(PS) Nible v. Macomber

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM LYLE NIBLE, Case No. 2:24-cv-01259-DJC-CSK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. (ECF Nos. 51, 67, 74, 75) 14 JEFF MACOMBER, et al., 15 Defendants. 16

17 18 Plaintiff William Lyle Nible is proceeding in this action pro se.1 Pending before the 19 Court are the following motions: (A) Defendants Jeffrey Macomber, Tommee Dorsey, 20 Broomfield, St. Louis-Franklin, Stephanie Reyes, C. Lugar’s (collectively, “California 21 State Defendants”) motion to dismiss pursuant to Federal Rules of Civil Procedure 22 12(b)(6) (ECF No. 51); (B) Defendant H. Mosely’s2 motion for judgment on the pleadings 23 1 This matter proceeds before the undersigned pursuant to 28 U.S.C. § 636, Fed. R. 24 Civ. P. 72, and Local Rule 302(c). 2 Defendant Mosely filed an answer to the First Amended Complaint on September 17, 25 2024. (ECF No. 16.) Defendant Mosely joins California State Defendants’ motion to 26 dismiss. (ECF No. 51, fn. 1.) However, Defendant Mosely has already filed an Answer in this action. In the interest of judicial economy, Defendant Mosely’s motion to dismiss will 27 be construed as a motion for judgment on the pleadings. See Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980) (“We believe the best approach is…treating the motion 28 1 (ECF No. 51); (C) Defendants Jessika Richardson and Alison Woodruff’s (collectively, 2 “Missouri State Defendants”) motion to set aside the Clerk’s entry of defaults pursuant to 3 Rule 55(c) (ECF No. 74); (D) Missouri State Defendants’ motion to dismiss pursuant 4 Rule 12(b)(1), 12(b)(2), 12(b)(5), and 12(b)(6) (ECF No. 75); and (E) Plaintiff’s motion for 5 injunctive relief (ECF No. 67). For the reasons stated below, the Court recommends 6 GRANTING California State Defendants’ motion to dismiss without leave to amend, 7 GRANTING Defendant Mosely’s motion for judgment on the pleadings without leave to 8 amend, DENYING Plaintiff’s motion for injunctive relief, GRANTING Missouri State 9 Defendants’ motion to set aside the Clerk’s entry of default, GRANTING Missouri State 10 Defendants’ motion to dismiss without leave to amend, and sua sponte dismissing 11 Plaintiff’s claims against Defendant Jason Johnson for failure to state a claim and 12 Plaintiff’s claims for Fourth Amendment, First Amendment, and State and Federal 13 Whistleblower Act violations. 14 I. BACKGROUND 15 A. Factual Background 16 These facts primarily derive from the First Amended Complaint (“FAC”) (ECF No. 17 11), which are construed in the light most favorable to Plaintiff as the non-moving party. 18 Faulkner v. ADT Sec. Servs., 706 F.3d 1017, 1019 (9th Cir. 2013). However, the Court 19 does not assume the truth of any conclusory factual allegations or legal conclusions. 20 Paulsen v. CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009).3 21 / / / 22

23 to dismiss as a motion for judgment on the pleadings.”); Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 954 (9th Cir. 2004) (holding that defendants’ motion to dismiss 24 should have been treated as a motion for judgment on the pleadings because the defendants filed their motion after filing their answer). 25 3 The background of this case has also been discussed in prior orders. See 5/10/2024 26 Order Denying Mot. for Emergency Prelim. Inj. at 2-3 (ECF No. 6); 10/15/2024 Order & Findings and Recommendations to Deny Mot. for Emergency Prelim. Inj. and Temp. 27 Restraining Order (ECF No. 18); 01/24/2025 Findings and Recommendations to Grant Def. Raskin-Li’s Mot. to Dismiss. For purposes of the pending motions, the Court limits 28 its review to the FAC. 1 The FAC generally alleges that “[t]he California Department of Corrections, the 2 interstate compact for adult offender supervision, (Missouri and California) have violated 3 Plaintiff’s right by their not allowing Plaintiff to transfer to Missouri and further placing 4 unauthorized parole conditions upon Plaintiff.” FAC at 9. Plaintiff alleges he was forced 5 to parole to Los Angeles and was required to participate in “programing that was counter 6 productive to his reentry back into society.” Id. at 18. Plaintiff alleges the events took 7 place in Sacramento County, Los Angeles County, and Placer County on February 23, 8 2023, and that “events are continuous and ongoing.” Id. at 9. Plaintiff brings a 9 42 U.S.C. § 1983 action alleging generally his constitutional rights have been violated, 10 including the “Fourteenth Amendment, Fourth Amendment, Fifth Amendment, First 11 Amendment, [and] State and Federal Whistleblower Act.” Id. at 8. Plaintiff specifically 12 alleges that Defendants Macomber, Dorsey, Richardson, Woodruff, Reyes, Lugar, 13 Mosely, St Louis-Franklin, and Broomfield, “acting under color of law,” deprived Plaintiff 14 of “Constitutionally protected rights, Due Process and Equal Protection, Double 15 Jeopardy” by “maliciously, willfully, and with deliberate indifference” imposing various 16 parole conditions upon him, refusing to process his out of state transfer and refusing to 17 process his inmate grievance. Id. at p10-15, ¶¶ 1-23; p16-17, ¶¶ 27-29. For relief, 18 Plaintiff seeks damages and injunctive relief. Id. at 18. 19 B. Procedural Background 20 Plaintiff initiated this civil rights action pursuant to 42 U.S.C. § 1983 on May 1, 21 2024. See ECF No. 1. Plaintiff is proceeding on his First Amended Complaint filed on 22 July 1, 2024. See FAC. On September 17, 2024, Defendant Mosely filed an answer to 23 the FAC. (ECF No. 16.) On November 25, 2024, Defendant Raskin-Li filed a motion to 24 dismiss, which was granted without leave to amend. (ECF Nos. 48, 64.) Defendant 25 Raskin-Li was dismissed from this action on March 28, 2025. (ECF No. 64.) 26 On January 2, 2025, Plaintiff requested a Clerk’s entry of default as to Missouri 27 State Defendants Richardson and Woodruff. (ECF Nos. 41, 42.) A Clerk’s entry of 28 default was entered as to Defendant Richardson on the same day. (ECF No. 46.) A 1 Clerk’s entry of default was denied as to Defendant Woodruff due to improper service on 2 January 2, 2025. (ECF No. 47.) Plaintiff later requested a Clerk’s entry of default as to 3 Defendant Woodruff on April 11, 2025, which was entered on April 15, 2025. (ECF Nos. 4 70, 71.) 5 On February 14, 2025, California State Defendants filed the pending motion to 6 dismiss and set it for a hearing on April 29, 2025 before the undersigned. (ECF Nos. 51, 7 58.) Plaintiff filed an opposition, and California State Defendants filed a reply. (ECF Nos. 8 62, 63.)4 On April 4, 2025, the Court vacated the hearing date and took the matter under 9 submission. (ECF No. 66.) 10 On April 11, 2025, Plaintiff filed the pending motion for injunctive relief and set it 11 for a hearing on May 20, 2025 before the undersigned. (ECF No. 67.) California State 12 Defendants filed an opposition, and Plaintiff filed a reply. (ECF Nos. 68, 72.) On April 21, 13 2025, the Court vacated the hearing date and took the matter under submission. (ECF 14 No. 73.) 15 On May 13, 2025, Missouri State Defendants filed the pending motion to set aside 16 the Clerk’s entry of defaults and motion to dismiss, and set both motions for a hearing on 17 June 17, 2025 before the undersigned. (ECF Nos. 74, 75.) Plaintiff filed an opposition to 18 the motion to dismiss, and Missouri State Defendants filed a reply. (ECF Nos. 79, 80.) 19 Plaintiff did not oppose the motion to set aside the Clerk’s entry of defaults. See Docket. 20 A hearing was held by Zoom on both motions on June 17, 2025. (ECF No. 82.) Plaintiff 21 appeared pro se and attorney Alicia Dearn appeared on behalf of Missouri State 22 Defendants. Id. 23 II. LEGAL STANDARDS 24 A. Pro Se Pleadings Construction and Amendment 25 Pro se pleadings are to be liberally construed and afforded the benefit of any 26

27 4 Despite Plaintiff’s late motion for an extension of time to file a late opposition to California State Defendants’ motion to dismiss, the Court accepted Plaintiff’s late 28 opposition. (ECF No. 66.) 1 doubt. Chambers v. Herrera, 78 F.4th 1100, 1104 (9th Cir. 2023). Upon dismissal of any 2 claims, the court must tell a pro se plaintiff of a pleading’s deficiencies and provide an 3 opportunity to cure such defects. Garity v. APWU Nat'l Lab. Org., 828 F.3d 848, 854 (9th 4 Cir. 2016). However, if amendment would be futile, no leave to amend need be given. 5 Lathus v. City of Huntington Beach, 56 F.4th 1238, 1243 (9th Cir. 2023). 6 To determine the propriety of a dismissal motion, the court may not consider facts 7 raised outside the complaint (such as in an opposition brief), but it may consider such 8 facts when deciding whether to grant leave to amend. Broam v. Bogan, 320 F.3d 1023, 9 1026 n.2 (9th Cir. 2003). 10 B. Lack of Jurisdiction under Rule 12(b)(2) 11 Pursuant to Federal Rules of Civil Procedure 12(b)(2), a party may seek dismissal 12 of a claim for lack of personal jurisdiction. The burden of establishing personal 13 jurisdiction rests with the plaintiff. Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 14 2008). The plaintiff is only required to make a “prima facie showing of jurisdictional facts” 15 to withstand dismissal. In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 16 741 (9th Cir. 2013). For the purposes of deciding whether a prima facie showing has 17 been made, “the court resolves all disputed facts in favor of the plaintiff.” Pebble Beach 18 Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). Uncontroverted factual allegations 19 generally must be taken as true, Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 20 797, 800 (9th Cir. 2004), but “mere ‘bare bones’ assertions of minimum contacts with the 21 forum or legal conclusions unsupported by specific factual allegations will not satisfy a 22 plaintiff's pleading burden,” Swartz v. KPMG LLP, 476 F.3d 756, 766 (9th Cir. 2007) 23 (citations omitted). 24 C. Failure to State a Claim under Rule 12(b)(6) 25 A claim may be dismissed because of the plaintiff’s “failure to state a claim upon 26 which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint fails to state a claim if 27 it either lacks a cognizable legal theory or sufficient facts to support a cognizable legal 28 theory. Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015). To state a claim on 1 which relief may be granted, the plaintiff must allege enough facts “to state a claim to 2 relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 3 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows 4 the court to draw the reasonable inference that the defendant is liable for the misconduct 5 alleged.” Ashcroft v. Iqbal, 556 U.S. 678 (2009). When considering whether a claim has 6 been stated, the court must accept the well-pleaded factual allegations as true and 7 construe the complaint in the light most favorable to the non-moving party. Id. However, 8 the court is not required to accept as true conclusory factual allegations contradicted by 9 documents referenced in the complaint, or legal conclusions merely because they are 10 cast in the form of factual allegations. See Paulsen, 559 F.3d at 1071. 11 D. Motion for Judgment on the Pleadings 12 Under Rule 12(c), “a party may move for judgment on the pleadings” after the 13 pleadings are closed “but early enough not to delay trial.” A Rule 12(c) motion “is 14 properly granted when, taking all the allegations in the non-moving party's pleadings as 15 true, the moving party is entitled to judgment as a matter of law.” Fajardo v. Cty. of L.A., 16 179 F.3d 698, 699 (9th Cir. 1999). “Rule 12(c) is ‘functionally identical’ to Rule 12(b)(6) 17 and ... ‘the same standard of review’ applies to motions brought under either rule.” 18 Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011) (quoting 19 Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989)). The main 20 difference between these two motions is the timing of the filing. See Dworkin, 867 F.2d 21 at 1192. Thus, a motion for judgment on the pleadings should not be granted if the 22 complaint is based on a cognizable legal theory and contains “sufficient factual matter, 23 accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 24 678 (internal quotation marks and citation omitted). The court limits its review to the 25 content of the pleadings and matters properly subject to judicial notice. See Intri-Plex 26 Tech., Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007). 27 Courts have discretion to grant leave to amend in conjunction with motions made 28 pursuant to Rule 12(c). Lonberg v. City of Riverside, 300 F. Supp. 2d 942, 945 (C.D. Cal. 1 2004) (citation omitted). Generally, leave to amend a complaint is denied only if it is clear 2 that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow 3 Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). 4 III. DISCUSSION 5 A. California State Defendants Macomber, Dorsey, Broomfield, St. Louis- 6 Franklin, Reyes, Lugar’s Motion to Dismiss 7 1. Request for Judicial Notice 8 Pursuant to Federal Rule of Evidence 201, California State Defendants request 9 that the Court take judicial notice of the following documents in support of their motion to 10 dismiss: (A) Plaintiff’s redacted Face Sheet; and (B) Plaintiff’s Conditions of Parole. CA 11 Defs. RJN (ECF No. 51-1.) The Court grants California State Defendants’ request for 12 judicial notice of these documents pursuant to Federal Rule of Evidence 201. 13 2. Failure to State a Claim 14 California State Defendants move to dismiss Plaintiff’s claims pursuant to Federal 15 Rules of Civil Procedure 12(b)(6). CA Defs. Mot. (ECF No. 51). First, the Court finds 16 Defendants Dorsey, Lugar, Reyes, and St. Louis-Franklin are immune from suit as 17 parole officers. Second, the Court finds the FAC fails to allege sufficient facts to state a 18 claim against Defendants Macomber and Broomfield because the FAC does not allege 19 specific facts as to what acts these Defendants personally participated in that resulted in 20 the deprivation of Plaintiff’s rights under 42 U.S.C. § 1983. 21 42 U.S.C. § 1983 “provides a cause of action for the deprivation of any rights, 22 privileges, or immunities secured by the Constitution and laws of the United States.” 23 Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (internal quotation marks 24 omitted). “Section 1983 is not itself a source of substantive rights but merely provides a 25 method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 26 266, 271 (1994) (citation and internal quotation marks omitted). To state a cognizable 27 § 1983 claim, a plaintiff must allege the violation of a right protected by the Constitution 28 and laws of the United States, and that the alleged deprivation was committed by a 1 person who acted under color of state law. 42 U.S.C. § 1983; see also Florer v. 2 Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 921 (9th Cir. 2011). An individual 3 defendant is not liable on a civil rights claim unless the facts establish the defendant's 4 personal involvement in the constitutional deprivation or a causal connection between 5 the defendant's wrongful conduct and the alleged constitutional deprivation. See Hansen 6 v. Black, 885 F.2d 642, 645 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th 7 Cir. 1978). That is, a plaintiff may not sue a supervisory official on the theory that the 8 official is liable for the unconstitutional conduct of his or her subordinates. Iqbal, 556 9 U.S. at 679. 10 The FAC alleges California State Defendants violated Plaintiff’s constitutional 11 rights including “Due Process,” “Equal Protection” and “Double Jeopardy.” FAC at p10- 12 13, ¶¶ 1-15; p14-15, ¶¶ 18-22; p16-17, ¶¶ 27-29. As to Defendant Macomber, Plaintiff 13 alleges his constitutional rights were violated because Plaintiff had parole conditions 14 imposed on him that required Plaintiff to submit to searches of his electronic devices and 15 to wear a GPS monitor. Id. at p10-11, ¶¶ 1-7. As to Defendant Dorsey, Plaintiff alleges 16 his constitutional rights were violated because Defendant Dorsey imposed parole 17 conditions that mandated Plaintiff to wear a “Global Positioning System,” required 18 Plaintiff to complete 180 days of transitional housing in Los Angeles County, required 19 Plaintiff to “participate in continuous electronic monitoring,” and refused to process his 20 out-of-state parole transfer. Id. at p11-13, ¶¶ 8-15. Plaintiff also alleges Defendant Reyes 21 violated his constitutional rights by denying his right to parole and placing “numerous” 22 parole conditions. Id. at p14, ¶ 18. As to Defendant Lugar, Plaintiff alleges his 23 constitutional rights were violated because Defendant Lugar stated Plaintiff’s parole 24 conditions were lawful pursuant to California Penal § 3008 and enforced sex offender 25 treatment programs on Plaintiff as part of his parole conditions. Id. at p14-15, ¶¶ 19-22. 26 Plaintiff further alleges Defendant St. Louis-Franklin violated his constitutional rights 27 when he failed to process Plaintiff’s out-of-state transfer to Missouri. Id. at p16, ¶ 27. 28 Lastly, Plaintiff alleges Defendant Broomfield violated his constitutional rights by refusing 1 Plaintiff to participate in “prerelease classes” and for failing to “train staff, when initiating 2 parole documents.” Id. at p16-17, ¶¶ 28-29. 3 a. Quasi-Judicial Absolute Immunity 4 To the extent Plaintiff is alleging claims relating to the imposition of his parole 5 conditions against his parole officers, such as Defendants Dorsey, Lugar, Reyes, and St. 6 Louis-Franklin (see FAC at p4, 6-7), parole officers are absolutely immune from suit 7 arising from “the imposition of parole conditions” under a theory of quasi-judicial absolute 8 immunity. See Swift v. California, 384 F.3d 1184, 1189 (9th Cir. 2004). “This immunity 9 applies even where parole officers impose allegedly unconstitutional parole conditions.” 10 Chavez v. Robinson, 12 F.4th 978, 997 (9th Cir. 2021) (internal quotations and citation 11 omitted); see also Thornton v. Brown, 757 F.3d 834, 839-40 (9th Cir. 2014). Accordingly, 12 California State Defendants’ motion to dismiss should be GRANTED based on immunity 13 as to Defendants Dorsey, Lugar, Reyes, and St. Louis-Franklin without leave to amend. 14 b. Under Color of State Law 15 The FAC alleges Defendant Macomber, “Secretary of Corrections,” acted under 16 color of state law. See FAC at p10-11, ¶¶ 1-7 (“acting under color of law”). The FAC, 17 however, does not allege Defendant Broomfield acted under color of state law, only that 18 he is a “Warden” of San Quentin State Prison. Id. at p16-17, ¶¶ 28-29. California State 19 Defendants also do not address whether Defendants Macomber and Broomfield acted 20 under color of state law as a basis for dismissal. See generally CA Defs. Mot. “[A] 21 plaintiff must show that ‘the conduct allegedly causing the deprivation of a federal right 22 was fairly attributable to the State.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 23 (9th Cir. 2012) (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). Plaintiff’s 24 bare allegations are insufficient to determine whether Defendants Macomber and 25 Broomfield acted under color of state law. 26 c. Constitutional Violations 27 Plaintiff generally alleges Defendants Macomber and Broomfield deprived Plaintiff 28 of his constitutional rights to due process, equal protection and double jeopardy. See 1 FAC at p10-11, ¶¶ 1-7; p16-17, ¶¶ 28-29. Defendants Macomber and Broomfield argue 2 Plaintiff has not alleged sufficient facts to support his claims because Plaintiff does not 3 specify the relief he is seeking or provide support that a constitutional right has been 4 violated. CA Defs. Mot. at 3-8. To state a claim for relief against each defendant, Plaintiff 5 is “required to allege facts demonstrating each individual's personal involvement in a 6 constitutional violation.” Davis v. Folsom Cordova Unified Sch. Dist., 674 F. App'x 715, 7 717 (9th Cir. 2017). This requires a “causal connection” to the deprivation for which 8 Plaintiff complains. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). “The inquiry into 9 causation must be individualized to focus on the duties and responsibilities of each 10 individual defendant whose acts or omissions are alleged to have caused a 11 constitutional deprivation.” Id. A plaintiff must plead that each defendant, through the 12 individual's own actions, has violated the Constitution. Iqbal, 556 U.S. at 676. Moreover, 13 to the extent Plaintiff is also seeking to bring claims against Defendants Macomber and 14 Broomfield in their supervisory capacity, “[a] supervisor is only liable for constitutional 15 violations of his subordinates if the supervisor participated in or directed the violations, or 16 knew of the violations and failed to act to prevent them. There is no respondeat superior 17 liability under section 1983.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Here, 18 Plaintiff’s generalized allegations as to Defendants Macomber and Broomfield’s 19 involvement in Plaintiff’s imposition of parole conditions is insufficient. Plaintiff fails to 20 allege specific facts demonstrating Defendants Macomber and Broomfield’s connection 21 to or involvement in the alleged violations. See Fayle v. Stapley, 607 F.2d 858, 862 (9th 22 Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 23 941 (1979). Vague and conclusory allegations concerning the involvement of official 24 personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 25 F.2d 266, 268 (9th Cir. 1982). 26 i. Due Process 27 The Fourteenth Amendment’s Due Process Clause protects persons against 28 deprivations of life, liberty, or property. U.S. Const. amend. XIV, § 1; Wolff v. McDonnell, 1 418 U.S. 539, 556 (1974). When analyzing a procedural due process claim, courts must 2 determine whether a plaintiff was deprived of a constitutionally protected liberty or 3 property interest and whether that deprivation was accompanied by sufficient procedural 4 protections. Johnson v. Ryan, 55 F.4th 1167, 1179 (9th Cir. 2022). Plaintiff does not 5 identify a protected liberty or property interest that has been harmed by Defendants 6 Macomber and Broomfield. Merely alleging that Defendants Macomber and Broomfield 7 generally denied Plaintiff’s rights without more specificity as to how each Defendant 8 acted in causing a constitutional deprivation, is insufficient. See Ivey, 673 F.2d at 268. 9 Plaintiff has also failed to allege that Defendants Macomber and Broomfield, holding 10 supervisory positions, personally participated in the deprivation of his rights. See Taylor, 11 880 F.2d at 1045. 12 ii. Equal Protection 13 “To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection 14 Clause of the Fourteenth Amendment a plaintiff must show that the defendants acted 15 with an intent or purpose to discriminate against the plaintiff based upon membership in 16 a protected class.” Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (citation and 17 internal quotation marks omitted). “Intentional discrimination means that a defendant 18 acted at least in part because of a plaintiff's protected status.” Serrano v. Francis, 345 19 F.3d 1071, 1082 (9th Cir. 2003) (citing Maynard v. City of San Jose, 37 F.3d 1396, 1404 20 (9th Cir.1994) (internal quotation marks omitted)). Plaintiff does not allege that he is a 21 member of a protected class. See FAC. Even if Plaintiff is alleging he is a member of a 22 protected class as a parolee, courts have consistently held “[p]arolees are not members 23 of a protected class.” Turner v. Larsen, 2012 WL 12899114, at *6 (N.D. Cal. Apr. 19, 24 2012), aff'd, 536 F. App'x 748 (9th Cir. 2013) (citing Smith v. Sisto, 2009 WL 3294860, at 25 *6 (E.D. Cal. Oct. 13, 2009)); see also Lopez v. City of Santa Ana, 2015 WL 9918408, at 26 *6 (C.D. Cal. Dec. 21, 2015), report and recommendation adopted, 2016 WL 344501 27 (C.D. Cal. Jan. 26, 2016), aff'd, 698 F. App'x 401 (9th Cir. 2017) (parolees not a suspect 28 or quasi-suspect class for equal protection analysis). Plaintiff has not adequately alleged 1 that he belongs to a protected class, much less allege Defendants Macomber and 2 Broomfield’s actions were motivated by a discriminatory purpose. Accordingly, Plaintiff 3 has failed to state a claim that Defendants Macomber and Broomfield personally acted 4 with an intent or purpose to discriminate against Plaintiff as a protected class member. 5 See Ivey, 673 F.2d at 268. Plaintiff has also failed to allege that Defendants Macomber 6 and Broomfield, holding supervisory positions, personally participated in the deprivation 7 of his rights. See Taylor, 880 F.2d at 1045. 8 iii. Double Jeopardy 9 The Double Jeopardy Clause of the Fifth Amendment protects against punishing 10 a defendant multiple times for the same offense and prohibits successive prosecutions 11 for the same offense after acquittal or conviction. U.S. Const. amend. V; Witte v. United 12 States, 515 U.S. 389, 395 (1995). “The Double Jeopardy Clause does not prohibit the 13 imposition of all additional sanctions that could, in common parlance, be described as 14 punishment.” Hudson v. United States, 522 U.S. 93, 98-99 (1997) (internal quotation 15 marks omitted). Double jeopardy does not apply to parole revocation proceedings. See 16 Dunn v. California Dep't of Corr., 401 F.2d 340, 342 (9th Cir. 1968) (“A state prisoner's 17 right to parole is not one of the rights protected by the United States Constitution.”). 18 Plaintiff’s vague, conclusory allegations are insufficient to show how Plaintiff’s parole 19 implicates double jeopardy concerns. See generally FAC. In addition, Plaintiff fails to 20 establish a causal connection demonstrating Defendants Macomber and Broomfield’s 21 individual involvement in the alleged constitutional violation. See Ivey, 673 F.2d at 268. 22 Plaintiff has also failed to allege that Defendants Macomber and Broomfield, holding 23 supervisory positions, personally participated in the deprivation of his rights. See Taylor, 24 880 F.2d at 1045. 25 In conclusion, the Court recommends the dismissal of Plaintiff’s claims against 26 Defendants Dorsey, Lugar, Reyes, and St. Louis-Franklin based on immunity, and 27 dismissal of Plaintiff’s claims against Defendants Macomber and Broomfield based on 28 failure to state a claim. Accordingly, because amendment would be futile, the Court 1 recommends dismissing claims against California State Defendants without leave to 2 amend. 3 B. Defendant Mosely’s Motion for Judgment on the Pleadings 4 Defendant Mosely seeks to dismiss Plaintiff’s claims against him for failure to 5 state a claim. CA Defs. Mot. As explained above, the Court construes Defendant 6 Mosely’s motion to dismiss as a motion for judgment on the pleadings. The Court 7 recommends granting Defendant Mosely’s motion for judgment on the pleadings without 8 leave to amend. 9 As to Defendant Mosely, the FAC alleges limited facts. Specifically, the FAC 10 alleges Defendant Mosely violated Plaintiff’s due process, equal protection and First 11 Amendment rights in his refusal to process Plaintiff’s inmate grievance. FAC at 15, ¶ 23. 12 Plaintiff alleges he did not receive a response to his inmate grievance. Id. Plaintiff 13 alleges Defendant Mosely was “acting under color of law” when he deprived Plaintiff of 14 his constitutional rights. Id. 15 1. Under Color of State Law 16 Plaintiff’s allegations as to Defendant Mosely fail to establish Defendant Mosely 17 acted under color of state law. Plaintiff’s conclusory allegation is insufficient to establish 18 a Section 1983 claim. See Tsao, 698 F.3d at 1139. Such bare allegations are insufficient 19 to determine whether Defendant Mosely acted under color of state law. 20 2. Constitutional Violations 21 Plaintiff’s conclusory allegations that Defendant Mosely violated his due process, 22 equal protection and First Amendment rights are insufficient to support that Defendant 23 Mosely violated Plaintiff’s constitutional rights. See Davis, 674 F. App'x at 717. First, 24 Plaintiff’s due process allegations do not present a viable claim. “The Supreme Court 25 has held that a State creates a protected liberty by placing substantive limitations on 26 official discretion, [and] that to obtain a protectable right an individual must have a 27 legitimate claim of entitlement to it, [but] there is no legitimate claim of entitlement to a 28 grievance procedure.” Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (citations and 1 quotation marks omitted); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) 2 (holding “inmates lack a separate constitutional entitlement to a specific prison grievance 3 procedure.”). Therefore, the denial, rejection, or cancellation of a grievance does not 4 constitute a due process violation. See, e.g., Evans v. Skolnik, 637 F. App'x 285, 288 5 (9th Cir. 2015) (a prison official's denial of a grievance does not itself violate the 6 constitution). Second, Plaintiff has not adequately alleged that he belongs to a protected 7 class, much less alleged that Defendant Mosely’s actions were motivated by a 8 discriminatory purpose. See Furnace, 705 F.3d at 1030. Finally, although filing an inmate 9 grievance is a protected action under the First Amendment, Plaintiff fails to allege how 10 Defendant Mosely’s actions related to Plaintiff’s protected conduct. See Bruce v. Ylst, 11 351 F.3d 1283, 1288 (9th Cir. 2003). Because amendment would be futile, the Court 12 recommends granting Defendant Mosely’s motion for judgment on the pleadings and 13 dismissing Plaintiff’s claims as to Defendant Mosely without leave to amend. 14 C. Missouri State Defendants Richardson and Woodruff’s Motion to Set 15 Aside the Clerk’s Entry of Defaults 16 Pursuant to Federal Rules of Civil Procedure 55(c), “[t]he court may set aside an 17 entry of default for good cause.” In assessing whether a defendant has demonstrated 18 good cause, the court must consider three factors: 19 (1) whether the party seeking to set aside the default engaged in culpable conduct that led to the default; (2) 20 whether it had no meritorious defense; or (3) whether reopening the default judgment would prejudice the other 21 party. This standard, which is the same as is used to determine whether a default judgment should be set aside 22 under Rule 60(b), is disjunctive, such that a finding that any one of these factors is true is sufficient reason for the district 23 court to refuse to set aside the default. Crucially, however, judgment by default is a drastic step appropriate only in 24 extreme circumstances; a case should, whenever possible, be decided on the merits. 25 26 United States v. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010) (citations and internal 27 quotation marks omitted). Although the “good cause” standard is the same that applies 28 to motions to set aside default judgment under Rule 60(b), “the test is more liberally 1 applied in the Rule 55(c) context.” Mesle, 615 F.3d at 1091 n.1 (internal quotations and 2 citations omitted); see also Brady v. United States, 211 F.3d 499, 504 (9th Cir. 2000) 3 (finding the district court's discretion is “especially broad” when setting aside entry of 4 default, rather than default judgment). 5 Missouri State Defendants move to set aside their Clerk’s entries of default, 6 asserting good cause exists. MO Defs. Mot. Set Aside Default (ECF No. 74-1). Missouri 7 State Defendants argue this matter should proceed on the merits because there was no 8 “intentional gamesmanship or culpable behavior” by Missouri State Defendants; Missouri 9 State Defendants have a meritorious defense because this Court lacks personal 10 jurisdiction; and Plaintiff would not suffer any prejudice if the Clerk’s entries of default 11 were to be set aside. MO Defs. Mot. Set Aside Default at 5-9. Plaintiff did not file an 12 opposition and at the hearing on the motion, Plaintiff confirmed he did not oppose the 13 motion. The Court finds there is no indication that Missouri State Defendants acted 14 willfully or in bad faith in failing to timely respond. In addition, the Court finds that 15 Missouri State Defendants have presented a meritorious defense to Plaintiff’s claims. 16 And finally, there has been no indication that Plaintiff’s ability to prosecute this action has 17 been delayed or hindered. On the contrary, Plaintiff’s non-opposition at the hearing and 18 his failure to file any opposition to the motion indicates no prejudice to Plaintiff. See 19 Mesle, 615 F.3d at 1091. Accordingly, the Court recommends granting Missouri State 20 Defendants’ motion to set aside Clerk’s entries of default. 21 D. Missouri State Defendants Richardson and Woodruff’s Motion to 22 Dismiss 23 Missouri State Defendants Richardson and Woodruff move to dismiss Plaintiff’s 24 claims pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject-matter 25 jurisdiction, Rule 12(b)(2) for lack of personal jurisdiction, Rule 12(b)(5) for insufficient 26 service of process, and Rule 12(b)(6) for failure to state a claim. MO Def. Mot. (ECF No. 27 75-1). Because the Court finds claims against Missouri State Defendants should be 28 dismissed based on lack of personal jurisdiction, the Court declines to address the 1 additional grounds for dismissal. 2 Missouri State Defendants move to dismiss under Rule 12(b)(2) arguing they are 3 not subject to personal jurisdiction in California because they have no contacts with 4 California. MO Defs. Mot. at 5-6. Defendants Richardson and Woodruff are residents of 5 Missouri and are Missouri state employees. MO Defs. Mot. at 2; Decl. of Alison Woodruff 6 ¶¶ 1-2 (ECF No. 75-3); Decl. of Jessika Richardson ¶¶ 1-2 (ECF No. 75-4). Plaintiff’s 7 request to transfer his parole supervision to Missouri was received and processed in 8 Missouri only. MO Defs. Mot. at 2; Woodruff Decl. ¶¶ 3-4; Richardson Decl. ¶¶ 3-4. 9 Missouri State Defendants argue they had no direct contact with Plaintiff either in person 10 or by telephone, they did not travel to California to complete their duties to complete 11 Plaintiff’s request, and they do not own any property or have any business or assets in 12 California. Id. Plaintiff generally opposes this ground for dismissal stating Missouri State 13 Defendants had direct involvement in actions affecting Plaintiff in California. Decl. of 14 William Lyle Nible ¶ 3 (ECF No. 79-2). 15 Plaintiff has failed to establish personal jurisdiction is proper here. The allegations 16 against Missouri State Defendants are general, conclusory, and do not establish that the 17 actions that give rise to Plaintiff’s claims against these defendants occurred in California, 18 much less within the Eastern District of California. See Swartz, 476 F.3d at 766. 19 Moreover, Plaintiff cannot generally aggregate factual allegations concerning multiple 20 defendants to demonstrate personal jurisdiction over individual defendants. See Rush v. 21 Savchuk, 444 U.S. 320, 331-32 (1980) (rejecting aggregation of co-defendants’ forum 22 contacts in determining personal jurisdiction as “plainly unconstitutional” because “the 23 requirements of International Shoe must be met as to each defendant over whom a ... 24 court exercises jurisdiction”). Aside from conclusory allegations, there is no support 25 shown by Plaintiff that these Missouri State Defendants committed any act aimed at 26 California, the forum state. Instead, it is apparent that the claims against these 27 defendants arise from conduct that occurred in Missouri. Even taking Plaintiff’s 28 allegations as true, Plaintiff has not made a prima facie showing that Missouri State 1 Defendants had sufficient minimum contacts with California to establish personal 2 jurisdiction. Accordingly, the Court recommends granting Missouri State Defendants’ 3 motion to dismiss pursuant to Rule 12(b)(2) without leave to amend. 4 E. Plaintiff’s Motion for Injunctive Relief 5 In his motion for injunctive relief, Plaintiff alleges he is in constructive custody 6 because he is being required to comply with parole conditions that violate his 7 constitutional rights. Pl. Mot. at 7-9 (ECF No. 67). Plaintiff argues parole conditions such 8 as housing restrictions, ankle monitoring, and required participation in sex offender 9 classes should not apply to Plaintiff because he is neither a “high risk” or a “current sex 10 offender.” Id. at 10-17. Plaintiff is seeking an injunction that “will order the defendant to 11 cease and desist from violating plaintiff’s constitutional rights by imposing unlawful 12 conditions of parole upon the plaintiff.” Id. at 7. 13 Under federal law, a preliminary injunction is “an extraordinary remedy that may 14 only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter 15 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). To obtain a preliminary injunction, 16 the plaintiff must show (1) they are “likely to succeed on the merits”; (2) they are “likely to 17 suffer irreparable harm in the absence of a preliminary injunction”; (3) “the balance of 18 equities tips in [their] favor”; and (4) a preliminary injunction “is in the public interest.” 19 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter, 555 U.S. 20 at 20) (referred to as the Winter factors). Because this Court recommends that this 21 action be dismissed in its entirety, this Court finds that Plaintiff fails to demonstrate that 22 he is likely to succeed on the merits of his claims. For this reason, Plaintiff’s motion for 23 injunctive relief should also be denied. 24 F. Sua Sponte Dismissal 25 1. Defendant Jason Johnson 26 There are no allegations raised against Defendant Johnson in the FAC. See 27 generally FAC. The FAC also does not allege Defendant Johnson is a state actor or that 28 any actions taken were under color of state law as required for a claim brought under 1 42 U.S.C. § 1983. Sua sponte dismissal of Plaintiff’s claims against Defendant Johnson 2 is therefore appropriate here. See Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th 3 Cir. 1987) (“A trial court may dismiss a claim sua sponte under Fed. R. Civ. P. 4 12(b)(6).”); Silverton v. Dep't of Treasury of U. S. of Am., 644 F.2d 1341, 1345 (9th Cir. 5 1981). 6 The Court notes that Plaintiff received notice of this defect as it was raised in the 7 California State Defendants’ motion. California State Defendants argue Defendant 8 Johnson should be dismissed from this action because no allegations are raised against 9 him.5 CA Defs. Mot. at 8 n.2. 10 Because leave to amend would be futile, the Court recommends claims against 11 Defendant Johnson be dismissed sua sponte without leave to amend. See Silverton v. 12 Dep’t of Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981) (district court “may properly on its 13 own motion dismiss an action as to defendants who have not moved to dismiss where 14 such defendants are in a position similar to that of moving defendants”); see also Creech 15 v. Tewalt, 84 F.4th 777, 787 (9th Cir. 2023) (“although sua sponte dismissals are 16 unusual they are permitted under our precedent”). 17 2. Additional Claims Raised 18 The FAC also generally alleges claims under the Fourth Amendment, First 19 Amendment, and “State and Federal Whistleblower Act.” FAC at 8. These claims fail 20 because Plaintiff does not allege any specific claim against any specific defendant and 21 does not identify which defendant is responsible for which alleged violations. In addition, 22 Plaintiff does not provide factual allegations in support of each of these claims. See 23 generally FAC. As a result, Plaintiff has failed to give fair notice of the claims being 24 asserted against which defendants. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th 25 Cir. 1996) (affirming dismissal of a complaint where the district court was “literally 26

27 5 California State Defendants indicate Defendant Johnson has not been properly served and therefore California State Defendants’ counsel does not have authorization 28 to represent Defendant Johnson. See CA Defs. Mot. at 8, n.2. 1 guessing as to what facts support the legal claims being asserted against certain 2 defendants.”). Accordingly, Plaintiff’s claims for Fourth Amendment, First Amendment, 3 and “State and Federal Whistleblower Act” are dismissed sua sponte on the Court’s own 4 motion. See Omar, 813 F.2d at 991. Because leave to amend would be futile, the Court 5 recommends these claims be dismissed sua sponte without leave to amend. See 6 Creech, 84 F.4th at 787. 7 IV. CONCLUSION 8 For the reasons stated above, IT IS RECOMMENDED that: 9 1. California State Defendants Macomber, Dorsey, Broomfield, St. Louis- 10 Franklin, Reyes, and Lugar’s motion to dismiss (ECF No. 51) be 11 GRANTED without leave to amend; 12 2. Defendant Mosely’s motion for judgment on the pleadings (ECF No. 51) be 13 GRANTED without leave to amend; 14 3. Missouri State Defendants Richardson and Woodruff’s motion to set aside 15 the Clerk’s entry of defaults (ECF No. 74) be GRANTED; 16 4. Missouri State Defendants Richardson and Woodruff’s motion to dismiss 17 (ECF No. 75) be GRANTED without leave to amend; 18 5. Plaintiff’s motion for injunctive relief (ECF No. 67) be DENIED; 19 6. On the Court’s own motion, Plaintiff’s claims against Defendant Jason 20 Johnson be DISMISSED without leave to amend; 21 7. On the Court’s own motion, Plaintiff’s claims for violations of the Fourth 22 Amendment, First Amendment, and State and Federal Whistleblower Act 23 be DISMISSED without leave to amend; and 24 8. This entire action be dismissed. 25 These findings and recommendations are submitted to the United States District 26 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 27 14 days after being served with these findings and recommendations, any party may file 28 written objections with the Court and serve a copy on all parties. This document should 1 || be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any 2 || reply to the objections shall be served on all parties and filed with the Court within 14 3 | days after service of the objections. Failure to file objections within the specified time 4 || may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 5 || 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 6 | Dated: 07/03/25 C iy s CHI SOO KIM 8 UNITED STATES MAGISTRATE JUDGE Q || 4, nibl1259.24 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20