Ewing v. Superior Court of Cal.

• Citation: 90 F.Supp.3d 1067
• Decision Date: 11 March 2015
• Docket Number: Case No. 13–cv–01577–BASBLM.
• Court: U.S. District Court — Southern District of California
• Parties: Anton EWING, Plaintiffs, v. SUPERIOR COURT OF CALIFORNIA, et al., Defendants.

90 F.Supp.3d 1067

Anton EWING, Plaintiffs

v.SUPERIOR COURT OF CALIFORNIA, et al., Defendants.

Case No. 13–cv–01577–BASBLM.

United States District Court, S.D. California.

Signed March 11, 2015.

Anton A. Ewing, San Diego, CA, pro se.

Stephanie E. Kish, San Diego, CA, Jonathan M. Eisenberg, Office of the California Attorney General, Los Angeles, CA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS

CYNTHIA BASHANT, District Judge.

Plaintiff Anton Ewing (“Plaintiff”) commenced this civil rights action on July 5, 2013. (ECF No. 1.) On August 2, 2013, Plaintiff filed a First Amended Complaint (ECF No. 7 (“FAC”)) against Defendants Bonnie Dumanis, Kamala D. Harris, and William Gore (collectively “Defendants”) under 42 U.S.C. § 1983 alleging violations of his rights under the First and Fourteenth Amendments to the United States Constitution. Defendants now move to dismiss the FAC pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (ECF Nos. 18, 19.)

The Court finds these motions suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the following reasons, the Court GRANTS Defendants' motions to dismiss (ECF Nos. 18, 19).

I. BACKGROUND

A. State Court Criminal Case¹

Plaintiff was charged with four counts of stalking in violation of California Penal Code section 646.9(a) and four counts of extortion in violation of California Penal Code section 523, one count for each of four victims. (10/12/12 Opinion at p. 1 FAC at p. 7.) Plaintiff moved to dismiss the counts filed under section 646.9(a) alleging they were a valid exercise of his constitutional right to free speech. (10/12/12 Opinion at p. 2.) The San Diego Superior Court denied the motion. (Id. )

Plaintiff then pled guilty to one count of stalking under section 646.9(a) with respect to victim Robert Cross, admitting as a factual basis that Plaintiff “repeatedly contacted and harassed [the] victim in an attempt to collect a debt with intent to place[that] person in fear.” (Id.; FAC at pp. 7–8.) Following his guilty plea, the Superior Court sentenced Plaintiff to two years in custody. (10/12/12 Opinion at p. 1 FAC at p. 8.)

Plaintiff appealed the conviction claiming “his communications were protected speech under the First Amendment to the federal Constitution.” (10/12/12 Opinion at p. 3.) In his appeal, Plaintiff argued: (1) under the First Amendment, the “credible threat” provision of section 646.9 must be construed as requiring proof of a “true threat;” (2) the prosecution failed to show a “true threat” and thus his conviction was unconstitutional; and (3) his communications served legitimate purposes and thus were protected under the First Amendment. (10/12/12 Opinion at p. 7.) The Court of Appeal rejected these arguments. (Id. at pp. 17–19.) Plaintiff appealed to the California Supreme Court, but petition for review was denied. (ECF No. 18–2, Ex. B.)

Plaintiff then filed a writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254. The petition was dismissed because Plaintiff had completed his state custodial sentence before filing the petition, divesting the federal court of jurisdiction. (ECF No. 19–5.)

B. First Amended Complaint

Plaintiff now files this lawsuit against the San Diego District Attorney Bonnie Dumanis, the California Attorney General Kamala Harris, and the San Diego County Sheriff William Gore under 42 U.S.C. § 1983, for “violation of his rights under the First and Fourteenth Amendments to the U.S. Constitution.” (FAC at p. 1.)

Plaintiff is clearly asking this Court to declare California Penal Code, section 646.9 (otherwise known as the stalking statute)² to be unconstitutional. (See id. at p. 6.) “Unless Penal Code § 646.9 is declared unconstitutional by this Court, and its enforcement enjoined, Plaintiff will continue to be subject to arrest and prosecution” and “California Penal Code § 646.9 is unconstitutional on its face and as applied to Plaintiff, in violation of Plaintiff's rights under the First and Fourteenth Amendments to the U.S. Constitution.” (Id. at pp. 3, 5.)

Plaintiff further appears to be seeking solely declaratory and injunctive relief. He states: “No monetary relief is sought herein.” (Id. at p. 5.) Rather, “[Plaintiff] respectfully requests this Court to strike down California Penal Code § 646.9 as unconstitutional ... and enjoin San Diego County District Attorney and California Attorney General as well as the San Diego County Sheriff from enforcing the statute.” (Id. at p. 32.) He claims that enforcement would violate his First Amendment rights to free speech as well as the Commerce Clause “in that it makes actions outside of California illegal.” (Id. at pp. 15–32.)

However, whether Plaintiff is requesting retroactive or prospective application and based on what conduct is a little more unclear. Plaintiff first alleges that he “is currently under a criminal stalking restraining order for ten years enjoining him from having contact with multiple people in San Diego, including his ex-wife Joanna Hyma ... with which [sic] Plaintiff has a daughter.” (Id. at pp. 3–4.) Plaintiff then makes multiple allegations against his ex-wife, claiming she is extorting money from him by threatening to have Plaintiff arrested under the stalking statute. (Id. )

Plaintiff then goes on to discuss his prior criminal case in San Diego Superior Court (discussed above) in which he pled guilty to one count of stalking in violation of California Penal Code § 646.9 for threats he made against Robert Cross “based primarily on emails [Plaintiff] sent in the midst of a real estate dispute.” (Id. at pp. 6–8.) Plaintiff alleges in great detail the facts surrounding this prior criminal conviction, but then claims “[t]his [FAC] is not retroactive and does not seek to overturn [the previous] state conviction [for stalking],” nor does it “challenge the California Superior Court's refusal to dismiss a stalking count.” (Id. at pp. 5–6.)

However, the FAC then proceeds to do just that, arguing: (1) “since [Plaintiff] was subjected to criminal prosecution for his speech, the prosecution should have been required to prove he made a ‘true threat’;” (2) Plaintiff's “communications were connected with a legitimate legal dispute on whether the lease agreement was violated by Cross ...” and “because these were legitimate purposes, [Plaintiff's] speech could not be criminalized;” (3) “[Plaintiff's] communications were obnoxious but not criminal;” and finally, (4) “[Plaintiff's] speech must be reviewed through the First Amendment's broad protection and narrow exception for threats of unlawful violence, and there is no evidence that [Plaintiff] ever came anywhere near making threats of unlawful violence.” (Id. at pp. 28–29, 31–32.)

II. LEGAL STANDARD

Federal Rule of Civil Procedure 8(a) requires that a Complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual allegations,’ ... it [does] demand[ ] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In other words, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ).

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed.R.Civ.P. 12(b)(6) ; Navarro v. Block, 250 F.3d 729, 731 (9th Cir.2001). The court must accept all factual allegations pleaded in the complaint as true and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir.1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A claim has “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ).

A court need not accept “legal conclusions” as true. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Despite the deference the court must pay to the plaintiff's allegations, it is not proper for the court to assume that “the [plaintiff] can prove facts that [he or she] has not alleged or that defendants have violated the ... laws in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983).

Generally, courts may not consider material outside the complaint when ruling on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990). However, documents specifically identified in the complaint whose authenticity is not questioned by parties may also be considered. Fecht v. Price Co., 70 F.3d 1078, 1080 n. 1 (9th Cir.1995) (superseded by statutes on other grounds). Moreover, the court may consider the full text of those documents even when the complaint quotes only selected portions. Id. It may also consider material properly subject to judicial notice without converting the motion into one for summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.1994).

As a general rule, a court freely grants leave to amend a complaint which has been dismissed....