Jacobson v. Schwarzenegger

Decision Date30 November 2004
Docket NumberNo. CIV.CV043629-JFW(MC).,CIV.CV043629-JFW(MC).
Citation357 F.Supp.2d 1198
PartiesEric C. JACOBSON, Esq., Plaintiff, v. Arnold SCHWARZENEGGER, et al., Defendants.
CourtU.S. District Court — Central District of California

Defendants: Christina Bull Arndt, John Rittmayer & Brian Dwight Vaughan, Deputy Attorneys General, Office of the California Attorney General, Los Angeles.


McMAHON, United States Magistrate Judge.


The pro se plaintiff, a licensed attorney, filed a ninety-seven page civil rights complaint on May 21, 2004. This action appears to have been precipitated by the removal of the plaintiff from an "attorney appointment list" maintained by the California Board of Prison Terms ("BPT") from which attorneys are appointed to represent parolees in parole revocation proceedings. However, the plaintiff not only brings claims for relief based upon alleged injuries suffered by the plaintiff, but also purports to bring this action on behalf of a "caste" of some 125,000 California parolees. The plaintiff does not style this case as a class action, but rather invokes the doctrine of third-party standing to assert claims on behalf of present and future parolees. The plaintiff indicates that "representative parolee plaintiffs" will be joined as plaintiffs once they have exhausted their administrative remedies.1

The defendants are: (1) California Governor Arnold Schwarzenegger; (2) former California Governor Gray Davis; (3) California Youth and Adult Correctional Agency Secretary Roderick Hickman; (4) former California Youth and Adult Correctional Agency Secretary Robert Presley; (5) BPT Chairperson Margarita E. Perez; (6) former BPT Chairperson Carol Daly; (7) BPT Associate Chief Deputy Commissioner Thomas Wadkins; (8) BPT Chief Counsel Terry R. Farmer; (9) BPT Executive Director Marvin E. Speed, II; (10) BPT Chief Deputy Commissioner Ken Cater; (10) BPT official Sandra Maciel; (11) BPT official Tracy Master; (12) BPT official Marc D. Remis; (13) BPT Counsel Dan Moeller; (14) California Department of Corrections ("CDC") Director Jeanne S. Woodford; (15) former CDC Director Edward S. Alameida, Jr.; (16) parole agent Brigit Murria; and (16) ten fictitious "Doe" defendants.

On August 6, 2004, defendants Schwarzenegger, Davis, Perez, Daly, Wadkins, Farmer, Speed, Cater, Maciel, Master Remis, Moeller, Woodford, Alameida, Murria and Hickman ("defendants") filed: (1) a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure; (2) a motion for a more definite statement pursuant to Rule 12(e) of the Federal Rules of Civil Procedure; and (3) a motion to strike pursuant to Rule 12(f) of the Federal Rules of Civil Procedure. On October 13, 2004, the plaintiff filed an opposition to the motion to dismiss and motion to strike. Also on October 13, 2004, the plaintiff filed a response to the motion for a more definite statement with respect to the plaintiff's claims for defamation and invasion of privacy. On October 19, 2004, the defendants filed a reply. On October 25, 2004, the plaintiff filed "Plaintiff's Exhibit Concerning the Status of Potential Representative Parolee Plaintiff Eric Johnson."


The plaintiff, an active member of the California state bar, allegedly was employed by the BPT between September 1998 and September 2003 as an attorney representing parolees at parole hearings (Complaint, pp. 4-5, ¶ 4(a)). The plaintiff alleges that the defendants, in disregard of California state law calling for the provision of rehabilitative services to parolees, have operated a "parole revocation mill," whereby approximately 70% of parolees suffer parole revocation and a return to custody for up to twelve months, without due process or effective assistance of counsel (Complaint, pp. 14-15, ¶¶ 27-29). This so-called "mill" allegedly benefits state corrections officials and private contractors, but leaves parolees unprepared to live productive lives (Complaint, pp. 16-17, ¶¶ 31-32). The defendants and various labor organizations, including the prison guards' union, allegedly "ensure an endless supply of `customers' for California's burgeoning prison-industrial complex," allegedly by corrupting the legislature and by exerting "virtually totalitarian control over prison administration" (Complaint, pp. 17-18, ¶ 33). The alleged results of this massive conspiracy are, among other things, overcrowded prisons, a "broken" parole system, and the oppressive treatment of African-American parolees (Complaint, pp. 21-24, ¶¶ 35-40).

According to the plaintiff, parole proceedings allegedly result in reincarceration "like clockwork" (Complaint, p. 32, ¶ 52). The BPT allegedly fails to appoint counsel for "thousands of indigent parolees" (Complaint, p. 33, ¶ 55). The lawyers whom the BPT does appoint are allegedly incompetent individuals who fail to investigate or prepare for parole revocation hearings (Complaint, p. 32, ¶ 53). The BPT allegedly provides "paltry" remuneration for appointed attorneys, fails to provide appointed counsel with investigative or appellate resources, refuses to allow parolees to consult with counsel before the hearing, and schedules each Deputy Commissioner to conduct four to six hearings per day, resulting in hearings which are "cursory" and "summary" (Complaint, pp. 33-34, ¶ 55). The BPT allegedly conducts hearings in inappropriate locations in jails and prisons, so that parolees must appear in jail or prison attire, shackled, and ungroomed (Complaint, p. 34, ¶ 55(e)). Allegedly biased and unqualified hearing officers predetermine the outcome, conduct summary hearings, and exhibit contempt for the parolee and the parolee's witnesses (Complaint, pp. 34-35, ¶ 55(f); pp. 37-38, ¶ 59; p. 38, ¶ 62). The BPT allegedly allows the unlawful use of hearsay evidence in violation of United States v. Comito, 177 F.3d 1166 (9th Cir.1999) (Complaint, pp. 35-37, ¶ 58).

These conditions allegedly violate the parolees' Eighth Amendment rights to be free from cruel and unusual punishment their Fourteenth Amendment rights to a hearing before an impartial decision-maker, their rights to counsel, and their rights to be free from slavery or involuntary servitude under the Thirteenth Amendment (Complaint, pp. 39-41, ¶¶ 65). The BPT also allegedly violates parolees' rights to timely review of the propriety of a parole hold, to the presumption of innocence, to individualized consideration and deliberation, and "to be free from enslavement except upon having been duly convicted of a crime" (Complaint, p. 40, ¶ 66).

The plaintiff, who allegedly represented parolees competently and zealously for five years, began to complain about these problems to BPT personnel in or about 2001 (Complaint, pp. 40-43, ¶¶ 67-71). The plaintiff also filed several appeals with the "BPT appeals unit" in which the plaintiff complained of "atrocious conduct by BPT problem Deputy Commissioners" (Complaint, pp. 43-44, ¶ 72). Allegedly in retaliation for this conduct on the plaintiff's part, unidentified "BPT personnel" removed the plaintiff from the "attorney appointment list" on September 16, 2003, without good cause or any valid reason (Complaint, p. 44, ¶ 73). Unidentified "personnel" also allegedly conducted a spurious and non-private investigation of the plaintiff, defamed the plaintiff, and harassed the plaintiff even after "partially clearing" the plaintiff of any wrongdoing (Complaint, p. 45, ¶ 74). "Defendant personnel" thereby allegedly violated the plaintiff's rights to liberty, property, procedural and substantive due process, and equal protection guaranteed by the federal and state constitutions (Complaint, p. 45, ¶ 75). BPT personnel also violated the plaintiff's rights under the California Labor Code and the California Fair Employment and Housing Act ("FEHA"), defamed the plaintiff, and invaded the plaintiff's privacy (Complaint, pp. 45-46, ¶ 75).

The complaint contains nine claims for relief, styled "causes of action." The plaintiff purports to bring the first and second causes of action on behalf of California parolees, for violations of the federal and state constitutions2 respectively. The third and fourth causes of action allege the plaintiff's personal claims for violations of the federal and state constitutions. The remaining state law claims, which the plaintiff asserts in his own right, are for violation of a California Labor Code provision prohibiting "retaliatory employment discrimination" (fifth cause of action), defamation (sixth cause of action), invasion of privacy (seventh cause of action), age discrimination and harassment in violation of the FEHA (eighth cause of action), and intentional infliction of emotional distress (ninth cause of action).


The defendants seek dismissal on the following grounds:

1. The complaint violates Rule 8 of the Federal Rules of Civil Procedure;

2. The court lacks subject matter jurisdiction over the first and second causes of action because the plaintiff allegedly lacks standing to assert the rights of third-party parolees to injunctive relief 3. The third cause of action fails to state a claim pursuant to 42 U.S.C. section 1983 against defendants Schwarzenegger, Davis, Hickman, Presley, Perez, Daly, Farmer, Cater, Maciel, Master, Remis, Moeller, Woodford and Alameida because the plaintiff fails to allege the personal involvement of these defendants in any unlawful activity;

4. The fifth and sixth causes of action are insufficient because the plaintiff was not an employee of the BPT, but rather was an independent contractor;

5. The fifth cause of action fails to plead a claim for violation of California Labor Code section 1102.5 because the...

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