failure that Plaintiff insists resulted in the de facto revocation of his parole without a hearing. Id. (citing Cal. Code Regs. tit. 15 § 2731 (1981); Cal. Penal Code § 669 (1999);In re Shapiro, 14 Cal.3d 711 (Cal. 1975)). Plaintiff also argues that while Defendants may not be under any affirmative requirement to extradite inmates from foreign countries to the United States, Defendants are, as California officials, bound by the United States Constitution to enforce all treaties as "the supreme Law of the Land." Plf's Opp. at 3, 7 (citing U.S. Const. art. VI, cl. 2). However, despite Plaintiff's statements in his opposition, Plaintiff's complaint clearly alleges that Defendants violated his constitutional rights by "failing either to extradite Plaintiff or waive his extradition." Cmplt. at ¶¶ 28-30, 37.
Defendants correctly argue that as California officials they are not bound by the extradition treaty between the United States and Mexico. As the Ninth Circuit instructed in Hogan v. Koenig, 920 F.2d 6, 8 (9th Cir. 1990), the State of California, along with its prison officials, are bound by neither the treaty's language nor requirements because the state, and therefore, its officials, are not parties to the treaty. In other words, the treaty may bind federal prison officials, but it expresses no limitations that California prison officials must follow. Id. As a result, any argument by Plaintiff that these Defendants disregarded a mandatory duty to extradite him to California in violation of his due process rights is therefore without merit. Consequently, Defendants are correct that their failure to seek Plaintiff's extradition is not actionable under 42 U.S.C. § 1983.
See, e.g., Preamble, 31 U.S.T. 5059 ("The Government of the United States of America and the Government of the United Mexican States; Desiring to cooperate more closely in the fight against crime and, to this end, to mutually render better assistance in matters of extradition; Have agreed as follows. . . .") (emphasis added).
Accordingly, this Court RECOMMENDS that Defendants Terhune, Angele, and McNair's motion to dismiss Plaintiff's complaint be GRANTED to the extent that it alleges violations for Defendants' failure to extradite Plaintiff from Mexico to California.
C. Liberty Interests
In his complaint, Plaintiff does not clearly identify the due process rights that he alleges were violated. As previously stated, Plaintiff asserts in his complaint that Defendants violated his rights by not executing an arrest warrant and extraditing him from Mexico to California, by not initiating parole revocation proceedings in absentia, and by not awarding him concurrent sentencing. Cmplt. at ¶¶ 28-31. In his opposition, however, Plaintiff attempts to modify these allegations and states that the "gravaman of Plaintiff's complaint is not that Defendants failed to revoke his parole." Plf's Opp. at 7. Rather, Plaintiff argues, his complaint is that Defendants failed to carry out their allegedly mandatory duties "to discharge parolee, refer parolee for supervision in the other jurisdiction or schedule revocation proceedings." Id. (citing Cal. Code Regs. tit. 15 § 2731 (1981); Cal. Penal Code § 669 (1999); In re Shapiro, 14 Cal.3d 711 (Cal. 1975)). Plaintiff further alleges that this resulted in a "de facto revocation of Plaintiff's parole without a hearing in violation of his due process rights."Id. Liberally construing Plaintiff's complaint, it appears that he is alleging violations of his procedural due process rights.
1. Federal Liberty Interest
The Fourteenth Amendment provides in part that "[no] State [shall] deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. When examining questions of procedural due process, federal courts analyze "two distinct elements: (1) a deprivation of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural protections." Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003); see also McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002); Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998). Those interests that constitute "liberty" and "property" for Fourteenth Amendment purposes are not unlimited; the interest asserted must involve more than "an abstract need or desire,"Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972), and must be rooted in more than "a unilateral hope." Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 465 (1981). In short, an individual complaining of a deprivation of a protected liberty interest must have a legitimate claim of entitlement to that interest. See Ky. Dep't of Corrs. v. Thompson, 490 U.S. 454, 460 (1989). Accordingly, this Court must begin its analysis by determining whether Plaintiff has a constitutionally protected liberty interest.
a. Liberty Interest in Parole Revocation
Defendants argue that Plaintiff cannot establish a federal liberty interest in having his parole revoked, and as such, cannot state a claim for which relief can be granted under 42 U.S.C. § 1983. Defs' Mem. at 5. In support, Defendants note that while the Supreme Court has expressly denied any entitlement to a liberty interest in parole, that Court has acknowledged that a state may create such a liberty interest through the "unique structure and language" of its parole statutes. Id. at 5-6 (citing Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 12 (1979); Bd. of Pardons v. Allen, 482 U.S. 369, 371 (1987) (instructing that mandatory language in a parole statute can create an expectancy of release and thus create a protected liberty interest)). According to Defendants, California's parole statutes contain discretionary revocation authority and do not create a federal liberty interest in having an individual's parole revoked. Defs' Mem. at 6 (highlighting that under Cal. Admin. Code tit. 15 § 2615 the BPT "is authorized to revoke parole in any case where the parolee has violated parole.").
The California parole authority is endowed with "full power to suspend or revoke any parole, and to order returned to prison any prisoner upon parole." Cal. Penal Code § 3060 (1992);see also Cal. Admin. Code tit. 15 § 2615 (1996). For example, after a final revocation hearing at which a parolee is found in violation of the conditions of his parole, the parole authority hearing panel may make any "appropriate decision necessary to handle the violation." Cal. Admin. Code tit. 15 § 2646 (2001). Such "appropriate decision[s]" may include, among others, continuing the parolee on parole, referring the parolee to a community program or facility, returning the parolee to custody, and discharging the parolee entirely. Id. at § 2646(c) (1)-(6). Given this broad discretion in parole authority officials, this Court cannot conclude that the "unique structure and language" of California's statutes related to parole revocation create "a liberty interest protected by due process guarantees" of the sort contemplated by the Supreme Court in Greenholz. Greenholz, 442 U.S. at 12. As drafted, California's parole revocation statutes fail to impose substantive limitations on the exercise of its officials' discretion. Id. at 11-12. In fact, the statutes impose little restriction on these officials' discretion at all. Absent any authority to the contrary, this Court cannot recognize in Plaintiff a constitutionally protected federal liberty interest in parole revocation. Accordingly, this Court finds that Plaintiff has no legitimate claim of entitlement to parole revocation the deprivation of which would give rise to a federal due process claim.
This expansive power to revoke parole is similarly vested in the Governor. See Cal. Penal Code § 3062 (1992).
b. Liberty Interest in Parole Revocation Hearing
In his opposition, Plaintiff states that he is not claiming due process violations based on the revocation of his parole; he is asserting violations based on Defendants' failure to carry out their allegedly mandatory duties "to discharge parolee, refer parolee for supervision in the other jurisdiction or schedule revocation proceedings." Plf's Opp. at 7 (citing Cal. Code Regs. tit. 15 § 2731 (1981); Cal. Penal Code § 669 (1999); In re Shapiro, 14 Cal.3d 711 (Cal. 1975)). Defendants do not address this aspect of Plaintiff's argument.
Neither party cited any law addressing whether Plaintiff had a liberty interest in a timely parole revocation hearing. However, in the right to parole context, the Supreme Court, while denying any constitutional entitlement to parole, acknowledged that the "unique structure and language" of a state's early release statutes can create "a liberty interest protected by due process guarantees." Greenholz, 442 U.S. at 7, 12; see also Allen, 482 U.S. at 373. The Court explained that where a state parole statute incorporates mandatory language imposing substantive limitations on the exercise of an official's discretion, that statute creates in a prisoner a protected liberty interest in parole release. Id. at 11-12. In contrast, where a state parole statute merely holds out the possibility of parole, then no such liberty interest in a prisoner is created.Id.
Although not stated, cited, or otherwise pled in his complaint, Plaintiff alleges in his opposition that Defendants had mandatory duties under Title 15 Cal. C. Reg. § 2731, which they failed to satisfy. Section 2731 provides in pertinent part:
(b) Board Action. When an absconder report is submitted, the board at the central office calendar shall review the report and suspend parole. . . . The suspend action authorizes the board to issue a warrant for the parolee's arrest if the parolee's whereabouts are unknown or to place a California detainer if he is in the custody of another jurisdiction.
(c) Absconder Located. (2) Board Action. (B) Located Outside California.
1. General. If the absconder is located in another jurisdiction the board at the central office calendar shall determine whether the parolee should be discharged, referred for supervision in the other jurisdiction or scheduled for revocation proceedings as provided in this subsection.
4. Revocation Proceedings Scheduled.
b. Criminal Prosecution. If the parolee is undergoing criminal prosecution in the other state and waives extradition, department staff shall notify him that he may unconditionally waive the revocation hearing (s 2651). If the parolee waives the hearing the board action shall include a reinstate action to reinstate the parole period effective the date of the absentia hearing. If the board orders parole revoked the parolee shall receive credit on the revocation period for any time in custody after the effective date of reinstatement.
Cal. Code Regs. tit. 15 § 2731. The statute repeatedly states that the board "shall" take various actions, which potentially creates mandatory duties for the board and potentially could create protected interests in Plaintiff. However, the complaint does not adequately assert such interests, nor does it tie the named Defendants to the alleged unconstitutional conduct.
The Court notes that this argument, taken to its logical conclusion, would necessarily challenge the fact and duration of Plaintiff's confinement. Plaintiff denies in his opposition that he is making such an argument. Plf's Opp. at 8. If Plaintiff amends his complaint, he needs to identify clearly the constitutional violations he is asserting, the factual basis supporting such violations, and the resulting damages.
c. Whether Plaintiff Was Afforded Adequate Procedural Protections
Although parole revocation does not require all the rights afforded a defendant in criminal proceedings, parolees are entitled to certain minimal due process before their parole can be rightfully revoked. See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (declaring that "the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations"). In Morrissey, the Supreme Court enunciated the standards and procedures to be followed in proceedings to revoke parole. Morrissey, 408 U.S. 471, 485-89. Specifically, theMorrissey Court instructed that before parole may be revoked, a preliminary hearing before an independent hearing officer must be held to determine whether probable cause exists to believe that the parolee has in fact violated the conditions of his parole. Id. at 485-87. If after this preliminary hearing probable cause is found, a second, more formal hearing is required to evaluate the alleged violations and to decide whether the evidence warrants revocation. Id. at 488.
Four years after it issued its ruling in Morrissey, the Supreme Court clarified that where a parolee has already been convicted of a new crime, the need for the preliminary hearing required by Morrissey no longer exists because the subsequent conviction provides the requisite cause to believe that the parolee violated the terms of his parole. See Moody v. Daggett, 429 U.S. 78, 86 n. 7 (1976); see also Heinz v. McNutt, 582 F.2d 1190, 1194 (9th Cir. 1978) (reasoning that where an individual has been convicted of a new crime while on parole, "a preliminary hearing is not required because conviction of a new crime provides probable cause that a parole violation occurred").
According to the Morrissey Court, this more formal hearing "must be tendered within a reasonable time after the parolee is taken into custody." Morrissey, 408 U.S. at 488. Specifically, the Court reasoned that a lapse of two months between the date on which a parolee is taken into custody and the date on which the formal hearing is held was not unreasonable.Id.
At the latter formal hearing, the Morrissey Court continued that the "parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation." Id. Moreover, the formal parole revocation hearing must comply with certain procedural requirements, including:
(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation; (e) a `neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.Id. at 489. Finally, the decision to revoke parole must be supported by some evidence having an indicia of reliability.See Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985); Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987).
In this case, Plaintiff does not allege that he was deprived of a right to a preliminary hearing to determine whether there exists sufficient probable cause that he violated the conditions of his parole. Indeed, Plaintiff cannot successfully argue such a deprivation, due to the Supreme Court's clarification that a subsequent conviction provides probable cause and therefore obviates the need for such a hearing. See Moody, 429 U.S. at 86 n. 7. Similarly, Plaintiff does not allege that he was deprived of a second, formal parole revocation hearing as required by Morrissey. In fact, Plaintiff acknowledges that he was provided such a parole revocation hearing on approximately June 3, 2003. Cmplt. at ¶ 25; see also Plf's Opp. at 2. At this June 3, 2003 hearing, Plaintiff does not allege that he was denied the opportunity to be heard, to review the evidence of the parole violations asserted against him, to confront and cross-examine adverse witnesses, or any other such procedural requirements due under Morrissey. Moreover, Plaintiff does not allege that the parole revocation board lacked neutrality or that it failed to provide him with the evidence relied upon or with the reasons for revoking his parole upon his return from Mexico. In short, Plaintiff does not offer any facts in support of any deprivation of his procedural due process rights mandated by Morrissey.
In his opposition, Plaintiff clarifies that his only complaint is that the Defendants did not comply with their mandatory duties set forth in section 2731. However, Plaintiff does not provide legal authority for the proposition that that section is applicable to parolees held on new charges in a foreign country or that an immediate hearing is required in such situations. Moreover, Plaintiff fails to explain which aspects of the statute were violated and how the alleged unconstitutional conduct caused him damage. More importantly, the complaint does not adequately assert these facts and this violation.
In conclusion, Plaintiff's complaint, as filed, fails to plead adequately a due process violation. Plaintiff fails to identify adequately the rights allegedly violated, the methods by which that violation occurred, and the actions of the specific Defendants that caused the violation. As a result, Plaintiff has not stated a claim for a procedural due process violation under 42 U.S.C. § 1983. Accordingly, this Court RECOMMENDS that Defendants' motion to dismiss be GRANTED as to the federal due process violation allegations.
2. State Liberty Interest
Defendants and Plaintiff make essentially the same arguments regarding state liberty interests as they did for federal liberty interests.
The California Constitution provides in pertinent part: "[a] person may not be deprived of life, liberty, or property without due process of law. . . ." Cal. Const., art. I, § 7 subd. (a). InPeople v. Ramirez, 25 Cal. 3d 260 (Cal. 1979), the Supreme Court of California, reviewing the scope of the due process clauses of the California Constitution, reasoned that "application of the clauses must be determined in the context of the individual's due process liberty interest in freedom from arbitrary adjudicative procedures." Ramirez, 25 Cal. 3d at 263-64. In light of this determination, the Court instructed that
when a person is deprived of a statutorily conferred benefit, due process analysis must start not with a judicial attempt to decide whether the statute has created an "entitlement" that can be defined as "liberty" or "property," but with an assessment of what procedural protections are constitutionally required in light of the governmental and private interests at stake.Id. According to the Ramirez Court, such an approach illuminates the critical issue of "what procedural protections are warranted" given "governmental and private interests." Id. at 268; see also Schultz v. Regents of Univ. of Cal., 206 Cal. Rptr. 910, 919 (Cal.Ct.App. 1984) (recognizing that "under the California Constitution `freedom from arbitrary adjudicative procedures is a substantive element of one's liberty' so that `when an individual is subjected to deprivatory governmental action, he always has a due process liberty interest both in fair and unprejudiced decision-making and in being treated with respect and dignity.'") (citation omitted). Accordingly, when analyzing procedural due process claims under the California Constitution, this Court must begin with an assessment of the minimum procedural protections afforded Plaintiff in the parole revocation context.
California case law is clear that the requirement of procedural due process embodied in the California Constitution places some limitations upon the broad discretionary authority of the BPT with regard to parole revocation proceedings. Rosenkranz, 29 Cal. 4th at 655; see also In re Scott, 15 Cal. Rptr. 3d 32, 51-52 (Cal.Ct.App. 2004). In particular, due process in the parole revocation context requires the standards articulated and minimum requirements announced in Morrissey. See In re LaCroix, 115 Cal. Rptr. 344, 347-52 (Cal. 1974) (applyingMorrissey requirements to preliminary hearing and final parole revocation hearing proceedings); In re Morales, 43 Cal. App. 3d 243, 246-50 (Cal.Ct.App. 1974) (analyzing Morrissey factors);In re Melendez, 112 Cal. Rptr. 755, 759-60 (Cal.Ct.App. 1974) (same). In other words, the minimum requirements of process that apply to Plaintiff's federal due process claims equally apply to Plaintiff's state due process claims. As a result, this Court's analysis of Plaintiff's state due process claims mirrors its examination of Plaintiff's federal due process claims. Accordingly, for the reasons explained more fully above, this Court finds that Plaintiff has failed to allege adequately in his complaint a procedural due process violation under the California Constitution.
For the foregoing reasons, this Court RECOMMENDS that Defendants' motion to dismiss be GRANTED as a result of Plaintiff's failure to plead facts sufficient to articulate a claim for a procedural due process violation under the California Constitution.
3. Claims Against Defendant Hernandez
Defendant Hernandez also asserts that both Plaintiff's complaint and his opposition fail to present any specific claim of Defendant Hernandez's involvement in the deprivation of rights allegedly suffered by Plaintiff. Defs' Mem. at 7; see also Defs' Reply at 4. According to Defendant Hernandez, such an omission necessitates the complaint's dismissal against him.Id. (citing Ivey, 673 F.2d at 268 (instructing that "[v]ague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.")). Defendant Hernandez also highlights that Plaintiff equally fails to demonstrate that Defendant Hernandez was the actual and proximate cause of Plaintiff's injuries. Defs' Mem. at 7; see also Defs' Reply at 4. For these reasons, Defendant Hernandez contends that Plaintiff's complaint against him should be dismissed. Id.
Other than a cursory statement that the allegations set forth in his complaint are sufficiently specific to enable Defendants to prepare their defense, Plaintiff does not formally address Defendants' argument with regard to Defendant Hernandez. Plf's Opp. at 2.
As this Court has noted, the standard used to evaluate a motion to dismiss is a liberal one, particularly where, as here, an action has been filed pro se. See Ivey, 673 F.2d at 268. Nevertheless, a court's liberal interpretation of a civil rights complaint cannot include supplying an essential element of the claim not initially pled by the pro se plaintiff. Id. Moreover, conclusory allegations unsupported by facts are insufficient to state a civil rights claim, regardless of whether the claimant appears in pro se. See Jones, 733 F.2d at 649.
In this case, the complaint merely alleges that Defendant Hernandez is both the Warden of the Richard J. Donovan Correctional Facility and a resident of the State of California. Cmplt. at ¶ 8. The complaint alleges that Defendant Hernandez acted within the scope of his employment at all times relevant to the events described therein. Id. at ¶ 16. The complaint further alleges that Defendant Hernandez, along with the other Defendants, by act and omission deprived Plaintiff of his liberty without due process of law in violation of the California Constitution. Id. at ¶¶ 44-49. The complaint is devoid, however, of any specific factual claim establishing Defendant Hernandez's personal participation in the deprivation of rights alleged. In fact, Plaintiff not only fails to provide specific assertions that Defendant Hernandez denied him that process required by the California Constitution, but also falls short of showing any direct connection between Defendant Hernandez's acts or omissions and the alleged deprivation of rights. As such, as drafted, Plaintiff's complaint is insufficient to state a claim against Defendant Hernandez under 42 U.S.C. § 1983. See Jones, 733 F.2d at 649 (explaining that conclusory allegations unsupported by facts are insufficient to state a civil rights claim).
Because Plaintiff's allegations with regard to Defendant Hernandez are not supported by reference to any specific acts, omissions, or participation in the due process violations asserted, this Court RECOMMENDS that Defendants' request that the complaint be dismissed as to Defendant Hernandez be GRANTED. D. Plaintiff's Request for Leave to Amend
In his conclusion, Plaintiff requests leave to amend his complaint in the event the court determines that it is defective as drafted. Plf's Opp. at 9. In support, Plaintiff notes that a court entering a dismissal for failure to state a claim has the discretion to grant leave to amend. Id. (citing Frasier v. Gen. Elec. Co., 930 F.2d 1004 (2d Cir. 1991)). Plaintiff underlines that absent undue prejudice to the defendant, a court's refusal to grant leave has been ruled an abuse of discretion. Id.
As discussed above, this Court finds that the allegations and legal theories set forth in Plaintiff's complaint differ from those set forth in Plaintiff's opposition. Because Plaintiff is proceeding pro se and neither document clearly sets forth Plaintiff's legal claims, the factual basis for those claims, and the requested damages, this Court RECOMMENDS that Plaintiff's request for leave to amend his complaint be GRANTED.
CONCLUSION
Based on the foregoing, this Court RECOMMENDS that Defendants' Motion to Dismiss the Complaint be GRANTED. This Court also RECOMMENDS that Plaintiff's request for leave to amend the complaint be GRANTED.This Report and Recommendation of the undersigned Magistrate Judge is submitted to the United States District Judge assigned to this case, pursuant to the provision of 28 U.S.C. § 636(b)(1).
For all the foregoing reasons, IT IS HEREBY RECOMMENDED that the District Court issue an Order: (1) approving and adopting this Report and Recommendation, (2) directing that Judgment be entered granting in part and denying in part Defendants' Motion to Dismiss the Complaint [Doc. No. 9], and (3) granting Plaintiff leave to amend the complaint.
IT IS HEREBY ORDERED that any written objections to this Report must be filed with the Court and served on all parties no later than March 3, 2006. The document should be captioned "Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than March 17, 2006. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appear of the Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998).