BERNARD G. SKOMAL, Magistrate Judge.
This Report and Recommendation is submitted to United States District Judge William Q. Hayes pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c) of the United States District Court for the Southern District of California. On August 9, 2018, Defendant Scott Kernan filed a motion to dismiss Plaintiff Freddie Hughey's complaint on the grounds that Defendant is entitled to qualified immunity on Plaintiff's claim for monetary damages and his injunctive relief request should be dismissed or stayed under the abstention doctrine. (ECF No. 7-1.) On October 11, 2018, Plaintiff filed an opposition. (ECF No. 10.) On October 18, 2018, Defendant filed a reply. (ECF No. 11.)
Additionally, on October 5, 2018, Defendant filed an Ex Parte Motion to take judicial notice and supplement Defendant's Motion to Dismiss, in which Defendant argues that the California Court of Appeal's decision in In re Edwards, 237 Cal.Rptr.3d 673 (Ct. App. 2018) renders Plaintiff's request for injunctive relief moot. (ECF No. 9.) At the Court's direction (ECF No. 12), Plaintiff filed an opposition to the ex parte motion on December 13, 2018. (ECF No. 13.)
For the reasons discussed below,
In the complaint, Plaintiff alleges that pursuant to Proposition 57, inmates who have not been convicted of a violent felony as a primary offense are entitled to early parole consideration after completing the full term of their primary offense. (ECF No. 1 at 3.) He alleges that California Department of Corrections and Rehabilitation ("CDCR") regulations define a violent felony consistently with California law as those listed under California Penal Code § 667.5, but the regulations certified by Defendant Kernan go further and improperly exclude three-strike inmates who are serving life sentences for nonviolent felonies from early parole consideration. (Id. at 3-4.)
Plaintiff claims that he is serving a 29 year life sentence under California's Three Strikes sentencing law for a primary offense that is not defined as a violent felony by the California Penal Code, petty theft. Thus, Plaintiff claims he is eligible for a Proposition 57 early parole hearing. However, he is being denied his right to such a hearing because Defendant Kernan's approved CDCR regulations deny Proposition 57 early parole hearings to life-sentence inmates like Plaintiff. (Id. at 4.)
Plaintiff claims that by implementing CDCR regulations excluding inmates like himself from early parole consideration, Defendant Kernan has violated his Fourteenth Amendment equal protection and due process rights. (Id. 1 at 3-7.) He seeks both monetary damages and injunctive relief. (Id. at 10.)
A defendant may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the claims in the complaint. Id. Federal Rule of Civil Procedure 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief" so as to provide a defendant of "fair notice of what the . . . claim is and the grounds upon which it rest." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 "does not require `detailed factual allegations,' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). "Recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
Further, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). The requirement for facial plausibility is met when the complaint contains "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In reviewing a claim's plausibility, the Court must "draw on its judicial experience and common sense." Id. at 679 (determining plausibility is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense"). A "mere possibility of misconduct" falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The court is "not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994); see Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010) (courts need not accept "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences").
When ruling on a motion to dismiss pursuant to Rule 12(b)(6), courts must assume the truth of the facts presented and construe all inferences from them in the light most favorable to the nonmoving party. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam); Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008). Further, the court may consider allegations contained in the pleadings, exhibits attached to the complaint, and documents and matters properly subject to judicial notice. Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007).
In order to state a claim under 42 U.S.C. § 1983, a plaintiff must plead facts sufficient to show (1) a right, privilege or immunity protected by the Constitution or laws of the United State was violated; and (2) the violation was committed by an individual acting under the color of state law. See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frey, 789 F.3d 1030, 1035-36 (9th Cir. 2015).
Here, Defendant does not argue that Plaintiff fails to state a claim under Section 1983. Instead, he argues Defendant is entitled to qualified immunity on Plaintiff's claim for monetary damages even if he did violate Plaintiff's Fourteenth Amendment rights. (ECF No. 7-1 at 11-13.) Further, he argues Plaintiff's claim for injunctive relief should be stayed or dismissed under Younger v. Harris, 401 U.S. 37, 40-46 (1971) and/or Railroad Commission of Texas v. Pullman Co. ("Pullman"), 312 U.S. 496, 500 (1941) abstention doctrines. (Id. at 14-16.) Further, Defendant argues Plaintiff's request for injunctive relief is now moot based on the California Court of Appeal's decision in In re Edwards, 237 Cal.Rptr.3d 673 (Ct. App. 2018). (ECF No. 9 at 2-3.) The Court addresses each of Defendant's arguments in turn.
As recently reiterated by the Supreme Court, "Qualified immunity attaches when an official's conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." City of Escondido, Cal. v. Emmons, No. 17-1660, 586 U.S. ___, ___ S. Ct. ____, 2019 WL 113027, at *2 (U.S. Jan. 7, 2019) (per curiam) (quoting Kisela v. Hughes, 584 U.S. ____, 138 S.Ct. 1148, 1152 (2018) (per curiam) (internal quotation marks omitted)). It "gives government officials breathing room to make reasonable but mistaken judgments about open legal questions." Ashcroft v. Al-Kidd, 563 U.S. 731, 743 (2011).
When determining whether an officer is entitled to qualified immunity, courts consider (1) whether a constitutional right was violated and (2) whether the right was clearly established at the time of the alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001); Felarca v. Birgeneau, 891 F.3d 809, 815 (9th Cir. 2018). Both requirements must be satisfied for the officer to be liable, otherwise he is entitled to immunity. Further, these two requirements may be addressed in either order. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
The burden is on the party contesting qualified immunity to show that a law was clearly established at the time of an alleged violation. Davis v. Scherer, 468 U.S. 183, 197-98 (1984). To be clearly established, the right's contours must be "sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it." Kisela, 138 S. Ct. at 1553. This inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition." Saucier, 533 U.S. at 201. Thus, "[t]he clearly established right must be defined with specificity." City of Escondido, 2019 WL 113027, at *2. While "caselaw does not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate." Kisela, 138 S. Ct. at 1552. "This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citation omitted). "The `state of the law' was sufficiently clear if it gave `fair warning' to an officer that his conduct was unconstitutional." A.D. v. Cal. Highway Patrol, 712 F.3d 446, 454 (9th Cir. 2013) (citation omitted). Only the "plainly incompetent" officer will not enjoy qualified immunity. Kisela, 138 S. Ct. at 1552 (citation omitted).
Qualified immunity serves only as an immunity in a suit for damages; it is not an immunity from a suit for declaratory or injunctive relief. See Los Angeles Police Protective League v. Gates, 995 F.2d 1469, 1472 (9th Cir. 1993); Am. Fire, Theft & Collision Managers, Inc. v. Gillespie, 932 F.2d 816, 818 (9th Cir. 1991).
Regardless of whether Defendant violated Plaintiff's constitutional rights, the Court must determine if the alleged violation was "clearly established at the time" of the officer's alleged misconduct. See Saucier, 533 U.S. at 201; Felarca, 891 F.3d at 815. The question here is whether, when CDCR's regulations were enacted excluding inmates with life sentences from Proposition 57 early parole consideration, was it clearly established that this would violate inmates like Plaintiff's constitutional rights?
Proposition 57 was approved by the California voters in the November 2016 general election. As relevant here, the test of Proposition 57 states the voters' purposes in approving the measure were to:
Ballot Pamp., Gen. Elec. (Nov. 8, 2016) text of Prop. 57, p. 141 [§ 2]. Proposition 57 added Section 32 of Article I to the California Constitution, which reads:
Cal. Const. art. I, § 32. As shown above, the Amendment did not define the term "nonviolent felony offense." Instead, such definitions and regulatory specifics were left to the discretion of the Secretary of CDCR with the caveat that he must certify that such regulations "protect and enhance public safety." Id. An inmate such as Plaintiff who has been sentenced pursuant to the Three Strikes law must have had it pleaded and proven that he committed one or more prior felonies defined as "violent" or "serious." See Cal. Pen. Code §§ 667(d), 1170.12(b).
Additionally, Defendant could have believed that it was constitutional to determine that inmates serving indeterminate terms could never satisfy the condition precedent, completion of the "full term for his or her primary offense", to trigger the Amendment's application. See Cal. Const. art. I, § 32(a)(1). Arguably, because an indeterminate life sentence does not have a fixed term, an indeterminately sentenced inmate can only serve his full indeterminate term when found suitable for parole. Thus, an inmate serving an indeterminate life sentence would be unable to complete the "full term for his or her primary offense" and would not qualify for early parole consideration.
Further, Plaintiff bears the burden of proving the existence of the right was clearly established by law at the time of the conduct at issue. Davis, 468 U.S. at 197. In his opposition, Plaintiff argues why he believes the regulations are incorrect (ECF No. 10 at 9-11), but he points to no case authority to show that it was "clearly established" that the regulations would violate inmates' constitutional rights at the time of the regulations' enactment.
In addition to his claim for money damages, Plaintiff also requests injunctive relief. Specifically, he requests the Court issue an injunction preventing Defendant "from violating [Plaintiff's] constitutional right to non-violent early parole hearing. . . ." (ECF No. 1 at 10.) In response to that request, and via an ex parte motion, Defendant requests judicial notice be taken of In re Edwards, 237 Cal.Rptr.3d 673 (Ct. App. 2018) pursuant to Federal Rule of Evidence 201(b). (ECF No. 9).
As court orders and filings are proper subjects of judicial notice, Defendant's request for judicial notice (ECF No. 9) is
Defendant argues that the California Court of Appeal's decision in In re Edwards, 237 Cal.Rptr.3d 673 (Ct. App. 2018) moots Plaintiff's request for injunctive relief. (ECF No. 9.) Plaintiff counters that "at least one state court has already ruled that Edwards does not resolve the main issue that has been raised by the plaintiff in another case directly on point." (ECF No. 13 at 2.) He asks the Court to "take notice of In re Quillar, case no. HC23205. . . ." (Id.) However, because Plaintiff fails to specify or attach a specific order to his request, it is unclear exactly what he is asking the Court to take judicial notice of. (See ECF No. 13.) In light of this, the request for judicial notice is
Further, regardless of whether In re Edwards "resolve[d] the main issue" raised in In re Quillar as alleged by Plaintiff (see ECF No. 13 at 2), by finding the regulations Plaintiff takes issue with in his complaint to "impermissibly circumscribe eligibility for Proposition 57 parole by barring relief for [plaintiff] and other similarly situated inmates serving Three Strikes sentences for nonviolent offenses" and voiding them, In re Edwards does moot Plaintiffs' request for injunctive relief. (See ECF No. 1 at 10 [requesting an injunction preventing Defendant "from violating [Plaintiff's] constitutional right to non-violent early parole hearing"].)
As discussed above, Plaintiff argues that CDCR regulations do not comply with Proposition 57 because three-strike inmates with nonviolent offenses are excluded from eligibility for early parole hearings. (See ECF No. 1 at 3-7.) In re Edwards voided the regulatory language Plaintiff takes issue with. See 237 Cal. Rptr. 3d at 682 ("CDCR's adopted regulations impermissibly circumscribe eligibility for Proposition 57 parole by barring relief for Edwards and other similarly situated inmates serving Three Strikes sentences for nonviolent offenses. The offending provisions of the adopted regulations are inconsistent with section 32 and therefore void.").
In light of this holding, CDCR has since enacted emergency regulations "to allow inmates who are incarcerated for a term of life with the possibility of parole for nonviolent offenses to be eligible for parole consideration by the Board of Parole Hearings."
Additionally, Defendant argues that the complaint is barred by the Younger abstention doctrine because it involves ongoing state court proceedings.
Generally, Younger and its progeny direct federal courts to abstain from granting injunctive or declaratory relief when it would interfere with pending state judicial proceedings. Younger, 401 U.S. at 40-41; Samuels v. Mackell, 401 U.S. 66, 73 (1971). The Younger doctrine "reflects a strong policy against federal intervention in state judicial processes in the absence of great and immediate irreparable injury to the federal plaintiff." Moore v. Sims, 442 U.S. 415, 423 (1979). When federal courts disrupt a state court's opportunity to "intelligently mediate federal constitutional concerns and state interests" by "interjecting themselves in[to] such disputes, they prevent the informed evolution of state policy by state tribunals." Id. at 429-30. Accordingly, the Younger doctrine has been expanded to include pending state civil suits in which important state interests are involved. See id. at 423 (citing Huffman v. Pursue, Ltd., 420 U.S. 592 (1975)).
Thus, in the absence of "extraordinary circumstances", abstention is required if the state proceedings (1) are ongoing; (2) implicate important state interests, and (3) provide the plaintiff an adequate opportunity to litigate federal claims. See Middlesex Cty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982); Fresh Int'l Corp. v. Agric. Labor Relations Bd., 805 F.2d 1353, 1357-58 (9th Cir. 1986).
Here, all three requirements for the Younger abstention doctrine are met. First, Plaintiff currently has a petition for writ of habeas corpus pending before the California Court of Appeal, Second Appellate District in which he raises the same issue that he raises in his federal complaint regarding CDCR's Proposition 57 related regulations and their impact on three-strike inmates.
Second, policies concerning prison sentencing and the application of CDCR's newly revised regulations to be in keeping with Proposition 57 implicate important state interests. See Middlesex Cty. Ethics Comm., 457 U.S. at 432 ("Proceedings necessary for the vindication of important state policies or for the functioning of the state judicial system also evidence the state's substantial interest in the litigation."); Vaught, No.18cv300-CAB-JMA, ECF No. 11 at 4 ("The social policy concerning prison sentencing, especially relating to three-strike inmates, is a sensitive area that has traditionally been regulated through state law.") Third, Plaintiff does not provide any facts to suggest that the state court system does not have procedures in place for him to adequately litigate his federal claims. Accordingly, Plaintiff's complaint is barred by the Younger abstention doctrine and the Court
For the reasons outlined above,
