(PC) Humes v. State of California et al, No. 2:2018cv00244 - Document 28 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/15/2018 RECOMMENDING defendant's 16 motion to dismiss be granted; and this case be closed. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days. (Yin, K)
Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JON HUMES, 12 13 14 15 No. 2:18-cv-0244 TLN CKD P Plaintiff, v. FINDINGS AND RECOMMENDATIONS STATE OF CALIFORNIA, et al., Defendants. 16 17 Plaintiff is a Sacramento County Jail prisoner proceeding pro se against defendant Xavier 18 Beccera in his official capacity as the Attorney General of the State of California. Plaintiff’s 19 remaining claim arises under the Due Process Clause of the Fourteenth Amendment and concerns 20 plaintiff’s name appearing in California’s Sex and Arson Registry. Plaintiff claims his name 21 should be removed. Defendant has filed a motion to dismiss. 22 The court reviews defendant’s motion pursuant to Federal Rule of Civil Procedure 23 12(b)(6) which authorizes dismissal if a complaint fails to state a claim upon which relief can be 24 granted. Dismissal for failure to state a claim is proper only if it is clear plaintiff cannot prove 25 any set of facts in support of the claim that would entitle him or her to relief. See Morley v. 26 Walker, 175 F.3d 756, 759 (9th Cir. 1999). When considering a Rule 12(b)(6) motion, the court 27 takes as true all allegations of material fact stated in the complaint, and construes them in the light 28 most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). 1 1 Also, the court generally considers only the complaint and attached documents. Van Buskirk v. 2 CNN, Inc., 284 F.3d 977, 980 (9th Cir. 2002). However, as here, the court may also consider 3 facts it judicially notices under Federal Rule of Civil Procedure 201 such as “matters of public 4 record.” Lee v. City of L.A., 250 F.3d 668, 688-89 (9th Cir. 2001). 5 In his complaint, plaintiff alleges that convictions for crimes he does not identify were 6 expunged by the Superior Court of Placer County on April 11, 2012. Plaintiff alleges that the 7 expungement of these convictions releases him of the requirement under California Penal Code 8 §290 to register as a sex offender, and therefore his name should be removed from the Sex and 9 Arson Registry. 10 Defendant has provided the court with case records from Placer County Superior Court 11 Case No. 62-042890. After a review of those records, the court takes judicial notice, pursuant to 12 Federal Rule of Civil Procedure 201, of the following facts: 13 1. Plaintiff was convicted of possession of child pornography and child molestation in 14 violation of California Penal Code sections 311.11(a) and 647.6(a) and sentenced on March 15, 15 2005. 16 2. Convictions for these offenses were dismissed on April 11, 2012 pursuant to a motion 17 submitted by plaintiff in accordance with California Penal Code § 1203.4, thereby releasing 18 plaintiff “from all penalties and disabilities resulting from” his offenses. 19 Petitioner’s convictions require that he register with the chief of police in the city where 20 he lives. Cal. Penal Code §290. Under California Penal Code § 290.5, a person convicted of a 21 violation of section 311.11(a) or 647.6(a), can be relieved of the requirement to register if they 22 obtain a “certificate of rehabilitation” under California Penal Code 4852.01, et seq. 23 Based on the records filed by defendant, the court also judicially notices that plaintiff 24 sought a “Certificate of Rehabilitation” from the Superior Court of Placer County, but his petition 25 was never adjudicated and was dropped from the court’s calendar on January 14, 2013. Plaintiff 26 fails to allege, or point to anything in his pleadings or opposition to defendant’s motion to dismiss 27 which suggests that he has obtained a “Certificate of Rehabilitation.” 28 ///// 2 1 In his pleadings, plaintiff does point to Kelly v. Municipal Court of City & County of 2 S.F., 160 Cal. App. 2d 38, 44 (1st Dist. 1958), in which the California Court of Appeal held that 3 California Penal Code § 290 is “criminal in character” and imposes a penalty expiring upon 4 fulfillment of the conditions of probation. However, in People v. Hamdon, 225 Cal. App. 4th 5 1065, 1073 (1st Dist. 2014) the same court found “Kelly is no longer good law.” Specifically, 6 “the subsequent enactment of section 290.5 evinces a legislative determination that the need for 7 registration continues until the registrant obtains a certificate of rehabilitation or pardon.” Id. 8 Plaintiff’s claim for violation of due process under the Fourteenth Amendment is 9 premised upon plaintiff’s assertion that, under California law, he has been relieved of the 10 requirement to register under California Penal Code §290. Since that is not the case, and plaintiff 11 fails to state a claim for an independent violation of the Due Process Clause, the court will 12 recommend that defendant’s motion to dismiss be granted, and this case be closed. 13 In accordance with the above, IT IS HEREBY RECOMMENDED that 14 1. Defendant’s motion to dismiss (ECF No. 16) be granted; and 15 2. This case be closed. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 21 objections shall be served and filed within fourteen days after service of the objections. The 22 parties are advised that failure to file objections within the specified time may waive the right to 23 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 Dated: November 15, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 25 26 27 28 1 hume0244.dis 3