Lokey v. Richardson, No. C-73-0592 RFP.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtJohn Sugiyama and John T. Murphy, Deputy Attys. Gen., San Francisco, Cal., for defendants
Citation534 F. Supp. 1015
PartiesBob LOKEY, Charlene Lokey, Jerri Lokey, and Bobbi Lokey, Plaintiffs, v. H. L. RICHARDSON, individually and as a California State Senator; Raymond K. Procunier, individually and as Director of California Department of Corrections; Louis S. Nelson, individually and as Warden of San Quentin Prison; Henry W. Kerr, Curtis O. Lynum, Manley J. Bowler, Walter A. Gorden, Jr., Leland M. Edman, James H. Hoover, Charles E. Brown, and Daniel R. Lopez, individually and collectively and as Members of the California Adult Authority; and the State of California, jointly and severally, Defendants.
Decision Date16 February 1982
Docket NumberNo. C-73-0592 RFP.

534 F. Supp. 1015

Bob LOKEY, Charlene Lokey, Jerri Lokey, and Bobbi Lokey, Plaintiffs,
v.
H. L. RICHARDSON, individually and as a California State Senator; Raymond K. Procunier, individually and as Director of California Department of Corrections; Louis S. Nelson, individually and as Warden of San Quentin Prison; Henry W. Kerr, Curtis O. Lynum, Manley J. Bowler, Walter A. Gorden, Jr., Leland M. Edman, James H. Hoover, Charles E. Brown, and Daniel R. Lopez, individually and collectively and as Members of the California Adult Authority; and the State of California, jointly and severally, Defendants.

No. C-73-0592 RFP.

United States District Court, N. D. California.

February 16, 1982.


534 F. Supp. 1016

James Elmer, Oakland, Cal., for plaintiffs.

John Sugiyama and John T. Murphy, Deputy Attys. Gen., San Francisco, Cal., for defendants.

JUDGMENT

PECKHAM, Chief Judge.

On November 23, 1962, plaintiff Bob Lokey was convicted in the Superior Court for the County of Sacramento, State of California, upon his plea of guilty, of committing first degree murder in violation of California Penal Code § 187 and kidnapping for the purpose of robbery with bodily harm in violation of California Penal Code § 209. As a result of this conviction, the superior

534 F. Supp. 1017
court sentenced Lokey to life imprisonment for the murder and life imprisonment without possibility of parole for the kidnapping. See In re Lokey, 64 Cal.2d 626, 414 P.2d 394, 51 Cal.Rptr. 266 (1966), cert. denied, 385 U.S. 888, 87 S.Ct. 188, 17 L.Ed.2d 116 (1966)

After he began serving his sentence, the California Adult Authority ("CAA" or "Authority") reviewed plaintiff's case at three year intervals. The Authority conducted the first review on November 23, 1965, the second on November 27, 1968, and the third on November 18, 1971. By the time the Authority reviewed his case for the third time, plaintiff had established himself as a model prisoner. He had achieved a minimum security status accorded few convicts at the San Quentin Prison. Plaintiff's impressive prison record is set forth in detail in Lokey v. Richardson, 527 F.2d 949, 950 (9th Cir. 1975). Briefly, though, while in custody he received a number of degrees in the arts and in various trades. He became an inventor and a businessman. His conduct was so outstanding that he was given a custody status which permitted him to travel outside the prison when accompanied by an unarmed security guard, to be second in command of the San Quentin firehouse located outside the security fence area, and to take part in an overnight family visitation program.

Consequently, at the conclusion of plaintiff's third hearing before the CAA, the members of the reviewing panel recommended that plaintiff's sentence on the kidnapping conviction be commuted to life imprisonment with possibility of parole and that his case be reviewed by the entire Authority.

As suggested, the CAA met en banc on January 17, 1972, and recommended commutation of plaintiff's sentence on the kidnapping conviction. By a memorandum dated January 28, 1972, the CAA informed the Governor of California that the plaintiff was being considered for commutation of his sentence and requested that the appropriate application forms be forwarded to him. After plaintiff completed the application, the Governor referred the matter back to the Authority for a final recommendation. Following an investigation, the Authority recommended to the Governor on December 19, 1972, that plaintiff's sentence not be commuted because of "insufficient evidence of rehabilitation and the gravity of the offenses involved." (Defendants' Memorandum of Points & Authorities in Support of Motion for Summary Judgment, pp. 2-3.)

On November 2, 1972, the Chief Deputy Director of the California Department of Corrections advised all penal institutions within the state that, "effective this date ..., no inmate serving life without possibility of parole is to be classified minimum custody without prior review and concurrence by the Departmental Review Board." See Lokey v. Richardson, supra, 527 F.2d at 951. Defendants claim that this policy directive was prompted by two occurrences. First, following the invalidation of the death penalty as it then operated in the State of California, a number of inmates serving prison terms for the commission of serious offenses had to be reclassified. Second, during the reclassification period, an inmate serving a life sentence without possibility of parole escaped from the prison where he was confined.

At the time the directive was promulgated, plaintiff had enjoyed his minimum custody status for over two and one-half years. Nevertheless, the Board reviewed plaintiff's case on December 15, 1972, and decided to terminate his minimum security status. He received no notice of the change of status and no hearing. He was given no reason for the reclassification either orally or in writing. The revocation of his minimum security status terminated the various privileges referred to above, including his participation in the family visitation program.

On April 11, 1973, Lokey, acting on behalf of himself and three members of his family, filed a complaint under 42 U.S.C. § 1983 for injunctive relief and damages. In his complaint, plaintiff alleged that various state officials conspired to prevent commutation of his sentence. He also alleged that various state officials modified his custodial status without due process of law.

534 F. Supp. 1018

On December 4, 1973, this court granted defendants' motion for summary judgment. Plaintiff appealed to the Ninth Circuit which reversed the judgment of this court and remanded the case for further proceedings. Defendants petitioned for rehearing, suggesting that a rehearing en banc be granted. On December 9, 1975, the Ninth Circuit ordered its earlier opinion withdrawn. Then, in a new opinion, the court of appeals again reversed the judgment of this court and remanded the case for further proceedings. Lokey v. Richardson, supra, 527 F.2d 949. That judgment was vacated by the Supreme Court, 427 U.S. 902, 96 S.Ct. 3186, 49 L.Ed.2d 1196, for reconsideration in light of its holdings in Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), and Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976).1 The Ninth Circuit, in turn, remanded the case to this court in Lokey v. Richardson, 540 F.2d 1022 (9th Cir. 1976). After we dismissed the case, in part in reliance on Meachum v. Fano, supra, and Montanye v. Haymes, supra, the action came before the Ninth Circuit for the third time, Lokey v. Richardson, 600 F.2d 1265 (9th Cir. 1979), cert. denied, 449 U.S. 884, 101 S.Ct. 238, 66 L.Ed.2d 110 (1980).

The Ninth Circuit disagreed with this court's interpretation of the Fano and Haymes cases. The appellate court conceded that these two Supreme Court decisions denied that prisoners are deprived of due process rights whenever they are transferred within a prison system, even if the transfer results in less pleasant facilities or is executed for disciplinary reasons. The appellate court noted, however, that the Supreme Court left the door open to the imposition of due process requirements if there is a state law or practice which would give rise to a right or justifiable expectation that the prisoner's degree of confinement would change only for certain reasons or after certain procedures. The appellate court concluded that it could not agree that Lokey's complaint failed to state a proper claim until Lokey was given "an opportunity to explore and present his case with respect to state-created expectations." Lokey v. Richardson, supra, 600 F.2d at 1267. Finally, the court suggested that new counsel be appointed to assist plaintiff in the presentation of his claim on remand.

In accordance with the Ninth Circuit's most recent opinion in this case, this court appointed new counsel to represent plaintiff on March 18, 1981. We also endeavored to provide plaintiff with "an opportunity to explore and present his case with respect to state-created expectations" by ordering that the period for requesting discovery be continued to, and including, September 24, 1981. Subsequent to the closing of the discovery period, defendants filed a motion for dismissal and a motion for summary judgment. Both motions raise for the first time the issue of defendants' respective immunities from liability in this section 1983 action.

Defendants' motion for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) is incorporated into the motion for summary judgment, which is accompanied by the required supporting affidavits. For this reason, and because both parties have focused their subsequent supporting papers on the summary judgment motion, we shall consider these two motions together as a motion for summary judgment by defendants.

I. IMMUNITY DEFENSES

A. The State of California

Defendants rely on Williford v. California, 352 F.2d 474 (9th Cir. 1965), in support of their claim that a state is not a person within the meaning of section 1983. We agree with defendants' conclusion that the State of California is immune from liability

534 F. Supp. 1019
in this case despite our rejection of their underlying reasoning. Williford relies on the holding in Monroe v. Pape, 365 U.S. 167, 187-91, 81 S.Ct. 473, 484-86, 5 L.Ed.2d 492 (1961), that a municipality is not a "person" within the meaning of section 1983. That part of Monroe has been expressly overruled in Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978)

To the benefit of California, however, the Supreme Court has subsequently made it clear that Monell does not alter the rule that section 1983 does not constitute an abrogation of the eleventh amendment immunity of the states. In Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979), the Court concluded that Congress did not...

To continue reading

Request your trial
5 practice notes
  • Modern Woodcrafts, Inc. v. Hawley, Civ. A. No. H 80-316.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • February 16, 1982
    ...violations of the "sole and exclusive benefit" clause of section 302(c)(5) of the LMRA. The motion is also denied with respect to 534 F. Supp. 1015 the pendent Connecticut law claims, asserted by the Woodworker Employers and Woodworker Trustees, of unjust enrichment and breach of fiduciary ......
  • Cooper v. Department of Admin., State of Nev., No. CIV-R-80-15-ECR.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • November 22, 1982
    ...they are entitled to judgments of dismissal. See Jackson v. Hayakawa, 682 F.2d 1344, 1349 (9th Cir.1982); Lokey v. Richardson, 534 F.Supp. 1015, 1019 In the same vein, no evidence of a conspiracy to interfere with the plaintiff's civil rights was presented at the trial. As a result, the cla......
  • Clark v. Tarrant County, Tex., Civ. A. No. 4-82-260 K.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • March 20, 1985
    ...1244, 1257-58 (E.D.Cal.1981); Louis v. Supreme Court of Nevada, 490 F.Supp. 1174, 1180 (D.Nev.1980); see also Lokey v. Richardson, 534 F.Supp. 1015, 1019 (N.D.Cal.1982) ("the California Adult Authority is ... absolutely immune from liability") rev'd on other grounds, 527 F.2d 949 (9th Cir.1......
  • Chavez v. City of Petaluma, Case No. 14-cv-05038-MEJ
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • June 16, 2015
    ...should be applied cautiously[,]" especially where the higher courts have not specifically addressed the issue. Lokey v. Richardson, 534 F. Supp. 1015, 1020 (N.D. Cal. 1982). Absolute immunity "is strong medicine, justified only when the danger of officials' being deflected from the effectiv......
  • Request a trial to view additional results
5 cases
  • Modern Woodcrafts, Inc. v. Hawley, Civ. A. No. H 80-316.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • February 16, 1982
    ...violations of the "sole and exclusive benefit" clause of section 302(c)(5) of the LMRA. The motion is also denied with respect to 534 F. Supp. 1015 the pendent Connecticut law claims, asserted by the Woodworker Employers and Woodworker Trustees, of unjust enrichment and breach of fiduciary ......
  • Cooper v. Department of Admin., State of Nev., No. CIV-R-80-15-ECR.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • November 22, 1982
    ...they are entitled to judgments of dismissal. See Jackson v. Hayakawa, 682 F.2d 1344, 1349 (9th Cir.1982); Lokey v. Richardson, 534 F.Supp. 1015, 1019 In the same vein, no evidence of a conspiracy to interfere with the plaintiff's civil rights was presented at the trial. As a result, the cla......
  • Clark v. Tarrant County, Tex., Civ. A. No. 4-82-260 K.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • March 20, 1985
    ...1244, 1257-58 (E.D.Cal.1981); Louis v. Supreme Court of Nevada, 490 F.Supp. 1174, 1180 (D.Nev.1980); see also Lokey v. Richardson, 534 F.Supp. 1015, 1019 (N.D.Cal.1982) ("the California Adult Authority is ... absolutely immune from liability") rev'd on other grounds, 527 F.2d 949 (9th Cir.1......
  • Chavez v. City of Petaluma, Case No. 14-cv-05038-MEJ
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • June 16, 2015
    ...should be applied cautiously[,]" especially where the higher courts have not specifically addressed the issue. Lokey v. Richardson, 534 F. Supp. 1015, 1020 (N.D. Cal. 1982). Absolute immunity "is strong medicine, justified only when the danger of officials' being deflected from the effectiv......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT