PHYLLIS J. HAMILTON, District Judge.
Before the court are the motions to dismiss filed by defendants Raymond Robert Connor, Kathy Archuleta, and the County of Alameda. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby GRANTS the motions.
On April 27, 2012, pro se plaintiff Winslow C. Rouse filed the complaint in this action, alleging constitutional claims under 42 U.S.C. § 1983, including claims of arrest without probable cause, making of false statements in application for arrest warrant, and failure to disclose exculpatory evidence; and conspiracy to violate civil rights under 42 U.S.C. § 1985; and also alleging state law claims of negligence, malicious prosecution, false arrest and imprisonment, abuse of process, and restitution.
Defendants seek dismissal of the complaint with prejudice, arguing, among other things, that the claims are time-barred, as the events on which the claims are based occurred between 2000 and 2002, and that the claims are barred by res judicata.
Approximately twelve years ago, on May 15, 2000, plaintiff Winslow C. Rouse ("Rouse") was arrested and transported to the Alameda County Jail at Santa Rita, California. The arrest was based on Rouse's possession of a firearm in violation of a domestic violence restraining order that had been issued by the Contra Costa Superior Court on April 18, 2000 at the request of his sister Jeannine Deer ("Deer").
The April 18, 2000 order, which was issued pursuant to California Family Code § 6200, et seq., directed Rouse to stay away from Deer and her then-minor daughter, pending a hearing scheduled for May 12, 2000. The order also contained certain directives restricting Rouse's possession, purchase, and receipt of firearms pending the hearing. After hearing testimony on May 12th, the trial court extended the order and continued the matter to May 19, 2000. At the continued hearing on May 19th, the court granted Deer's request for a three-year restraining order.
A copy of the restraining order is attached as an exhibit to the complaint. The order included a "Firearm Restriction," which provided as follows on page 2:
The order also stated on page 4 in boldface:
Rouse filed a motion to vacate the May 19, 2000 order, and that motion was denied on November 9, 2000. Rouse then filed a notice of appeal, in which he sought review only of the November 9, 2000 order. In a decision filed November 13, 2001, the Court of Appeal affirmed the November 9, 2000 order.
The court indicated that an order can be set aside at any time on the ground that it is void, when the court lacks personal or subject matter jurisdiction, or when it exceeds its jurisdiction in granting relief that it had no power to grant. However, the court asserted, nonjurisdictional errors — such as a failure to state a cause of action, insufficiency of evidence, abuse of discretion, and mistake of law — are "not appropriate procedural targets" for collateral attack within this context.
In this regard, the court found that
On December 24, 2001, Rouse filed a petition for review with the California Supreme Court. Among other things, Rouse argued that issuance of a restraining order that lacked the required statutory language — that the restrained person "is prohibited from owning, possessing, purchasing, or receiving a firearm while the protective order is in effect" — was a jurisdictional error and rendered the restraining order void.
On February 27, 2002, Rouse filed his first petition for a writ of habeas corpus in this court, challenging the lawfulness of the restraining order issued against him. Named as respondents were Dan Lungren, who had been Attorney General of California from 1991 to 1999, and Rouse's sister Jeannine Rouse Deer.
On March 14, 2002, Rouse filed three more habeas petitions — one naming the Alameda County Superior Court and Attorney General Bill Lockyer as respondents, one naming Rouse's ex-wife Suzanne Chen and Bill Lockyer as respondents, and one naming the Contra Costa Superior Court and Bill Lockyer as respondents.
On March 29, 2002, Rouse filed two further habeas petitions — one naming the Superior Court of Alameda County and Bill Lockyer as respondents, and one naming the Contra Costa Superior Court and Bill Lockyer as respondents.
On April 11, 2002, Rouse was convicted by a state court jury of four misdemeanor counts of possession of weapons in violation of California Penal Code § 12021(g)(2). This section (which was repealed in 2011 and re-enacted as of January 1, 2012 as Penal Code § 29825(b)) provides:
Rouse was sentenced to a five-year probationary term, and ordered to serve 180 days in the County Jail as a condition of probation. He was also ordered to pay restitution, and ordered not to own, use, or possess any firearm or other dangerous or deadly weapon. In addition, the court issued a three-year protective order, directing plaintiff to stay away from his sister and her minor child.
At the time of his arrest, Rouse was employed by the County of Alameda. After his arrest, but prior to his conviction, Rouse was terminated from his civil service position with the County, based on the arrest for having violating the firearms provision of the restraining order. At approximately this same time (early 2002), at least two of his co-workers at the Department of Social Services obtained restraining orders because he had been making threats against them.
Rouse subsequently appealed his conviction, arguing that the trial court commissioner had wrongfully issued restraining orders against him without a stipulation by the parties, that the court commissioner's order granting the restraining order after Rouse's arrest but before his conviction was an abuse of discretion, and that the temporary restraining order against Rouse did not prohibit him from owning or possessing firearms and was impermissibly vague. After the appeal was denied on the merits, Rouse pursued state habeas relief. His petition was denied by the California Court of Appeal on December 18, 2003. He also filed a state habeas petition in the California Supreme Court, which was denied on January 20, 2004.
In early 2004, Rouse also filed a petition for a writ of prohibition in this court, naming the Alameda County Superior Court and Bill Lockyer as respondents, and a federal habeas petition, naming Alameda County Sheriff Charles Plummer and Bill Lockyer as respondents.
Meanwhile, after the resolution of his first appeal of the state court order denying his challenge to the May 19, 2000 order, Rouse filed a motion with the Contra Costa Superior Court to set aside as void the May 12, 2000 order on various grounds, including that the firearm prohibition provisions in that order were impermissibly vague. The court denied the motion on August 9, 2002. Rouse filed a notice of appeal in which he sought review of both the August 9, 2002 order and the May 12, 2000 order. On April 30, 2003, the Court of Appeal issued an order affirming the August 9, 2002 order, and dismissing as untimely the appeal of the May 12th order.
The court noted that Rouse had challenged the May 12, 2000 restraining order on the ground that it was "void on its face," but found that because the May 12th order had expired and a reversal would have no practical effect, "any challenge to the order is now moot."
Shortly before the expiration of the May 19, 2000 restraining order, Deer filed an application with the Contra Costa Superior Court to renew the order for an indefinite term. The court granted the request, and issued a new restraining order in favor of Deer and her minor child, and against Rouse, on June 11, 2003. Rouse filed a notice of appeal from the June 11th order, and the Court of Appeal affirmed the order in a decision filed September 28, 2004.
Approximately six years later, Rouse filed another motion with the Contra Costa Superior Court to set aside as void the April 18, 2000 restraining order. The court denied the motion on September 24, 2009, finding "no cognizable legal grounds for `voiding' the April 18, 2000 order." Rouse did not file a notice of appeal of the September 24th order.
On November 6, 2009, however, Rouse filed yet another motion with the Contra Costa Superior Court to set aside as void the April 18, 2000 restraining order. He argued that the order was void on its face because the language in the firearm prohibition provisions was impermissibly vague. He asserted that the motion was both timely and proper because, among other things, "a void order . . . is a nullity, unenforceable, and subject to direct or collateral attack at any time," and that the doctrine of res judicata does not apply to void orders.
At the hearing on December 15, 2009, the court noted that the current motion was the same as the motion that Rouse had filed in July 2009, and earlier motions he had submitted to the courts, and denied the motion. The court also found that it would be appropriate to order Rouse to pay sanctions pursuant to Family Code § 271 (authorizing imposition of sanctions on party or attorney whose conduct frustrates policy of promoting settlement and cooperation in family law litigation), but determined to stay the sanctions order. The court cautioned Rouse, however, that if he filed the same motion again, the sanctions could be reinstituted. On December 18, 2009, the court issued a minute order reflecting its ruling at the hearing.
Rouse filed a notice of appeal from the December 18, 2009 order, seeking reversal on a number of grounds, including that the trial court should have granted his request to vacate as void the April 18, 2000 order. In a decision issued on August 30, 2010, the Court of Appeal affirmed the trial court.
The court also found that even if the November 6, 2009 motion could be viewed as a motion to vacate the trial court's September 24, 2009 order, there would be no basis for reversal, given that the April 18, 2000 order was neither factually nor legally distinguishable from the May 12, 2000 order, and also given that the Court of Appeal in its April 30, 2003 decision had rejected Rouse's collateral attack on the May 12, 2000 order.
The court noted that Rouse had made no argument as to why the Court of Appeal should not apply its April 30, 2003 decision to the April 18, 2000 order, and that his only argument was that a void order may be challenged at any time and res judicata does not apply to void orders. The court held, however, that it was the April 30, 2003 order that had a res judicata effect in the nature of issue preclusion; and, moreover, that because the April 18, 2000 order had expired and a reversal would have no practical effect, any challenge to the April 18, 2000 order was moot.
Finally, the Court of Appeal noted that over the previous ten years, Rouse had filed numerous motions in the trial court, and several appeals attacking the now-expired restraining orders that had been issued against him; and that in earlier decisions, the court had resolved Rouse's challenges to the May 12, 2000 temporary restraining order, and the May 19, 2000 three-year restraining order. The court concluded that because it was finally resolving Rouse's challenges to the April 18, 2000 temporary restraining order, it was "confident that our decision in this appeal brings the matter of [Rouse's] challenges to these expired orders to a final resolution in this court."
On September 13, 2010, Rouse filed a petition for rehearing, which the Court of Appeal denied on September 17, 2010. Rouse then filed a petition for review, which the California Supreme Court denied on November 23, 2010. Five months later, on April 27, 2012, Rouse filed the present action, in which he again seeks to challenge the April 18, 2000 restraining order as unlawful, raising many of the exact arguments he previously raised in his state court actions, although he asserts those arguments in the guise of claims of constitutional violations and state law torts.
In the present complaint, plaintiff alleges that the April 18, 2002 restraining order was "void and unenforceable" because it was issued on a Judicial Council form that provided that "[t]he restrained person is ordered to give up any firearm in or subject to his or her immediate possession or control . . ." and that "[a]ny person subject to a restraining order is prohibited from purchasing or attempting to purchase, receiving or attempting to receive, or otherwise obtaining a firearm; but which lacked the specific language, "The person is prohibited from owning, possessing or attempting to own or possess a firearm" (or alternatively, that the person "is prohibited from purchasing or receiving or attempting to purchase or receive a firearm"). Rouse claims that the form used by the court — California Judicial Council Form DV-110 (New January 1, 1999) — had been "repealed" effective January 1, 2000, when the Legislature had amended Penal Code § 12021 to require that the Judicial Council provide on all protective orders notice that, among other things, the respondent is prohibited from "owning, possessing, purchasing, receiving, or attempting to purchase a firearm while the protective order is in effect."
Rouse claims this language was statutorily required, and that it was required to be in bold print, but that when this form was published in 2000, West Publishing Company failed to include the required language in bold print. Rouse asserts that Form DV-110 (New January 1, 1999) prohibited only "purchasing" or "obtaining" a firearm, but did not include the required notice that the respondent was prohibited from "owning" or "possessing" a firearm, the form was ineffective and the restraining order was therefore void. He claims that the Judicial Council notified defendants three weeks before he was arrested that the form was required to include that language.
Rouse asserts that because the restraining order was void, there was no probable cause to arrest him on May 15, 2000, no probable cause to charge him with unlawful possession of firearms, and no probable cause to jail him following the trial. Rouse alleges that he is entitled to damages because he was wrongfully arrested, imprisoned, maliciously prosecuted, convicted, and incarcerated, and because his civil service employment with the County of Alameda was terminated.
A motion to dismiss under Rule 12(b)(6) tests for the legal sufficiency of the claims alleged in the complaint.
Rule 8(a)(2) requires only that the complaint include a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Specific facts are unnecessary — the statement need only give the defendant "fair notice of the claim and the grounds upon which it rests."
All allegations of material fact are taken as true.
A motion to dismiss should be granted if the complaint does not proffer enough facts to state a claim for relief that is plausible on its face.
When resolving a motion to dismiss for failure to state a claim, the court may not generally consider materials outside the pleadings, although the court may consider a matter that is properly the subject of judicial notice.
Additionally, under the doctrine of incorporation by reference, the court may consider on a Rule 12(b)(6) motion not only documents attached to the complaint, but also documents whose contents are alleged in the complaint, provided the complaint "necessarily relies" on the documents or contents thereof, the document's authenticity is uncontested, and the document's relevance is uncontested.
Defendants argue that all causes of action asserted in the complaint should be dismissed as time-barred. In addition, defendants assert that the § 1983 claims fail to state a claim, as they do not identify any conduct that constitutes a constitutional violation; that the federal claims are barred by
In the opposition, Rouse asserts that the claim is not time-barred because there is no statute of limitations on "void" orders, and that defendants are not entitled to qualified immunity because they were aware that the form used for the restraining order was "void." Rouse argues further that res judicata does not apply to "void" orders, and that the § 1983 claims are therefore not barred by operation of that doctrine. He contends that no court has the jurisdiction to uphold a "void" order, and that to dismiss the complaint in this action would be to "unlawfully affirm the validity of a protective order which is indisputably void and unenforceable."
Rouse also argues that defendants are not entitled to statutory immunity, because state immunity statutes do not apply to claims under § 1983; and that the California Tort Claims Act does not apply to § 1983 claims. Finally, he asserts that
The court finds that the motions must be GRANTED. As an initial matter, the court notes that Rouse does not oppose dismissal of the state law claims based on his failure to file an administrative claim under the California Tort Claims Act, and does not oppose dismissal of the malicious prosecution, abuse of process, and negligence claims based on the statutory immunities provided in California Government Code § 821.6. Accordingly, the state law claims are dismissed on this basis, for the reasons argued by defendants.
Second, all Rouse's claims are untimely. The entire complaint is based on actions that occurred during the period 2000 — 2002. The statute of limitations for claims under § 1983 and § 1985 filed in California is two years.
Third, the § 1983 claims are barred by
Here, in arguing that his arrest was invalid because it was based on a void restraining order, and in arguing that his prosecution and conviction were invalid for the same reason, Rouse is seeking to invalidate his conviction, and the
In his opposition, Rouse argues that once a prisoner has been released and habeas is no longer available, he can bring a § 1983 action to establish the unconstitutionality of his conviction or confinement without being required to satisfy the "favorable termination" requirement. In support of this proposition, he cites a single Ninth Circuit case —
In
The Ninth Circuit vacated the decision, ruling that the parolee could maintain the action without first obtaining a writ of habeas corpus, even though success would have implied the invalidity disciplinary proceedings. The court reasoned that because any petition for habeas relief would have been dismissed for lack of case or controversy, in view of the fact that the parolee was no longer in custody, and because establishing the invalidity of his disciplinary proceeding would have no effect on the additional term of incarceration or the period of administrative segregation that resulted from it, and would also have no effect on the term of his parole, he could proceed with his § 1983 claim.
Here, by contrast, Rouse was free to pursue both direct appeal and habeas relief — which he did, but to no avail. Having failed to invalidate his conviction through those channels, he cannot now seek to accomplish the same end by asserting claims of constitutional violations under § 1983.
Fourth, and most importantly, the entire complaint is barred by res judicata. The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as "res judicata."
Similarly, factual or legal issues necessarily and finally adjudicated in an earlier action or proceeding may be entitled to preclusive effect in a later lawsuit on a different claim. The effect may be to bar relitigation of those issues.
The rules of claim preclusion and issue preclusion apply equally to § 1983 actions in federal courts.
Here, with respect to Rouse's federal claims, all requirements for issue preclusion are met. First, there is an identity of issues. Between 2000 and 2009, Rouse filed a multiplicity of cases and appeals of various sorts in state court, arguing that the April/May 2000 restraining orders were void, and that his arrest, prosecution, and conviction were therefore unlawful. Under federal law, a plaintiff cannot avoid the bar of res judicata merely because he files a new suit alleging conduct by the defendants not alleged in the prior suit, nor because he has pleaded a new legal theory.
Clearly, the premise that underlies all the causes of action asserted in the present complaint — that the restraining order was void because the form used for the issuance of the order did not include the precise statutory language, and that the arrest was therefore not supported by probable cause — arises out of the same nucleus of operative facts as the claims asserted in Rouse's prior actions, and this issue was necessarily decided by the courts in the prior actions.
Second, there has been a final judgment on the merits, as none of the lower state court decisions has been reversed by the California Supreme Court. This is the equivalent of a dismissal with prejudice. The phrase "final judgment on the merits" is often used interchangeably with "dismissal with prejudice."
Third, there is identity or privity of parties. Rouse previously raised claims in numerous habeas petitions challenging his conviction on the basis (1) that Alameda County and the state courts conspired to conceal their long-standing practice of failing to comply with the Family Code § 6304 requirement that a protective order clearly specify that the respondent is prohibited from owning, possessing, purchasing or receiving a firearm or attempting to do so; (2) that his conviction was based on the issuance of a restraining order without sufficient supporting evidence; and (3) that his conviction was based on the issuance of a restraining order that was impermissibly vague and "void on its face" because it contained conflicting language about whether he could possess firearms.
Privity may exist, even when the parties are not identical, if there is substantial identity between the parties, that is, when there is sufficient commonality of interest.
In short, Rouse previously argued to the state courts that the restraining orders were "void" because, among other things, the language in the firearms restriction provision was vague and did not "state on its face" that the restrained person "is prohibited from owning, possessing, purchasing, or receiving a firearm while the protective order is in effect." As described above in some detail in the "Background" section, the state courts have held that none of the restraining orders — neither the April 18, 2000 order, nor the May 12, 2000 order, nor the May 19, 2000 order — was "void" for any reason argued by Rouse.
Moreover, in its August 30, 2010 decision, the California Court of Appeal in
Accordingly, any argument in which Rouse now asserts that the restraining orders are void is barred by res judicata, because he is attempting to relitigate the same issues he previously raised or claims that he could have raised in the state courts because they relate to the same set of facts as his original claims.
Finally, because the court finds that amendment would be futile, the complaint is dismissed with prejudice, and Rouse's request that the court take judicial notice of certain Judicial Council forms and certain minutes and agenda from Judicial Council meetings is denied as moot.
In accordance with the foregoing, defendants' motions are GRANTED, and the action is DISMISSED with prejudice. The June 27, 2012 and July 25, 2012 hearing dates are VACATED.
