Manning v. Powers

• Decision Date: 13 December 2017
• Docket Number: Case No. 17–07832–DDP–GJSx
• Court: U.S. District Court — Central District of California
• Parties: Sherman MANNING, an individual, Plaintiff, v. Jerry POWERS, in his official capacity; Karen Thacker, in her official capacity; Douglas Broome, in his official capacity; Sean Wilson, in his official capacity; and Does 1 through 10, Defendants.

281 F.Supp.3d 953

Sherman MANNING, an individual, Plaintiff,
v.
Jerry POWERS, in his official capacity; Karen Thacker, in her official capacity; Douglas Broome, in his official capacity; Sean Wilson, in his official capacity; and Does 1 through 10, Defendants.

Case No. 17–07832–DDP–GJSx

United States District Court, C.D. California.

Signed December 13, 2017

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Erin Darling, Law Offices of Erin Darling, Lydia M. Gray, Peter J. Eliasberg, ACLU Foundation of Southern California, Los Angeles, CA, Daniel Mach, Program on Freedom of Religion and Belief, Washington, DC, Jennifer Stisa Granick, San Francisco, CA, for Plaintiff.

Audra C. Call, CAAG–Office of Attorney General California Department of Justice, Los Angeles, CA, for Defendants.

ORDER GRANTING PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION

Dkt. 8

DEAN D. PREGERSON, UNITED STATES DISTRICT JUDGE

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This matter comes before the court on Plaintiff's application for a preliminary injunction. Having considered the parties' submissions and heard oral argument, the court adopts the following Order.

I. BACKGROUND

Plaintiff Sherman Manning brings the present motion for a preliminary injunction against Defendants for various violations of his First Amendment rights related to the enforcement of his parole conditions.

Manning is an ordained Baptist minister, who is currently on parole under the supervision of the California Department of Corrections and Rehabilitation. (Decl. Manning ¶¶ 1, 2.) Collectively, Defendants are various officials of the Division of Adult Parole Operations ("DAPO"), a division of the California Department of Corrections of Rehabilitation. (Compl. ¶¶ 13–16.) Defendant Jerry Powers is the Director of DAPO. (Id. ) Defendant Karen Thacker is a regional director for the Southern Region of DAPO, and Defendant Douglas Broome is a parole supervisor in the Southern Region of DAPO. (Id. ) Defendant Sean Wilson is Manning's current parole agent. (Manning Decl. ¶ 41.)

In 1990, Manning entered a guilty plea to charges of aggravated sodomy and aggravated assault on a 17–year-old man. (Id. ¶ 13.) That same year, Manning was convicted of misdemeanor sexual battery involving a male between 16 and 18 years old. (Id. ¶ 14.) In 1995, a Georgia court convicted Manning of forcible sodomy and forcible oral copulation and sentenced him to sixteen years in prison. (Id. ¶¶ 8–9.)

Decades later, in February 2016, Manning was released from state prison in California. (Id. ¶ 10.) Upon release, Manning was given a set of almost one hundred parole conditions from DAPO. (Id. ¶ 10 & Ex. B.) Of these, Manning challenges Defendants' application of Special Conditions of Parole (SCP) 84 and 18.

A. Special Parole Condition 84

Special Parole Condition 84 prohibits Manning from accessing social media. It states the following:

You shall not use or access social media sites, social networking sites, peer-to-peer networks, or computer or cellular instant message systems; e.g. Facebook, Instagram, Twitter, Snapchat, Lync, Gmail, Yahoo, KIK messenger, Tumblr, etc. This would include any site which allows the user to have the ability to navigate the internet undetected. (Id. , Ex. C at 4.)

According to Manning, social media is an essential element of strengthening his religious beliefs and spreading his message. Posting videos of his sermons on social media sites enables him to deliver his message to people who are unable to attend his sermons and make connections with other people in the ministry. (Id. ¶ 7.) Moreover, posting his sermons on social media allows other pastors to see his sermons, which makes it easier for pastors that do not know Manning to reach out and ask him to be a guest preacher. (Id. ¶ 6.)

B. Special Parole Condition 18

Special Parole Condition 18 states: "You shall not enter or loiter within 250 feet of

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the perimeter of places where children congregate, (e.g. day care centers, school, parks, playgrounds, video arcades, swimming pools, state fairgrounds, county fairgrounds, etc.)." (Id. , Ex. B at 1 & Ex. C at 1.) Manning contends that Defendants have interpreted this condition to prohibit him from attending church and preaching.

Around April 2017, Manning was assigned to parole agent Lorrie Schindler. (Id. ¶ 24.) Manning claims that during a parole meeting, Schindler told him she wanted a letter from each pastor of every church he was attending, acknowledging they knew he had been in prison and why he had been in prison. (Id. ¶ 25.) Manning refused. (Id. ) In response, Schindler told Manning that "[he] should not be going to church anyway" and that she could arrest him for going to church pursuant to SCP 18. (Id. ¶¶ 25–26.)

After this conversation, Manning met with other parole agents to ascertain whether SCP 18 barred him from attending church. Manning met with Mr. Arcee, who he believed was Schindler's direct supervisor, and with Defendant Broome, Arcee's supervisor. (Id. ¶¶ 27–28.) During one of their meetings, Broome told Manning he agreed with Schindler that he could not attend church. (Id. ¶ 31.) Subsequently, Manning called Defendant Thacker, a regional director of DAPO. (Id. ¶ 32.) After his call with Thacker, Broome restated that Manning was barred from going to church and told him they would arrest him if he attended. (Id. ¶ 33.)

C. ACLU Involvement and Retaliation

In the wake of these events, Manning contacted the American Civil Liberties Union ("ACLU") for legal representation. (Id. ¶ 34.) On June 2, 2017, ACLU lawyers sent a pre-litigation demand letter to DAPO. (Id. ) Manning alleges that, since the letter's issuance, he has been threatened and harassed by parole officials. (Id. ¶ 35.)

First, Manning claims that, a few days after the demand letter was sent, Schindler and Defendant Broome went to his house at five o'clock in the morning to perform a compliance check. (Id. ¶ 37.) When Manning asked them why they were doing a compliance check for the first time, Broome answered "you should have thought about that when you contacted the ACLU." (Id. ) During the search, Schindler reviewed Manning's cellphone and found pornographic images, a violation of his parole conditions, and confiscated the cellphone for further review. (Schindler Decl. ¶ 5.)

Second, Manning claims that, a few days after this incident, Schindler and Broome performed a second compliance check in a parking lot where Manning was parked. (Manning Decl. ¶ 38). After Manning informed them that this conduct constituted harassment, Broome answered "contact the ACLU, maybe they can help you," and that Manning "should have thought about it before [he] got the ACLU on [their] ass." (Id. ) Schindler claims this incident was a follow-up to the parole violations observed during the first compliance check. (Schindler Decl. ¶ 8.)

Several days after the second compliance check, Manning received a call from Broome. (Id. ¶ 39; Decl. Gandarilla ¶ 4.) During the call, Broome told Manning "you should leave the ACLU alone and your problems will stop. But if you keep communicating with them, it will be your worst nightmare." (Decl. Manning ¶ 39.) The following day, Manning was arrested for four different parole violations. (Id. ¶ 40.) All the charges stemmed from evidence uncovered during the compliance checks. (Id. )

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In addition to the compliance checks, Manning reports several incidents of retaliation by his current parole agent Defendant Wilson. Wilson replaced Schindler as Manning's parole agent. (Id. ¶ 41.) According to Defendants, Schindler and her supervisor, Defendant Broome, are no longer involved in Manning's parole. (Wilson Decl. ¶ 3.)

Manning claims Wilson has threatened, harassed, and retaliated against him for exercising his First Amendment rights. For example, Manning states that Wilson told him "Word to the wise, I would leave the ACLU alone." (Id. ) When Manning asked why, Wilson allegedly responded "you are a smart man, you should know your last arrest was about the ACLU. I have many guys on Facebook and I do not lock them up." (Id. ) Manning reports that Wilson has made him meet on a daily basis, even though the ordinary practice was for him to meet with his parole agent twice a month. (Id. ¶ 42.) When Manning asked why Wilson was making him go to his office so often, Wilson reportedly answered "This is not my doing, they want me to monitor you closely. If I were you, I'd leave the ACLU alone." (Id. ) Manning also claims Wilson intentionally made him miss an appointment with the ACLU under the pretense that he was checking paperwork on him. (Id. ) Additionally, Manning claims that Wilson's decision to begin enforcing a homelessness registration requirement, which resulted in Manning's arrest by LAPD, was motivated by retaliatory animus. (Manning Second Supp. Decl. ¶¶ 2–11.)

Wilson claims that Manning was not required to come into the office on a daily basis in September, and that ...