No. 11-5384 - Cockle Legal Briefs

No. 11-5384

IN THE SUPREME COURT

OF THE UNITED STATES

ERIC JACOBSON, ESQ.an attorney for parolees (on behalf of himself only); &

ERIC JOHNSON, a current parolee, &ERIC JACOBSON, ESQ.

(on behalf of all California parolees) –PETITIONERS

v.

ARNOLD SCHWARZENEGGER, et al.–RESPONDENTS

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Co-Petitioner Eric C. Jacobson, Esq. Public Interest Lawyer (Pro Se)

PO Box 67674, Los Angeles, CA 90067(310) 204-0677 (Tel.); &

[email protected] (Email)

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QUESTIONS PRESENTED:

1.28 U.S.C. §636(b)(1)(A) states: “... a judge may

designate a magistrate judge to HEAR and determine anypretrial matter pending before the court, EXCEPT amotion...for summary judgment... ”. And 28 U.S.C. §636(c)(1)states: “Upon consent of the parties, a full-timemagistrate judge...may conduct any and all proceedings in ajury or nonjury civil matter...” (Emphases added.) Is aDistrict Court judgment therefore a nullity when, as here, itaffirms the recommendation of a Magistrate Judge who hasHEARD and adjudicated a summary judgment motionwithout the consent of all parties?

2.Here, by (disfavored) “cock-eyed” institutional

arrangement, the personnel of Co-plaintiff Jacobson’sCalifornia corrections employer were blatant antagonists ofPlaintiff appointed attorney Jacobson’s parolee clients .1/

Where, as here, an independent contractor’s role as a stateappointed parolee defense attorney pe r se (including hisduty of loyalty to his clients) places him into an (obvious)adversarial posture towards his parole board and correctionspersonnel employers, does this (in sum) estop theDefendants and Court from classifying the attorney’s ardent

1.

Compare preferred ground rules for (far moreindependent) public defender offices: viz. ABA...Standards,Providing Defense Services @ Standard 5-1.3(b) “Professionalindependence” [banning prosecutors and judges from the boardsof trustees] @http://www.abanet.org/crimjust/standards/defsvcs_blk.html#1.3

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outspoken whistleblower advocacy as: speech that lost FirstAmendment protection by virtue of it being the type ofspeech the Defendants were entitled to control as Jacobson’s“employer” under the doctrine of Garcetti v. Ceballos, 547U.S. 410 (2006) (“Garcetti”)?

3.Here a Defendant wrote and circulated a letter stating

that a state employed male attorney (co-Plaintiff Jacobson)touched a female parole agent on her shoulder following a(contentious) administrative hearing and this had caused theparole agent to ask the attorney to remove his hand from hershoulder. Presuming Plaintiff can prove the latter DID NOTHAPPEN, is it defamatory to falsely state in a writing(circulated to third parties) that a male attorney touched afemale parole agent in an unwelcome manner? In sum, doessaid false statement tortiously injure Plaintiff’s reputation,such as by creating wariness towards the Plaintiff amongfemale work associates (modernly, half the workforce),entitling Plaintiff to damages compensation?

4.Did the Magistrate Court (“MC”) correctly construe

Cal. Labor Code (“LC”) §1102.5 (California’s whistleblowerprotection statute), which defines covered persons as those“employed by” the state and contains no specific exemptionof independent contractors (“ICs”), to exclude ICs from itsdefinition of covered persons?

4A.If the MC correctly construed Cal. Labor Code (“LC”)

§1102.5 (California’s whistleblower protection statute), doesit violate the equal protection clauses of the federal or stateConstitution to deny IC attorneys the exact same protectionsagainst retaliatory termination as they would have if they

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were classified as part-time employees?4B.

Is co-Plaintiff Jacobson correct:(i) that there is NO RATIONAL BASIS

WHATSOEVER for denying a professionallylicensed attorney whose practice consists in part ofrepresenting indigent parolees as an IC the rightsaccorded to a public defender or legal aid attorneyserving a similar clientele: to be legally insulatedfrom retaliation when he or she reports legalwrongdoing to superiors or outside authorities?Accord (as to policy considerations): United States exrel. Watson v. Connecticut Gen. Life Ins. Co., 2003 WL303142, at *5 (E.D. Pa. 2003); and

(ii) That no legitimate governmental interest is served,and illicit governmental interests are abetted, by suchan arbitrary classification?

5.In light of, inter alia: the doctrine articulated in

Lincoln Prop. Co. v. Roche, 546 U.S. 81, 91 (2005) [“Ingeneral, the plaintiff is the master of the complaint and hasthe option of naming only those parties the plaintiff choosesto sue, subject only to the rules of joinder [of] necessaryparties”], the criteria for asserting third party standingarticulated in Kowalski v. Tesmer, 543 U.S. 125 (2004)quoting Warth v. Seldin, 422 U.S. 490,499(1975), and theirapplication to attorney Jacobson and the facts herein, did theMagistrate Court properly deny Jacobson third-partystanding to represent his parolee clientele and sever hislawsuit into respective parolee rights and employment rightscases, rather than allow the case to proceed as filed?

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6.In light of co-Plaintiffs’ Johnson’s and Jacobson’s well-

taken Third Amended Complaint[TAC]-fact driven assertion:(i) that California’s current punitive landscape of parole

administration bears no resemblance to the prevailingrehabilitative ethos surrounding parole upon whichlandmark Supreme Court precedents Morrissey v.Brewer (1972) 408 U.S.471 and Gagnon v. Scarpelli(1973) 411 U.S.778 were premised – which decisionsdistinguished revocation proceedings from traditionalcriminal proceedings (primarily on that pro-rehabilitative grounds), and corre spondinglylessened the required due process for alleged paroleviolators:

Did the Magistrate and District Court correctly rejectPlaintiffs’ contention that the Fourteenth Amendment andstate law (People v. Vickers, 8 Cal.3d, 451; 105 Cal.Rptr. 305,313 (1972-73) and In re Tucker, 5 Cal.3d171 (1971)),compelled the federal court to e nte r an injunc t ion forcingCalifornia to either:• restore a rehabilitative ethos and practices towards

parolees residing in the community, AND/OR• enhance the due process rights of alleged parole

violators, including according them public trial or jurytrial rights (or modified version thereof) in therevocation process?

6A.Did, as co-Plaintiffs’ contend, the Magistrate Court

err in dismissing Plaintiffs’ claims asserting parolees’ right toone or the other of the just-mentioned remedies, in light ofthe draconian nature of the system depicted in the TAC. See“THE CHOICE”. ECJ_1519_1526 [re 6 & 7 claims &th th

“punishment vs. rehabilitation”]_EOR.

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7.Due to the virtues of “sanitizing sunlight” does the

14 Amendment require that state parole revocationth

proceedings be held in public v e nue s reasonably accessibleto the public and media (such as courthouses or conventionalgovernment hearing rooms) rather than within jails orprisons or in anterooms thereof?

8.Does it violate the appellants’ due process and access

to courts rights for the appeals court to permit the appelleesto seek an extinguishment of an appeal without adjudication,as here, by me ans of a re que st p lace d in an opposit ionto Plaint iffs’ mot ion for an e nlarge me nt of t ime t o filethe Exce rpt s of Re cord, rathe r than by a se paratemot ion?

8A.May, as here, a motions panel of an appeals court

grant such a request for extinguishment embedded in anOpposition without giving Plaintiffs/Appellants anyopportunity – before or after – to persuade the appeals Courtof the inappropriateness of such a drastic action?

8B.Where the operation of a local circuit rule results in

the death of an appeal without adjudication (such as the SixthCircuit’s rule at issue in Thomas v. Arn, 474 US 140, 155 [fn.15 and text accompanying] (1985) proscribing appeals fromMagistrate Courts where the appellant did not first directobjections to the District Judge), is a circuit court compelledby due process strictures (in light of the property interest ofPlaintiffs in their lawsuit and the “existential” value toparties of a fair adjudication of such a lawsuit in a freesociety) to apply the rule allowing extinguishment extremelyjudiciously, ordinarily employ less drastic sanctions and/or

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make an exception where, as here: major extenuatingcircumstances pertained (including Jacobson’s need tocomply with a directly competing Ninth Circuit Order froma Merits Panel in another appeal on 12/20/2010, 9 days beforethe 12/29/2010 deadline to file the AOB in Jacobson),Plaintiffs missed no specific appeals court-ordered deadlinenor violated any specific appeals court order, and the openingbrief originally submitted contained only minor deviationsfrom the rules, such as the omission of tables of contents andauthorities, and at the time of the extinguishment on2/8/2011, a completed “Second Corrected and Final AOB”and Excerpts of Record had been pending since 1/26/2011?

8C.In light of the gravity of the prope rty “deprivation”2/

2.

See generally, in this regard, Justice Black (dissenting)quoting with approval 7 Circuit Judge Schnackenberg’s eloquentth

dissent in Link v. Wabash R. Co., 370 US 626, 637 (1962) [withbolded emphasis added by Jacobson]:

“The order now affirmed has inflicted a seriousinjury upon an injured man and his family, who areinnocent of any wrongdoing. Plaint iff’s cause ofac t ion . . . w as his prope rt y . It has be e nde st roy e d. The district court, to punish a lawyer,has confiscated another’s property withoutprocess of law, which offends the constitution. Adistrict court does not lack disciplinary authorityover an attorney and there is no justification,moral or legal, for its punishment of an innocentlitigant for the personal conduct of his counsel.Because it was neither necessary nor proper tovisit the sin of the lawyer upon his client, I would

(continued...)

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involved, did it violate the appellants’ due process and accessto courts rights for the appeals court to extinguish Plaintiffs’appeal on the grounds of “failure to prosecute” when: (i) the Defendants’ requested termination on the

differing (scurrilous, absurd and fraudulent) groundthat Plaintiffs’ had show disdain and disrespect for theappeals court? And

(ii) the Federal Rule of Appellate Procedure 42(b), whichNinth Circuit Rule 42-1 (ostensibly) modifies hasnothing w hatsoe ve r t o do w ith dismissals for“w ant o f prose cut ion” – only voluntarydismissals , rendering the local Circuit Rule a nullity3/

under the doctrine that which holds that local federalcourt rules must conform to the general rules theymodify?

(...continued)reverse.” [fn: 291 F. 2d 542, 548].

3. FRAP 42(b) states:Dismissal in the Court of Appe als. The circuitclerk may dismiss a docketed appeal if the partiesfile a signed dismissal agreement specifying howcosts are to be paid and pay any fees that are due.But no mandate or other process may issuewithout a court order. An appeal may bedismissed on the appellant’s motion on termsagreed to by the parties or fixed by the court.

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LIST OF PARTIES

[ ] All parties appear in the caption of the case on the coverpage.

[X] All parties do not appear in the caption of the case on thecover page. A list of all parties to the proceeding in the courtwhose judgment is the subject of this petition is as follows:

PLAINTIFFS:

ERIC JACOBSON, ESQ.an attorney for parolees(on behalf of himself only); &

ERIC JOHNSON, a current parolee, &ERIC JACOBSON, ESQ.(on behalf of all California parolees),

respectively.

DEFENDANTS:

ARNOLD SCHWARZENEGGER,Governor of California, in his individual capacity;GRAY DAVIS, Former Governor of California, in his individual capacity;RODERICK HICKMAN, Secretary of the California Youth and Adult CorrectionalAgency, in his individual capacity;ROBERT PRESLEY, Former Secretary of the CaliforniaYouth and Adult Correctional Agency, in his individualcapacity;

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MARGARITA E. PEREZ, Chairperson of the California Board of Prison Terms, in herindividual capacity;CAROL DALY, former Chairperson of the California Board of Prison Terms,in her individual capacity;THOMAS WADKINS, Associate Chief Deputy Commissioner of the CaliforniaBoard of Prison Terms, in his individual capacity;TERRY R. FARMER, Chief Counsel, California Board of Prison Terms, in hisindividual capacity;MARVIN E. SPEED, II, Executive Director of the California Board of Prison Terms,in his individual capacity;KEN CATER, Chief Deputy Commissioner of the California Board of PrisonTerms, in his individual capacity;SANDRA MACIEL, Official of the California Board of Prison Terms, in herindividual capacity;TRACY MASTER, Official of the California Board of Prison Terms, in Master’sindividual capacity;MARC D. REMIS, Official of the California Board of Prison Terms, in hisindividual capacity;DAN MOELLER, Counsel, California Board of Prison Terms, in his individualcapacity;

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JEANNE S. WOODFORD, Director of the California Departmentof Corrections, in her individual capacity;EDWARD S. ALAMEIDA JR.,Former Director of the California Department ofCorrections, in his individual capacity;BRIGIT MURRIA, Parole Agent, California Department of Corrections, in her individual capacity;UNKNOWN OFFICIALS NOS. 1-10of the California Youth and Adult Correctional Agency, theBoard of Prison Terms or the Department of Corrections, intheir personal capacities.

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TABLE OF CONTENTS

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONSTITUTIONAL AND STATUTORY PROVISIONSINVOLVED. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . 2A. Biographical & Career Background . . . . . . . . 4B. BPT Employment and Parolee Population. . . 5C. Whistleblowing Activity.. . . . . . . . . . . . . . . . . 6D. Suspension & Removal . . . . . . . . . . . . . . . . . . 8E. Social Context Which Informed: Defendants’

Retaliatory Removal of Jacobson, and TheInstant Lawsuit. . . . . . . . . . . . . . . . . . . . . . . . 9

F. Magistrate and District Court Rulings. . . . . 121. The Dismissed Parolee Rights Claims.142. The Dismissed Employment Rights

Claims.. . . . . . . . . . . . . . . . . . . . . . . . . 203. The Adjudicated Employment Rights

Claims.. . . . . . . . . . . . . . . . . . . . . . . . . 24

REASONS FOR GRANTING THE PETITION. . . . 34

CONCLUSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

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INDEX TO APPENDICESJacobson v. Schwarzenegger, Ninth Circuit Docket No. 09-56522 and Case No. 04-3629 JFW(JTL) (Cent.Dist.Cal):

APPENDIX ARulings of the Ninth Circuit Court of Appeals:

1. Order Extinguishing Appellant’s Appeal, dated2/8/2011; Dkt Entry: 25. . . . . . . . . . . . . . . . . . . 2a-3a

2. Order Denying Motion for Leave to File OversizedAOB; Dkt. Entry: 17. . . . . . . . . . . . . . . . . . . . . . 4a-5a

APPENDIX BRulings of the District Court for the Central District

of California:

1. Notice of Filing of Magistrate Judge’s Report andRecommendation; and Report and Recommendationre Defendants’ Omnibus Motion to Dismiss, dated1/16/2007; Doc. 54. . . . . . . . . . . . . . . . . . . . . . 7a-78a

2. Order Adopting Findings, Conclusions andRecommendations of the Magistrate Judge reDefendants’ Omnibus Motion to Dismiss, dated8/1/2007; Doc. 57. . . . . . . . . . . . . . . . . . . . . . 79a-81a

3. Order Severing Claims, dated 9/6/2007; Doc. 58.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82a-83a

4. Order Precluding Application for Class Certification,dated 9/28/2007; Doc. 59. . . . . . . . . . . . . . . . 84a-89a

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5. Amended Report and Recommendation of theMagistrate Judge (amending earlier 2009 version),dated 6/24/2009; Doc. 229. . . . . . . . . . . . . . 90a-154a

6. Notice of Filing of Magistrate Judge’s AmendedReport and Recommendation, dated 6/24/2009; Doc.230. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155a-157a

7. Order Adopting Findings, Conclusions, andRecommendations of the Magistrate Judge, dated8/25/2009; Doc. 233. . . . . . . . . . . . . . . . . . 158a-159a

8. Judgment; Doc. 234.. . . . . . . . . . . . . . . . . . 160a-161a

APPENDIX CNotice of Appeal to the United States Court of

Appeals for the Ninth Circuit:

1. Notice of Appeal of the Magistrate and DistrictCourt’s 2009 MSJ Ruling, dated 9/20, 2009; Doc. 235. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163a-193a

APPENDIX DTexts of Constitutional & Statutory Provisions

Involved (Added Appendix Included Per Rule 34.5*):

1. U.S. Const.: 1 , 8 , 13 , 14 Amendments; & Cal.st th th th

Const. Art.1 §§1&13; 42 U.S.C. §1983; 28 U.S.C.§636(b)(1)(A); 28USC §636(c)(1); & Federal Rule ofAppellate Procedure 42(b). . . . . . . . . . . . 194a - 204a

* Except for adding these required texts, Petitioner has made nomaterial textual change to his originally filed IFP Petition.

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TABLE OF AUTHORITIES

FEDERAL CASES

Supreme Court Cases Conflicting With (Respectively):

Ninth Circuit, Magistrate & District Court SubstantiveRulings in: Jacobson, Esq . and Johnson & Jacobson, Esq . v .Schw arze ne gge r, e t al., Ninth Circuit Court of AppealsDocket No.09-56522; DC Case No. CV 04-3629-JFW(JTL) (Central District of California)

Board of County Commissioners v. Umbehr, 518 U.S.668(1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Caterpillar, Inc. v. Williams, 482 U.S.386, 392 (1987). . . 13

City of San Diego v. Roe, 543 U.S. 77, 83-84 (2004) (quotingConnick v. Myers, 461 U.S.138,147-148(1983). . . 25

Connick v. Myers, 461 US 138 (1983). . . . . . . . . . 25-26, 33

Gagnon v. Scarpelli (1973) 411 U.S.778. . . . iv, 15, 17-18, 34Gagnon v. Scarpelli, 411 U.S.778, at pp. 784-85. . . . . . . . 15

Garcetti v. Ceballos, 547 U.S. 410 (2006) (“Garcetti”). . . . . . . . . . . . . . . . . . . . . . . . . . ii, 29-30

Kowalski v. Tesmer, 543 US 125, 125 S. Ct. 564 [2004].. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii, 12-13

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Lincoln Prop. Co. v. Roche, 546 U.S. 81, 91 (2005). . . iii, 13

Link v. Wabash R. Co., 370 US 626, 637 (1962). . . . . . . . vi

Morrissey v. Brewer (1972) 408 U.S. 471. . . . . . . . . . . . . . . . . . iv, 2,5, 17-18, 33

Morrissey v. Brewer, 408 U.S. 471, 485 (1972). . . . . . . . . 33

Robinson v. California, 370 U.S.660 (1962).. . . . . . . . . . . 15

Thomas v. Arn, 474 US 140, 155 [fn. 15 and textaccompanying] (1985). . . . . . . . . . . . . . . . . . . . . . . . v

Ninth Circuit Cases Conflicting With (Respectively):

Magistrate & District Court Substantive Rulings in: Jacobson, Esq . and Johnson & Jacobson, Esq . v .Schw arze ne gge r, e t al., Ninth Circuit Court of AppealsDocket No.09-56522; DC Case No. CV 04-3629-JFW(JTL) (Central District of California)

Anderson v. Woodcreek Venture Ltd., 351 F.3d 911 (9 Cir. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24th

Anthoine v. N. Cent. Counties Consortium, 605 F.3d 740,748(9 Cir.2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26th

Blair v. City of Pomona, 223 F.3d 1074 at 1079 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Desrochers v. City of San Bernardino, 572 F.3d 703 @ 710 (9 Cir. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26th

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Eng v. Cooley, 552 F.3d 1062 (9 Cir. 2009).. . . . . . . . . . . . . . . . . . 25-26, 28, 31-32th

Huppert v. City of Pittsburg, 574 F. 3d 696, 702-703 (9 Cir. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25th

Johnson v. Multnomah County, 48 F.3d 420, 425 (9th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Legal Services Corporation v. Velazquez, 531 U.S. 533@542(2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Marez v. Bassett, 595 F.3d 1068 (9 Cir. 2/28/2010) th

[“Marez”]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 31

Roth v. Veterans Admin. of U.S., 856 F.2d 1401 at 1405-1406(9th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Judge O’Scannlain’s “special concurrence” in the NinthCircuit’s 3-judge panel ruling reversing the districtcourt in Garcetti @ 361 F.3d 1168,1185-1194 (9th

Cir.2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Other Federal Cases

Armstrong v. Davis, 318 F.3d 965 (9 Cir.2003). . . . . . . . . 5th

Custer v. Sweeney, 89 F.3d 1156, 1165 (4 Cir.1996). . . . 13th

Griffin v. Wisconsin, 483 U.S. 868 (1987) [approachsuperseded]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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/Jacobson v. Schwarzenegger, Ninth Circuit Docket No. 09-56522 and Case No. 04-3629 JFW(JTL) (Cent.Dist.Cal), 357 F. Supp. 2d 1198 (CD Cal.11/30/2004) & 226FRD 395 (CD Cal. 2/15/2005); 650 F. Supp. 2d 1032 (2009).. . . . . . . . . . . . . . . . . viii, 1, 3, 9-15, 20, 24, 34

Jacobson v. Schwarzenegger, 650 F. Supp.2d 1032 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 24

Johnson v. Schwarzenegger, now on appeal (Docket No. 08-55481. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14

Justice Black (dissenting) in Link v. Wabash R. Co., 370 US626, 637 (1962) quoting with approval 7 Circuitth

Judge Schnackenberg’s eloquent dissent: fn: 291 F.2d 542, 548]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

O’Neal-Gonzales, et al. v. City of Inglewood; USA, et al., 9th

Cir. Docket Nos.08-57039&09-55785 [4 Amendmentth

parole search and seizure case]. . . . . . . . . . . . . . . . 4

United States v. Comito, 177 F. 3d 1166 (9 Cir. 1999). . . . 8th

United States ex rel. Watson v. Connecticut Gen. Life Ins. Co.,2003 WL 303142, at *5 (E.D. Pa. 2003). . . . . . . . . 22

Valdivia v. Schwarzenegger, 206 F. Supp.2d 1068 (E.D.Cal.2002); No. CIV S-94-671 LKK/GGH (EasternDist.Cal.); 548 F. Supp. 2d 852 (E.D. Cal. 2008),affirmed 599 F.3d 984 (9th Cir. 2010). . . . . 4, 13, 20

Warth v. Seldin, 422 U.S. 490, 499 (1975). . . . . . . . . . . 4, 13

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Webb v. County of Trinity, 734 F. Supp.2d 1018 (UCDCEastern Dist. Cal. 8/10/2010). . . . . . . . . . . . . . . . . 33

California Cases

In re Tucker, 5 Cal.3d171 (1971). . . . . . . . . . . . . . . . . iv, 18

People v. Vickers, 8 Cal.3d, 451; 105 Cal.Rptr. 305, 313(1972).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv, 18

Federal Constitution

First and Fourteenth Amendment.. . . . . . . . . . . . . . . . . . 21First Amendment. . . . . . . . . . . . . . . . . . . . . . 8, 24-25, 28-3214 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vth

Eighth Amendment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19Thirteenth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . 19

STATUTES AND RULES

Federal Statute

42 U.S.C. § 1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 21

28 U.S.C. §636(b)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . i, 2428 U.S.C. §636(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . i, 24

Appellate Rules of Civil Procedure

Federal Rule of Appellate Procedure 42(b).. . . . . . . . . vii, 2FRAP 42(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

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Ninth Circuit Rule 42-1. . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Rules of the Supreme Court of the United States

California Constitution

Cal. Const. Art.1,§1 [listing “inalienable rights” including“privacy”]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

California Statute

Cal. Labor Code (“LC”) §1102.5 (California’swhistleblower protection statute). . . . . . . . . . . ii, 21

OTHER

Law Review and Other Articles

Elizabeth Dale, “Employee Speech & Management Rights:A Counterintuitive Reading of Garcetti v. Ceballos” 29Berkeley J.Emp.&Lab.L. 175 (2008) (hereinafter“Dale”) at p.210, footnotes 239-241 and textaccompanying. . . . . . . . . . . . . . . . . . . . . . . 29-30, 33

Dale at 195-196, t e x t accompany ing footnote s145-150.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Dale, footnotes 140 and 141 and text accompanying. . . . 33 McNamara, Antoine, The “Special Needs” of Prison,

Probation, and Parole. NYU Law Review, Vol.82,p.209, 2007.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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Treatises

ABA...Standards, Providing Defense Services @ Standard 5-1.3(b) “Professional independence” [banningprosecutors and judges from the boards of trustees]@http://www.abanet.org/crimjust/standards/defsvcs_blk.html#1.3. . . . . . . . . . . . . . . . . . . . . . . . . . . i, 31

Government Watchdog Reports

Little Hoover Commission to the Inspector General to theState Personnel Board. . . . . . . . . . . . . . . . . . . . . . 10

Other Items

http://westapps.west.thomson.com/westheadnote/Jan08/01- 04-08.asp . ECJ_6055_6057 _EOR. . . . . . . . . . . 12

http://www.censurethefive.org/ladj.jpg [1 anniversary op-st

ed] and more recently:http://www.washingtonpost.com/wp-dyn/content/article/2010/12/18/AR2010121802827.html [10 anniversary of Bush v. Gore letter]th

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5

Plaintiff’s Government Claim (No. 0541835) 11/21/2003.ECJ_1409fn.39&1589_1605[claim]&882_883[rejection letters]_EOR. . . . . . . . . . . . . . . . . . . . . . 5

1

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorariissue to review the judgment below.

OPINIONS BELOW [X] For cases from federal courts: The Order (extinguishing Petitioner’s appeal) of the UnitedStates court of appeals appears at Appendix A1 to the petitionand[X] is unpublished.

The final (magistrate-authored, district judge approved)opinion of the United States district court, dated 6/24/2009,appears at Appendix B5 to the petition and is[X] reported at:650 F. Supp.2d 1032 (2009).A preceding (magistrate-authored, district judge approved)opinion of the United States district court, dated 1/16/2007,which is also at issue, appears at Appendix B1 to the petitionand[X] is unpublished.

Earlier (magistrate-authored, non-district judge approved)opinions of the United States district court, which are nolonger at issue, are reported at:226 FRD 395 (CD Cal.2/15/2005); &357 F. Supp.2d 1198 (CD Cal.11/30/2004).

2

JURISDICTION [X] For cases from federal courts: The date on which the United States Court of Appealsdecided my case (by extinguishing it like a discardedcigarette butt) was February 8, 2011.[X] A petition for rehearing was timely filed in the UnitedStates Court of Appeals on 2/22/2011. There has been noresponse.The jurisdiction of this Court is invoked under 28 U.S.C. PartIV, Ch. 81, §1254(1) [statute corrected from IFP petition].

CONSTITUTIONAL AND STATUTORYPROVISIONS INVOLVED (Texts in Appendix D)

U.S. Const.: 1 , 8 , 13 , 14 Amendments; & Cal. Const.st th th th

Art.1 §§1&13; 42 U.S.C. §1983; 28 U.S.C. §636(b)(1)(A);28USC §636(c)(1); & Federal Rule of App. Procedure 42(b).

STATEMENT OF THE CASEThis case involves a “low-tech lynching”: the

defamation and retaliatory termination of co-Plaintiff Eric C.Jacobson, an outspoken, zealous, resolute attorney fordowntrodden California parolees, by dishonest Californiacorrections personnel – a male parole board DeputyCommissioner, Fernando Perez, along with his supervisorsprominently including Thomas Wadkins and Marvin Speed –who (shades of Anita Hill), inter alia, towards the end ofJacobson’s 5 year tenure fabricated (and suspended Jacobsonfor) an account that he had touched a female parole agent(Brigitte Murria) on her shoulder following a contentiousMorrissey hearing in a manner that prompted her to tellJacobson to remove his hand; the lat t e r did not happe n.Unlike Ms. Hill’s allegations towards (then) Supreme Court

3

nominee, Circuit Judge (now Justice) Clarence Thomas, Ms.Murria herself never complained; and (significantly) noinvestigator ever contacted her in the aftermath to elicitwhether anything untoward happened. The unwelcome4/

touching account not only precipitated Jacobson’s suspensionbut was included by Defendant Speed in a defamatory letterto Jacobson which Speed circulated (cc’ed) to others. Then,following Jacobson’s public-concern-laden protest letter toSpeed (the last of several Jacobson had written over years toBPT supervisory personnel protesting the extralegalmistreatment of his clients by corrections personnel),Jacobson was terminated a few weeks later on a pretext.Following the Defendants’ outrageous retaliatory act,Jacobson (judiciously and appropriately) “threw the book” atthe Defendants, massively indicting not only their actionstowards him but also attacking them for oppressing hisappointed parolee clients and depriving them of his muchneeded services going forward. The rest is “history”.

This petition relates to Jacobson v. Schwarzenegger,Ninth Circuit Docket No. 09-56522 and Case No. 04-3629JFW(JTL) (Cent.Dist.Cal), a case alleging violations of bothJacobson’s rights as a wrongfully terminated state-appointedparole revocation defense counsel (TAC Claims 12-18), and

4.

Murria Depo. ECJ_ 4582[line24]-4583[line7]&4586 [lines10-23]_EOR. Accord: Wadkins Depo. ECJ_4539[line7]_ 4540[line2]_EOR & Speed Depo. ECJ_4441[line25]_4443 [line1]_EOR.This is inconce ivable in an era of sensitivity towards anyworkplace conduct with sexual harassment overtones unless allconcerned kne w for a fac t DC Perez’s account had beenfabricated.

4

multiple parolee rights violations (TAC Claims 1-11) furtherdescribed infra, each of which (1-11) were distinctly outsidethe scope of Valdivia v. Schwarzenegger, 206 F. Supp.2d 1068(E.D. Cal.2002) , a preceding injunctive relief class action5/

related to parolee civil rights.A. Biographical & Career Background. Co-plaintiff Jacobson is (today) a 57 year old public

interest lawyer (specializing exclusively in civil rightslitigation on behalf of parolees and their family cohabitants ),6/

with two UC degrees and active membership (in goodstanding) in the California and DC bars. His careerbackground includes (honorably discharged) military servicein the U.S. Naval Reserves (1991-1999) (ECJ_5828_5829_EOR), and legal and political accomplishments (of a decidedlyliberal bent ). See generally, Jacobson [Jan.2004] resume7/

5.

No. CIV S-94-671 LKK/GGH (Eastern Dist.Cal.); 548 F.Supp. 2d 852 (E.D. Cal. 2008), affirmed 599 F.3d 984 (9th Cir.2010).

6.

Eg. O’Neal-Gonzales, et al. v. City of Inglewood; USA, et al.,9 Cir. Docket Nos.08-57039 & 09-55785 [4 Amendment paroleth th

search and seizure case].

7.

Eg. Jacobson co-authored a proposed Congressionalresolution of censure following the Supreme Court’s 12/12/2000ruling regarding the presidential election. See: ECJ_5691&1872[fn. 13]_EOR; http://www.censurethefive.org/ladj.jpg [1 anni-st

versary op-ed] and more recently: http://www.washingtonpost.c

(continued...)

5

(ECJ_6768_EOR) and Declaration (ECJ_3948-3950&3955_3956& 4020_EOR). Although this case isn’texclusively “about him”, Jacobson is a large personalstakeholder in the instant 7 y e ar (!) (“Vietnamese”)litigation war.8/

B. BPT Employment and ParoleePopulation.

Between September 1998 and September 2003Jacobson made his living in part by providing high caliberlegal representation to parolee clients – a “special needs”population – charged with parole violations at9/ 10/

administrative (AKA Morrissey) hearings held before the

(...continued)om/wp-dyn/content/article/2010/12/18/AR2010121802827.html[10 anniversary of Bush v. Gore letter].th

8.

Plaintiff filed his Government Claim (No. 0541835)11/21/2003 . ECJ_1409fn.39&1589_1605[claim]&882_883[rejection letters]_EOR.

9.

See: McNamara, Antoine, The “Special Needs” of Prison,Probation, and Parole. NYU Law Review, Vol.82, p.209, 2007.Accord: Griffin v. Wisconsin, 483 U.S. 868 (1987) [approachsuperseded] & Armstrong v. Davis, 318 F.3d 965 (9 Cir.2003). Seeth

ECJ_6169et seq._EOR (sample of such clients).

10.

Because parole conditions mandate lawful conduct, paroleviolation charges frequently include alleged crimes (AKA “DArejects”).

6

California Board of Prison Terms (“BPT”) , Jacobson’s11/

former employer, for whom Jacobson worked as anindependent contractor (“IC”) . See Board of County12/

Commissioners v. Umbehr, 518 U.S.668 (1996) [Governmentpersonnel cannot terminate ICs in retaliation for engaging inprotected speech]. And it is Jacobson’s unceremoniousexclusion 5 years later by corrections personnel and seniorCalifornia officials from his parole revocation defenseattorney work that gave rise to the instant lawsuit,(extinguished) appeal and this writ petition.

C. Whistleblowing Activity. Beginning in 1999 and (more assertively) in 2001,

Jacobson, inter alia:• frequently advocated for rehabilitative dispositions

during hearings and in informal colloquy with BPTDeputy Commissioners (“DCs”), eliciting reactionsranging from ridicule to overt hostility. ECJ_1347[TAC]&1411_1412&fn.40 &4702[fn.49 ],1 3 / 1 4 /

11.

Post 2005: Board of Parole Hearings.

12.

This judicial finding regarding Jacobson’s IC status(ECJ_2090_2094& 7170_fn.11_EOR) is now undisputed.

13.

Recounting a facetious jibe: “Have you hugged yourparolee today?”

14.

“Icy-glare”; see also (re Hernandez) ECJ_2819[¶6]

(continued...)

7

4706_4707_EOR;• repeatedly and strenuously articulated the misdeeds

of various BPT DCs who habitually violated the civiland Constitutional rights of his parolee clients, placedthem on record during parole revocation hearings,and demanded that cognizance be taken – andremedies be provided – by DCs and their Boardsupervisors;

• wrote several pointed (rigorous) complaint letters toBPT supervisory personnel (eg. in January 2002[misdated 2001], ECJ_3208_3223_EOR); &

• filed- and ghost-wrote for clients to file (eg.ECJ_6178_6179&6193_6202_ EOR) administrativeappeals about said legal derelictions. See furtherexample @ ECJ_1662-1663_EOR recommending thatJacobson’s falsely-accused client Darryl Durant (orhis community activist friend & character witnessNancy Berlin) file attached whistleblower letter(1651_1652&1657_1661 ) as Durant’s own15/

administrative appeal.Significantly, Jacobson’s September 22, 2002 letter to

BPT Associate Chief Deputy Commissioner (“ACDC”)Richard Washington, Jr. complained that (then) DC ThomasWadkins failed to perform the duties of actually listening anddeliberating during the course of hearings. ECJ_3224_3225&5759[envelope]_EOR. In other letters Jacobson firmly

(...continued)&4633[line24]_4634[line2]_ECJ.

15.

Sent to Durant redacted of other client matter.

8

criticized misapplications of the law by DCs, particularly thelaw restricting the admissibility of hearsay evidence absentthe performance and passage of the balancing test called forin United States v. Comito, 177 F. 3d 1166 (9 Cir. 1999), andth

related misconduct by “problem deputy commissioners”. Seeinter alia, ECJ_1408-1412[TAC],3578-3581&3695fn.3[lastentry]_3706_EOR, for brief inventories and synopses; andsome (“public concern”-laden) letters themselves @ECJ_3226_3234,5748_5756, 5772_5780 &3242_3245_EOR.

D. Suspension & Removal.Jacobson asserts he was unlawfully banned from the

BPT Attorney Appointment List on a retaliatory basis due tohis: First Amendment- and otherwise protected whistle-blowing activity and zealous and high quality representationof parolees, closely preceded by a (likewise) unlawfulsuspension and spurious and defamatory (faux )16/

“investigation”. Verified TAC, ¶10. ECJ_1343_1449&2111[Verification]@1347_1348_EOR.

Defendants suspended Plaintiff following a 5/21/2003parole revocation hearing in which Jacobson had vigorouslycross-examined Defendant Brigitte Murria (his appointedclient Averon Fletcher’s parole agent (“PA”), cross-examination which revealed that Murria’s testimony wasuntruthful in part. As mentioned supra, following the hearingDC Fernando Perez made a false and defamatory complaint17/

16.

See fn.2 and text accompanying supra [!]

17.

Defendants long (distinctly) implied the complainant was

(continued...)

9

against Jacobson (ECJ_3235 _EOR), possibly at the behest ofACDC Thomas Wadkins who (indisputably) collusivelyprocessed it – following which Jacobson was suspended(w ith no due proce ss w hatsoe ve r ) from the Attorney18/

Appointment List. After Speed formally reinstated Jacobsonin July 2003, Wadkins delayed Jacobson’s reinstatement forover a month. See Jacobson’s 7/14/2003 letter to Speed(ECJ_3178_3186& [specifically]3179¶¶5-6&3181¶1_ 3184¶2_EOR) stating thereat (in sum) that Jacobson and his fellowparole revocation defense attorneys must be able to protecttheir clients from untruthful or perjured testimony by paroleagents and police officers free from the specter of pretextualadverse employment action. Defendants then terminatedJacobson on September 16, 2003 on a(nother) pretext: thatJacobson had (in August) missed a single scheduledappointment to counsel parolees at “serves” (an appointmenthe had explained in writing was due to an inadvertentcalendaring error). See generally, ECJ_1346-1348[TAC¶s8-11]& 1412_ 1414[§A.]_EOR.

E. Social Context Which Informed:Defendants’ Retaliatory Removal ofJacobson, and The Instant Lawsuit.

Seeking to comprehend his own bizarre and unlawfulpurging (while “at the top of his game” as a parole revocation

(...continued)PA Murria.

18.

Defendant Cater (candidly) admitted this tort @ ECJ_4625[line25]_4626 [line13] _EOR.

10

defense attorney ) 64 days following his outspoken19/

7/14/2003 protest letter to Defendant Speed, in light of hisconsistently zealous and excellent performance as counselfor some 400 parolees (including the short-termrepresentations at serves) – an ongoing blow requiringreparative “closure” (damages and reinstatement) –20/

Jacobson reflected on his five year experience representingparolees, and reviewed multiple reports scathingly critical ofCalifornia parole operations from watchdog agencies, rangingfrom the courts to the Little Hoover Commission to theInspector General to the State Personnel Board.

Jacobson then synthesized his percipient experienceand body of acquired (“big picture”) knowledge into anambitious civil rights complaint. ECJ_309_409 [original],1343_1449_EOR[operativeTAC]&5697-5698[synthesis]_EOR. In it Jacobson (legally) “outed” corrections personnel’s“parole revocation mill”. Viz. their: wrongful revolving of70,000 persons [annually] in-and-out of prison for sentencesaveraging 4-6 months (often) irrespective of the legal meritthereof; and (in sum) serial and systematic oppression andabuse of parolees and abridging of their statutory and

19.

Eg. Jacobson had recently effected an acquittal (requiring3 hearings) of his privately retained parolee client, TeddyRoosevelt Watson, on a serious charge (a DA reject) of attemptedmurder, from a conservative BPT DC. See ECJ_3226_3234&4202[thumbnail description]&6769_6803[dismissal @ 6801_6802]_EOR. Defendant Wadkins had earlier found probable cause and“assessed” 12 months (straight). ECJ_6778_EOR.

20.

Jacobson Depo. ECJ_5690_5697_EOR.

11

Constitutional rights. See: detailed synopsis of originalComplaint @ ECJ_575-579_EOR; TAC thumbnail descrip-tion @ ECJ_1507[lines2-7]_EOR; & ECJ_1522[fn. 22]_EOR[trenchantly characterizing “the ornery, mean-spirited,roughhouse, Wild West ‘parallel informal criminal justicesystem’ for some 175,000 thousand parolees referred to inthe Jacobson TAC... .”].

Jacobson’s complaint identified Defendants’ removalof him as a malicious and vindictive response to:• his zealous and highly professional representation of

parolees (including his willingness and ability toidentify untruthful testimony by parole agents andpolice officers through vigorous cross-examination);

• whistleblower complaints; and • advocacy regarding rehabilitative dispositions which

contradicted corrections personnel’s prevailingconscious and illicit policy of: making (often legallyunwarranted) findings sustaining parole revocationarrests and charges, and relying virtually exclusivelyon dispositions consisting of punitive remands ofparolees to state prison (i.e., in sum, “incarcerationuber alles”) (remands known to Defendants not toserve public safety )21/

(here inaf ter “the reta l ia tory terminat ion”) .ECJ_1348[TAC¶11] _EOR.

Based on an epiphany he experienced following hiswrongful termination, Jacobson realized and argued in hiscomplaint that his wrongful termination violated his past andfuture parolee clients’ rights as well as his own, and so

21.

ECJ_5815[lines19-21],6010[¶3]_EOR.

12

asserted via third party standing doctrine. When theDefendants challenged Jacobson’s standing to invoke therights violations of his parolee clients in his wrongfultermination action (under Kowalski v. Tesmer, 543 US 125,125 S. Ct. 564 [2004]), Jacobson, in an abundance of caution(additionally and/or alternatively to third party standing)discussed the case with a former parolee client of his, EricJohnson , thereafter added Johnson as a co-plaintiff, and22/

denominated the First Amended Complaint (“FAC”) inJacobson a class action with Mr. Johnson seeking classrepresentative status.

F. Magistrate and District Court Rulings. Following extensive and contentious motion

proceedings (partly directed at the form of the complaint ),23/

in a lengthy ruling (ECJ_2052_2183_EOR) – subsequentlyapproved by the District Court (ECJ_2200_2202 _EOR) – theMagistrate Court (“MC”), inter alia, denied Jacobson’s questfor third party standing (“TPS”) to assert any claims directedto said unlawful operation of California parole, but permitted

22.

Johnson had (coincidentally) again contacted Jacobsonrelative to a recent drug-related arrest which resulted in both anew criminal charge and a parole hold. Johnson expressedenthusiastic interest in serving as representative class Plaintiff.

23.

Although ultimately vindicated (ECJ_ 2061_2062[§I.]_EOR), Jacobson twice endured having his professionalismpublicly ridiculed by Magistrate Judge McMahon. See 357 F. Supp.2d 1198 (CD Cal. 11/30/ 2004) & 226 FRD 395 (CD Cal. 2/15/2005)Accord: http://westapps.west.thomson.com/west headnote/ Jan08/01-04-08.asp . ECJ_6055_6057_EOR

13

Eric Johnson (represented by Jacobson) to maintain fiveclaims for injunctive and declaratory relief involving certainfacets of California’s “broken” parole revocation system(outside the scope of a previously filed class action lawsuit,Valdivia v. Schwarzenegger) in a se parate law suit (!?).24/

Those claims were briefly litigated in the separate case,Johnson v. Schwarzenegger, now on appeal (Docket No. 08-55481). They were quickly (comple t e ly nonse nsically )dismissed by District Judge (“DJ”) Walter for purported lackof standing. The litigation of the wrongful terminationdimension of Jacobson’s original lawsuit took slightly longerto reach a similarly dismal result, necessitating (naturally)the [extinguished] appeal.

Magistrate Judge Lum ruled that Jacobson did notmeet the criteria for third party standing partly because25/

24.

This contravened FRCP 21 and Supreme Court doctrineholding that plaintiffs are “the masters of their complaint.” SeeLincoln Prop. Co. v. Roche, 546 U.S. 81, 91 (2005) [“In general, theplaintiff is the master of the complaint and has the option ofnaming only those parties the plaintiff chooses to sue, subject onlyto the rules of joinder [of] necessary parties”]; accord: Custer v.Sweeney, 89 F.3d 1156, 1165 (4 Cir.1996) (quoting Caterpillar,th

Inc. v. Williams, 482 U.S. 386, 392 (1987)).

25.

Magistrate Judge Lum (wrongly) held that Jacobson didnot fit criteria for exception to the general rule that a party “mustassert his own legal rights and interests, and cannot rest his claimto relief on the legal rights or interests of third parties” citingKowalski v. Tesmer, 543 U.S. 125 (2004) quoting Warth v. Seldin,

(continued...)

14

invoking third party standing doctrine with respect to FACClaims 1-11 (parolee rights) was unnecessary in light of theability of the parolee class to protect its own interests, asMr. Johnson w as doing as a c lass re pre se ntat ive w iththe assistance of at torne y Jacobson. Doc.54 1/16/2007,p.14. (In Johnson a class action was then disallowed. [!?]).

1. The Dismissed Parolee Rights Claims.Defendants also challenged 8 of the 11 parolee rights

claims Plaintiffs Jacobson and Johnson originally asserted, ina rather omnibus dismissal motion. In her ruling thereon26/

(Doc. 54 filed 1/16/2007) the Magistrate Court (Lum)dismissed 5 of the 11 parolee rights claims asserted in theJacobson TAC without leave to amend. These dismissedclaims are marked with an asterisk (*) below. All of theseMagistrate Court parolee rights orders in Jacobson wereinterlocutory in nature and not appealable until the Jacobsonwrongful termination case ran its course. This writ followsthat appeal’s unmerited unjust extinguishment.

Plaintiffs’ parolee rights claims in Jacobson were:Claim 1: Unre asonable Se arch and Se izure o f

Parole e s - Unlaw ful De privat ion ofPrivacy and Libe rt y ;

Claim 2*: That: • depriving parolees of rehabilitative services in the

(...continued)422 U.S. 490, 499 (1975).

26.

The Magistrate Court noted that “Defendants have notmoved to dismiss Claims One and Nine or state law ClaimEleven.” Doc. 54, p. 18 (internal), lines 9-10.

15

community;• corruptly siphoning funds for rehabilitation into the

hands of state personnel and subcontractors (griftersposing as legitimate “community organizations”);

• eschewing rehabilitative best practices whilerailroading parolees in and out of prison multipletimes throughout their 3-4 parole tenure;

• inverting the once benign rehabilitative mission ofparole (described in Gagnon v. Scarpelli, 411 U.S.778,at pp. 784-85) “180 degrees” by operating a “formalor informal quota system” favoring the revocation ofa “set number of parolees per month”;

• incentivizing parole agents to “promote thedeterioration of parolees’ personal plights andmaladjustment to community living”;

• revoking parole “without any cause whatsoever or onthe flimsiest of pretexts without any relationwhatsoever to public safety concerns”;all of which has a detrimental effect on public safety, fails the “rat ional basis” t e st , “shocks theconscie nce ” and v iolat e s parole e s’ substant ivedue proce ss rights. ECJ_1388_1392[TAC§IV.B.]27/

&1431[lines5-18]_EOR; & see Claims 6&7 infra.Claim 3*: That:

Defendants’ parole revocation pattern and practiceviolates the Equal Prot e c t ion (“EP”) rights of

27.

Co-plaintiffs Johnson and Jacobson (“J&J”) also contendthat it “offend[s] substantive due process to incarcerate a paroleefor acts in the service of an addiction.” ECJ_1394[TAC¶80(a)]_EOR, citing Robinson v. California, 370 U.S.660 (1962).

16

parolees (alternate doctrinal prong) by treatingide nt ically the following three pairs of ve rydiffe re nt ly situate d types of persons:

(i) adjudicated parole violators and felons serving theirprincipal sentences, all of whom are placed in punitiveprison facilities;

(ii) felons concluding determinate sentences who do notobjectively merit parole supervision (such as thoseconvicted of non-violent victimless crimes) and felonsobjectively meriting parole supervision, all of whomare placed on parole; and

(iii) physically addicted parolees (such as PlaintiffJohnson) and (very differently situated) non-physically addicted parolees.

Claim 4: De priv at ion of Effe c t iv e Assistance o fCounse l t o Parole e s by Employ me nt of Counse l Who Lack Any Job Se curity .28/

Claim 5: Unfair Paro le Re vocat ion He aring o fInade quate Durat ion.

Claims 6* and 7*: That:

28.

To briefly amplify, this Claim Four is for deprivation ofeffective assistance of counsel to parolees by e mploy me nt ofcounse l w ho lack any job se curit y and contends that inappointing attorneys to represent parolees in revocationproceedings w ho are e mploy e d on a t e rminable at -w ill basis,otherwise lack any job security and are consequently incapable ofproviding effective assistance of counsel, the Defendants violatePlaintiff Johnson and similar situated parolees’ right to effectiveassistance of counsel.

17

due to Defendants’ wholesale departure from therehabilitative ethos of parole in favor of unusuallyfrequent and usually unmerited re-imprisonment:“California’s aberrant and voluminous parole systemcomprises a paralle l informal criminal just icesy st e m for fe lons re siding in the community ,compelling state corrections officials to accord allegedparole violators rights closely approximating thoseaccorded criminal defendants during revocationproceedings in order to retain fidelity with parolees’federal constitutional rights.” ECJ_1400_1403 [TAC§F¶¶92-97]_EOR (emphasis added).

Plaintiffs specifically asserted in their Sixthc laim for relief that the right to a public t rial shouldapply to parole revocation hearings; and asserted intheir Se ve nth c laim that Defendants should becompelled to accord a parolee facing revocation of hisor her parole for six months or longer a jury t rial(or some appropriat e ly modifie d ve rsionthe re of). In Plaintiffs’ opposition to Defendantsmotions to dismiss Plaintiffs argued that the courtshould compel either a return to the rehabilitativeethos of parole, or acknowledge the defacto departurefrom the (pro-rehabilitation) legal norms upon whichthe landmark cases of Morrissey v. Brewer (1972) 408U.S.471 and Gagnon v. Scarpelli (1973) 411 U.S.778,are based, and enlarge the due process rightsprovided in said cases appropriate to the new socialreality. The Mag ist rat e Court did no tacknow le dge much le ss addre ss this corec ont e nt ion, p re fe rring t o e v aluat e t h eafore me nt ione d c laims w ithin the contours of

18

e x ist ing law . 29/

Claim 8: Unfair He arings He ld Be fore Non-ne utral, Non-de tache d and Unqualifie dHe aring Office rs.

Claim 9: Biase d, Unfair and Unjust Disposit ionFollow ing Good Cause Findings in Parole

29.

Specifically, Judge Lum gave short - t o no shrift toPlaintiff’s well-taken TAC-fact driven arguments:(i) that California’s current punitive landscape of parole

administration bears no resemblance to the prevailingrehabilitative ethos surrounding parole upon whichlandmark Supreme Court precedents Morrissey v. Brewer(1972) 408 U.S. 471 and Gagnon v. Scarpelli (1973) 411U.S. 778 were premised – which decisions distinguishedrevocation proceedings from traditional criminalproceedings (primarily on that pro-rehabilitative grounds),and corre spondingly lessened the required due processfor alleged parole violators; and

(ii) that the Fourteenth Amendment and state law (People v.Vickers, 8 Cal.3d, 451; 105 Cal.Rptr. 305, 313 (1972)) andIn re Tucker, 5 Cal.3d171 (1971)), now compel the federalcourt to e nt e r an injunct ion forcing California to either:

• restore a rehabilitative ethos and practices towardsparolees residing in the community, AND/OR

• enhance the due process rights of alleged parole violators,including according them public trial or jury trial rights (ormodified version thereof) in the revocation process.

Plaintiffs contend that the MC erred in dismissing these claims inlight of the draconian nature of the system depicted in the TAC.See “THE CHOICE”. ECJ_1519_1526[re 6 &7 claims&“punish-th th

ment vs. rehabilitation”]_EOR.

19

Re vocat ion He arings. Claim 10*: Plaint iffs’ Te nth Claim that in perpetrating

said parolee rights violations, parolerevocation mill and pattern and practice andby oppressing and subjugating parolees into adowntrodden social caste by intentionallyarresting and re-imprisoning them unusuallyfrequently and in very high volume at a ratedouble the national average, without any orsufficient legal grounds for the primarypurpose of benefitting unionized statepersonnel, Defendants are violating paroleesright under the Eighth Ame ndme nt not t ohave crue l and unusual punishe d inflic t e dupon the m; and v iolat ing parole e s rightnot t o be e nslav e d or subje c t e d to thebadge s or inc ide nts of slave ry unde r theThirt e e nth Ame ndme nt .

Claim 11: Supplemental State Claims UnderApplicable California Law for:

false arre st and imprisonme nt ; assault andbat t e ry ; malic ious prose cut ion of parolere vocat ion charge s; invasion of privacy ;inte nt ionally w rongful, re ck le ss or ne glige nthiring and supe rv ision; non-prov ision ofme aningful re habilitat ive se rv ice s in thec o m m unit y ; no n-p ro v is io n o f e f fe c t iv emachine ry for re sponding to administ rat iveappe als; outrage ; and inte nt ional inflic t ion ofe mot ional dist re ss.Beyond rejecting third party standing and dismissing

the asterisked claims, the Magistrate Court (Lum) also:

20

• dismissed all originally named supervisory- andsenior official defendants each of whom were well andproperly sued (listed @ ECJ_1343_1344 [TACCaption pp.i-ii & 1369_1370[footnotes21-23]_EOR])from the Jacobson/Johnson TAC without leave toamend, ie. all Defendants except: Terry R. Farmer,Thomas Wadkins, Marvin Speed, & Ken Cater of theBPT and Parole Agent Brigitte Murria;

• decided that the factual record (which included factsjudicially noticeable from Valdivia) was insufficient toposition her to rule on Defendants’ contention thatJacobson Claims 4-8 overlapped the subject matter ofValdivia and were consequently barred by res judicataor collateral estoppel. The Court (Lum) ruled thatDefendants could re-raise the contention as anaffirmative defense at a later time. (Doc. 54, p. 21(internal), lines 15-21); and

• VACATED the (predecessor Magistrate Court’s[McMahon’s] December 16, 2005 Order to the extentit declined to consider the exhibits filed in connectionwith the Second Amended Complaint as exhibits tothe Third Amended Complaint. The Court (Lum)deemed Plaintiffs’ Exhibits to the Second AmendedComplaint, filed on March 31, 2005, exhibits to theThird Amended Complaint. (Doc. 54, p. 4 (internal)footnote 2, lines 15-22.)2. The Dismissed Employment Rights

Claims.In the aforesaid omnibus dismissal motion

(ECJ_1450_1483 _EOR) Defendants also (successfully)challenged 4 of the 7 employment rights claims in J&J’s TAC.In her ruling, MJ Lum erroneously dismissed these claims,

21

marked with an asterisk (*) below, w ithout le ave t oame nd. ECJ_2052_2181_EOR. (The non-asterisked claimswere later adjudicated by Judge Lum.) As interlocutoryorders, the asterisked claims became appealable upon theDistrict Court’s final judgment and should now be revived.Claim 12: Unlaw ful De privat ion of State Appointe d

At torne y ’s Spe e ch, Prope rty and Libe rt yInte re st s By Re taliat ion Against Whist le -blow e r [First and Fourteenth AmendmentViolation 42 U.S.C. §1983]

Claim 13: Unlaw ful De privat ion of State Appointe dAt torne y ’s Spe e ch, Prope rty and Libe rt yInte re st s By Re taliat ion Against Whist le -blow e r [California Constitution]

Claim 14*: For Violation of Common Law, Statutesand Public Policy Outlawing RetaliatoryEmployment Termination; Unlaw fulRe taliat ion Against and Te rminat ion of aWhist le -blow e r. MJ Lum (@ECJ_2094_2097_EOR) erroneously dismissed Plaintiff’sclaims under:

• Cal. Labor Code (“LC”) §1102.5 (California’swhistleblower protection statute). Contrary to theMC, the Legislature could have but didn’t EXCEPTICs from its definition (“employed by” includes ICs).Further, the MC’s construction violates equalprotection: to the e x t e nt it de nie s such ICat torne y s the e xac t same prot e c t ions againstre taliatory t e rminat ion as the y w ould have ifthe y w e re c lassifie d as part -t ime e mploy e e s.There is NO RATIONAL BASIS WHATSOEVERfor denying a professionally licensed attorney whose

22

practice consists in part of representing indigentparolees as an IC the rights accorded to a publicdefender or legal aid attorney serving a similarclientele: to be legally insulated from retaliation whenhe or she reports legal wrongdoing to superiors oroutside authorities. Accord (as to policyconsiderations): United States ex rel. Watson v.Connecticut Gen. Life Ins. Co., 2003 WL 303142, at *5(E.D. Pa. 2003). No legitimate governmental interestis served, and illicit governmental interests areabetted, by such an arbitrary classification. TheSupreme Court should resist complicity in such stategovernmental quasi-criminality and find an EPviolation.

• MJ Lum also erroneously dismissed Jacobson’s claimunder California’s robust FEHA statute that hewas purged in retaliation for advocacy protective ofpredominantly African-American and Latino paroleesagainst, inter alia, racist and discriminatory police,corrections and criminal justice personnel.30/

Claim 15*: De famat ion [Violation of California Law].Defendant Speed wrote and circulated a letter31/

30.

See eg. ECJ_3222[¶2 concluding with “...Mr. Godine zw e ars his ge ne raliz e d cont e mpt for African-Ame rican maleparole e s on his sle e ve .”]_ EOR. (Emphasis added.)

31.

Defendants Maciel, Cater, Wadkins and Master werecopied on Speed’s 7/1/03 letter containing the defamatory writing

(continued...)

23

falsely stating that Jacobson touched PA Murria onher shoulder in a manner that caused her to ask himto remove his hand from her shoulder. Since thelatter DID NOT HAPPEN, the assertion that it didtortiously injured Plaintiff’s reputation: It createswariness among female work associates (modernly,half the workforce). The MC erroneously held, interalia, that Defendant Speed’s account of the rebuke-provoking touch, even if untrue, wasn’t defamatory.(!?) ECJ_2100¶2_EOR.

Claim 16*: Invasion of Privacy [Violation of CaliforniaLaw] Cal. Const. Art.1,§1 [listing “inalienablerights” including “privacy”].

Few things could be more private, sensitive,“personal and confidential” modernly than a writing32/

containing a fabricated account of an allegedunwelcome touching of the shoulder of a femaleparole agent by a male attorney.

Claim 17*: V io l a t io n o f C a l i f o r n ia S t a t u t e sO u t l a w i n g R e t a l i a t o r y A g eDiscriminat ion and Harassme nt Againsta Ze alous, Olde r, Formidable andProfe ssional At torne y .

Claim 18: Int e nt ional Inflic t ion o f Emo t ionalDist re ss [For Violation of California Law]

/

(...continued)and may have repeated it. ECJ_ 3236_3237_EOR.

32.

See Hill v. Nat’l Collegiate Athletic Ass’n, 7 Cal.4th, 1, 24-25 (1994).

24

3. The Adjudicated Employment RightsClaims.

The remainder of the employment rights side of theoriginal Jacobson/ Johnson case was litigated hurriedly andcontentiously in 2008-2009 up through cross-motions forsummary judgment which MJ Lum – clearly erroneously –heard without first obtaining the (legally required) consent ofboth parties (ECJ_4332_ EOR). In this regard, see 28 U.S.C.§636(b)(1)(A) which states: “... a judge may designate amagistrate judge to HEAR and determine any pretrialmatter pending before the court, EXCEPT a motion...forsummary judgment... .” (Emphases added.) Judge Lum’sposition (ECJ_4378¶2&7147[fn.4]_EOR) that she didn’t“determine” the cross-MSJs, but merely recommended aruling to District Judge Walter OBVIOUSLY does not curethe problem. Plainly, Judge Lum “HEARD” the cross-MSJs.28 U.S.C. §636(c)(1) states: “Upon consent of the parties, afull-time magistrate judge...may conduct any and allproceedings in a jury or nonjury civil matter...” Here,however, neither side consented. See generally, Anderson33/

v. Woodcreek Venture Ltd., 351 F.3d 911 (9 Cir. 2003). th

In her start ling ruling (a published opinion), MJ Lumfound as to Claim 12, that the Defendants hadn’t terminatedJacobson in retaliation for First Amendment protectedwhistleblowing. Jacobson v. Schwarzenegger, 650 F. Supp.2d1032 (2009). MC Lum then declined to adjudicate stateclaims 13 and 18 in the federal court and dismissed them

33.

Regrettably, neither party, nor MJ Lum, caught theproblem in advance. (On this, all concerned presumably agree.)However, the fact remains that MJ Lum’s hearing anddetermination of the cross-MSJs was ultra vires.

25

(albeit it without prejudice to revival in the state court).The Ninth Circuit enunciated a “sequential” five-part

test in Eng v. Cooley, 552 F.3d 1062 (9 Cir.2009) :th 34/

(1) whether the plaintiff spoke on a matter of publicconcern;

(2) whether the plaintiff spoke as a private citizen orpublic employee;

(3) whether the plaintiff’s protected speech was asubstantial or motivating factor in the adverseemployment action;

(4) whether the state had an adequate justification fortreating the employee differently from othermembers of the general public; and

(5) whether the state would have taken the adverseemployment action even absent the protected speech.

Each prong of requires careful parsing and law-to-fact35/

34.

The panel in Huppert v. City of Pittsburg, 574 F. 3d 696,702-703 (9 Cir. 2009) helpfully observed: th

The first two prongs of this inquiry addresswhether the speech should be protected underthe First Amendment, while the last threeaddress whether that protected speech causedsome retaliatory response. However, becausethese are sequential steps, as explained in Eng,failure to meet one necessarily concludes ourinquiry.

35.

As to prong 1, for example, “the boundarie s of thepublic conce rn t e st are not w e ll de fine d...” City of San Diegov. Roe, 543 U.S. 77, 83-84 (2004) (quoting Connick v. Myers, 461

(continued...)

26

analysis. Here, the MC discussed only the first three prongs(albeit rather haphazardly and circuitously). For example,Judge Lum began by framing the Eng third prong, as thecrux of the dispute, asking: WHY Plaintiff was barred fromplying his trade as an appointed counsel by Defendantpersonnel, for expressive speech or other reasons? Plaintiff36/

will begin there. i. Eng Prong 3 (Spe e ch the Mot iv at ing

Fac tor?): The MC (Essentially) Foundthat Jacobson’s Termination wasRetaliatory But Denied Plaintiff theBenefit of the Finding (by Ruling theSpeech that Prompted the RetaliatoryTermination Was Unprotected UnderEng’s Prongs 1&2).

The MC itself answers the “ultimate fact”/“Why...?”query herein (essentially) in Plaint iff’s favor, (implicitly)concluding that the remaining Defendants – except Murria,who she dubiously characterized as blameless (see

(...continued)U.S.138,147-148 (1983). But: CONTENT is the most importantfac tor. Anthoine v. N. Cent. Counties Consortium, 605 F.3d740,748 (9 Cir.2010) (citing Desrochers v. City of San Bernardino,th

572 F.3d 703 @ 710 (9 Cir. 2009). Emphasis added.th

36.

“This action re volve s around the parties’ different claimsas to why plaintiff was removed from the [attorney appointment]list.” ECJ_7148[lines5-6]_EOR. (Emphasis added.)

27

ECJ_7183[fn.18] _EOR ) – had a retaliatory motive in37/

removing Jacobson.In her SJ ruling, the Court:

• infe re ntially cre dits Plaintiff’s compelling “connect-the-dots” factual presentation in his (“must read”)6/23/2009 Reply Brief @ ECJ_4678_4707_EORdemolishing (through appropriate factualcontextualization and perspective) any superficialvitality Defendants’ pretextual explanation may38/

have had and demonstrating beyond any reasonabledoubt that Defendants’ removal of Jacobson wasretaliatory ;39/

37.

In short, Murria is blameworthy for not correcting Perez’sfabrication. See ECJ_2879_2883_ EOR.

38.

Attributing the termination exclusively to Jacobson’s latearrival for a few hearings in 1998-1999, the August 2003 missedserve and (in Defendants’ unreasonable view) a “missed” hearingin November 1998 (one which Jacobson didn’t miss: a BPT officialin Sacramento informed Jacobson it was cancelled. See ECJ_4687[lines1-28]_EOR]).

39.

Adverting extensively to passages of Defendants’depositions, Jacobson showed how they and all the evidencecollectively painted a damning picture of Defendants’ retaliatorymindset and actions. (MJ Lum rebuffed Defendants’ outrage ousefforts to suppress the transcribed excerpts of the recordeddepositions of Defendants Jacobson had laboriously taken andprepared. EOR_7157[line7]_7159[line5]_EOR. See also, deposition

(continued...)

28

• re c it e s AD NAUSEAM the details of Defendants’petty pretextual reasons (eg.ECJ_7149[line2]_7150[line26]_EOR) but t h e n c onsp ic uously4 0 /

DOESN’T e ndorse the m and instead rests her MSJruling for Defendants on other grounds (ie. Engprongs 1&2):

“Because the speech [with one exception] was notprotected under the First Amendment, defendants areentitled to summary judgment re gardle ss of re taliatorymotivat ion.” (!) Emphasis added. ECJ_7183[lines4-5]_EOR.

Be hold: (essentially) a finding that the Defendants’termination of Jacobson WAS IN FACT RETALIATORY.(Also the finding the appeals court could and would havereached via de novo review–had it not extinguished Plaintiffs’appeal like a cigarette butt.) But MJ Lum entered a defenseverdict anyway.

ii. Eng Prong 2 (Spe e ch Spoke n as a PrivateCit ize n or Public Employ e e ?): The MCErroneously Concluded Most of Plaintiff’sSpeech Wasn’t Spoken as a PrivateCitizen. This Conflicts With andDisrespects:

• Ninth Circuit Precedent: Mare z v .Basse t t , 595 F. 3d 1068 (9 Cir.th

2/28/2010) [“Mare z”];

(...continued)officer certifications @ ECJ_4666_4675&7141_EOR.)

40.

Cf. ECJ_4685[line15]_4691[line5&fn.20]_EOR, Plaintiff’struthful account.

29

• Garce t t i’s History, Rationale, Meaningand Purpose; &

• Re late d Case Law Bearing on FirstAmendment Limits on GovernmentalPersonnel’s Ability to Retaliate AgainstPublic Employees for Expressive Speech,With Which Garce t t i Needs to BeIntegrated and Contextualized.

In situations such as the instant one, Garcetti, properlyunderstood in lineage with previous First Amendment caselaw , compels the conclusion that Plaintiff Jacobson’s speech41/

41.

See e.g., Elizabeth Dale’s thoughtful reference to JusticeKennedy’s ruling in Legal Services Corporation v. Velazquez, 531U.S. 533@542 (2001) [Congressional restriction on ability of LegalServices lawyers to bring cases challenging welfare law violatesthe First Amendment] where Kennedy emphasized that legalservices and criminal defense counsel DO NOT deliver theGovernment’s message. This is in stark contrast with Ceballoswho functioned within a government body where he DID deliverthe government’s message. See Elizabeth Dale, “EmployeeSpeech & Management Rights: A Counterintuitive Reading ofGarcetti v. Ceballos” 29 Berkeley J.Emp.&Lab.L. 175 (2008)(hereinafter “Dale”) at p.210, footnotes 239-241 and textaccompanying.

Then see Dale at 195-196, t e x t accompany ing footnot e s145-150, her brilliant account of how the SCOTUS decision inGarcetti BEGAN with Judge O’Scannlain’s “special concurrence”in the Ninth Circuit’s 3-judge panel ruling reversing the districtcourt in Garcetti @ 361 F. 3d 1168, 1185-1194 (9 Cir. 2004). th

Circuit courts are bound by the (explicit and implicit)REASONING of the SCOTUS [here, per O’Scannlain: no First

(continued...)

30

– be cause it w as not subje c t t o manage me nt control –is protected irrespective of whether it was strictly speakingwithin- or without Plaintiff’s job description. Jacobson’s42/

(...continued)Amendment protection for certain government employees “...BECAUSE THEY SPEAK FOR THEIR EMPLOYER”!], andmustn’t merely mechanically derive and apply crude rules ofthumb. The MC agre e d that Jacobson didn’t spe ak for hise mploy e r (but misse d the import ). ECJ_7170[line 19]_7171[line 4 &f n.12] _EOR. Parole de fe nse at t orne y Jacobson andAssistant DA Ce ballos ARE “apple s and orange s”.

42.

Partially because they have not construed Garcetti asincisively as Dale, some lower federal courts have gone far off therails and caused litigants and judges (including the parties and MCherein) to suddenly find themselves bickering and splitting hairsof various kinds: Eg.:• about exactly when Plaintiff’s job duties terminated –

when the hearings adjourned, or at some later point; • whether unpaid writings were or were not part of

Plaintiff’s job description; and/or prepared and sent quaappointed counsel for parolees; and

• about the dominant theme of letters and the intent of thewriter (etc. etc.).

See eg. herein, ECJ_3693[line14]_ 3694[line2],4044[line15]_4048[line1], 4038[line20]_4040[line10] &7203[fn.10]_EOR. These arefoci which are arguably beneath the dignity of the federal judiciaryand, in any event, not entirely respectable bases on which to pivotthe outcome of a First Amendment retaliation case involving anoutspoken independent contractor parole revocation defenseattorney. But if the Supreme Court needs to reach them, Plaintiffis confident they militate entirely in his favor. Eg. All of Plaintiff’s

(continued...)

31

role as a parolee defense attorney pe r se (including his dutyof loyalty to his clients) placed him into an (obvious)adversarial posture towards BPT & CDC personnel, and here(as in Marez) this (in sum) estops the Defendants fromclassifying Jacobson’s ardent advocacy as: speech that lostFirst Amendment protection by virtue of it being the type ofspeech the Defendants were entitled to control as Jacobson’s“employer”. By (disfavored) “cock-eyed” institutionalarrangement, Jacobson’s employer’s (YACA/CDC/BPT)personnel were blatant antagonists of his clients .43/

Accordingly, the very THOUGHT of Jacobson or any parolerevocation defense attorney speaking the message of- andbeing “under the thumb” of punitive corrections personnel(totalitarian-state style) is a nause a-inducing obsce nityand affront to the entire Anglo-American jurisprudential

(...continued)whistleblower writings were prepared during inte rst ic e sbetween Jacobson’s IC appointments (each of which formallyended when the hearings concluded) when Plaintiff’s independentcontractor relationship with his BPT employer was (technically)in abeyance; for that reason alone none of the speech therein canproperly be classified as having been written in Jacobson’semployee capacity (per Eng prong 2). See (extinguished) AOBfootnote 13 and ECJ_4299[line3]_4304[line24]&[same:] 4342_4347[§III]_EOR discussing IC doctrine and evidentiary details.

43.

Compare preferred ground rules for (far moreindependent) public defender offices: viz. ABA...Standards,Providing Defense Services @ Standard 5-1.3(b) “Professionalindependence” [banning prosecutors and judges from the boardsof trustees] @ http://www.abanet.org/crimjust/standards/defsvcs_blk.html#1.3

32

tradition!iii. Eng Prong 1: (A Mat t e r of Public

Conce rn?) MJ Lum Grossly ErroneouslyConcluded Plaintiff’s Speech Didn’tImplicate a Public Concern. SpecificallyJudge Lum Incorrectly Gave Undue(Dispositive) Significance to the Conte x tof Jacobson’s Speech (Which She[Further Speciously] Denominated a“Personnel Dispute”) Rather than to itsConte nt , Which the Ninth Circuit HasHeld Is Outcome-Determinative ofWhether Speech Implicates a PublicConcern.

MJ Lum astonishingly concluded that Jacobson’swritings didn’t implicate public concerns. In addition to theability of zealous appointed attorneys to, inter alia, impeachand comment upon parole agents who provide untruthfultestimony (such as Murria engaged in during the Fletcherhearing) undeterred by the specter of unfounded retaliatorycomplaints (see Jacobson’s 7/14/2003 letter to Speed) , MJ44/

44.

It is a well-settled rule that: “when governmentemployees speak about corruption, wrongdoing, misconduct,wastefulness, or inefficiency by other government employees...their speech is inherently a matter of public concern.” Blair v. Cityof Pomona, 223 F.3d 1074 at 1079 (9th Cir. 2000) (police officerwho reports the misconduct of other officers to his supervisors isentitled to First Amendment protection); Roth v. Veterans Admin.of U.S., 856 F.2d 1401 at 1405-1406 (9th Cir. 1988) (specificallydistinguishing between the speech on a matter of personal

(continued...)

33

Lum wholly ignored that Jacobson became outspoken aboutthe systemic manner in which his clients’ rights and those ofother parolees were being violated and the adverse“reactions to arbitrariness” this unfair treatment elicits. Eg.45/

ECJ_3087[last 4 lines],3090¶3,3222[conclusion],3225[¶2]&4377¶2,_EOR. The latter is a quinte sse nt ial mat t e r ofpublic conce rn given the revolving door parolees transit in-

(...continued)concern that was not protected in Connick v. Myers, 461 US 138(1983) and plaintiff’s statements revealing problems withgovernment operations); and Johnson v. Multnomah County, 48F.3d 420, 425 (9th Cir. 1995)). Dale, footnotes 140 and 141 andtext accompanying.

Apropos of Judge Karlton’s persuasive synthesis in Webbv. County of Trinity, 734 F. Supp.2d 1018 (UCDC Eastern Dist.Cal. 8/10/2010) by focusing de novo “like a laser beam” (so tospeak) on the cont e nt of Jacobson’s speech (regardless ofpurpose) the Supreme Court can only conclude that it is ofconsiderable public concern: What member of the public wouldn’tbe “truly interested” to know:• that state peace officers take lightly their obligation to tell

the truth under oath? • that capable appointed attorneys for alleged parole

violators being paid taxpayer dollars were being harassedand suspended for providing assertive “real”representation to their clients?

• and that state corrections personnel are using the ir(taxpayer-funded) time initiating and processing suchbogus illegitimate and unethical complaints against- andsuspensions of such attorneys?

45.

Morrissey v. Brewer, 408 U.S. 471, 485 (1972).

34

and-out of prison for short duration revocation sentencesaveraging 6 months. Indeed, the mult iple realms of publicconcern implicated by Jacobson’s letter to Speed and otherwhistleblower letters over 30 months are self-evident. If46/

necessary, see further discussion: regarding the 7/14/2003Speed letter @ ECJ_ 7206_7216 [§IV.B.]_EOR; andregarding the 9/22/2003 Wadkins letter @ 7217_7218_ EOR.

REASONS FOR GRANTING THE PETITIONPlaintiff Jacobson confidently and comfortably

ASSURES the Supreme Court that the Jacobson case andNinth Circuit’s extinguishment of Plaintiffs’ appealUNEQUIVOCALLY meet the following criteria forSupreme Court review set forth in Rule 10 of Rules of theSupreme Court of the United States:(a) a United States court of appeals has entered a

decision in conflict with the decision of anotherUnited States court of appeals on the same

46.

The kind of public concern is immaterial: Judging fromthe passage of California Proposition 9 in November 2008 thepublic disfavors extending the universal appointed counselconstitutional rule of Gideon v. Wainwright, 372 U.S. 335 (1963)and Argersinger v. Hamlin, 407 U.S. 25 (1972) to alleged paroleviolators. Under Proposition 9 (if it’s constitutional), only“challenged” alleged parole violators, per Gagnon v. Scarpelli, 411U.S. 778, will receive appointed counsel. Given this detail and thesignature-gathering requirements of a state ballot initiative(alone), it is indisputable that the conduct, quality and volume ofappointed attorneys for parolees is a major public conce rn andaccordingly, that the public would be “truly interested” (pro andcon) in Jacobson’s whistleblowing writings.

35

important matter; ... ; or has so far departed fromthe accepted and usual course of judicialproceedings, or sanctioned such a departure by alower court, as to call for an exercise of thisCourt’s supervisory power; and

( c) ... a United States court of appeals has decided animportant question of federal law that has notbeen, but should be, settled by this Court, or hasdecided an important federal question in a waythat conflicts with relevant decisions of thisCourt.Here, the (defacto affirmed) lower courts and 9th

Circuit decisions conflict with decisions of the U.S. SupremeCourt , and of the 9 Circuit and a ruling by the Supreme47/ th 48/

court is also therefore necessary to secure and maintainuniformity of the federal courts’ decisions; and theproceeding involves one or more questions of exceptionaland national importance affecting the ability of attorneys forparolees who are purged from employment in retaliation forwhistle-blowing speech to successfully sue theirConstitutional tortfeasors in the aftermath for damages andto receive a fair hearing from the Supreme Court and/or fromthe intermediate court of appeals when it shirked its duty toconduct appellate review.

The esteemed Supreme Court justices will appreciatefrom the foregoing the impropriety of the appeals court’sextinguishment of Plaintiffs’ appeal, as further treated inPlaintiffs’ two ignored responsive motions. See Questions8&8A-C supra. Plaintiffs entreat the high Court: Help!

47. See Table of Authorities.

48. See Table of Authorities.

36

CONCLUSION The petition for a writ of certiorari should be granted.

Respectfully submitted,

Eric C. Jacobson

Date: November 8, 2011

1a

APPENDIX A

Rulings of the Ninth Circuit Court of Appeals in CaseNo. 09-56522

1. Order Extinguishing Appellant’s Appeal, dated2/8/2011; Dkt Entry: 25.

2. Order Denying Motion for Leave to File OversizedAOB; Dkt. Entry: 17

2a

Case: 09-56522 02/08/2011 Page: 1 of 1 10: 7639964DktEntry: 25

FILED FEB 08 2011 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIC C. JACOBSON, on behalf of himself and his clienteleof California Parolees, one or more of whom may be joinedafter exhausting their administrative remedies and ERIC

JOHNSON, a past and imminent parolee,Plaintiffs -Appellants,

v.

ARNOLD SCHWARZENEGGER, Governor of California, in his individual

capacity; et al., Defendants -Appellees.

No. 09-56522

3a

Appeal fromD.C. No. 2:04-cv-03629-JFW-JTL

Central District of California, Los Angeles

ORDER

Before: CANBY, LEAVY and SILVERMAN, Circuit Judges

Appellees’ motion to dismiss the appeal for want ofprosecution is granted. 9th Cir. R. 42-1.

All pending filings and motions filed by appellants aremoot.

No motion for reconsideration, rehearing,modification or clarification of this order will be entertained.

4a

Case: 09-56522 11/29/2010 Page: 1 of 2 ID: 7560520DktEntry: 17

FILED NOV 29 2010 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIC C. JACOBSON, on behalf of himself and his clienteleof California Parolees, one or more of whom may be joinedafter exhausting their administrative remedies and ERIC

JOHNSON, a past and imminent parolee,Plaintiffs -Appellants,

v.

ARNOLD SCHWARZENEGGER, Governor of California, in his individual

capacity; et al., Defendants -Appellees.

No. 09-56522

5a

Appeal fromD.C. No. 2:04-cv-03629-JFW-JTL

Central District of California, Los Angeles

Before: Peter L. Shaw, Appellate Commissioner.

Appellants’ opposed motion for leave to file anoversized opening brief of 68,985 words is denied. Within 30days after the date of this order, appellants may file anopening brief not to exceed 14,000 words. Counsel isinformed that any further request for an extension of time tofile the opening brief may be referred to a panel of this courtfor a consideration of dismissal under Ninth Circuit Rule 42-1.

The answering brief is due within 30 days afterservice of the opening brief. The optional reply brief is duewithin 14 days after service of the answering brief.

6a

APPENDIX B Rulings of the District Court for the

Central District of California

1. Notice of Filing of Magistrate Judge’s Report andRecommendation; and Report andRecommendation re Defendants’ Omnibus Motionto Dismiss, dated 1/16/2007; Doc. 54.

2. Order Adopting Findings, Conclusions andRecommendations of the Magistrate Judge reDefendants’ Omnibus Motion to Dismiss, dated811/2007; Doc. 57.

3. Order Severing Claims, dated 9/6/2007; Doc. 58.

4. Order Precluding Application for ClassCertification, dated 9/28/2007; Doc. 59.

5. Amended Report and Recommendation of theMagistrate Judge (amending earlier 2009 version),dated 6/24/2009; Doc. 229

6. Notice of Filing of Magistrate Judge’s AmendedReport and Recommendation, dated 6/24/2009; Doc.230.

7. Order Adopting Findings, Conclusions, andRecommendations of the Magistrate Judge, dated8/25/2009; Doc. 233.

7a

Case 2:04-cv-03629-JFW-JTL Document 54 Filed 01/16/2007 Page 1 of 68

FILED JAN 16 2007 CLERK, U.S. DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

ERIC C. JACOBSON, on behalf of himself and his clienteleof California Parolees, one or more of whom may be joinedafter exhausting their administrative remedies and ERIC

JOHNSON, a past and imminent parolee,Plaintiffs -Appellants,

v.

ARNOLD SCHWARZENEGGER, Governor of California, in his individual

capacity; et al.,

Case No. 04-3629-JFW(JTL)

8a

NOTICE OF FILING OF MAGISTRATE JUDGE’SREPORT AND RECOMMENDATION AND THE

LODGING OF PROPOSED JUDGMENT AND/ORORDER

TO: All Parties of Record:

Eric C. Jacobson5601 W. Slauson Avenue, Suite 248Culver City, CA 90230

Brian Dwight Vaughan 300 S. Spring Street, Ste. 5000 Los Angeles, CA 90013

You are hereby notified that pursuant to the LocalRules Governing duties of Magistrate Judges, the MagistrateJudge’s report and recommendation has been filed and aproposed judgment and/or order has been lodged on January16. 2007, copies of which are attached.

Any party having objections to the report andrecommendation and the proposed judgment and/or ordershall, not later than January 29. 2007, file and serve awritten statement of objections with points and authorities insupport thereof before the Honorable Jennifer T. Lum, U.S.Magistrate Judge.

Failure to so object within the time limit specifiedshall be deemed a consent to any proposed findings of fact.Upon receipt of objections, or upon lapse of the time for filingobjections, the case will be submitted to the District Judge

9a

for disposition. Following entry of judgment and/or order, allmotions or other matters in the case will be considered anddetermined by the District Judge.

The report and recommendation of a MagistrateJudge is not a final appealable order. A notice of appealpursuant to Federal Rules of Appellate Procedure 4(a)(1)should not be filed until entry of a judgment and/or order by the District Judge.

CLERK, UNITED STATES DISTRICT COURT

Dated: January 16, 2007 By Debra Plato Deputy Clerk

Attachments M-51 (6/98)

NOTICE OF THE MAGISTRATE JUDGE’S REPORTAND RECOMMENDATION AND THE LODGING OF

PROPOSED JUDGMENT AND/OR ORDER

10a

Case 2:04-cv-03629-JFW-JTL Document 54 Filed 01/16/2007 Page 2 of 68

FILED JAN 16 2007 CLERK, U.S. DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

ERIC C. JACOBSON, on behalf of himself and his clienteleof California Parolees, one or more of whom may be joinedafter exhausting their administrative remedies and ERIC

JOHNSON, a past and imminent parolee,Plaintiffs -Appellants,

v.

ARNOLD SCHWARZENEGGER, Governor of California, in his individual

capacity; et al.,

Case No. 04-3629-JFW(JTL)

11a

REPORT AND RECOMMENDATION OF UNITEDSTATES MAGISTRATE JUDGE

The Court submits this Report and Recommendationto the Honorable John F. Walter, United States DistrictJudge, pursuant to 28 U.S.C. Section 636 and General Order05-07 of the United States District Court for the CentralDistrict of California.

INTRODUCTION On May 21, 2004, plaintiff Eric Jacobson (“plaintiff

Jacobson” or “Jacobson”), a licensed attorney filed the initialcivil rights complaint pursuant to 42 U.S.C. § 1983 in thisaction. The 97-page complaint asserted claims on Jacobson’sbehalf and also purported to represent the interests of a“caste” of California parolees under the doctrine of thirdparty standing. The Complaint named as defendants: (1)California Governor Arnold Schwarzenegger; (2) formerCalifornia Governor Gray Davis; (3) former California Youthand Adult Correctional Agency Secretary Roderick Hickman;(4) former California Youth and Adult Correctional AgencySecretary Robert Presley; (5) California Board of PrisonTerms (“BPT”) chairperson Margarita E. Perez; (6) formerBPT chairperson Carol Daly; (7) BPT Associate ChiefDeputy Commissioner Thomas Wadkins; (8) BPT ChiefCounsel Terry R.. Farmer; (9) BPT Executive DirectorMarvin E. Speed, II; (10) BPT Chief Deputy CommissionerKen Cater; (11) BPT officials Sandra Maciel, Tracy Master,and Marc D. Remis; (12) BPT counsel Dan Moeller; (13)former California Department of Corrections (“CDC”)Director Jeanne S. Woodford; (14) former CDC DirectorEdward S. Alameida; and (15) parole agent Brigit Murria

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(“defendants”). 1/

On August 6, 2004, defendants filed a motion todismiss pursuant to Fed. R. Civ. P. 12(b) (6), a motion for amore definite statement pursuant to Fed. R. Civ. P. 12(e),and a motion to strike pursuant to Fed. R. Civ. P. 12(f). OnNovember 30, 2004, United States Magistrate Judge JamesW. McMahon dismissed the Complaint with leave to amend.See Jacobson v. Schwarzenegger, 357 F. Supp. 2d 1198, 1205(C.D. Cal. 2004).

On January 21, 2005, plaintiff Jacobson filed a 200page First Amended Complaint, adding a new plaintiff, EricJohnson (“plaintiff Johnson” or “Johnson”) who Jacobsonrepresented in his capacity as attorney. The First AmendedComplaint contained class action allegations wherein plaintiffJohnson purported to represent a class of “all felonscurrently serving determinate sentences and all felons whohave completed determinate sentences and been released toparole terms but have not yet been discharged from parole.”(See First Amended Complaint ¶¶ 128-38).

On February 15, 2005, Magistrate Judge McMahonsua sponte dismissed the First Amended Complaint, withleave to amend, on the ground that it violated the mandate ofFed. R. Civ. P: 8(a) that a complaint must contain a “short

1.

On July 1, 2005, California’s correctional agencies werereorganized under the umbrella of a new department, theCalifornia Department of Corrections and Rehabilitation. TheBoard of Prison Terms, along with two other entities, became theBoard of Parole Hearings. (Third Amended Complaint ¶ 41).Because plaintiffs sue defendants based on their positions in theformer agencies, the Court will continue to refer to the CDC andthe BPT.

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and plain” statement of the claim for relief. See Jacobson v.Schwarzenegger, 226 F.R.D. 395, 397-98 (C.D. Cal. 2005).On March 11, 2005, plaintiffs filed a Second AmendedComplaint. On August 3l, 2005, plaintiffs filed a ThirdAmended Complaint, consisting of 107 pages.

On September 30, 2005, defendants filed a Motion toDismiss the Third Amended Complaint pursuant to Fed. R.Civ. P. 12(b) (6) (“Motion”). On November 8, 2005, plaintiffsfiled an Opposition to the Motion. On November 15, 2005,plaintiffs filed a Reply. On December 6, 2006, plaintiffs fileda Supplemental Opposition.2/

2.

On December 16, 2005, Magistrate Judge McMahonstruck plaintiffs’ Supplemental Opposition on the grounds that itwas untimely and was filed without prior leave of courtauthorizing plaintiffs to file a supplemental opposition or a brief inexcess of 25 pages. On January 12, 2006, Judge McMahon deniedplaintiffs’ request for reconsideration.

By ex parte application dated March 8, 2006, plaintiffssought, among other things, reconsideration of these orders. TheCourt GRANTS the ex parte application to the limited extent itseeks reconsideration of the order striking plaintiffs’Supplemental Opposition, and VACATES the December 16, 2006Order to the extent it strikes the Supplemental Opposition.

The Court's consideration of the Supplemental Opposition,however, will be limited to the brief and the exhibits, which areproperly considered for reasons discussed below. The Court willnot consider the two declarations attached to the SupplementalOpposition, because they are not materials properly considered ona motion to dismiss under Fed. R. Civ. P. 12(b} (6). For the samereason, the Court DENIES plaintiffs' ex parte application datedMarch 8, 2006 to the extent it seeks leave to file a declaration of

(continued...)

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On January 12, 2006, Magistrate Judge. McMahonissued an order directing the parties to submit supplementalbriefing addressing the issue of plaintiff Jacobson’s standingto assert the rights of California parolees. (Order re3/

Supplemental Briefing, filed January 12, 2006). The case wassubsequently transferred to this Magistrate Judge. OnFebruary 3, 2006, plaintiffs filed a Supplemental Brief onAccording Attorney Jacobson Third-Party Standing toRepresent the Interests of California Parolees (“Plaintiffs’Supplemental Brief”). On February 21, 2006, defendants filedDefendants’ Supplemental Brief Regarding Standing

(...continued)Larry Starns.

The Court further VACATES the December 16, 2005Order to the extent it declines to consider the exhibits filed inconnection with the Second Amended Complaint as exhibits to theThird Amended Complaint. Plaintiffs’ Exhibits to the SecondAmended Complaint, filed on March 31, 2005, shall be deemed tobe exhibits to the Third Amended Complaint.

3.

On January 10, 2006, Magistrate Judge McMahon issuedan Order to Show Cause, directing plaintiffs to show cause whythe Court. should not issue an order that the action shall notproceed as a class action due to plaintiffs’ failure to comply withthe time requirements of Local Rule 23-3. On February 2, 2006,plaintiffs filed a response to the Order to Show Cause. OnFebruary 15, 2006, defendants filed a reply to plaintiffs’ response.

Given the Court's conclusion, set forth below, thatJacobson does not have third party standing to assert the claimsthat Johnson is asserting as class claims, and that Jacobson’s prose claims should be severed from Johnson's class claims, theCourt will not address the order to show cause at this time.

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Pursuant to the Court’s January 12, 2006 Order(“Defendants’ Supplemental Brief”).

The Motion is submitted and ready for decision.

ALLEGATIONS OF THE THIRD AMENDEDCOMPLAINT

The Third Amended Complaint contains claims bytwo plaintiffs: Eric Jacobson and Eric Johnson. Johnson is aconvicted felon who released on parole in March 2005.Jacobson is a certified attorney who represents parolees.(Third Amended Complaint ¶¶ 3, 8). Jacobson is proceedingpro se as a plaintiff in this action and is also acting as counselfor Johnson. (Id. at p. 1).

The Third Amended Complaint asserts two sets ofclaims: claims directed at perceived deficiencies ofCalifornia’s parole revocation procedures (Claims Onethrough Eleven), and claims arising from Jacobson’s removal,on September 16, 2003, from the list of attorneys eligible tobe appointed by the BPT to represent indigent parolees attheir parole revocation hearings (“attorney appointmentlist”) (Claims Twelve through Eighteen). Plaintiffs contendthat the two sets of claims are related in that Jacobson was“purged” from the attorney appointment list because hezealously represented his clients, objected to the violation ofparolee rights during parole revocation hearings, and becamea “whistleblower” by advocating reform of California’s parolerevocation system. (Id. at ¶¶ 8-12).

Claims One through Eleven are brought by bothplaintiffs: Johnson, on his own behalf and on behalf of theproposed class, and Jacobson, appearing pro se, on behalf ofhis past and future parolee clients under the doctrine of thirdparty standing. (Id. at ¶¶ 5-7, 12, pp. 88-94). Claims Twelvethrough Eighteen are brought by Jacobson only, appearing

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pro se. (Id. at ¶ 8, 12, pp. 95-98). Plaintiffs generally allege that defendants are runninga “parole revocation mill,” which is designed to ensure anendless supply of “customers” (i.e. prisoners) for its“burgeoning prison-industrial complex” and is run for theeconomic benefit of the prison guard and parole agent unions.(Third Amended Complaint ¶¶ 26, 27, 28. Plaintiffs point toCalifornia’s high rate of parolee recidivism compared to thatof other states, and to various studies critical of California’sadministration of parole. (Id. at ¶¶ 27, 28, 30).

According to plaintiffs, parole agents routinely searchparolees, often in a brutal manner, without any reasonablesuspicion or cause and without any judicial involvement, andarrest parolees based on unreliable or fabricated evidence inorder to generate evidence to revoke their parole. (Id. at ¶¶24, 65-70). Plaintiffs allege that parole agents operate undera quota system whereby they are expected to revoke theparole of a set number of parolees per month. (Id. at ¶¶ 24,72). Thus, plaintiffs contend, parole agents have an incentiveto promote parolees’ maladjustment to living in thecommunity instead of assisting in their rehabilitation. (Id. at¶ 72).

Plaintiffs allege that although the purported goal ofthe parole system is rehabilitation, defendants have failed tocomply with their legal mandate to provide rehabilitativeservices to parolees, instead focusing on reincarceration anddiverting funds intended for parolee rehabilitation to theprivate benefit of corrections personnel. (Id. at ¶¶ 24, 71-74).

Plaintiffs contend that defendants have violated theequal protection and substantive due process rights ofparolees by treating them similarly to felons serving theirprincipal sentences, and by subjecting all parolees, whetherrehabilitated or still “struggling with criminal tendencies,” to

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the same level of supervision. Plaintiffs further allege thatdefendants have violated the equal protection and dueprocess rights of addicted parolees by treating them thesame as non-addicted parolees. (Third Amended Complaint¶¶ 24, 76-82).

Plaintiffs allege that the attorneys appointed by theBPT to represent parolees in revocation proceedings areunable or unwilling to provide competent and zealousrepresentation. Plaintiffs contend that the appointedattorneys are unwilling to act in opposition to the BPTbecause they are employed “at will” and are subject tointimidation through the threat of removal from the attorneyappointment list. (Id. at ¶¶ 24, 83-88).

Plaintiffs complain that parole revocation hearings aretoo short and are conducted in jail and prison venues thatemphasize the parolee’s criminality and discourage publicattendance at the hearing. ( Id. at ¶¶ 24, 89-91, 95). Theparolees are compelled to wear jail or prison attire and arehandcuffed; they are frequently forced to appear in anunhygienic and ungroomed state. Id. at ¶¶ 94. 101). Thehearings are held before biased, unqualified, and oftensadistic hearing officers, hired from the ranks of correctionaland law enforcement personnel, who give short shrift to anydefense presented by the parolee’s counsel, misapply thelaw, and predetermine the outcome. (Id. at ¶¶ 24, 98-100).Plaintiffs contend that parole revocation hearings are akin tocriminal proceedings and that the parolees should beaccorded the same Sixth and Fourteenth Amendment rights,including the right to a jury trial.(Id. at ¶¶ 93,96).

In the second group of claims, Jacobson describes theevents leading to his termination from the attorneyappointment list. From 1998 to 2003, Jacobson receivedappointments to represent parolees at parole revocation

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hearings before the EPT. (Id. at ¶¶ 37, 112). Beginning inapproximately 2001, Jacobson began complaining to the BPTabout the conduct of deputy commissioners presiding overthe hearings. (Third Amended Complaint ¶¶ 105-11). OnSeptember 16, 2003, the BPT removed him from theattorney appointment list. (Id. at ¶ 112). Jacobson contendsthat his termination was in retaliation for his zealousrepresentation of parolees at revocation hearings and hisadvocacy of parolee rights through letters and complaints toBPT supervisory personnel. (Id.).

Prior to his removal from the list, defendants engagedin various wrongful acts towards Jacobson, which included (1)fabricating and investigating a false charge that, during aconversation with defendant parole agent Murria following aparole revocation hearing on May 21, 2003, Jacobson placedhis hand on her shoulder, prompting her to ask him toremove his hand; (2) suspending Jacobson’s employmentpending the completion of the investigation of his conducttowards Murria; (3) failing to keep the investigation private;(4) delaying by a month the resumption of his employmentafter he was partially cleared of wrongdoing; and (5) usingJacobson’s single missed appointment to counsel paroleesbeing served with BPT paperwork as a pretext to removehim from the attorney appointment list. (Id. at ¶¶ 113,128).

Both plaintiffs assert the following claims based onthe above described allegations regarding the deficiencies ofCalifornia’s parole revocation system: (1) violation of aFourth and Fourteenth Amendment right to be free ofunreasonable searches and seizures (Claim One); (2)violation of a Fourteenth Amendment due process right torehabilitative services (Claim Two); (3) violation of the DueProcess and Equal Protection Clauses based on identicaltreatment of differently situated persons (Claim Three); (4)

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violation of a Fifth, Sixth, and Fourteenth Amendment rightto effective representation of counsel at parole revocationhearings (Claim Four); (5) violation of a Sixth and FourteenthAmendment right to parole revocation hearings of sufficientduration, open to the public, and before qualified andimpartial hearing officers (Claims Five, Six, and Eight); (6)violation of a Sixth and Fourteenth Amendment right to ajury trial (Claim Seven); (7) violation of a FourteenthAmendment right to a disposition made pursuant to ameaningful deliberative process (Claim Nine); (8) violation ofEighth and Thirteenth Amendment rights to be free ofinhumane treatment and enslavement (Claim Ten); and (9)state tort claims (Claim Eleven). (Third Amended Complaint¶¶ 162-72). Plaintiffs allege Claims One through Elevenagainst all defendants except defendants Master and Maciel.

Jacobson is the only plaintiff asserting Claims Twelvethrough Eighteen, which arise from the charges againstJacobson regarding his comportment towards Murria and hisremoval from the attorney appointment list. Jacobson assertsa single federal claim for retaliation (Claim Twelve). (¶¶ atpp. 88 -95). In addition, he asserts state law claims for: (1)retaliation in violation of the state constitution (ClaimThirteen); (2) retaliatory termination in violation of Californiacommon law, statutes, and public policy (Claim Fourteen);(3) defamation (Claim Fifteen); (4) invasion of privacy (ClaimSixteen); (5) age discrimination and harassment (ClaimSeventeen); and (6) intentional infliction of emotionaldistress (Claim Eighteen). (Id. at pp. 95-99).

For Claims One through Eleven, plaintiffs seek wide-ranging declaratory and injunctive relief, consisting ofspecified reforms of California’s parole system. Plaintiffs donot seek damages with respect to Claims One throughEleven. (Third Amended Complaint at pp. 100-05) . For

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Claims Thirteen through Eighteen, Jacobson seeks damages,declaratory relief, and reinstatement to the attorneyappointment list. (Id. at pp. 105-07).

MOTION TO DISMISS Defendants have moved to dismiss the Third

Amended Complaint on the following grounds: (1) the ThirdAmended Complaint fails to comply with Rule 8(a); (2)Claims Four through Eight are precluded by the settlementin the class action Valdivia v. Schwarzenegger, CV S-9400671LKK/GHK (“Valdivia”) in the United States District Courtfor the Eastern District of California; (3) Claims Two, Three,Six, Seven, and Ten fail to state a claim for relief; (4) ClaimTwelve fails to state a claim against any defendant exceptdefendant Farmer; (5) Claims Thirteen through Seventeenfail to state a claim for relief; and (6) Claim Eighteen fails tostate a claim against any defendant except defendantsWadkins and Farmer.

In addition, the Court has sua sponte raised the issueof Jacobson's third party standing to assert Claims Onethrough Twelve.

DISCUSSION I. DEFENDANTS’ RULE 8{A) MOTION IS

DENIED Under Rule 8(a) of the Federal Rules of Civil

Procedure, a 24 complaint must contain “a short and plainstatement of the claim showing that the pleader is entitled torelief.” Fed. R. Civ. P. 26 8(a) (2). The pleading must “givethe defendant fair notice of what the plaintiff’s claim is andthe grounds upon which it rests.” Swierkiewicz v. Sorema,N.A., 534 U.S. 506, 512 (2002) (quoting Conley v. Gibson,355 U.S. 41, 47 (1957)); Kimes v. Stone, 84 F.3d 1121, 1129

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(9th Cir. 1996).Plaintiff’s original Complaint and his First Amended

complaint this action were both dismissed for failure tocomply with Rule 8(a). Characterizing the complaints as a“rambling diatribe,” Magistrate Judge McMahon found thatthey were overly long and replete with narratives, legalarguments, quotations, and references to extraneousmatters. See Jacobson, 357 F. Supp. 2d at 1205; Jacobson,226 F.R.D. at 397-98. Defendants argue that the ThirdAmended Complaint is similarly deficient. (Motion at 4-5).

Although the Third Amended Complaint is notwithout the problems that afflicted its predecessors, theCourt concludes that the complaint gives defendants noticeof plaintiffs’ claims and the grounds upon which they arebased in a manner sufficient to satisfy Rule 8 (a) . SeeSwierkiewicz, 534 U.S. at 512; Conley, 355 U.S. at 47.Defendants’ Motion based upon Rule 8(a), therefore, isDENIED.

II. JACOBSON LACKS THIRD PARTYSTANDING TO ASSERT CLAIMS ONETHROUGH ELEVEN“[F]ederal courts are required sua sponte to examine

jurisdictional issues such as standing.” Bernhardt v. Countyof Los Angeles, 279 F.3d 862, 868 (9th Cir. 2002) (quotingB.C. v. Plumas Unified School District, 192 F.3d 1260, 1264(9th Cir. 1999)). Thus, although defendants’ Motion does notchallenge Jacobson’s standing to bring Claims One throughTwelve, the Court sua sponte directed the parties to brief theissue.

Jacobson is not a parolee, nor is he a convicted felonawaiting parole. Thus, he is not personally affected by theinfirmities in parole revocation proceedings alleged in the

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Third Amended Complaint. Instead, ,Jacobson contends thathe has standing to bring claims challenging these infirmitiesunder the doctrine of third party standing. Jacobson’s theoryis that his removal from the attorney appointment listharmed the interests of his parolee clientele by deprivingthem of his services as a zealous and highly proficient parolerevocation counsel. (Third Amended Complaint ¶¶ 12, 144-48).

A party “generally must assert his own legal rightsand interests, and cannot rest his claim to relief on the legalrights or interests of third parties.” Kowalski v. Tesmer, 543U.S. 125, 129 (2004) (quoting Warth v. Seldin, 422 U.S. 490,499 (1975)). However, this rule is not absolute, and theSupreme Court has recognized that, under certain limitedcircumstances, a third party may assert the rights of others.The litigant must, of course, satisfy the case-or-controversyrequirement of Article III of the Constitution bydemonstrating an “injury in fact,” a causal connectionbetween the injury and the conduct of which the partycomplains, and a likelihood that a favorable decision wouldprovide redress. Id. at 129 n.2; Lujan v. Defenders ofWildlife, 504 U.S. 555, 560-561 (1992). In addition, to meetthe prudential requirements for standing, a litigant seekingthird-party standing must show that: (1) he had a “close”relationship with the person who possesses the right beingasserted; and (2) there is a “hindrance” to the possessor’sability to protect his own interests. Kowalski, 543 U.S. at130.

In Kowalski, the Supreme Court held that attorneyswho accepted appointments to represent indigent criminaldefendants on appeal did not have third-party standing tochallenge the state’s refusal to provide appointed appellatecounsel for defendants who pleaded guilty. Kowalski, 543

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U.S. at 134. The Supreme Court assumed, without deciding,that the attorneys’ allegations that the state system hadreduced the number of cases in which they could be retainedas appointed counsel was sufficient to confer Article IIIstanding, but concluded that the attorneys had demonstratedneither a “close” relationship nor a sufficient “hindrance” towarrant standing on prudential grounds. Id. at 129 n.2, 129-33.

The high court acknowledged that it had, in two cases,recognized third party standing in the context of an attorney-client relationship. Id. at 130-31, discussing Caplin &Drysdale, Chartered v. United States, 491 U.S. 617 (1989)(law firm had third party standing to challenged drugforfeiture statute by invoking the rights of an existing clientdeprived by the statute of assets to hire counsel);Department of Labor v. Triplett, 494 U.S. 715 (1990)(attorney disciplined for accepting fees from black lungclaimants without court or agency approval had third partystanding to invoke the claimants’ right to challenge the feerestriction on grounds that it deprived them of their right tolegal representation). The Supreme Court distinguishedthose cases as involving existing attorney-clientrelationships, while the attorneys in Kowalski had “norelationship at all” with their hypothetical future clients.4/

4.

The Supreme Court also explained that Triplett fell intothe class of cases where the high court has “allowed standing tolitigate the rights of third parties when enforcement of thechallenged restriction against the litigant would result indirectlyin the violation of third parties’ rights.” Kowalski, 543 U.S. at 131(quoting Warth, 422 U.S. at 510) (emphasis omitted).

(continued...)

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Kowalski, 543 U.S. at 131. Second, the Supreme Court found that the indigent

criminal defendants were not hindered from pursuing theirown challenges to the Michigan scheme in state and federalcourts. The high court unequivocally rejected the argumentthat without counsel, unsophisticated criminal defendantswould not be able to satisfy procedural requirements orarticulate their claims. Kowalski, 543 U.S. at 132.

The Kowalski decision forecloses granting third-partystanding to Jacobson in this action. Like the attorneys inKowalski, Jacobson is seeking to invoke the interests ofhypothetical future clients – parolees whom he seeks torepresent in future parole revocation proceedings. Like theattorneys in Kowalski, Jacobson does not have an attorney-client relationship with his future clients, and thus does nothave the requisite “close” relationship with them. See id. at131.

Second, even if Jacobson were able to demonstrate asufficiently “close” relationship with some parolees, such ashis present clients, he cannot demonstrate a sufficient“hindrance” to their ability to protect their own interests.The parolee class has sought and obtained systemwidejudicial relief in the Valdivia class action. See Jacobson, 357F. Supp. 2d at 1208-09 (discussing effect of Valdivia onJacobson’s third party standing). Moreover, to the extent, if

(...continued)This case does not fall into that category. Jacobson’s

termination from the attorney appointment list is not the“restriction” challenged in the claims as to which he invokes thirdparty standing. Those claims, which challenge aspects ofCalifornia’s parole revocation system affect the parolees directlyand through the effect of the “restriction” on Jacobson.

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any, that the parolees’ claims are not barred by Valdivia, theycan assert them directly in separate actions, as indeedplaintiff Johnson is doing.

Jacobson argues that, despite Kowalski, he should beafforded third party standing because, like Triplett, his claimsfall into the class of cases where the high court has “allowedstanding to litigate the rights of third parties whenenforcement of the challenged restriction against the litigantwould result indirectly in the violation of third parties’rights.” Kowalski, 543 U.S. at 131 (quoting Warth, 422 U.S.at 510). Jacobson argues that his claims include a challengeto the “at will-termination of whistle-blower appointedattorneys,” which affects the rights of parolees both directlyby adversely impacting the quality of representation affordedby appointed counsel, and indirectly by contributing to themaintenance of the status quo by “purging” attorneys whocomplain. (Plaintiffs’ Supplemental Brief at 12-13).Notwithstanding Jacobson’s strained argument, the Courtcannot conclude that enforcing a challenged restrictionagainst Jacobson would indirectly result in the violation ofthird parties’ rights as set forth in Claims One throughEleven. These claims, which challenge aspects of California’sparole procedures and practices, affect the parolees directlyand do not rise or fall on whether Jacobson is able torepresent them.

Jacobson also argues, citing the Ninth Circuit’s recentopinion in Pony v. County of Los Angeles, 433 F. 3d 1138 (9th

Cir. 2006), cert. denied, 126 S. Ct. 2864 (2006), that hisinterests are “aligned” with the parolee interests he seeks toassert. (Plaintiffs’ Supplemental Brief at 8-11). In Pony, theNinth Circuit rejected an attorney’s argument that he shouldbe granted third party standing to assert his client’s right tostatutory attorney’s fees, pointing out that since the client

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had indemnified the defendant against attorney’s fees as partof the settlement of the action, the claim asserted by theattorney on her behalf was directly adverse to the client’sinterests. Pony, 433 F.3d at 1148. Pony is inapposite here.Although third party standing will not be granted when, as inPony, a litigant’s interests are not aligned with those of thethird party, third party standing may still be denied whentheir interests are aligned. The litigant must still meet the“close relationship” and “hindrance” tests discussed above.

Plaintiff Jacobson, therefore, lacks third party standingto assert the claims of California parolees regarding thealleged deficiencies in California’s parole revocation system.Accordingly, to the extend Claims One through Eleven areasserted by plaintiff Jacobson, they should be dismissed.

III. DEFENDANTS’ RULE 12(b)(6) MOTIONSHOULD BE GRANTED IN PART ANDDENIED IN PARTA. Applicable StandardsThe purpose of a motion under Rule 12(b)(6) of the

Federal Rules of Civil Procedure is to test the formalsufficiency of the statement of the claim for relief. Acomplaint may be dismissed for failure to state a claim fortwo reasons: (1) lack of a cognizable legal theory; or (2)insufficient facts under a cognizable legal theory. Balistreriv. Pacifica Police Dep’t., 901 F.2d 696, 699 (9 Cir. 1990). Inth

determining whether a complaint states a claim, theallegations must be construed in the light most favorable tothe nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d336, 338 (9 Cir. 1996). All allegations of material fact areth

accepted as true, “as well as all reasonable inferences to bedrawn from them.” Navarro v. Block, 250 F.3d 729, 732 (9th

Cir. 2001). However, the Court need not accept as true

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“unreasonable inferences, unwarranted deductions of fact, orconclusory legal allegation cast in the form of factualallegations.” Bureerong v. Uvawas, 922 F. Supp. 1450, 1461(C.D. Cal. 1996); see also Sprewell v. Golden State Warriors,266 F. 3d 979, 987 (9 Cir, 2001), amended by 275 F. 3d 1187th

(9 Cir. 2001); Western Mining Council v. Watt, 643 F.2dth

618, 624 (9 Cir. 1981). A complaint may not be dismissedth

unless it appears beyond doubt that the plaintiff can prove noset of facts in support of his claim that would entitle him torelief. Conley, 355 U.S. at 45-46 (1957); Cahill, 80 F.3d at338.

On a motion to dismiss pursuant to Fed. R. Civ. P.12(b)(6), the Court must limit its review to the four cornersof the operative complaint, and may not consider factspresented in briefs or extrinsic evidence. See Lee v. City ofLos Angeles, 250 F. 3d 668, 688 (9 Cir. 2001); Sprewell, 266th

F.3d at 987; 1 William W. Schwarzer, A. Wallace Tashima &James M. Wagstaffe, Federal Civil Procedure Before Trial§9:211 (2004) (“[T]he court cannot consider material outsidethe complaint (e.g., facts presented in briefs, affidavits ordiscovery materials).”). Materials submitted as part of thecomplaint are not “outside” the complaint and may beconsidered. Lee, 25 F.3d at 688; Hal Roach Studios, Inc., v.Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9 Cir.th

1990). In addition, “documents whose contents are alleged ina complaint and whose authenticity no party questions, butwhich are not physically attached to the pleading may beconsidered in ruling on a Rule 12(b)(6) motion to dismiss.” Inre Stac Electronics Securities Litigation, 90 F.3d 1399, 1405n.5 (9 Cir. 1996); see also Lee, 250 F. 3d at 689 (documentsth

are not physically attached to the complaint may beconsidered if their authenticity is not contested and “theplaintiff’s complaint necessarily relies” on them).

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B. Claims One Through ElevenClaims One through Eleven, the class action claims,

attack various aspects of the BPT’s administration ofrevocation of parole. Defendants contend that Claims Four,Five, Six, Seven, and Eight are barred by the doctrine of resjudicata and that Claims Two, Three, Six, Seven, and ten aresubstantively deficient. (Motion at 5-12). Defendants havenot moved to dismiss Claims One and Nine or state lawClaim Eight.

1. Res Judicata (Claims Four throughEight)

Defendants contend that Claims Four through Eightof the Third Amended Complaint are barred by thesettlement of the Valdivia class action. (Motion at 5-9).Plaintiffs assert violations of: the right to effectiverepresentation of counsel at parole revocation hearings(Claim Four); the right to a parole revocation hearing ofsufficient duration (Claim Five), open to the public (ClaimSix), and before a qualified and impartial hearing officer(Claim Eight); and the right to a jury trial (Claim Seven).

The Court takes judicial notice of the records of theValdivia class action in the United States District Court forthe Eastern District of California to the extent they arebefore the Court. See Mir. v. Little Company of Mary Hosp.,844 F. 2d 646, 649 (9 Cir. 1988), As summarized in a priorth

dismissal order in this action at Jacobson, 357 F. Supp. at1207-08, the Valdivia class action was filed on May 2, 1994,and was assigned to Chief District Judge Emeritus LawrenceD. Karlton. On December 1, 1994, District Judge Karltoncertified a class under Fed. R. Civ. P. 23(b) consisting of: (1)California parolees who are at large; (2) California paroleesin custody as alleged parole violators, and who are awaitingrevocation of their state parole; and (3) California parolees

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who are in custody, having been found in violation of paroleand who have thereupon been sentenced to prison custody.

On June 13, 2002, District Judge Karlton grantedpartial summary judgment in favor of the Valdivia plaintiffs,holding that California’s unitary parole revocation systemviolated their due process rights by unduly delayingpreliminary hearings regarding the reliability of the probablecause determination. See Valdivia v. Davis, 206 F. Supp. 2d1068 (E.D. Cal. 2002). On September 13, 2002, the Valdiviaplaintiffs filed a fifth amended complaint (“ValdiviaComplaint”), which has remained the operative pleading. TheValdivia Complaint alleged, among other things, that: (1) the“pay scale and criteria for attorney representation” ofcounsel appointed to represent parolees render the right tocounsel meaningless, by making full, fair and reasonablerepresentation “unduly burdensome to impossible” (ValdiviaComplaint ¶6); (2) the BPT refuses to pay for reasonable andsupplemental legal services such as the perfecting ofadministrative and judicial review (id.); and (3) the right tocounsel is denied by “the imposition of unfair andunreasonable limits on counsel’s time and fees” (id. at ¶66).The Valdivia Complaint also alleged that the BPT violatesdue process by denying parolees: (1) prompt notice of thecharges: (2) an opportunity for reasonable investigation; (3)a prompt revocation hearing; and (4) a meaningfulopportunity to present defense witnesses and evidence andto confront adverse witnesses. (Id.).

On March 17, 2004, District Judge Karlton issued an“Order Granting Final Approval of Stipulated Order forPermanent Injunctive Relief” (“Final Approval Order”)approving the settlement set forth in the Stipulated Order forPermanent Injunctive Relief, filed on March 9, 2004. TheStipulated Order for Permanent Injunctive Relief, among

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other things, required the defendants to implement, byJanuary 1, 2005: (1) appointment of counsel for all paroleesat the “return to custody” stage; (2) standards, guidelines,and training for effective assistance of state appointedcounsel in the revocation process; and (3) access to evidenceand the ability to present witnesses and evidence to the sameextent as the state. The Final Approval Order provided that,“without affecting the finality of th[e] Order in any way,” thecourt retained continuing jurisdiction over implementation ofthe settlement and the Stipulated Order for PermanentInjunctive Relief.

Defendants contend that Johnson’s claims are barredby the doctrine of res judicata or “claim preclusion.” (Motionat 5-9). The doctrine of res judicata or claim preclusion “barsall grounds for recovery which could have been asserted,whether they were or not, in a prior suit between the sameparties ... on the same cause of action.” C.D. Anderson &Co., Inc. v. Lemos, 832 F.2d 1097, 1100 (9th Cir. 1987). Forclaim preclusion to apply, there must be: (1) an identity ofclaims in the two actions; (2) a final judgment on the meritsin the first action; and (3) identity or privity between theparties in the two actions. Frank v. United Airlines, 216 F.3d845, 850 (9th Cir. 2000).

Defendants argue that these criteria are met herebecause: (1) the Valdivia class action settlement is a finaljudgment entitled to preclusive effect; (2) plaintiff Johnson isa member of the Valdivia class; and (3) Claims Four throughEight of the Third Amended Complaint assert essentially thesame claims as the Valdivia claims. (Motion at 6-9; Reply at2-4). Plaintiffs dispute each point. They contend that: (1) thesettlement does not constitute a final judgment; (2) Johnsonis not a member of the Valdivia class; and (3) Claims Fourthrough Eight are different from the Valdivia claims.

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(Opposition at 8-17). Res judicata or claim preclusion is an affirmative

defense. Fed. R. Civ. P. 8(a). However, the defense may beresolved on motion to dismiss when it is apparent on the faceof the complaint, or from matters subject to judicial notice,and does not raise any disputed issues of fact. See Scott v.Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984).

Here, the pleadings and other documents before theCourt are insufficient to enable the Court to determine atthis time whether defendants have established each elementof their claim preclusion defense. The Court, therefore,recommends that defendants’ motion to dismiss Claims Fourthrough Eight on claim preclusion grounds be denied withoutprejudice to defendants raising the defense at a later time.

2. Claims Two and Three In Claim Two, plaintiffs contend that depriving

parolees of rehabilitative services while on parole and thenreincarcerating them at “an unusually frequent rate” forviolation of parole violates the parolees’ substantive dueprocess rights. (Third Amended Complaint ¶163). In ClaimThree, plaintiffs contend that treating parole violatorssimilarly to felons serving their principal sentences, andsubjecting all parolees to parole supervision without anyindividualized scrutiny of their residual criminal tendencies,violates the Equal Protection Clause as well as substantivedue process. (Third Amended Complaint ¶164).

There is no constitutional right to rehabilitativeprograms. Rhodes v. Chapman, 452 U.S. 337, 348 (1981);Coakley v. Murphv, 884 F.2d 1218, 1221 (9th Cir. 1989);Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985). This istrue of parolees no less than of incarcerated inmates. Thestate does not have a constitutional obligation to provideparolees who need them with drug or alcohol treatment, or

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other rehabilitative programs, in order to assist them inmeeting the conditions of their parole. See Gill v. UnitedStates Parole Comm’n, 692 F. Supp. 623, 628 (E.D. Va. 1988)(“Inmates have no constitutional right to any rehabilitationtreatment or programs” even when recommended by thecourt); see also Fitzpatrick v. Bergen County ProbationDepartment, 2005 WL 1126794 (D.N.J. 2005) (“No dutyexists to a parolee to prevent him or her from committingfurther crimes and being sent back to prison.”) (internalquotation marks omitted); DeShaney v. Winnebato Co. Dep’tof Soc. Servs., 489 U.S. 189, 200 (1989) (noting that under asubstantive due process analysis government’s affirmativeduty to protect an individual “arises not from [its] knowledgeof the individual’s predicament or from its expressions ofintent to help him, but from the limitation which it hasimposed on his freedom to act on his own behalf”).

Nor do plaintiff’s allegations that parolees are re-incarcerated in “punitive prison environments” at an“unusually frequent rate” set forth a due process violation.The procedural due process rights of a particular parolee maybe violated if his parole revocation does not comply with thesafeguards set forth by the Supreme Court in Morrissey v.Brewer, 408 U.S. 471 (1972), and his substantive due processrights may be violated if his parole revocation was “so totallydevoid of evidentiary support as to be invalid under the DueProcess Clause of the Fourteenth Amendment. Douglas v.Buder, 412 U.S. 430, 432 (1973) (per curiam). However, ifthese safeguards are complied with, the mere fact ofreincarcerating a parole violator does not violate substantivedue process, regardless of the conditions of his post-revocation confinement. County of Sacramento v. Lewis, 523U.S. 833, 846 (1998) (substantive due process claims basedon abuse of executive power are evaluated under the “shocks

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the conscience” standard); Hawkins v. Freeman, 195 F. 3d732. 738 (4th Cir. 1999) (under the “shocks the conscience”standard, revocation of erroneously granted parole did notviolate substantive due process despite parolee’s exemplaryconduct during parole).

Nor have plaintiffs alleged an equal protectionviolation. Plaintiffs contend that defendants violate the equalprotection rights of parolees by subjecting fully rehabilitatedparolees as well as parolees prone to criminality to the sameparole supervision, and by subjecting parole violators to thesame conditions as inmates who were never paroled. (ThirdAmended Complaint, ¶¶76-79, 82, 164).

The Equal Protection Clause of the FourteenthAmendment “is essentially a direction that all personssimilarly situated should be treated alike.” City of Cleburnev. Cleburne Living Center, 473 U.S. 432, 439 (1985). Thus,the Equal Protection Clause prohibits the state fromdissimilar treatment of similarly situated individuals.Although the Equal Protection Clause “does not requirethings which are different in fact or opinion to be treated inlaw as though they were the same,” Plyler v. Doe, 457 U.S.202, 216 (1982), it is not necessarily violated if the stateelects to do so. See Roush v. White, 389 F. Supp 396, 401(N.D. Ohio 1975) (rejecting the argument that “if it is illegalto provide dissimilar treatment for persons similarly situated,it must also be a violation of the Equal Protection clause togive similar treatment to those dissimilarly situated”).

Plaintiffs’ reliance on the analysis in Cornwell v.Hamilton, 80 F. Supp. 2d 1101 (S.D. Cal. 1999) is misplaced.In Cornwell, the district court allowed plaintiff hairbraidersto assert an equal protection claim on the ground that thestate’s application of cosmetology licensing regulations tohairbraiders treated “persons performing different skills as

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if their professions were one and the same, i.e., it attempt[ed]to squeeze two professions into a single, identical mold.” Id.at 1103. “[S]ometimes the grossest discrimination can lie intreating things that are different as though they were exactlyalike.” Id. (quoting Jenness v. Fortson, 403 U.S. 431, 442(1971)). The district court ruled that, given the minimaloverlap of hairbraiding and cosmetology, applying thecosmetology regulations to hairbraiders was not rationallyrelated to the state’s interest in ensuring that only qualifiedpersons practiced cosmetology. Cornwell, 80 F. Supp. 2d at1118-19.

Plaintiffs’ allegations here do not support an equalprotection claim under this theory because plaintiffs have notalleged that the practices to which they object have anydiscriminatory effect. In Cornwell, application of thecosmetology licensing regulations to hairbraidersdiscriminated against the hairbraiders because the regulatoryscheme required them to undergo instruction and testing insubjects irrelevant to hairbraiding while failing to teach ortest pertinent skills, thus rendering their practice of theircraft unreasonably onerous compared to “mainstream”cosmetologists. Cornwell, 80 F. Supp. 2d at 1117. Here, bothnever-paroled inmates and parole violators who have hadtheir parole revoked are convicted and sentenced felons, andincarcerating them in the same prisons – where prisonerswith varied criminal backgrounds and serving sentences ofdifferent lengths are exposed to largely the same conditions– does not constitute discrimination under any theory.Plaintiffs’ equal protection theory makes even less sensewith respect to his contention that “fully rehabilitated”parolees should not be subject to the same supervision asnon-rehabilitated parolees. Moreover, plaintiffs. have notalleged any discriminatory intent. See Monteiro v. Tempe

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Union High Sch. Dist., 158 F. 3d 1022, 1026 (9th Cir. 1998)(Section 1983 claims based on equal protection violationsmust plead intentional unlawful discrimination or allege factsfrom which the discriminatory intent may be inferred).

As for plaintiffs’ substantive due process claim,neither subjecting all parolees, regardless of their “residualcriminal tendencies” to parole supervision, nor incarceratingparole violators in the same institutions as inmates servingtheir principal terms, is “so egregious, so outrageous, that itmay fairly be said to shock the contemporary conscience.”Lewis, 523 U.S. at 847 n.8; see Hawkins, 195 F.3d at 738(reincarceration of mistakenly paroled parolee did not violatesubstantive due process despite his exemplary conduct onparole).

Finally, it does not, as plaintiffs allege, “offendsubstantive due process to incarcerate a parolee for acts inthe service of an addiction.” (Third Amended Complaint , ¶80 (a) ). In Robinson v. California, 370 U.S. 660 (1962), citedby plaintiffs, the United States Supreme Court held that thestate could not, consistent with the Eighth Amendment,punish a person for being a drug addict. it did not hold thatthe state could not punish him for conduct motivated by hisaddiction. See also Powell v. Texas, 392 U.S. 514 (1968)(plurality held that conviction of chronic alcoholic for publicdrunkenness did not violate Eighth Amendment underRobinson because the conviction was for the defendant’sconduct; concurring opinion noted that the charged conductwas not involuntary). See Jones v. City of Los Angeles, 444F.3d 1118, 1133-37 (9th Cir. 2006) (discussing Robinson andPowell in a suit by homeless plaintiffs challenging ordinancecriminalizing sitting, lying, or sleeping on public streets).

Claims Two and Three, therefore, fail to state a claimfor relief and should be dismissed.

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3. Claim SixIn Claim Six, plaintiffs contend that the BPT’s

practice of holding parole revocation hearings in jails andprisons, rather than in “appropriate publicly accessiblefacilities,” violates the parolees’ right to a public trial underthe Sixth and Fourteenth Amendments. (Third AmendedComplaint ¶¶ 24, 167). Defendants contend that Claim Sixfails to state a claim because there is no constitutional rightto a parole revocation hearing being conducted in publicsurroundings. (Motion at 9-10).

The Supreme Court has set forth the minimal dueprocess requirements for a parole revocation hearing.Morrissey, 408 U.S. at 489. These include: (1) written noticeof the claimed violations of parole; (2) disclosure to theparolee of evidence against him; (3) opportunity to be heardin person and to present witnesses and documentaryevidence; (4) the right to confront and cross-examineadverse witnesses (unless the hearing officer specificallyfinds good cause for not allowing confrontation); (5) a“neutral and detached” hearing body such as a traditionalparole board, members of which need not be judicial officersor lawyers; and (6) a written statement by the fact finders asto the evidence relied on and reasons for revoking parole.Morrissey, 408 U.S. at 489.

The Supreme Court did not address where therevocation hearing should be held. But there is nothing in itsopinion suggesting that the Supreme Court found thatholding a revocation hearing in the jail or prison in which theparolee was confined was in any way improper. Indeed, theSupreme Court in Morrissey stressed that “there is nothought to equate this second stage of parole revocation to acriminal prosecution in any sense.” Id. at 489 (“[T]he processshould be flexible enough to consider evidence . . . that would

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not be admissible in an adversary criminal trial.”). Plaintiffs do not dispute that Morrissey did not

proscribe holding revocation hearings in a jail or prison.Nevertheless, they contend that such hearings are “classicsecret tribunals” violative of the spirit, if not of the letter, ofa long line of authority condemning non-public trials.(Opposition at 26-28).

Under the Sixth Amendment, a criminal defendanthas a right to a trial that is open to the public. Waller v.Georgia, 467 U.S. 39, 45-46 (1984); U.S. Const. amend. VI.The Sixth Amendment, however, applies only to criminalprosecutions, and does not apply to parole revocationproceedings. See Morrissey, 408 U.S. at 489; United Statesv. Hall, 419 F.3d 980, 985 (9th Cir.), cert. denied, 126 S. Ct.838 (2005) (noting the Sixth Amendment applies only tocriminal prosecutions and rejecting the assertion thatCrawford extended the Sixth Amendment to revocation ofsupervised release proceedings. Based on the foregoing, the5/

Court finds that the Sixth Amendment right to a public trialdoes not apply to parole revocation proceedings.

In addition to a criminal defendant’s SixthAmendment right to a public trial, the press and public havea qualified right to attend a criminal trial under the FirstAmendment. Waller, 467 U.S. at 43. However, evenassuming, arguendo, that this right applies to parolerevocation hearings – and plaintiffs cite no authority for thisproposition other than a 1985 New York state court decision,Herald Company, Inc. v. Board of Parole, 499 N.Y.S. 2d 301(1985), aff'd, 510 N.Y.S. 2d 382 (1986) (avoiding First

5.

Crawford v. Washington, 541 U.S. 36 (2004).

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Amendment issue and affirming on state law grounds) – andfurther assuming that Johnson would have standing to assertthe rights of hypothetical members of the press and publicwishing to attend parole revocation hearings, plaintiffs havenot alleged facts sufficient to state a First Amendmentviolation. Plaintiffs do not contend that defendants havedenied the press and public access to parole revocationhearings. Plaintiffs argue only that the location of thehearings renders attendance difficult. See Cal. Code. Regs.tit. 15, § 2031 (space limitations permitting, members of themedia may, upon request, attend revocation hearing).

In sum, there is no authority to support plaintiffs’claim that holding parole revocation hearings in a jail orprison is violative of any constitutional provision. Claim Sixshould be dismissed.

4. Claim Seven In Claim Seven, plaintiffs contend that defendants are

parolees their Sixth Amendment right to a trial by jury.(Third Amended Complaint ¶ 168).

It is settled law that the “full panoply of rights” due adefendant in a criminal prosecution, including the right to ajury trial, does not apply to revocation hearings for parole,probation, or supervised release, all of which are virtuallyindistinguishable for purposes of due process analysis.Morrissey, 408 U.S. at 480 (parole revocation); Gagnon v.Scarpelli, 411 U.S. 778, 782 (1973) (probation revocation); Johnson v. United States 529 U. S. 694, 7001 (2000)(supervised release); Hall, 419 F.3d at 985 n.4 (holding thatparole, probation, and supervised release are“constitutionally indistinguishable” and thus subject to thesame analysis). Because the parolee has already beenconvicted and sentenced, revocation of his parole does notdeprive him of the absolute liberty to which every citizen is

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entitled, but only of a conditional liberty dependent onobservance of special parole restrictions. Morrissey, 408 U.S. at 480. “Given the previous conviction and the properimposition of conditions, the State has an overwhelminginterest in being able to return the individual toimprisonment without the burden of a new adversarycriminal trial if in fact he has failed to abide by the conditionsof his parole.” ld. at. 483. See United States v. Knights, 534U.S. 112, 120 (2001) (noting that probationers “facerevocation of probation, and possible incarceration, inproceedings in which the trial rights of a jury and proofbeyond a reasonable doubt, among other things, do notapply.”); Minnesota v. Murphy, 465 U.S. 420, 435 n. 7 (1984)(“[T]here is no right to a jury trial before probation may berevoked.”); United States v. Huerta-Pimental, 445 F.3d 1220,1224 (9 Cir. 2006) (“There is no right to a jury trial for post-th

conviction determinations” such as whether a defendant hasviolated the conditions of supervised release) .

In light of the well-established law that there is noright to a jury trial in parole revocation proceedings, ClaimSeven should be dismissed.

5. Claim Ten In Claim Ten, plaintiffs allege that California’s parole

revocation system as described in the Third AmendedComplaint violates the Eighth and Thirteenth Amendments.(Third Amended Complaint ¶ 171) .

The Thirteenth Amendment specifically exceptsconvicts from its ban on slavery and involuntary servitude.See U.S. Const. amend. XIII, § 1 (“Neither slavery norinvoluntary servitude, except as a punishment for crimewhereof the party shall have been duly convicted, shall existwithin the United States . . .”). Post-revocation incarcerationconstitutes part of the penalty for the original crime. See

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Johnson, 529 U.S. at 700; United States v. Brown, 59 F.3d102, 104 (9th Cir. 1995) (“Parole and probation are part of theoriginal sentence” and revocation of parole is reinstatementof sentence for underlying crime, not punishment for,conduct leading to revocation); Howard v. United States, 274F.2d 100, 103 (8th Cir. 1960) (holding that incarceration ofprisoner upon parole violation does not constituteinvoluntary servitude). It follows that by its own terms, theThirteenth Amendment can have no application to parolerevocation proceedings.

The “cruel and unusual” clause of the EighthAmendment, applicable after conviction, bars punishmentsthat involve the “unnecessary and wanton infliction of pain,”or that are “grossly out of proportion to the severity of thecrime,” Gregg v. Georgia, 428 U.S. 153, 173 (1976), and barsconduct not intended as punishment that denies prisonersthe minimal civilized measure of life’s necessities,” Wilsonv. Seiter, 501 U.S. 294, 298 (1991). The allegations of theThird Amended Complaint do not implicate the EighthAmendment under any of these theories. As discussedabove, revocation of parole does not constitute “punishment”for the violation of conditions of parole; it constitutes theresumption of punishment for the original crime. See Brown,59 F.3d at 104. “Revocation does not extend the originalsentence, it simply alters the conditions under which it isserved.” Thus, the revocation of parole cannot render asentence so disproportionate to the offense as to violate theEighth Amendment.

Claim Ten, therefore, should be dismissed. C. Claims Twelve through Eighteen Claims Twelve through Eighteen are asserted by

Jacobson alone and are premised upon his termination fromthe attorney appointment list. Claim Twelve is the sole

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federal claim. Claims Thirteen through Eighteen arise understate law. Defendants have moved to dismiss: (1) ClaimTwelve as against all defendants except defendant Farmer;(2) Claims Thirteen through Seventeen as against alldefendants; and (3) Claim Eighteen as against all defendantsexcept defendants Wadkins and Farmer. (Motion at 12-25).

1. Claim TwelveClaim Twelve asserts a Section 1983 retaliation claim.

Jacobson alleges that defendants retaliated against him for hisresistance to the “harsh and abusive administrativemachinery of parole revocation” by harassing him andeventually removing him from the attorney appointment list.(Third Amended Complaint ¶¶ 112-19, 173).

Defendants do not attack the substantive adequacy ofthis claim on this Motion. Rather, they contend that Jacobsonmay not assert it against any defendant except BPT ChiefCounsel Farmer, who sent Jacobson the letter terminatinghim from the attorney appointment list. (Motion at 12-13; seeThird Amended Complaint ¶ 112).

“There is no respondeat superior liability underSection 1983.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). A person is liable for the deprivation of a constitutionalright only if he or she “does an affirmative act, participates inanother’s affirmative acts, or omits to perform an act whichhe [or she] is legally required to do” that causes thecomplained-of deprivation. Johnson v. Duffy, 588 F.2d 740,743 (9th Cir. 1978). Thus, in order to state a Section 1983claim against an individual defendant, a plaintiff must allegefacts showing either the defendant’s personal involvement inthe constitutional deprivation, or a causal connectionbetween the deprivation and that defendant’s wrongfulconduct. Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989);see Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

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1998) (stressing that plaintiffs must allege “facts, not simplyconclusions”). Supervisors can be held liable for their ownculpable action or inaction in the training, supervision, orcontrol of subordinates, for their acquiescence in thepurported constitutional deprivation, or for their own conductshowing a reckless or callous indifference to the rights ofothers. Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir.2000); Larez v. Gates, 946 F.2d 630, 646 (9th Cir. 1991).They may not, however, be held liable solely because of theposition they hold.

Here, the purportedly retaliatory acts consist ofJacobson's termination from the attorney appointment list, aswell as defendants’ actions preceding the termination asenumerated in Paragraph 113 of the Third AmendedComplaint. Thus, the Court must determine whetherJacobson has sufficiently alleged that each of the defendantswas liable either for his termination or for one of the otherpurportedly retaliatory acts.

As noted above, defendants do not contest thatJacobson has sufficiently alleged Claim Twelve as againstdefendant Farmer. For the reasons set forth below, the Courtconcludes that Jacobson has also alleged a factual basis forasserting Claim Twelve against defendants Wadkins, Speed,Cater, and Murria.

With respect to defendant Wadkins, Jacobson allegesthat, in an effort to induce Jacobson to voluntarily withdrawfrom the attorney appointment list, defendant Wadkins madea “confrontational verbal demand” that Jacobson prepare a“writing” explaining his absence from an assignment tocounsel parolees, although he already knew the reason.Jacobson further alleges that his termination from theattorney appointment list followed upon the heels of theletter he wrote to defendant Wadkins making it clear that he

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would not voluntarily withdraw. (Id. at ¶¶ 140 & n.44, 113).The Court finds that these allegations are sufficient to allegepersonal participation by defendant Wadkins in the allegedlyretaliatory decision to terminate Jacobson from the attorneyappointment list.

The Court also concludes that Jacobson hassufficiently set forth a basis for asserting this claim againstdefendants Speed and Cater. Jacobson alleges that defendantSpeed is the executive director of BPT and defendant Cateris the Chief Deputy Commissioner. Defendant Wadkinsforwarded copies of Jacobson's letter regarding the missedappointment to defendants Speed and Cater as well as toBPT Chief Counsel Farmer, and his letter implies that theywould be involved in the decision regarding how to handlethe matter. Defendant Farmer sent copies of his letterterminating Jacobson to defendants Speed and Cater.6/

(Supplemental Opposition, Exhs. H, J). Drawing allinferences in Jacobson’s favor, the Court concludes that, atthis pleading stage, Jacobson has alleged facts sufficient tostate a Section 1983 retaliatory termination claim againstdefendants Speed and Cater as well as defendants Farmerand Wadkins.

Jacobson has not alleged a basis for asserting hisretaliatory termination claim against BPT employees Macieland Remis. Although they were also copied on Farmer’s

6.

The Court may properly consider these letters on a Rule12(b) (6) motion to dismiss. See Stac, 89 F.3d at 1405 n.5(documents whose contents are alleged in the complaint andwhose authenticity no party questions may be considered on amotion to dismiss); Lee, 250 F.3d at 689.

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letter, that alone is insufficient to link them to the decision toterminate Jacobson.

To the extent Jacobson characterizes theinvestigation arising from his conduct towards Murria asretaliatory acts, plaintiff has sufficiently stated a retaliationclaim against defendants Speed and Murria, who plaintiffalleges fabricated the charge that Jacobson put his hand onMurria’s shoulder. (Third Amended Complaint ¶¶ 113, 128& n. 42).

Jacobson, however, has not alleged sufficient facts tostate a Section 1983 retaliation claim against defendantsSchwarzenegger, Davis, Hickman, Presley, Perez, Daly,Master, Moeller, Woodford, and Alameida. With respect todefendants Master and Moeller, Jacobson has not allegedfacts showing that they were involved in the allegedlyretaliatory activities. With respect to defendants Perez and7/

Daly, Jacobson contends that they directly participated in thealleged wrongdoing but appears to rest this contention on no

7.

In his Opposition, Jacobson contends that he set forth abasis for alleging this claim against defendants Moeller and Masterin his opposition to defendants’ motion to dismiss his priorcomplaint. (Opposition at 32 n.30). The Court cannot considerfactual assertions made in Jacobson’s brief in ruling on a motionto dismiss. See Arpin v. Santa Clara Valley TransportationAgency, 261 F.3d 912, 925 (9th Cir. 2001). In any event, Jacobsondoes not identify any wrongful acts by Moeller and Master; hemerely asserts that Moeller was aware of the investigation ofMurria’s charges and may have participated in it, and that Masterreceived a copy of a letter from Speed discussing the results of theinvestigation. These assertions are not sufficient to supportretaliation claims against Moeller and Master even if plaintiff hadincluded these allegations in his complaint.

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more than their positions as the present and formerchairpersons of BPT. (Third Amended Complaint at p. 67n.39). This is impermissible respondeat superior liability. SeeTaylor, 880 F.2d at 1045.

As for defendants Schwarzenegger, Davis, Hickman,Presley, Woodford, and Alameida, Jacobson contends thatthese defendants, including defendants like GovernorSchwarzenegger, whose tenure of office commenced afterJacobson’s termination, are liable for the alleged retaliationbecause they “caused or failed to abate” the hostileemployment environment at BPT and failed to reinstateJacobson or take any remedial action after receiving his statelaw administrative claim. (Third Amended Complaint at p.8/

67 n. 39). Jacobson separately contends that these so-called

“senior defendants” must remain in the action in order togrant Jacobson the injunctive and other relief he seeks.

8.

Jacobson expands on his theory of liability for the “seniordefendants” in his Opposition. In essence, he argues that: thestipulated order in Valdivia was signed the day GovernorSchwarzenegger took office, indicating that the Governor and theother defendants were focusing on parole issues; Jacobson filedhis state claim describing widespread wrongdoing by paroleauthorities only five days later; because the charges in Jacobson’sstate law claim were “possibly disruptive to the Valdiviasettlement, the defendants must have been aware of his state lawclaims; Jacobson's state law claim was met with a “deafeningsilence”; thus, defendants are responsible for failing to respond toJacobson’s state law claim by reinstating him to the attorneyappointment list or taking other remedial action. (Opposition at35-41.)

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(Third Amended Complaint at p. 67 n. 39; see alsoOpposition at 41-42).

Jacobson’s theory of liability as to these defendantsdoes not hold water. Jacobson invokes the Ninth Circuit’sdecision in Larez, 946 F.2d 7 at 646, in which the NinthCircuit upheld a judgment against Police Chief Gates on thegrounds that Gates had condoned and ratified the excessiveforce used by police officers during the incident at issue,noting the existence of expert evidence that the police chiefshould have disciplined the officers involved. (Opposition at34). Jacobson argues that he too is prepared to put on expertevidence regarding the course of conduct expected of “non-corrupt” officials upon receipt of a state claim such as his.(Opposition at 39).

However, in Larez, there was no question that PoliceChief Gates had the authority, and in appropriate cases theresponsibility, to discipline police officers in his department.Here, the responsibility for taking appropriate action withrespect to Jacobson’s government claim lay with the StateVictims’ Compensation Board. Cal. Gov. Code § 912.8. Evenaccepting Jacobson's dubious premise that Governor Schwarzenegger, Secretary Hickman, and the other “seniordefendants” must have been notified of Jacobson’sadministrative claim challenging his termination from theattorney appointment list because it was relevant to thecharges in the Valdivia class action, plaintiff’s argument thatdefendants should have bypassed legislatively mandatedchannels for adjudicating administrative claims to orderplaintiff’s reinstatement is simply not tenable. See Leer v.Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (Section 1983liability must be predicated on an individualized inquiry intocausation that focuses “on the duties and responsibilities ofeach individual defendant whose acts or omissions are

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alleged to have caused a constitutional deprivation”). Claim Twelve, therefore, should be dismissed as

against defendants Schwarzenegger, Davis, Hickman,Presley, Perez, Daly, Maciel, Master, Remis, Moeller,Woodford, and Alameida.

2. Claim ThirteenClaim Thirteen asserts a retaliatory termination claim

under the California Constitution. (Third AmendedComplaint § 174). Defendants have moved to dismiss ClaimThirteen on the grounds that: (1) a violation of the CaliforniaConstitution is not compensable in damages and (2) none ofthe defendants, in their individual capacities, has theauthority to reinstate Jacobson to the attorney appointmentlist. (Motion at 13-14).

As discussed in the previous dismissal order inJacobson, 357 F. Supp. 2d at 1203 n.2, the California SupremeCourt has held that, in general, damages are not available toremedy violations of free speech or other guarantees of theCalifornia Constitution. DeGrassi v. Cook, 29 Cal. 4th 333,343 (2002) (free speech); Katzberg v. Regents of Universityof California, 29 Cal. 4th 300, 329 (2002) (due process).Jacobson no longer contends that he is entitled to damageson this claim, but argues that he is entitled to injunctiverelief. (Opposition at 42; Supplemental Opposition at 1).

Although defendants are correct in stating that theydo not, as individuals, have the authority to reinstateJacobson to the attorney appointment list, this argumentdoes not provide a basis for dismissing Claim Twelve withoutleave to amend. If necessary, the Court can, at theappropriate time, grant Jacobson leave to assert this claimagainst the appropriate defendant in his or her officialcapacity. See Ex parte Young, 209 U. S. 123 (1908) (EleventhAmendment does not prohibit official capacity suits against

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state officials for prospective injunctive relief); Doe v.Lawrence Livermore Nat’ 1. Lab., 131 F.3d 836, 839-41 (9thCir. 1997) (reinstatement constitutes prospective injunctiverelief). For this reason, Jacobson may not pursue this claimagainst defendant parole agent Murria, who clearly does nothave the authority to reinstate him.

Furthermore, for the same reasons discussed inconnection with respect to Claim Twelve, Jacobson may notassert Claim Thirteen as against any defendants other thanFarmer, Wadkins, Speed, and Cater. Claim Twelve should bedismissed as against defendants Schwarzenegger, Davis,Hickman, Presley, Perez, Daly, Maciel, Master, Remis,Moeller, Woodford, Alameida, and Murria.

3. Claim Fourteen In Claim Fourteen, Jacobson contends that defendants

violated “common law, statutes and public policy” when theyremoved him from the attorney appointment list inretaliation for his “whistle blowing” activities. (ThirdAmended Complaint § 175). Defendants contend that ClaimFourteen fails to state a claim for relief for wrongfultermination in violation of common law and public policybecause Jacobson was not an employee but an independentcontractor. They also contend that Claim Fourteen fails tostate a claim under any applicable statute. (Motion at 14-18).

a. Common Law and PublicPolicy

The California Supreme Court has held that an at-willemployee discharged for refusal to participate in illegal andunlawful acts may bring a tort action for wrongful dischargeagainst the employer. Tameny v. Atlantic Richfield Co., 27Cal.3d 167, 179 (1980). An essential element of such a claimis an employment relationship between the defendant andthe plaintiff. If the plaintiff is an independent contractor

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rather than an employee, he lacks standing to sue for his“termination” even if it violated public policy. Sistare-Meyerv. Young Men's Christian Assn., 58 Cal. App. 4th la, 14-1B(1997) (independent contractor discharged because of herrace could not assert wrongful termination claim);Abrahamson v. NME Hospitals. Inc., 195 Cal. App. 3d 1325,1328 (1987) (physician hired to manage hospital’s pathologydepartment and terminated after he charged the hospital withpoor medical practices could not assert wrongful terminationclaim because he was an independent contractor).

The principal test for determining whether a personrendering “services is an employee or an independentcontractor is whether the person to whom the service isrendered has “the right to control the manner and means ofaccomplishing the result desired. S. G. Borello & Sons v.Dep’t of Indus. Relations, 48 Cal. 3d 341, 350 (1989). Other relevant factors include: the right to discharge at will;whether the person performing services is engaged in adistinct occupation or business; whether the work is usuallydone by a specialist without supervision; the skill required;who supplies the workplace, tools and instrumentalities; thelength of time for which the services are to be performed;the method of payment (by the time or by the job); whetherthe work is part of the regular business of the principal; andthe understanding of the parties. B.G. Borello & Sons, 48Cal. 3d at 350-51.

In general, California courts applying this test haveheld that attorneys who contract with public agencies toprovide representation to indigent persons pursuant to theagency’s obligation to provide counsel are independentcontractors rather than employees. In Foster v. County ofSan Luis Obispo, 14 Cal. App. 4th 668, 673 (1993), the stateappellate court held that an attorney hired by a law firm to

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provide services to indigent criminal defendants pursuant tothe law firm’s contract with the state was an independentcontractor, not a state employee. In Briggs v. Lawrence, 230Cal. App. 3d 605, 618 (1991), the state appellate court drewa distinction between a salaried full-time public defender andan attorney appointed from a panel. The court held that apublic defender was a state employee for purposes of theCalifornia Tort Claims Act and was not an independentcontractor like a panel attorney. The court noted that, unlikethe panel attorneys, public defenders worked full-time for thecounty, which provided them with office space and clericalsupport, paid them salaries calculated without reference toparticular cases, and provided benefits. Briggs, 230 Cal. App.3d at 616-17. See also Thomas v. Held, 941 F. Supp. 444,450-51 (S.D.N.Y. 1996) (attorney denied recertification tocriminal court’s indigent attorney panel could not recoverunder federal age discrimination statute; despite hiseconomic dependence on the panel, he was not an employeebut an independent contractor).

Jacobson nevertheless contends that he was a BPTemployee. (Third Amended Complaint ¶ 143). In the ThirdAmended Complaint, he alleges that BPT appointedattorneys represent their clients at fixed locations incorrectional facilities and at fixed times dictated by BPTpersonnel, and are reprimanded for tardiness. The panelattorneys park facilities reserved for correctional facilitypersonnel. The BPT provides panel attorneys training incommunication with disabled parolees, and prescribes themanner of preparation for hearings by requiring clientinterviews prior to the hearing date. “Many of the lawyeringduties,” such as issuance of subpoenas, are delegated to theBPT. (Third Amended Complaint ¶ 143).

In his Supplemental Opposition, Jacobson further

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argues that the BPT appointed attorneys lack independencebecause correctional personnel micromanage the life-cycleof parole revocation cases, including the timing of theseverance of the attorney-client relationship, and in variousways discourage or preclude the attorneys from vigorouslyrepresenting their clients’ interests. (SupplementalOpposition at 26). Jacobson argues that the BPT appointedattorneys do not function as independent contractors becausetheir role is not to provide meaningful representationadversarial to the BPT, but to function as “window dressing.”(Id. at 4-5).

Jacobson’s allegations in the Third AmendedComplaint, as clarified in the Supplemental Opposition, donot show the existence of an employment relationshipbetween him and the BPT. The BPT did not pay Jacobson afixed salary; it compensated him for his representation ofindigent parolees on an hourly basis up to a specified limitper case. (Third Amended Complaint ¶ 37). Although theBPT provided the hearing rooms for the revocation hearingsand set the hearing times, it did not provide Jacobson orother appointed counsel with an office, telephone, computer,or clerical assistance. See Briggs, 230 Cal. App. 3d at 618.9/

Nor do Jacobson’s allegations that the BPT requiresappointed attorneys to interview their clients prior to thehearing date, and obtains subpoenas for them, show that theBPT controls the manner of representation in a mannerincompatible with the attorney’s status as an independentcontractor. It is still up to the appointed attorney to

9.

Indeed, any lawyer representing clients at trials oradministrative hearings does so at venues provided by, and attimes set by, the court or administrative body.

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determine how to present the parolee’s case – what evidenceto present, what objections to make, what strategy to follow.

True, Jacobson alleges that the BPT restricts theappointed attorneys' ability to present their clients’ cases by,for instance, refusing to call their witnesses and limiting theduration of the hearings, and that most appointed attorneysacquiesce in these restrictions for fear of losing futureappointments. (Supplemental Opposition at 3-5; ThirdAmended Complaint ¶¶ 83-85). However, an appointedattorney’s status as an employee or independent contractordepends on his or her right to exercise control over therepresentation of his clients, not on the degree to which theattorney exercises that right. See Borello, 48 Cal. 3d at 357n.9 (“[I]t is the right to control, not the exercise of the right,which bears on the status of the work arrangement.”).Jacobson does not allege that the appointed attorneys do nothave the right to represent their clients as they see fit, butonly that they are too cowed and supine to exercise it.Moreover, by Jacobson’s own allegations, his description ofthe generality of appointed attorneys did not apply to him.(See Third Amended Complaint ¶¶ 8-9, 104).

Jacobson, therefore, was not a BFT employee but wasan independent contractor vis-a-vis the BFT. Thus, Jacobsonmay not bring a wrongful termination action based on hisremoval from the BFT attorney appointment list. His claimfor wrongful termination in violation of California commonlaw and public policy should be dismissed.

b. Statutes Jacobson also contends that his termination from the

appointment list violated California statutes. (Third AmendedComplaint ¶ 175). The Third Amended Complaint does notidentify the statutes allegedly violated; however, defendants’Motion assumes that Jacobson is invoking the statutory

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provisions invoked in his previous complaint, namely,California Labor Code Section 1102.5, California Penal CodeSection 6129 and California Government Code Section 12940(h) . (Motion at 17-18). Jacobson discusses these provisions,as well as California Government Code Section 12948, in hisSupplemental Opposition. (Supplemental Opposition at 7-11).

California Labor Code Section 1102.5

California Labor Code Section 1102.5, California’swhistleblower protection statute, prohibits employers fromretaliating against employees for disclosing the employer’swrongdoing or for refusing to participate in the wrongdoing.By its terms, the statute applies solely to employers andemployees. See Cal. Lab. Code § 1102.5 (b), ( c) and (d) (“Anemployer may not retaliate against an employee. . .”).

Jacobson quotes a Pennsylvania district court’sstatement that “the policy considerations. underlying theCalifornia Whistleblower Statute, i.e., to encourage those inthe workplace to report concerns regarding an employer’sillegal conduct without fear of retaliation, are equallyapplicable to independent contractor whistle blowers,” butomits the court’s conclusion that “policy considerations alonedo not provide the court with a basis for expanding theordinary, everyday meaning of the term employee in theCalifornia Whistleblower Statute to include independentcontractors.” United States ex reI. Watson v. ConnecticutGen. Life Ins. Co., 2003 WL 303142, at *5 (E.D. Pa. 2003)(internal citation omitted). The Court’s determination, setforth above, that Jacobson was an independent contractor,bars a claim under Section 1102.5.

California Penal Code Section 6129California Penal Code Section 6129 prohibits

retaliation against employees of state agencies who disclose

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“improper governmental activities” to their supervisors. Thestatute provides that the injured party may sue for damages,but only if the State Personnel Board previously foundintentional retaliation. Cal Penal Code § 6129(d) (1). In hisSupplemental Opposition, Jacobson acknowledges that he isnot entitled to relief under the statute at this time becausethe Inspector General, stating that Jacobson was not anemployee declined to investigate his complaint.(Supplemental Opposition at 8).

California Government Code Section 12940(h)

California Government Code Section 12940(h) is theanti-retaliation provision of the California Fair Employmentand Housing Act (“FEHA”). Section 12940(h) provides thatit is unlawful for an employer or other person to “todischarge, expel, or otherwise discriminate against anyperson because the person has opposed any practicesforbidden under this part or because the person has filed acomplaint, testified, or assisted in any proceeding under thispart.” Thus, Section 12940(h) prohibits retaliation againstpersons who assert their rights under FEHA, or who assistothers asserting their rights under FEHA. To state a claim10/

for retaliation under FEHA, plaintiff must allege that: (1)he or she engaged in a protected activity; (2) the employersubjected him or her to an adverse employment action; and

10.

The California Supreme Court has not addressed whetherindependent contractors may bring FEHA retaliation claims. TheCourt will proceed on the assumption that they may. See Walkerv. City of Lakewood, 272 F. 3d 11l4, 1125 (9th Cir. 2001) (notingunsettled state law and predicting that California courts wouldhold in favor of independent contractor FEHA retaliation suits) .

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(3) a causal link existed between the protected activity andthe employer’s action. Yanowitz v. L’Oreal USA, 36 Cal. 4th1028, 1042 (2005).

Jacobson relies on case law that an employee maystate a FEHA retaliation claim if he or she is fired ordiscriminated against for refusing to comply with a directiveto engage in discriminatory conduct, as long as the employeehas a good faith belief that the conduct is prohibited byFEHA. Yanowitz, 36 Cal. 4th at 1042-43 (plaintiff was firedfor refusing supervisor’s directive to fire a sales associatewhom the supervisor found insufficiently attractive); Mayov. Gomez, 40 F. 3d 982 (9th Cir. 1995) (prison guard stateda federal claim for retaliation based on an unlawfulemployment practice when he was fired for refusing to carryout orders requiring him to allow white but not black inmatesto shower after their work shifts).

These cases are inapposite. Jacobson contends thatdefendants terminated him from the attorney appointmentlist in retaliation for his vigorous representation of hisparolee clients and his objections to EPT practices andprocedures he believed to violate parolee rights. (ThirdAmended Complaint, ¶¶ 9-11, 112). The deficiencies of theparole revocation system, as described in the Third AmendedComplaint, are not within the scope of FEHA. Jacobson’sadvocacy of parolee rights does not, by any stretch,constitute protected activity under FEHA. 11/

11.

In his Supplemental Opposition, Jacobson propounds aconvoluted argument based on California Government CodeSection 12948, which renders it unlawful for any person to deny,or to aid or conspire in the denial of, certain civil rights

(continued...)

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Claim Fourteen, therefore, fails to state a claim undereither a statutory or a non-statutory theory. It should bedismissed.

4. Claim Fifteen Claim Fifteen asserts a claim for defamation. Jacobson

contends that defendants defamed him by falsely charginghim with inappropriate comportment towards a female paroleagent, defendant Murria; depriving him of an opportunity toparticipate in the investigation of the charge; failing to keepthe investigation private; and, ten weeks after partiallyclearing him of wrongdoing, removing him from the attorney appointment list on the pretext of a single missedappointment to counsel parolees. (Third Amended Complaint¶ 176). Defendants contend that Jacobson has not stated aclaim for defamation because the allegedly false statement

(...continued)enumerated in the California Civil Code, including California CivilCode Section 51.7. Section 51.7 provides that all persons have theright “to be free from any violence, or intimidation by threat ofviolence, committed against their persons or property because ofpolitical affiliation, or on account of any characteristic listed ordefined in subdivision (b) or (e) of Section 51 [including race], orposition in a labor dispute.”

Jacobson argues the statute applies to him because: (1)defendants perpetrated "economic violence" against him for hisrepresentation of parolees who disproportionately belonged toracial minorities and were the subject of systematic racediscrimination by law enforcement authorities; and (2) histermination arose in the context of a “labor dispute” between himand the BPT. (Supplemental Opposition at 10-11).

The deficiencies of this argument are plain. Section 12948has no application to the events described in the Third AmendedComplaint.

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was not defamatory. (Motion at 18-19).Defamation is an invasion of an individual’s interest in

his or her reputation. Smith v. Maldonado, 72 Cal. App. 4th637, 645 (1999). The elements of defamation are theintentional publication of a statement of fact that is false,unprivileged, and has a natural tendency to injure plaintiff’sreputation or has actually injured it. Id. Defamation mayconsist of libel (written publication of a defamatorystatement) and slander (oral publication of a defamatorystatement). Cal. Civ. Code §§ 44-46.12/

The question of whether a statement is reasonablysusceptible to a defamatory interpretation is a question of lawfor the court. Smith, 72 Cal. App. 4th at 647. Thus, a courtcan dismiss a defamation claim on a motion to dismiss on thegrounds that, as a matter of law, the statement at issue is notdefamatory. Cochran v. NYP Holdings. Inc., 58 F. Supp. 2d1113, 1120 (C.D. Cal. 1998) (“[A] court may properlydetermine whether a statement is fairly susceptible of adefamatory meaning when presented with a motion todismiss.”), aff’d and reasoning adopted, 210 F.3d 1036 (9thCir. 2000) Polygram Records. Inc. v. Superior Court, 170 Cal.App. 3d 543, 551 (1985) (“If the material complained of is notfairly susceptible of a defamatory meaning, it is proper to

12.

Libel is publication through a false and unprivilegedwriting which exposes a person to “hatred, contempt, ridicule, orobloquy, or which causes him to be shunned or avoided, or whichhas a tendency to injure him in his occupation.” Cal. Civ. Code §45. Slander is publication through a false and unprivileged oralstatement that falls within one of the statutorily enumeratedcategories of statements injurious to reputation, or that causesactual damage. Cal. Civ. Code § 46.

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dismiss the action.”); see Knievel v. ESPN, 393 F.3d 1068,21 1073-78 (9th Cir. 2005) (affirming Rule 12(b) (6) dismissalof defamation claim on the ground that, viewed in context,the use of the word “pimp” in caption of photograph was notdefamatory).

Here, the allegedly defamatory statement was that,while talking to parole agent defendant Murria after a parolehearing on May 21, 2003 Jacobson put his hand on hershoulder and she told him to remove it. (Third AmendedComplaint ¶ 128). Jacobson admits that he talked with Murriaafter the hearing, but denies that he placed his hand on hershoulder, or that she asked him to remove it. He contendsthat either defendant Murria or defendant Speed fabricatedthe allegation. (Id. at 128 n.42).

The allegedly defamatory writing was defendantSpeed’s letter dated July 1, 2005, addressed to plaintiff andcopied to defendants Maciel, Cater, Wadkins, and Master.The letter advised plaintiff regarding the conclusion of theinvestigation of Murria' s complaint regarding the incident.13/

The letter describes the incident as follows:

13.

Plaintiff did not attach the letter to the Third AmendedComplaint but has appended it to the Supplemental Opposition.The Court may properly consider the letter on a Rule 12(b) (6)motion to dismiss without converting it to a summary judgmentmotion. See Knievel, 393 F. 3d at 1076 (court could properlyconsider, On Rule 12(b) (6) motion, the contents of a website onwhich the photograph with the allegedly defamatory caption wasdisplayed, although only the photograph and caption wereappended to the complaint) .

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At the hearing, you questioned Parole AgentMurria regarding the charges alleged againstyour client. After the hearing had concluded,you approached P.A. Murria, put your hand onher shoulder and informed her, according towitnesses, “not to take it personally.” P.A.Murria immediately told you to remove yourhand.(Supplemental Opposition, Exh. I).

Defendants contend that these statements are notdefamatory because touching Murria on the shoulder, whileinappropriate, was not “so horrible or scandalous that itwould damage [Jacobson’s] reputation.” (Motion at 19).Jacobson counters that the crux of the defamatory statementis not merely that he put his hand on Murria's shoulder, butthat she objected, signifying that he had committed “anunwelcome touching of a female colleague’s person,” whichdenotes not only “a battery but [alsol a sexist and patronizingattitude by Jacobson towards the opposite sex.”(Supplemental Opposition at 16). Jacobson argues that thebehavior described in the letter is unprofessional and that theallegation would cause female professional colleagues to bewary of him in the future. Id.

The Court must, therefore, determine whether theallegedly false account of the incident is “reasonably capableof sustaining a defamatory meaning.” Knievel, 393 F. 3d at1074 (quoting Cochran, 58 F. Supp. 2d at 1121); see Kahn v.Bower, 232 Cal. App. 3d 1599, 1608 (1991) ([T] he courtmust first determine as a question of law whether thestatement is reasonably susceptible of a defamatoryinterpretation.”). In making this determination, the Courtmust consider the statements in the context in which they

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were made. Knievel, 393 F.3d at 1074; see Norse v. HenryHolt & Co., 991 F.2d 563, 567 (9th Cir. 1993).

After reviewing the allegedly false statements in thecontext in which the incident was said to occur – aconversation between Jacobson and Murria following ahearing during which he had cross-examined her – the Courtconcludes that, as a matter of law, the statements are notsusceptible to a defamatory interpretation. Jacobson does notdispute that the conversation took place. (Third AmendedComplaint ¶128 n.42). It appears from Speed’s letter thatMurria had complained not only about the physical gesture,but also about the manner of Jacobson’s cross-examinationand the fact that afterwards he talked to her at all.(Supplemental Opposition, Exh. I). Thus, the context for thealleged falsehood that Jacobson placed his hand on Murria’sshoulder is that Murria apparently resented his cross-examination and found the conversation itself objectionable.Under these circumstances, the statement that Jacobsondescribes as the “crux of the defamation” – Murria’s allegedrequest that Jacobson remove his hand – would reasonablyconvey not that Jacobson had touched Murria in aninappropriate manner, but that she objected to any kind ofcontact with him. Indeed, even Speed’s letter concluded thatJacobson should be “cognizant of the impact of the hearingproceedings on all parties.” (Supplemental Opposition, Exh.I).

While the gesture attributed to Jacobson – placing hishand on the shoulder of an adverse witness whom he had justcross-examined – could fairly be characterized as ill-judged,it does not rise to the level of having a “natural tendency toinjure” him in his personal or professional reputation, eitherin the legal community or among his parolee clients. Smith,72 Cal. App. 4th at 645. Jacobson’s argument that the false

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allegation will cause female professional colleagues to bewary of him in the future is not reasonable. See Forsher v.Bugliosi, 26 Cal. 3d 792, 805 (1980) (dismissing a defamationclaim when the defamatory interpretation was so attenuatedas to be “beyond the realm of reasonableness”).

Jacobson, therefore has not alleged a defamatorystatement and has not stated a claim for defamation underCalifornia law. Claim Fifteen should be dismissed. 14/

5. Claim Sixteen Claim Sixteen asserts a claim for invasion of privacy.

Jacobson alleges that defendants violated his right of privacyby failing to keep the investigation of his alleged touching ofMurria private. (Third Amended Complaint ¶¶ 130-31, 177).Plaintiff contends that the failure to keep the investigationprivate gave rise to a “bastardized version” of the incident.He alleges that Kevin Reedy, a fellow parole revocationcounsel, told him that he had “heard that Jacobson hadtouched Ms. Murria on her rear-end.” (Id. at ¶ 131 n. 43).

The common law tort of violation of right of privacyencompasses the right to be free from public disclosure ofprivate embarrassing facts. Diaz v. Oakland Tribune. Inc.,(1983) 139 Cal. App. 3d 118, 125 (1983). The elements of thetort are: (1) public disclosure; (2) of a private fact; (3) whichwould be offensive and objectionable to a reasonable person

14.

In light of the Court’s conclusion that Jacobson has failedto state a claim for defamation because the statement was notdefamatory, the Court does not address defendants’ furthercontentions that the defamation claim may not be asserted againstdefendants other than Speed and Murria, or that the defamationclaim against Murria is barred by California Civil Code Section47(b). (See Motion at 19-20).

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of ordinary susceptibilities; and (4) which is not of legitimatepublic concern. Id. at 126.

Here, even assuming, arguendo, that there was“public disclosure” of Murria’ s charges and consequentinvestigation, the charges themselves cannot becharacterized as offensive to a reasonable person of ordinarysusceptibilities. Jacobson disagrees, stating that a charge 15/

of unwelcome touching of the body of a female parole agent by a male attorney is always a serious charge.(Supplemental Opposition at 25). He further argues that ifdefendants merely disclosed the general nature of the charge(i.e. “unwanted touching”) this was even more damaging tohim than disclosing the details because, as Reedy’sstatement illustrates, it led to speculation more lurid than theactual charge. (Id. at 26).

The “private fact” at issue allegedly disclosed bydefendants was Murria’s complaint that Jacobson touched heron the shoulder, and the purported offensiveness at issue isof this “fact,” not of any embellishments it gained in theretelling. Information that Murria had complained aboutplaintiff putting his hand on her shoulder would not be highlyoffensive to a reasonable person. Failure to keep it

15.

Although defendants do not raise this point, it isquestionable whether the Third Amended Complaint containssufficient allegations of the “public disclosure” element to sustaina common law right of privacy claim. The common law right ofprivacy requires that the actionable disclosure be widely publishedand not be confined to a few persons or limited circumstances. Hillv. National Collegiate Athletic Association, 7 Cal. 4th 1, 27 & n.7(1994). Further, the common law right of privacy may not beviolated by word of mouth. Id. at 27 n. 7.

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confidential does not give rise to a common law right ofprivacy claim.

Nor has Jacobson stated a right of privacy claim underthe California Constitution. The elements of a right ofprivacy claim under the California Constitution are: (1) alegally protected privacy interest; (2) a reasonableexpectation of privacy; and (3) a serious invasion of theprivacy interest. Hill v. National Collegiate AthleticAssociation, 7 Cal. 4th 1, 36-37, 39-40 (1994). These are“threshold elements that may permit courts to weed outclaims that involve so insignificant or de minimis an intrusionon a constitutionally protected privacy interest as not evento require an explanation or justification by the defendantLoder v. City of Glendale, 14 Cal. 4th 846, 893 (1997). If theplaintiff’s claim survives the threshold test, the privacyinterest is balanced against competing interests. Id.; Hill, 7Cal. 4th at 37.

Defendants contend that Jacobson has not stated aprivacy claim under the California Constitution because hehas not alleged a legally protected privacy interest. (Motionat 21 n.5). “A particular class of information is private whenwell-established social norms recognize the need tomaximize individual control over its dissemination and use toprevent unjustified embarrassment or indignity.” Hill, 7 Cal.4th at 35. Here, the allegedly private information wasMurria's complaint that, during a conversation following arevocation hearing, Jacobson put his hand on her shoulder.Jacobson contends that this information, or some version ofit, became known to third parties because defendants did nottake sufficient steps to keep the investigation private. Underthe principles set forth in Hill and Loder, these allegations donot set forth a sufficiently serious invasion of a protectedinterest to implicate Jacobson’s rights under the state

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constitution. Loder, 14 Cal. 4th at 893.Claim Sixteen, therefore, fails to state a claim for

relief. It should be dismissed. 6. Claim Seventeen

Claim Seventeen asserts a claim for agediscrimination and harassment under FEHA, Cal. Gov’t Code§ 12940. (Third Amended Complaint ¶¶ 134-38). Defendantscontend that Jacobson has not alleged critical elements of aFEHA claim. (Motion at 22-24).

Under California Government Code Section 12940 (a),it is an unlawful employment practice to discharge a personfrom employment because of age. Defendants contend that16/

Jacobson fails to state a claim under this provision because:(1) he is not an employee; and (2) under Reno v. Baird, 18Cal. 4th 640 (1998), an employee may not assert a Section12940(a) age discrimination claim against individualsupervisors. (Motion at 22).

The Court agrees. As discussed above, Jacobson wasnot an employee but an independent contractor. That factalone is fatal to his Section 12940(a) claim. See Shepard v.Loyola Marymount Univ., 102 Cal. App. 4th 837, 842 (2002)(plaintiff could not recover for race discrimination underFEHA because she was not an employee). Moreover,Jacobson may not pursue a claim under Section 12940 (a)against the individual defendants. See Reno, 18 Cal. 4th at663. As pointed out in a previous dismissal order in this case,Jacobson cannot pursue a Section 12940(a) claim in thisaction at all because, under Reno v. Baird, a Section 12940(a)claim is only cognizable against an employer and Jacobson’s

16.

“Age” refers to the age of a person who has reached hisor her fortieth birthday. Cal. Gov’t Code § 19226(b).

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alleged “employer,” the BPT, is immune from damagesunder the Eleventh Amendment. See Jacobson, 357 F. Supp.2d at 1220. Thus, to the extent Jacobson’s claim arises underSection 12940(a) , it must be dismissed.

Jacobson also asserts a harassment claim underCalifornia Government Code Section 12940(j) (1) of FEHA.Jacobson’s status as an independent contractor does notpreclude him from asserting a claim under Section 12940 (j)(1) because Section 12940(j) (1), by its terms, extends toindependent contractors as well as employees. Moreover, aplaintiff may assert a Section 12940 (j) (1) claim againstindividual defendants. Section 12940(j) (1) prohibitsharassment of an employee or an independent contractor dueto, among other things, age. Defendants have moved todismiss this claim on the grounds that Jacobson has notalleged facts showing actionable harassment. (Motion at 23-24).

In Reno v. Baird, 18 Cal. 4th at 645, the CaliforniaSupreme Court approved the analysis set forth in Janken v.GM Hughes Electronics, 46 Cal. App. 4th 55 (1996)regarding the difference between discrimination andharassment claims under FEHA. In Janken, the courtconcluded that:

[C]ommonly necessary personnelmanagement actions such as hiring and firing,job or project assignments, office or workstation assignments, promotion or demotion,performance evaluations, ‘the provision ofsupport, the assignment or nonassignment ofsupervisory functions, deciding who will andwho will not attend meetings, deciding whowill be laid off, and the like, do not comewithin the meaning of harassment. These are

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actions of a type necessary to carry out theduties of business and personnelmanagement. These act ions mayretrospectively be found discriminatory ifbased on improper motives, but in that eventthe remedies provided by the FEHA are thosefor discrimination, not harassment.Harassment, by contrast, consists of actionsoutside the scope of job duties which are notof a type necessary to business and personnelmanagement. This significant distinctionunderlies the differential treatment ofharassment and discrimination in the FEHA.

Janken, 46 Cal. App. 4th at 63-65 (quoted in Reno, 18 Cal. 4that 646-47).

Jacobson acknowledges that, under Reno, histermination from the attorney appointment list cannotconstitute a basis for a Section 12940 (j) (1) claim.(Supplemental Opposition at 12). However, he claims thatdefendants violated subsection (j) (1) by harassing him priorto his termination. Specifically, he contends that prior toterminating him, defendants harassed him by: leveling,investigating, and spreading a false charge of inappropriateconduct towards a parole agent; failing to keep the chargeprivate; suspending him from case appointments during theinvestigation and delaying his resumption of appointments;harassing him over a single missed appointment to counselparolees by demanding a letter regarding the matter; andusing the missed appointment as a pretext to terminate him.(Third Amended Complaint ¶¶ 113, 138). He contends thatthese actions constituted age harassment because he was 49at the time, had been working as a parole defense attorneysince he was 44, and had acquired experience and

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effectiveness which caused defendants to “target” him forremoval as an “older, formidable attorney who would ha[ve]stopped kowtowing to corrections personnel in any aspect ofhis work for parolees.” (Supplemental Opposition at 11).

To constitute actionable harassment under FEHA. theharassment must be “sufficiently pervasive so to alter theconditions of employment and create an abusive workingenvironment.” Aguilar v. Avis Rent a Car System, 21 Cal. 4th121, 130 (1999) (quoting Fisher v. San Pedro PeninsulaHospital, 214 Cal. App. 3d 590, 608 (1989)). The harassmentmust not be “occasional, isolated, sporadic, or trivial”; it mustbe “of a repeated, routine or a generalized nature.” Aguilar,21 Cal. 4th at 130.

Here, Jacobson does not allege any non-personnel-type acts of harassment rising to this level. In truth, Jacobsontakes issue with BPT officials’ handling of (1) a parole agent’scomplaint regarding Jacobson’s conduct and (2) BPT officials’handling of Jacobson’s missed appointment. For instance,Jacobson complains that he was suspended from receivingfurther appointments during the investigation of parole agentMurria’s charge, that his receipt of further appointments wasdelayed after the investigation was concluded in his favor,and that defendant Wadkins threatened to terminate hiscontract if he did not write. a letter explaining his missedappointment. (Third Amended Complaint ¶¶ 113, 138; seeSupplemental Opposition at 14-16). Under Reno v. Baird,these types of acts are personnel-type actions that do notsupport a claim of harassment under the FEHA. See Reno,18 Cal. 4th at 646-47; Velente-Hook v. Eastern PlumasHealth Care, 368 F. Supp. 2d 1084, 1103 (E.D. Ca. 2005)(evidence that defendants told disabled nurse that she mustreturn to work or be fired, refused to release her paycheckwithout discussing a fitness-for-duty test, sent her a letter

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refusing a job assignment based on the never-investigatedopinions of her co-workers that she was a “dangerous”nurse, and ultimately forced her to resign or face further riskto her health, did not show FEHA harassment).

To the extent Jacobson’s allegations may show“actions outside the scope of job duties which are not of atype necessary to business and personnel management,”Reno, 18 Cal. 4th at 647; Velente-Hook, 368 F. Supp. 2d at1102, it consists of sporadic and isolated incidents that cannotsustain a FEHA harassment claim. See Aguilar, 21 Cal. 4th17/

at 130.Jacobson, therefore, has not alleged a claim for either

FEHA age discrimination or FEHA harassment. ClaimSeventeen, therefore, should be dismissed.

7. Claim Eighteen Claim Eighteen asserts a claim for intentional

infliction of emotional distress. (Third Amended Complaint

17.

Although defendants do not challenge Jacobson’s claim onthis basis, the Court has some doubt as to whether he hassufficiently alleged that the purported harassment was by reasonof his age. Jacobson does not allege that defendants ever referredto . his age or made an issue of it; it was Jacobson who includedreferences to his age in his letters. (Supplemental Opposition at11-12). Jacobson’s theory is that defendants harassed him becausehis five-year experience representing parolees before the BPTrendered him a formidable opponent. (Third Amended Complaint¶ 135). The fact that Jacobson was over forty years old isincidental; had Jacobson commenced his parolee practice earlier,he would have acquired his five-year experience before he wasforty.

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¶ 115). Defendants have moved to dismiss this claim asagainst all defendants except defendants Farmer andWadkins on the grounds that Jacobson has not allegedcausation. (Motion at 24).

In order to allege a claim for intentional infliction ofemotional distress, a plaintiff must allege that: (1) thedefendant acted outrageously and with the intention ofcausing, or with reckless disregard of the probability ofcausing emotional distress; (2) plaintiff suffered severeemotional distress; and (3) defendant’s outrageous conductwas the actual and proximate cause of plaintiff’s emotionaldistress. Christensen v. Superior Court, 54 Cal. 3d 868, 903(1991); Davidson v. City of Westminster, 32 Cal. 3d 197, 209(1982). Outrageous conduct is conduct “so extreme as toexceed all bounds of that usually tolerated in a civilizedcommunity.” Christensen, 54 Cal. 3d at 903 (quotingDavidson, 32 Cal. 3d at 209). Plaintiff must allege asufficiently direct causation between defendants’ conduct andthe emotional distress plaintiff has suffered. Christensen, 54Cal. 3d at 901.

Jacobson alleges that he suffered emotional distressas a result of his termination from the attorney appointmentlist. For the same reasons as discussed with respect to ClaimTwelve, the Court concludes that Jacobson has alleged factssufficient to state a claim as against defendants Farmer,Wadkins, Speed, and Cater. Claim Eighteen should bedismissed, however, as against defendants Schwarzenegger,Davis, Hickman, Presley, Perez, Daly, Maciel, Master,Remis, Moeller, Woodford, Alameida, and Murria.

IV. THE DISMISSAL SHOULD BE WITHOUTLEAVE TO AMENDA pro se litigant’s pleadings are construed liberally

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and the litigant must be given leave to amend his or hercomplaint unless it is absolutely clear that its deficienciescannot be cured by amendment. Noll v. Carlson, 809 F.2d1446, 1448 (9th Cir. 1987). However, the Court need nottreat an experienced attorney such as Jacobson with theleniency customarily afforded to pro se litigants merelybecause he is appearing pro se. See Harbulak v. County ofSuffolk, 654 F.2d 194, 198 (2d Cir. 1981) (stating that plaintiff“is a lawyer and, therefore, cannot claim the specialconsideration which courts customarily grant to pro separties”); Tindall v. Gibbons, 156 F. Supp. 2d 1292, 1294 n.1 (M.D. Fla. 2001) (“Although the Court ·generally construesthe pleadings of a pro se litigant liberally, because Plaintiff isa practicing attorney, the Court is not required to show himspecial leniency.”) (internal citation omitted). Moreover,even when a complaint is filed by a non-attorney, “districtcourts are only required to grant leave to amend if acomplaint can possibly be saved. Courts are not required togrant leave to amend if a complaint lacks merit entirely.”Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). Wherefurther amendment would be futile, the Court may exerciseits discretion and deny leave to amend. Lopez, 203 F.3d at1129.

The trial court’s discretion to refuse leave toamend is particularly broad when the court has previouslygranted leave to amend. Griggs v. Pace Am. Group. Inc., 170F.3d 877, 879 (9th Cir. 1999). This is plaintiffs’ fourthcomplaint in this action. Plaintiffs’ prior complaints were thesubject of two detailed dismissal orders by Judge McMahon,which discussed many of the deficiencies that the Court hasidentified in the Third Amended Complaint. Plaintiffs havebeen given leave to amend the deficiencies on several prioroccasions. It is clear that plaintiffs cannot rectify these

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deficiencies through additional allegations. Thus, the claimsthat the Court recommends dismissing should be dismissedwithout leave to amend.

V. JACOBSON’S PRO SE CLAIMS SHOULD BESEVERED FROM JOHNSON’S CLASS CLAIMSIf the District Court adopts this Court’s Report and

Recommendation, including its conclusion that Jacobson doesnot have third party standing to assert the claims challengingCalifornia's parole revocation procedures, the action willconsist of two sets of claims, each set asserted by a differentplaintiff. After dismissal of Claims Two, Three, Six, Seven,Ten, and Fourteen through Seventeen pursuant to theReport and Recommendation, plaintiff Johnson, representedby Jacobson as his counsel, will be pursuing Claims One,Four, Five, Eight, and Eleven, and plaintiff Jacobson,proceeding pro se, will be pursuing Claims Twelve, Thirteen,and Eighteen.

In order to pursue their separate claims in one action,Johnson and Jacobson must meet the requirements forcompulsory joinder under Fed. R. Civ. P. 19 or permissivejoinder under Fed. R. Civ. P. 20. Plaintiffs contend that bothare applicable. (Third Amended Complaint ¶¶ 39-40).

Plaintiffs’ theory with respect to compulsory joinderis meritless. Even if, as plaintiffs contend, Jacobson’spersonal interest in his own lawsuit renders him highlymotivated to serve as counsel for the parolees and Johnsonwould have trouble finding counsel to represent the paroleeclass, this fact does not make Jacobson a necessary party inJohnson’s lawsuit, or otherwise meet the criteria forcompulsory joinder under Fed. R . Ci v . P. 19. Jacobson is,however, able to continue representing Johnson as hiscounsel.

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Nor have plaintiffs satisfied the requirements forpermissive joinder under Fed. R. Civ. P. 20(a). To be able tojoin together in one action, plaintiffs must meet two specificrequirements: (1) the right to relief asserted by each plaintiffmust arise out of or relate to the same transaction oroccurrence, or series of transactions or occurrences; and (2)a question of law or fact common to all parties must arise inthe action. Both requirements must be satisfied. Coughlin v.Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997); League to SaveLake Tahoe v. Tahoe Reg’l Planning Agency, 558 F.2d 914,917 (9th Cir. 1977).

Plaintiffs have not satisfied either prong. Johnson isa parolee who is seeking systemwide injunctive relief toremedy purported constitutional deficiencies in California’sparole revocation system. Jacobson is an attorney who ischallenging his removal from the list of attorneys appointedto represent parolees in revocation proceedings. Thus, theirclaims arise from different transactions and occurrences: thesufficiency of parole revocation procedures vis-a-visdefendants’ conduct in terminating Jacobson from theattorney list for parolees. Moreover, the two sets of claimsinvolve different questions of law and fact. Johnson’s claimsinvolve the extent to which California parole revocationpractices and procedures violate the rights of paroleeswhereas Jacobson’s claims involve defendants’ investigationof Jacobson and the question of whether his termination fromthe attorney appointment list constituted retaliation andcaused him mental suffering. The sole connection betweenthe two sets of claims is Jacobson’s attenuated theory thatthe reason Jacobson was harassed and removed from theattorney list was his zealous advocacy of the rights plaintiffJohnson now seeks to vindicate through his claims. This isnot a sufficient premise upon which to find that a common

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question of law or fact exists between the two sets of claims.See Coughlin, 130 F. 3d at 1351. Whether or not defendants terminatedJacobson in retaliation for his advocacy of parolee rights doesnot depend on whether defendants are, in fact, violatingthose rights.

Moreover, allowing Johnson and Jacobson to pursuetheir claims in the same action would not serve judicialeconomy and the interests of justice, given the differentprocedural posture of their claims. Johnson’s claims areasserted as class claims; Jacobson's claims are not. Johnsonis represented by Jacobson as counsel; Jacobson isproceeding pro se. Trial on each of plaintiff’s claims wouldinvolve different issues and different evidence. Evidenceregarding BPT practices and procedures with respect to thesearch and arrest of parole violators and the conduct of theirparole revocation hearings would be unnecessary toadjudicate Jacobson’s retaliation and emotional distressclaims; evidence regarding defendants’ conduct towardsJacobson and his mental suffering is irrelevant to Johnson’sclaims. Rule 20 is designed to promote judicial economy, andto reduce inconvenience, delay, and added expense.Coughlin, 130 F. 3d at 1351 (citing Guedry v. Marino, 164F.R.D. 181, 185 (E.D. La. 1995)). None of these would beserved by allowing Johnson and Jacobson to proceed in asingle case.

If the test for permissive joinder is not satisfied, Fed.R. Civ. P. 21 permits a court to sever the misjoined parties,so long as no substantial right will be prejudiced by theseverance. Coughlin, 130 F. 3d at 1351. No substantial rightwill be prejudiced here if plaintiffs’ respective claims aresevered and allowed to proceed as separate actions. Jacobsoncan continue to represent Johnson in Johnson’s action and

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can continue to proceed pro se in his own separate action. Thus, the Court recommends that the District Court

issue an Order:(1) allowing Jacobson, as the first-named plaintiff, to continueto prosecute his remaining pro se claims, namely, ClaimsTwelve, Thirteen, and Eighteen against defendants Farmer,Wadkins, Speed, Cater, and Murria, in this action; and (2)severing Johnson’s remaining claims, namely, Claims One,Four, Five, Eight, Nine, and Eleven against defendantsSchwarzenegger, Davis, Hickman, Presley, Perez, Daly,Wadkins, Farmer, Speed, Cater, Remis, Moeller, Woodford,Alameida, and Murria, and ordering the Clerk to assign a newcase number to Johnson’s claims as a separate action.18/

RECOMMENDATION THE COURT, THEREFORE, RECOMMENDS that

the District Court Order: (1) approving and adopting this Report and

Recommendation; (2) dismissing Claims One through Eleven to the

extent they are asserted by plaintiff Jacobson; (3) granting in part and denying in part defendants’

motion pursuant to Fed. R. Civ. P. 12(b) (6) as follows: (a) dismissing Claims Two, Three, Six, Seven,

Ten, Fourteen, Fifteen, Sixteen, and Seventeen, withoutleave to amend;

(b) dismissing Claim Twelve as against

18.

There are no remaining claims against defendants Masterand Maciel because Johnson did not assert Claims One throughEleven as against these defendants and all other claims againstthem have been dismissed.

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defendants Schwarzenegger, Davis, Hickman, Presley,Perez, Daly, Maciel, Master, Remis, Moeller, Woodford, andAlameida, without leave to amend;

© dismissing Claims Thirteen and Eighteen asagainst defendants Schwarzenegger, Davis, Hickman,Presley, Perez, Daly, Maciel, Master, Remis, Moeller,Woodford, Alameida, and Murria, without leave to amend;and

(d) denying defendants’ motion pursuant toFed. R. Civ. P. 12(b) (6) in all other respects. The denialshould be without prejudice with respect to defendants’motion to dismiss Claims Four through Eight on claimpreclusion grounds.

The Court further recommends that the DistrictCourt sever the remaining claims asserted by Johnson, i.e.,Claims One, Four, Five, Eight, Nine, and Eleven againstdefendants Schwarzenegger, Davis, Hickman, Presley,Perez, Daly, Wadkins, Farmer, Speed, Cater, Remis,Moeller, Woodford, Alameida, and Murria, from theremaining claims asserted by Jacobson, i.e., Claims Twelve,Thirteen and Eighteen against defendants Farmer, Wadkins,Speed, Cater, and Murria.19/

DATED: January 12, 2007

/s/ JENNIFER T. LUMUNITED STATESMAGISTRATE JUDGE

19.

In light of this recommendation, defendants are directed notto file an answer to the Third Amended Complaint at this time.

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Case 2:04-cv-03629-JFW-JTL Document 54 Filed 01/16/2007 Page 67 of 68

FILED JAN 16 2007 CLERK, U.S. DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

ERIC C. JACOBSON, on behalf of himself and his clienteleof California Parolees, one or more of whom may be joinedafter exhausting their administrative remedies and ERIC

JOHNSON, a past and imminent parolee,Plaintiffs -Appellants,

v.

ARNOLD SCHWARZENEGGER, Governor of California, in his individual

capacity; et al., Case No. 04-3629-JFW(JTL)

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PROPOSED ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF

STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewedthe Third Amended Complaint, all the records and filesherein, and the Report and Recommendation of the UnitedStates Magistrate Judge. The Court concurs with and adoptsthe findings, conclusions and recommendations of theMagistrate Judge.

IT IS ORDERED that: (1) Claims One through Eleven are dismissed

for lack of standing to the extent they are asserted by plaintiffJacobson;

(2) Defendants’ Motion to Dismiss the ThirdAmended Complaint pursuant to Fed. R. Civ. P. 12(b) (6) isGRANTED in part and DENIED in part as follows:

(a) Claims Two, Three, Six, Seven, Ten,Fourteen, Fifteen, Sixteen, and Seventeen are dismissed,without leave to amend;

(b) Claim Twelve is dismissed as againstdefendants Schwarzenegger, Davis, Hickman, Presley,Perez, Daly, Maciel, Master, Remis, Moeller, Woodford, andAlameida, without leave to amend;

( c) Claims Thirteen and Eighteen aredismissed as against defendants Schwarzenegger, Davis,Hickman, Presley, Perez, Daly, Maciel, Master, Remis,Moeller, Woodford, Alameida, and Murria, without leave toamend;

(d) The Motion to Dismiss is DENIED in allother respects. The denial of defendants’ Motion to DismissClaims Four through Eight on claim preclusion grounds is

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without prejudice.(3) The claims shall be severed in the follow-

ing manner: Claims One, Four, Five, Eight, Nine, andEleven, which plaintiff Johnson asserts against defendantsSchwarzenegger, Davis, Hickman, Presley, Perez, Daly,Wadkins, Farmer, Speed, Cater, Remis, Moeller, Woodford,Alameida, and Murria, shall be severed from Claims Twelve,Thirteen, and Eighteen, which plaintiff Jacobson asserts onhis own behalf against defendants Farmer, Wadkins, Speed,Cater, and Murria.

DATED: JOHN F. WALTER UNITED STATES DISTRICTJUDGE

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Case 2:04-cv-03629-JFW-JTL Document 57 Filed 08/1/2007 Page 1 of 2

FILED AUG 1 2007 CLERK, U.S. DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

ERIC C. JACOBSON, on behalf of himself and his clienteleof California Parolees, one or more of whom may be joinedafter exhausting their administrative remedies and ERIC

JOHNSON, a past and imminent parolee,Plaintiffs -Appellants,

v.

ARNOLD SCHWARZENEGGER, Governor of California, in his individual

capacity; et al., Case No. 04-3629-JFW(JTL)

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ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF

STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewedthe Third Amended Complaint, all the records and filesherein, and the Report and Recommendation of the UnitedStates Magistrate Judge. The Court concurs with and adoptsthe findings, conclusions and recommendations of theMagistrate Judge.

IT IS ORDERED that: (1) Claims One through Eleven are dismissed

for lack of standing to the extent they are asserted by plaintiffJacobson;

(2) Defendants’ Motion to Dismiss the ThirdAmended Complaint pursuant to Fed. R. Civ. P. 12(b) (6) isGRANTED in part and DENIED in part as follows:

(a) Claims Two, Three, Six, Seven, Ten,Fourteen, Fifteen, Sixteen, and Seventeen are dismissed,without leave to amend;

(b) Claim Twelve is dismissed as againstdefendants Schwarzenegger, Davis, Hickman, Presley,Perez, Daly, Maciel, Master, Remis, Moeller, Woodford, andAlameida, without leave to amend;

( c) Claims Thirteen and Eighteen aredismissed as against defendants Schwarzenegger, Davis,Hickman, Presley, Perez, Daly, Maciel, Master, Remis,Moeller, Woodford, Alameida, and Murria, without leave toamend;

(d) The Motion to Dismiss is DENIED in allother respects. The denial of defendants’ Motion to DismissClaims Four through Eight on claim preclusion grounds is

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without prejudice.(3) The claims shall be severed in the follow-

ing manner: Claims One, Four, Five, Eight, Nine, andEleven, which plaintiff Johnson asserts against defendantsSchwarzenegger, Davis, Hickman, Presley, Perez, Daly,Wadkins, Farmer, Speed, Cater, Remis, Moeller, Woodford,Alameida, and Murria, shall be severed from Claims Twelve,Thirteen, and Eighteen, which plaintiff Jacobson asserts onhis own behalf against defendants Farmer, Wadkins, Speed,Cater, and Murria.

DATED: 7/5/07 /s/ JOHN F. WALTER UNITED STATESDISTRICT JUDGE

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Case 2:04-cv-03629-JFW-JTL Document 58 Filed 09/6/2007 Page 1 of 1

FILED SEP 6 2007 CLERK, U.S. DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

ERIC C. JACOBSON, on behalf of himself and his clienteleof California Parolees, one or more of whom may be joinedafter exhausting their administrative remedies and ERIC

JOHNSON, a past and imminent parolee,Plaintiffs -Appellants,

v.

ARNOLD SCHWARZENEGGER, Governor of California, in his individual

capacity; et al., Case No. 04-3629-JFW(JTL)

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ORDER SEVERING CLAIMS

Pursuant to the Order Adopting Findings,Conclusions and Recommendations of United StatesMagistrate Judge filed August 1, 2007, it is herebyORDERED that Claims One, Four, Five, Eight, Nine, andEleven, asserted by plaintiff Johnson against defendantsSchwarzenegger, Davis, Hickman, Presley, Perez, Daly,Wadkins, Farmer, Speed, Cater, Remis, Moeller, Woodford,Alameida, and Murria shall be assigned a new case numberby the Clerk.

DATED: 9/6/07 /s/ JOHN F. WALTER UNITED STATESDISTRICT JUDGE

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Case 2:04-cv-03629-JFW-JTL Document 59 Filed 09/28/2007 Page 1 of 3

FILED SEP 28 2007CLERK, U.S. DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

ERIC C. JACOBSON, on behalf of himself and his clienteleof California Parolees, one or more of whom may be joinedafter exhausting their administrative remedies and ERIC

JOHNSON, a past and imminent parolee,Plaintiffs -Appellants,

v.

ARNOLD SCHWARZENEGGER, Governor of California, in his individual

capacity; et al., Case No. 04-3629-JFW(JTL)

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CIVIL MINUTES – MINUTESCase No. 04-3629-JFW(JTL)

(& Case No. 07-6167-JFW(JTLx)Eric Johnson v. Arnold Schwarzenegger, et al)

PRESENT: HONORABLE JOHN F. WALTER,

UNITED STATES DISTRICT JUDGE Shannon Reilly: Courtroom Deputy Court Reporter: None Present Attorneys Present for Plaintiffs: None Attorneys Present for Defendants: None

PROCEEDINGS (IN CHAMBERS):

ORDER RE: ORDER TO SHOW CAUSE WHY COURTSHOULD NOT ISSUE ORDER THAT ACTIONSHOULD NOT PROCEED AS A CLASS ACTION [filed1/12106; Docket No. 43 in CV04-3629] ORDER DENYING RELIEF FROM LOCAL RULE23·3 DEADLINE

On January 12, 2006, Magistrate Judge JamesMcMahon issued an Order to Show Cause in Case No. CV04-3629 why the Court should not issue an Order that theaction shall not proceed as a class action as a result ofPlaintiff’s failure to comply with the time limitations set forthin Local Rule 23-3. Thereafter, the action was transferred toMagistrate Judge Jennifer T. Lum. On February 2, 2006.Plaintiff Eric Johnson (“Plaintiff”) filed a Response to theOrder to Show Cause. On February 15, 2006, Defendants

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filed a Reply. On August 1. 2007, this Court adopted the findings,

conclusions and recommendations of Magistrate Judge Lumregarding Defendants’ Motion to Dismiss Plaintiff’s ThirdAmended Complaint. As part of that Order, the Courtadopted Judge Lum’s recommendation that this action besevered from the original action. CV 04-3629. BecauseMagistrate Judge Lum recommended that this action proceedbefore this Court separately from CV 04-3629, MagistrateJudge Lum declined to rule on the pending Order to ShowCause issued by Magistrate Judge McMahon on January 12,2006. The Order Severing Claims was signed by this Courtand filed on September 6. 2007.

The Court has reviewed the parties’ papers regardingthe Order to Show Cause. and rules as follows:

The initial Complaint in this action was filed on May21, 2004 by Eric Jacobson seeking to invoke the doctrine ofthird-party standing in order to represent a class of Californiaparolees. On January 31, 2005, Plaintiff Jacobson filed a FirstAmended Complaint in which Plaintiff Johnson was added asa Plaintiff seeking to represent a class of California felonswho are serving determinate sentences or who are currentlyon parole. Pursuant to Local Rule 23-3, “[within 90 days afterservice of a pleading purporting to commence a class action... the proponent of the class shall file a motion forcertification that the action is maintainable as a class action,unless otherwise ordered by the Court.” Local Rule 23-3.The First Amended Complaint was served on Defendants inearly February of 2005, and Plaintiff Johnson therefore haduntil early May of 2005 to file a motion for class certification.As of more than seven months later in January of 2006 whenMagistrate Judge McMahon issued the Order to Show Cause,Plaintiff Johnson had not filed a motion for class certification,

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nor had he sought relief from the Local Rule 23-3 deadline. In his Opposition to the Order to Show Cause,

Plaintiff states that his attorney “did not learn of theexistence of Local Rule 23·3 until August of 2005” and thathe “resolved under the circumstances to wait to file a formalmotion for class certification until after the disputation aboutthe pleadings concluded.” Opposition at 4. Notably, Plaintiff’scounsel allegedly “first learned” of Local Rule 23-3 during aScheduling Conference with this Court in connection withanother almost identical case. Notwithstanding the fact thatPlaintiff’s counsel clearly knew at the latest in August of2005 this Court’s policy regarding strict adherence to theLocal Rule 23·3 deadline for filing class certification motions,Plaintiff’s counsel did not seek relief from the Local Rule 23-3 deadline, but instead chose to let another five monthselapse before addressing this issue in response to the Orderto Show Cause issued by Magistrate Judge McMahon.

In his response to the Order to Show Cause, Plaintiffseeks relief from the Local Rule 23-3 deadline pursuant toFederal Rule of Civil Procedure 60(b)(1) on the grounds thatPlaintiff’s counsel’s failure to file a timely class certificationmotion, or to seek relief from Local Rule 23·3, was a“mistake.” Pursuant to Rule 60(b)(1), the Court may grantrelief from a “final judgment, order, or proceeding” on thegrounds of “mistake, inadvertence, surprise, or excusableneglect.” Fed. R Civ. P. 60(b)(1). Because Plaintiff is notseeking relief from a final judgment, order or proceeding, butrather is seeking relief from a deadline imposed by the LocalRules, Rule 60(b)(1) is inapplicable to Plaintiff’s request forrelief. Plaintiff’s request is more properly brought pursuantto Rule 6(b) which provides, in relevant part:

When by these rules or by a notice given thereunder

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or by order of court an act is required or allowed to bedone at or within a specified time, the court for causeshown may at any time in its discretion (1) with orwithout motion or notice order the period enlarged ifrequest therefor is made before the expiration of theperiod originally prescribed or as extended by aprevious order; or (2) upon motion made after theexpiration of the specified period permit the actto be done where the failure to act was theresult of excusable neglect.

Fed. R. Civ. P. 6(b) (emphasis added). Since the standard forrelief under Rule 60(b)(1) and Rule 6(b)(2) is the same, asboth rules require a showing of excusable neglect, the Courtwill construe Plaintiff’s request as having been properlybrought pursuant to Rule 6(b}. See, e.g., Speiser, Krause &Madole P.C. v. Ortiz, 271 F.3d 884, 888 (9th Cir. 2001).

Whether Plaintiff’s neglect is excusable depends uponan analysis of four factors: “(1) the danger of prejudice to theopposing party; (2) the length of the delay and its potentialimpact on the proceedings; (3) the reason for the delay; and(4) whether the movant acted in good faith” (the “Pioneerfactors”). Bateman v. United States Postal Service, 231 F.3d1220, 1223-24 (9th Cir. 2000) (citing Pioneer InvestmentServices Co. v. Brunswick Associates Limited Partnership. 507U.S. 380, 395 (1993)). Plaintiff claims that his counsel“mistakenly failed to ask the court for relief from theoperation of Local Rule 23-3 ... because he did not knowabout the Local Rule,” Motion at 1.

The Ninth Circuit has recognized that “a lawyer’sfailure to read an applicable rule is one of the leastcompelling excuses that can be offered” and the SupremeCourt has held that “ignorance of the rules” does not

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“usually constitute ‘excusable’ neglect.” Pincay v. Andrews,389 F.3d 853, 859 (9th Cir. 2004); Pioneer, 507 U.S. at 392.However, even if this Court were to excuse Plaintiff’s failureto file motion [sic] for class certification or to seek relief fromthe Local Rule 23-3 deadline for the period of time throughAugust of 2005 on the grounds that Plaintiff “did not knowabout the Local Rule,” Plaintiff has failed to provide theCourt with any justification for finding excusable [sic] afterAugust of 2005. Once Plaintiff’s counsel “learned” of theLocal Rule governing the filing of motions for classcertification, he should have promptly filed his motion, or atthe very least sought relief from the deadline. Instead, hechose to continue to disregard the Local Rule and did nothingto remedy the situation that his own ignorance had created.Plaintiff has simply failed to demonstrate that there was anygood cause for the lengthy delay or that he acted in good faithonce the error was brought to his counsel's attention.

Based on its analysis of the Pioneer factors, the Courtfinds that Plaintiff has failed to make a showing that hisfailure to file a motion for class certification within the timeset forth in Local Rule 23-3. and his failure to seek reliefprior to or in the months after the expiration of that deadline,was the result of excusable neglect. Accordingly, Plaintiffsrequest for relief from the Local Rule 23-3 deadline isDENIED.

IT IS SO ORDERED.

The Clerk shall serve a copy of this Minute Order onall parties to this action.

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Case 2:04-cv-03629-JFW-JTL Document 229 Filed 06/24/2009 Page 1 of 45

FILED JUN 24 2009 CLERK, U.S. DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

ERIC C. JACOBSON, on behalf of himself and his clienteleof California Parolees, one or more of whom may be joinedafter exhausting their administrative remedies and ERIC

JOHNSON, a past and imminent parolee,Plaintiffs -Appellants,

v.

ARNOLD SCHWARZENEGGER, Governor of California, in his individual

capacity; et al., Case No. 04-3629-JFW(JTL)

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AMENDED REPORT AND RECOMMENDATIONOF UNITED STATES MAGISTRATE JUDGE

The Court submits this Amended Report andRecommendation to the Honorable John F. Walter, UnitedStates District Judge, pursuant to 28 U.S.C. Section 636 andGeneral Order 05-07 of the United States District Court forthe Central District of California.

INTRODUCTIONOn May 21, 2004, plaintiff Eric Jacobson (“plaintiff” or

“Jacobson”), a licensed California attorney, filed a civil rightscomplaint pursuant to Title 42, United States Code, Section1983 (“Complaint”). The Complaint asserted claims onJacobson’s own behalf and also purported to represent theinterests of a “caste” of California parolees under thedoctrine of third party standing. The Complaint named asdefendants: (1) California Governor Arnold Schwarzenegger;(2) former California Governor Gray Davis; (3) formerCalifornia Youth and Adult Correctional Agency SecretaryRoderick Hickman; (4) former California Youth and AdultCorrectional Agency Secretary Robert Presley; (5) CaliforniaBoard of Prison Terms (the Board”) chairperson Margarita1/

E. Perez; (6) former Board chairperson Carol Daly; (7) BoardAssociate Chief Deputy Commissioner Thomas Wadkins; (8)Board Chief Counsel Terry R. Farmer; (9) Board ExecutiveDirector Marvin E. Speed, II; (10) Board Chief DeputyCommissioner Ken Cater; (11) Board officials Sandra Maciel,Tracy Master, and Marc D. Remis; (12) Board counsel Dan

1.

The Board is now called the Board of Parole Hearings.

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Moeller; (13) former California Department of Corrections(“CDC”) Director Jeanne S. Woodford; (14) former CDCDirector Edward S. Alameida; and (15) parole agent BrigitteMurria.

On August 6, 2004, the defendants filed a motion todismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),a motion for a more definite statement pursuant to FederalRule of Civil Procedure 12(e), and a motion to strikepursuant to Federal Rule of Civil Procedure 12(f). OnNovember 30, 2004, United States Magistrate Judge JamesW. McMahon dismissed the Complaint with leave to amend.See Jacobson v. Schwarzenegger, 357 F. Supp. 2d 1198, 1205(C.D. Cal. 2004).

On January 31, 2005, Jacobson filed a First AmendedComplaint, adding a second plaintiff, Eric Johnson(“Johnson”), whom Jacobson represented in his capacity asattorney. The First Amended Complaint contained classaction allegations wherein Johnson purported to represent aclass of “all felons currently serving determinate sentencesand all felons who have completed determinate sentencesand been released to parole terms but have not yet beendischarged from parole.” (See First Amended Complaint ¶¶128-38).

On February 15, 2005, Magistrate Judge McMahonsua sponte dismissed the First Amended Complaint, withleave to amend, on the ground that it violated the mandate ofFederal Rule of Civil Procedure 8(a) that a complaint mustcontain a “short and plain” statement of the claim for relief.See Jacobson v. Schwarzenegger, 226 F.R.D. 395, 397-98(C.D. Cal. 2005). On March 11, 2005, Jacobson and Johnsonfiled a Second Amended Complaint.

On August 31, 2005, Jacobson and Johnson filed aThird Amended Complaint. The Third Amended Complaint

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contained two sets of claims. Claims One through Elevenchallenged various aspects of California’s parole revocationsystem and were asserted by Johnson as class claims and byJacobson under the doctrine of third party standing. ClaimsTwelve through Eighteen were asserted by Jacobson aloneand consisted of a federal retaliatory termination claim andsix pendent state law claims.

On September 30, 2005, defendants filed a Motion toDismiss the Third Amended Complaint pursuant to FederalRule of Civil Procedure 12(b)(6) (“Motion to Dismiss”).While the Motion to Dismiss was pending, Magistrate JudgeMcMahon retired and the case was reassigned to this Court.On January 16, 2007, the Court issued a Report andRecommendation (“January 16, 2007 Report andRecommendation”) recommending that the Motion toDismiss be granted in part and denied in part, and that theclaims asserted by both Johnson and Jacobson be dismissedas to Jacobson and severed from the claims asserted byJacobson alone. On August 1, 2007, the district court adoptedthe recommendations of the January 16, 2007 Report andRecommendation and dismissed, without leave to amend, thefollowing claims: (1) Claims One through Eleven as assertedby Jacobson only; (2) Claims Two, Three, Six, Seven, Ten,and Fourteen through Seventeen; (3) Claim Twelve asagainst all defendants except Farmer, Speed, Wadkins, Cater,and Murria; and (4) Claims Thirteen and Eighteen as againstall defendants except defendants Farmer, Speed, Wadkins,and Cater. (Order Adopting Findings, Conclusions, andRecommendations, filed August 1, 2007).

On September 6, 2007, United States District JudgeJohn F. Walter severed the remaining claims asserted byJohnson (Claims One, Four, Eight, Nine and Eleven) fromthe remaining claims asserted by Jacobson (Claims Twelve,

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Thirteen and Eighteen), and ordered that they be assigned anew case number. This action then proceeded with2/

Jacobson as the pro se plaintiff, defendants Farmer, Speed,Wadkins, Cater, and Murria (“defendants”) as the remainingdefendants, and Claims Twelve, Thirteen, and Eighteen asthe remaining claims. 3/

On December 10, 2007, defendants filed an Answer tothe Third Amended Complaint. On August 29, 2008,defendants filed a Motion for Summary Judgment pursuantto Federal Rule of Civil Procedure 56 (“Defendants’ Motion”or “Def. Motion”). Defendants’ Motion was accompanied bydeclarations and other evidentiary material, a SeparateStatement of Undisputed Material Facts, a proposedStatement of Uncontroverted Facts and Conclusions of Law(“Def. St. Uncontroverted Facts”), and a proposed Judgment.

Plaintiff also filed a Motion for Partial SummaryJudgment on August 29, 2008, pursuant to Federal Rule ofCivil Procedure 56 (“Plaintiff’s Motion” or “Pl. Motion”).Plaintiff’s Motion was accompanied by his declaration(Declaration of Eric C. Jacobson, dated August 29, 2008[“Jacobson Decl.”]) and other evidentiary materials, and a

2.

Johnson’s severed claims were assigned Case No. CV 07-6176-JFW (JTLx). On February 14, 2008, District Judge Waltergranted the defendants’ motion for judgment on the pleadings anddismissed the action, without prejudice.

3.

On September 3, 2008, plaintiff filed a motion for leave toadd an additional defendant, Deputy Commissioner FernandoPerez. On November 3, 2008, the Court denied the motion.

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Separate Statement of Uncontroverted Facts (“Pl. St.Uncontroverted Facts”). On September 16, 2008 defendantsfiled an Opposition to Plaintiff's Motion ("Defendants'Opposition" or "Def. Opp."), accompanied by a Statement ofGenuine Issues.

On September 17, 2008, plaintiff filed an Oppositionto Defendants’ Motion (“Plaintiff’s Opposition”),accompanied by evidentiary materials. On September 23,2008, plaintiff filed a Reply to Defendants’ Motion (“Plaintiff’sReply”). Defendants also filed a Reply to Plaintiff’s Motion(“Def. Reply”) and objections to plaintiff’s declaration (“Def.Obj. to Jacobson Decl.”) and to plaintiff’s exhibits (“Def. Obj.to Pl. Exh.”) on September 23, 2008.

On September 30, 2008, plaintiff submitted anotherdeclaration in support of his motion and in opposition toDefendants’ Motion (“Plaintiff’s September 30, 2008Declaration”). On October 2, 2008, defendants filed an exparte application to strike plaintiff’s filings as untimely andviolative of Local Rules 11-6 and 11-8.

On October 24, 2008, the Court issued a minute orderstriking Plaintiff’s Opposition, Plaintiff's Reply, and Plaintiff’sSeptember 30, 2008 Declaration. The Court granted plaintiffuntil October 31, 2008 to refile these documents, and granteddefendants additional time to file a reply.

On November 3, 2008, plaintiff filed a revisedOpposition to Defendants’ Motion (“Pl. Rev. Opp.”) and arevised declaration in opposition to Defendants’ Motion andin support of Plaintiff’s Motion (Revised Declaration byPlaintiff Eric C. Jacobson, dated November 3, 2008[“Jacobson Rev. Decl.”]). On November 4, 2008, plaintiff fileda revised Reply to Defendants’ Opposition (“Pl. Rev. Reply”).Plaintiff subsequently filed additional evidentiary materialsand, on November 24, 2008, filed a memorandum regarding

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his exhibits (“Plaintiff’s Memorandum re Exhibits”).On November 19, 2008, defendants filed a Reply to

Plaintiff’s Revised Opposition (“Def. Rev. Reply”). OnDecember 2, 2008, defendants filed separate objections to:(1) plaintiff’s revised declaration (“Def. Obj. to Jacobson Rev.Decl.”); (2) plaintiff’s audio-recordings of deposition excerpts(“Def. Obj. to Audio.”); (3) plaintiff’s Memorandum reExhibits (“Def. Obj. to Memo.”); and (4) the Declaration ofLarry Starn (“Def. Obj. to Starn Decl.”).

On March 13, 2009, the Court issued a Report andRecommendation ([sic]March 13, 2009 Report andRecommendation”) recommending that: (1) plaintiff’s Motionfor Summary Judgment be denied; (2) defendants’ Motion forSummary Judgment be granted; and (3) the action bedismissed with prejudice.

On March 30, 2009, plaintiff filed a pleading, denotedas a motion under Rules 59 and 60 of the Federal Rules ofCivil Procedure, requesting the Court to: (1) deem itselfwithout jurisdiction to hear and determine the Motions; (2)reconsider and vacate the March 13, 2009 Report andRecommendation; and (3) grant plaintiff an extension of timeto transcribe the previously submitted deposition excerpts.On April 24, 2009, the Court issued a minute order in whichit construed plaintiff’s motion as objections to the March 13,2009 Report and Recommendation (“Objections”), andgranted plaintiff an extension of time to submit transcripts ofthe deposition excerpts he wished the Court to consider. On4/

4.

The Court also explained to plaintiff that his objections toits jurisdiction were unfounded because the Court is not issuinga ruling on the cross-motions for summary judgment, but only a

(continued...)

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May 15, 2009, plaintiff submitted transcripts of excerpts offive audiotaped depositions, accompanied by his declarations.On May 21, 2009, defendants filed objections to thedeposition transcripts and a response to plaintiff’s Objections(“Def. Obj. to Tr.”). The Court now submits this AmendedReport and Recommendation.

Both motions are fully briefed and under submission.

SUMMARY OF PLAINTIFF’S REMAININGCLAIMS

Plaintiff’s remaining claims against defendants consistof one federal claim (Claim Twelve) and two pendent statelaw claims (Claims Thirteen and Eighteen). In Claim Twelve,plaintiff asserts a First Amendment retaliation claim based onthe theory that defendants removed him from the parolerevocation attorney appointment list in retaliation for hiscriticisms of the Board and advocacy of parolee rights. (ThirdAmended Complaint ¶ 173). In Claim Thirteen, plaintiffcontends that his allegedly retaliatory removal from theattorney appointment list violated his rights under theCalifornia constitution. (Id. at ¶ 174). In Claim Eighteen,plaintiff contends that his removal from the attorneyappointment list constituted an intentional infliction ofemotional distress. (Id. at ¶ 179 [erroneously denominated ¶115]).

FACTUAL BACKGROUNDPlaintiff is a California attorney. (Jacobson Rev. Decl.

(...continued)report and recommendation to United States District Judge JohnF. Walter, who will rule on the cross-motions.

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at 2). In September 1998, the state appointed plaintiff to a listof attorneys eligible to represent parolees at parolerevocation hearings before the Board. (Transcript of theDeposition of Eric C. Jacobson [[sic]Jacobson Depo.”] at 25).The terms of the contractual relationship between plaintiffand the Board were set forth in the Board's “AttorneyPacket.” (See Def. Exh. B). Appointed attorneys werecompensated at $ 30.00 per hour (less when plaintiff was firstappointed to the list) for up to six hours per case, unlessappointed counsel obtained prior approval to bill more timefor a complex case, or the parolee had communicationproblems falling under the Americans with Disabilities Act.(Def. Exh. B at 22, 30; Jacobson Depo. at 60). On September16, 2003, plaintiff was removed from the attorneyappointment list. (Jacobson Decl. P 2; Def. Exh. N). Thisaction revolves around the parties’ different claims as to whyplaintiff was removed from the list. Plaintiff contends that hewas removed from the list in retaliation for his zealousrepresentation of his clients, his vocal advocacy of paroleerights, and his criticisms of California’s parole system.(Jacobson Rev. Decl. at 18). Plaintiff contends that he wasone of the most capable and effective parole revocationcounsel, providing superior quality representation to theparolees he was appointed to represent. (Id. at 13; JacobsonDepo. at 77-78, 81). Starting in 2001, plaintiff “repeatedly andstrenuously articulated the illegal and unconstitutionaltreatment which [his] clients routinely endured, placed themon record during hearings, and demanded that cognizance betaken of them by [Board] deputy commissioners.” (Jacobson5/

5.

(continued...)

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Decl. at 14; see Jacobson Depo. at 80). In addition, plaintiffsometimes pursued administrative appeals on his clients’behalf and wrote letters to Board officials in which he (1)complained about misapplication of the law and abusiveconduct by deputy commissioners at their hearings and (2)requested a review of their parole revocation dispositions.(Jacobson Depo. at 81-82; Jacobson Rev. Decl. at 14;Jacobson Decl. ¶¶ 5-6). Plaintiff wrote these letters,notwithstanding the fact that his contract with the Boardprohibited plaintiff from billing the Board for the time spenton these letters, or for assisting parolees with administrativeappeals. (Jacobson Depo. at 59; Jacobson Rev. Decl. at 8, 10-11). He estimates that during his five years as a Board-appointed parole revocation counsel, he authored five tofifteen administrative appeals on behalf of his clients, andwrote about five to ten letters requesting review of theparole commissioner’s decision. (Jacobson Depo. at 104).

Defendants contend that plaintiff’s criticisms of theBoard and advocacy of parolee rights had nothing to do withhis removal from the attorney appointment list. Defendantsassert that plaintiff was removed from the list forunsatisfactory performance. To substantiate their contention,defendants have submitted evidence of several instancesduring plaintiff’s five-year tenure when he was late for a

(...continued)The Court will not summarize plaintiff’s criticisms of

California’s parole system in the Third Amended Complaint andin his briefs and declarations, as his claims challenging California’sparole system were severed from this action and his viewsregarding its flaws are not an issue here. The Court will onlydiscuss, where appropriate, the criticisms plaintiff makes in theletters that he identifies as protected speech.

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hearing or failed to appear. For example, on November 30,1998, plaintiff failed to appear at two parole revocationhearings and they had to be postponed. (Declaration ofSteven Hernandez, dated August 20, 2008 [“HernandezDecl.”] ¶ 4; Declaration of Monica Smith, dated August 21,2008 [“Smith Decl.”] ¶ 6, Exh. A). Plaintiff testified that hedid not appear because he believed that the hearings hadbeen rescheduled or that he had been reassigned. (JacobsonDepo. at 117-18). In a memorandum dated December 3, 1998,Associate Chief Deputy Commissioner Monica Smithrequested an investigation into complaints about plaintiff’sperformance. In her memo, Smith stated that, according toDeputy Commissioner Carol Cantu and Regional HearingCoordinator Steven Hernandez,

[Plaintiff] has been continually late for hisassigned hearings and does not interview hisclients ahead of the hearing date. This poses dueprocess concerns and results in postponedhearings impacting our hold-to-hearing timeframes. On this last instance, he stated he hadbeen notified that his hearing had been canceled.He had been assigned two cases so it appears heis fabricating or at the least misrepresenting thefacts. He is not reachable by phone or by pagerand does not respond to messages left for onvoice mail. It is not permissible to interview theparolees on the same day as the hearing due tointerruption and delay of the calendar and moreimportantly the inability to request any neededwitnesses.

(Smith Decl. ¶¶ 5, 6, Exh. B; see also Exh. A [memorandumdated November 30, 1998, from Cantu to Smith]).

On April 20, 1999, Cantu prepared another

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memorandum to Smith, stating that plaintiff had requestedpermission to interview a parolee client half an hour beforeher scheduled revocation hearing but did not arrive until thetime scheduled for the hearing, necessitating a 20-minutepostponement of the hearing. (Smith Decl. ¶ 6, Exh. C; seeJacobson Depo. at 122). On June 1, 1999, plaintiff arrived latefor the first of his two scheduled hearings and stated that hehad not yet interviewed the parolees. (Hernandez Decl. ¶ 5;Exh. A [memorandum dated June 22, 1999 from Hernandezto Smith]). Plaintiff conducted the interviews but thehearings were postponed, and Associate Chief DeputyCommissioner Richard Washington reprimanded plaintiff,telling him that he should not conduct parolee interviews onthe day of the hearing. (Jacobson Depo. at 121-22, 131).Plaintiff believes that the incident was handled in thismanner because the parole hearings that day were beingvideotaped on behalf of the plaintiff class in the actionValdivia v. Schwarzenegger, CV S-9400671 LKK/GHK.(Jacobson Depo. at 131).

On August 3, 1999, Ted Rich, at that time ActingExecutive Officer for the Board, sent a letter to plaintiffadvising him that the Board was considering his removalfrom the attorney appointment list because it had “receivednumerous complaints from Board and Department ofCorrections staff regarding [plaintiff’s] tardiness, inadequatepreparation and representation of clients, and disrespectshown towards institutional security policies.” (Declarationof Ted Rich, Sr., dated August 28, 2008 [[sic]Rich Decl.”] ¶¶2, 3, Exh. A). Plaintiff admits that he received the letter andthat there were complaints about him, but disputes that thecomplaints were “numerous,” or that they were justified.(Jacobson Depo. at 158-62).

Two years later, on June 6, 2001, regional hearing

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coordinator Ricardo Valencia prepared a memorandum toAssociate Chief Deputy Commissioner Washingtondescribing an incident when plaintiff was tardy and delayedthe commencement of a hearing while soliciting clients. (Def.Exh. G at 30). Valencia asked Washington to remove plaintifffrom the attorney appointment list. (Id.). Plaintiff disputesthat the incident ever occurred. (Jacobson Depo. at 163-66).

On May 21, 2003, plaintiff represented paroleeAveron Fletcher at a revocation hearing at the Los AngelesCounty Jail (“Jail”). (Jacobson Rev. Decl. at 42). Plaintiffvigorously cross-examined Fletcher’s parole agent,defendant Murria. (Id. at 42-43). After the hearing, plaintiffapproached Murria and told her that he had no choice but tocross-examine her vigorously and that in the future sheshould provide more complete responses to questions. (Id. at43). Murria testified that plaintiff touched or tapped her onthe shoulder when he approached her, and that she found theaction offensive and told him not to put his hand on hershoulder. (Transcript of Deposition of Brigitte Murria[“Murria Depo.”] at 46, 47, 48-49, 50). Plaintiff testified thatit is possible that he might have tapped Murria on theshoulder to get her attention, although he does not recalldoing so; however, he specifically recalls that she neverasked him to remove his hand. (Jacobson Depo. at 177-78).

After the hearing, Deputy Commissioner FernandoPerez called Murria and told her that he had observed theincident and considered it inappropriate, and that “if anythingwas to come out of it,” she would know why because Perezplanned to “write it up.” (Murria Depo. at 40, 44). DefendantMurria did not file a complaint, nor did she take any otheraction regarding the incident. (Murria Depo. at 80-81). Perezprepared a memorandum that, according to plaintiff,misrepresented where the incident occurred and what

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Murria said to plaintiff. (Def. Exh. J; Jacobson Rev. Decl. at6/

43-44).Plaintiff was then notified that he was being

suspended from the attorney appointment list pending aninvestigation of the incident. (Jacobson Rev. Decl. at 46). OnJuly 1, 2003, defendant Speed notified plaintiff by letter thatthe investigation was complete and he was being restored tothe attorney appointment list. (Declaration of Marvin Speed,dated August 28, 2008 [“Speed Decl.”] ¶ 1, Exh. A). Speedadvised plaintiff that he had determined that his questioningof Murria, although aggressive, was not inappropriate, butcharacterized plaintiff’s decision to talk with Murria after thehearing as “ill conceived,” and his placing a hand on hershoulder as “uncalled for and inappropriate under thecircumstances.” (Speed Decl., Exh. A). Speed also notifiedplaintiff that, although plaintiff was no longer suspended, hewould not receive assignments until he signed the attorneypacket, which all attorneys on the appointment list wererequired to sign by February 28, 2003. (Id.).

On July 14, 2003, plaintiff responded to defendantSpeed’s letter. (Def. Exh. S). Plaintiff described hisquestioning of defendant Murria and his subsequentencounter with her. (Id.). He asserted that he did not recallputting his hand on her shoulder, and denied that she everasked him to remove his hand. (Id.). Plaintiff expressed his

6.

According to Perez’s memo, the incident occurred in thehearing room and Murria told plaintiff to “take your hands off me.”(Def. Exh. J). Murria testified that the incident occurred in thehallway outside the hearing room, and that she told plaintiff toremove his hand from her shoulder, but did not recall her exactwords. (Murria Depo. at 46, 47, 82, 83).

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indignation at having been suspended from the attorneyappointment list during the investigation of the incident, aswell as his belief that defense revocation counsel would bedeterred from zealous advocacy of parolees if any paroleagent could cause counsel’s suspension from the list simplyby complaining of inappropriate conduct that never occurred.(Id.).

On August 27, 2003, defendant Wadkins prepared amemorandum to defendant Cater, stating that on August 20,2003, plaintiff had failed to appear at the Jail for his assigned“second serves.” (Declaration of Thomas Wadkins, dated7/

August 29, 2008 [“Wadkins Decl.”] ¶¶ 2, 3, Exh. A;Declaration of Ken Cater, dated August 29, 2008 [“CaterDecl.”] ¶ 2). Wadkins also noted the incident involvingMurria and the existence of prior complaints about plaintiff,and recommended that plaintiff not be assigned additionalcases or second serves pending an investigation. (WadkinsDecl, Exh. A). Cater forwarded the memorandum to theBoard counsel, defendant Farmer. (Cater Decl. ¶ 3).

On August 28, 2003, defendant Wadkins sent plaintiff

7.

A parolee picked up for a parole violation is offered acertain amount of additional time in a correctional facility and caneither accept the offer or challenge the charged violation at aparole revocation hearing. Pursuant to the remedial order inArmstrong v. Davis, No. CV 94-02307 CW (N.D. Cal.), paroleeswith medical problems that interfere with their ability to evaluatean offer are given an additional 72 hours after being served withthe offer, and are then served with the offer again (the so-called“second serve”) in the presence of their attorneys. (WadkinsDecl. ¶ 3).

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a letter advising him that he was being considered forremoval from the attorney appointment list as a result ofmissing “second serves” on August 20, 2003, and asked himto submit a response. (Wadkins Decl., Exh. B). Plaintiffresponded by letter dated September 2, 2003, expressing hisbelief that his removal from the attorney list based on asingle missed “second serve” appointment due to acalendaring error could only be motivated by retaliation forplaintiff’s successful refutation of the charges against himmade by defendant Murria. (Def. Exh. L). Wadkins forwardedthe letter to defendants Speed, Cater, and Farmer. (Def. Exh.M).

Wadkins declares that he then recommended todefendant Cater that plaintiff be suspended from the attorneyappointment list for 90 days, basing his recommendation onthe reasons set forth in his memorandum. (Wadkins Decl. ¶ 6). He declares that he never recommended that plaintiff bepermanently removed from the attorney appointment list,nor did he make the decision to remove him. (Id.).

The decision to remove plaintiff from the attorneyappointment list was made by defendant Speed. (Speed Decl.¶ 3; Cater Decl. ¶ 4). Cater did not make the decision, nor didhe recommend to Speed that plaintiff be permanentlyremoved from the attorney appointment list. (Cater Decl. ¶4). Speed declares that he decided to remove plaintiff fromthe attorney appointment list based on the information inWadkins’ memorandum to Cater, namely, plaintiff’s “historyof missing hearings, being late to hearings, and beingunprepared for hearings,” as well as the incident withdefendant Murria, and that he had not received anyinformation, before making his decision, that plaintiff wasoverzealous in his representation of parolees or critical of theCalifornia parole system. (Speed Decl. ¶¶ 3, 4). On

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September 16, 2003, defendant Farmer advised plaintiff, byletter, that he would not be assigned any additional cases “atthis time.” (Def. Exh. N). Despite the ambiguousphraseology, the parties agree that this constituted removalfrom the attorney appointment list.

Plaintiff declares that because parolee rights were hissole field of legal expertise, he was obliged to continueworking in the field of parolee civil rights after his removalfrom the attorney appointment list, so far withoutcompensation. (Jacobson Rev. Decl. at 71). He seeksdeclaratory relief, an injunction directing his reinstatement,and compensatory and punitive damages. (Third AmendedComplaint ¶¶ 187-89).

LEGAL STANDARDS REGARDING SUMMARYJUDGMENT

A federal court must grant summary judgment if thepapers show that there is no genuine issue as to any materialfact and the moving party is entitled to judgment as a matterof law. See Fed. R. Civ. P. 56©. A “genuine issue” exists ifthere is a sufficient evidentiary basis on which a reasonablejury could find for the nonmoving party. See Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L.Ed. 2d 202 (1986). A factual dispute is “material” if it mightaffect the outcome of the suit under governing law. See id.The court must believe the nonmoving party’s evidence andmust view inferences it draws from the underlying facts inthe light most favorable to the nonmoving party. See id. at255; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

The moving party bears the initial burden ofdemonstrating the absence of any genuine issues of materialfact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct.

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2548, 91 L. Ed. 2d 265 (1986). However, the moving partyneed not disprove the other party’s case. Id. at 323-24. Themoving party need not produce admissible evidence showingthe absence of a genuine issue of material fact when the non-moving party has the burden of proof, but may discharge itsburden simply by pointing out that there is an absence ofevidence to support the non-moving party’s case. Id. at 324,325.

Summary judgment is appropriate when thenonmoving party “fails to make a showing sufficient toestablish the existence of an element essential to that party’scase, and on which that party will bear the burden of proof attrial.” Id. at 322. The nonmoving party cannot avoid summaryjudgment by relying solely on conclusory allegations that areunsupported by factual data. See Taylor v. List, 880 F.2d1040, 1045 (9th Cir. 1989). Instead, the opposition must gobeyond the assertions and allegations of the pleadings and setforth specific facts by producing competent evidence thatshows a genuine issue for trial. See Fed. R. Civ. P. 56(e); seealso Celotex, 477 U.S. at 324.

When the moving party has the burden of proof on anissue, e.g., when a plaintiff seeks summary judgment on aclaim for relief or a defendant seeks summary judgment onan affirmative defense, the moving party’s showing must besufficient for the court to hold that no reasonable trier of factcould find other than for the moving party. Calderone v.United States, 799 F.2d 254, 258-59 (6th Cir. 1986); InamedCorp. v. Medmarc Cas. Ins. Co., 258 F. Supp. 2d 1117, 1120(C.D. Cal. 2002).

When both plaintiff and defendant file cross-motionsfor summary judgment, it does not follow that no genuineissue of material fact exists. “[A] party may argue that noissue exists in the hope that his legal theory will be accepted,

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but at the same time the movant may maintain that there isa genuine factual dispute in the event his theory is rejectedor the opponent’s is adopted.” 10A C. Wright, A. Miller & M.Kane, Federal Practice and Procedure § 2720 (2008). “Thecontention of one party that there are no issues of materialfact sufficient to prevent the entry of judgment in its favordoes not bar that party from asserting that there are issuesof material fact sufficient to prevent the entry of judgment asa matter of law against it.” Zook v. Brown, 748 F.2d 1161,1166 (7th Cir. 1984) (quoting Schwabenbauer v. Bd. of Educ.,667 F.2d 305, 313 (2d Cir. 1981)); Brawner v. PearlAssurance Co., 267 F.2d 45, 46 (9th Cir. 1958) (“[S]ummaryjudgment cannot be granted if there be a disputed issue ofmaterial fact. This determination does not depend upon whateither or both parties may have thought about the matter.”).

The court may only consider admissible evidence inruling on a motion for summary judgment. Ballen v. City ofRedmond, 466 F.3d 736, 745 (9th Cir. 2006).

PRELIMINARY MATTERSI. DEFENDANTS’ EVIDENTIARY OBJECTIONS

A. Defendants’ Objections to Plaintiff’sDeclaration

Defendants raise a variety of objections to plaintiff’sdeclaration. (Def. Obj. to Pl. Decl. at 2-15). Defendantsinitially object to plaintiff’s declaration in its entirety. Thisobjection is DENIED. Defendants’ specific objections toParagraphs 2, 8, 9, 10, and 16 are also DENIED. Defendants’objections to Paragraphs 3, 6, 7, 11, 12, 13, 14, and15 areGRANTED. Legal arguments do not belong in a declaration,and plaintiff’s summary of a non-party’s deposition testimonyconstitutes inadmissible hearsay. See Fed. R. Evid. 402,801©, 802.

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B. Defendants’ Objections to Plaintiff’s

ExhibitsDefendants object to plaintiff’s Exhibits 5, 6, 9, 15, 16,

17, and 18. (Def. Obj. to Pl. Exh.). The Court DENIESdefendants’ objections.

Defendants object that Exhibits 5 and 6, which consistof drafts of plaintiff’s letters to Richard Washington, areinsufficiently authenticated. (Def. Obj. to Pl. Exh. at 2). Tothe extent that plaintiff’s attempt to authenticate themthrough Paragraph 16 of his declaration is defective, plaintiffpresumably could authenticate his own letters. See HalRoach Studios, Inc. v. Feiner & Co., 896 F.2d 1542, 1551 (9thCir. 1990) (court’s consideration of unauthenticated evidencewas harmless error when a competent witness with personalknowledge could have authenticated it). In regards toExhibits 9, 15, and 16, consisting of internal Boardmemoranda, defendants do not dispute their authenticity and,in fact, themselves offer Exhibit 9 as evidence. (See Def.Exh. J). See Burch v. Regents of Univ. of California, 433 F.Supp. 2d 1110, 1120 (E.D. Cal. 2006) (criticizing objections toauthentication on summary judgment motion “where theobjecting party does not contest the authenticity of theevidence submitted but nevertheless makes an evidentiaryobjection based on purely procedural grounds”).

Exhibits 17 and 18 do not constitute evidence.Although plaintiff should have separately lodged his proposedorder granting his summary judgment motion (Exhibit 17)and filed his belated verification of the Third Amended

/

/

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Complaint (Exhibit 18), rather than making them exhibits to8/

his motion, this is not a basis for the Court refusing toconsider them.C. Defendants’ Objection to Plaintiff’s Revised

DeclarationDefendants object to plaintiff's 73-page revised

declaration on the grounds that it is “replete with argumentand opinion, and in fact contains almost nothing but that,” andthat it is, in effect, a trial brief arguing the evidence. (Def.Obj. to Pl. Rev. Decl. at 2). Defendants move to strikeplaintiff’s revised declaration. (Id.).

Defendants’ characterization of plaintiff’s reviseddeclaration is largely correct. In addition, the reviseddeclaration, despite its length, does not contain numberedparagraphs and discusses matters that are of tangential or norelevance to this action, or of which plaintiff has no personalknowledge. Nevertheless, the Court will not strike the entiredeclaration but will, instead, consider only those portions thatare admissible under Fed. R. Civ. P. 56(e) for purposes of theparties’ cross motions for summary judgment. Defendants’objections, therefore, are DENIED.

D. Defendants’ Objections to Plaintiff’sDeposition Excerpts

Plaintiff elected to record depositions

8.

For purposes of summary judgment, a verified complaintmay be treated as an affidavit or declaration to the extent that it isbased on personal knowledge and sets forth facts admissible inevidence. Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir.1995); McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987);Fed. R. Civ. P. 56(e).

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nonstenographically, as was his right. See Fed. R. Civ. P.9/

30(b)(3)(A). However, in order to use the depositions on amotion for summary judgment, plaintiff is required to providethe Court with a transcript. See Fed. R. Civ. P. 32© (“Unlessthe court orders otherwise, a party must provide a transcriptof any deposition testimony the party offers, but may providethe court with testimony in nontranscript form as well.”) &Advisory Committee’s Notes on 1993 Amendment (“Underthis rule a party may offer deposition testimony in any of theforms authorized under Rule 30(b) but, if offering it in anonstenographic form, must provide the court with atranscript of the portions so offered.”); Fed. R. Civ. P. 30(b),Advisory Committee’s Notes on 1993 Amendment (“A partychoosing to record a deposition only by videotape oraudiotape should understand that a transcript will be requiredby Rule 26(a)(3)(B) and Rule 32© if the deposition is later tobe offered as evidence at trial or on a dispositive motionunder Rule 56.”); Local Rule 32-1.

Plaintiff submitted to the Court audiotapes and CDsof excerpts of depositions taken by him in this action.Defendants objected to the audiotapes and CDs on thegrounds that the Federal Rules of Civil Procedure and thelocal rules of this court require plaintiff to lodge a transcript

9.

Defendants apparently arranged for a court reporter tostenographically record the depositions taken by plaintiff, and theyhad transcripts prepared for their convenience. Defendants citedto deposition testimony of defendants Speed and Murria inconnection with their motion and opposition to plaintiff's motion,and have lodged the full transcripts of these two depositions withthe Court.

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of the deposition testimony. (Def. Obj. to Audio. at 2). In itsoriginal Report and Recommendation, the Court declined tolisten to the audiotapes and CDs without benefit of atranscript of the pertinent portions. In his Objections,plaintiff requested an extension of time to prepare andsubmit transcripts. The Court granted him an extension oftime to submit transcripts of deposition testimony he wishedthe Court to consider.

Plaintiff then filed transcriptions of portions of theaudio-recordings of the depositions of defendants Wadkins,Speed, Cater, and Murria and non-party Richard Washington,each transcript accompanied by a declaration setting forth themanner of its preparation. Plaintiff declared that thetranscripts were prepared by him, with assistance from hiswife. Defendants object to these transcripts on the groundsthat they have not been properly authenticated and were notprepared by a neutral party. (Def. Obj. to Tr. at 2-3).

Defendants are correct that the transcripts submittedby plaintiff lack a certification by the deposition officer beforewhom the depositions were taken. See Orr v. Bank ofAmerica, NT& SA, 285 F.3d 764, 774 (9th Cir. 2002) (“Adeposition or an extract therefrom is authenticated in amotion for a summary judgment when it identifies the namesof the deponent and action and includes the reporter’scertification that the deposition is a true record of thetestimony of the deponent.”); Fed. R. Civ. P. 30(f)(1).Defendants also correctly point out that the excerpts are longand plaintiff does not identify the pages that contain thetestimony he wishes the Court to consider. See Keenan v.Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (the court is entitledto rely on the nonmoving party “to identify with reasonableparticularity the evidence that precludes summaryjudgment”).

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The Court, however, rejects defendants’ argumentthat Rule 28©, which requires a deposition to be takenbefore a neutral deposition officer, by extension requires anaudiotaped deposition to be transcribed by a neutral party.See Fed. R. Civ. P. 26( c), Advisory Committee Notes to1993 Amendment (explaining that a party must providetranscript of a nonstenographic deposition to other partiesbefore trial for verification, “an obvious concern sincecounsel often utilize their own personnel to preparetranscripts from audio or video tapes”); see also Hudson v.Spellman High Voltage, 178 F.R.D. 29, 31 (E.D.N.Y. 1998)(concluding that the Advisory Committee Notes to 1993Amendment to Rule 30(b)(2) “reflect the legislative intentthat law office personnel, rather than an independentstenographer, will most likely prepare the typed transcript ofthose portions of the audio or video depositions whichcounsel intends to introduce at trial”). The Court also notesthat defendants arranged to have each of the depositions atissue stenographically recorded, and are in possession oftranscripts that the court reporter prepared. Defendants donot dispute the accuracy of plaintiff’s transcription of thedeposition excerpts. The Court, therefore, DENIESdefendants’ objections.

E. Defendants’ Objections to Plaintiff’sMemorandum re Exhibits

In plaintiff’s Memorandum re Exhibits, plaintiffdiscusses the significance of his exhibits and summarizesdeposition testimony he believes supports his case.Defendants object to the summaries of the depositiontestimony on the grounds that plaintiff has not provided theCourt with transcripts of the depositions.

The Court does not intend to rely on plaintiff’ssummaries as a substitute for deposition transcripts.

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Accordingly, defendants’ objections are DENIED as moot.F. Defendants’ Objections to Starn

DeclarationDefendants object to the Declaration of Larry Starn

filed by plaintiff in the action Watson v. Schwarzenegger, CV05-0192 JFW (Ctx) and lodged by him in this action.Defendants object to the declaration on a variety of grounds.(Def. Obj. to Starn Decl. at ¶¶ 1-53). The Court did not relyon the Declaration of Larry Starn in making itsrecommendations with respect to the cross-motions.Accordingly, defendants’ objections are DENIED as moot.II. PLAINTIFF’S REQUEST FOR CONTINUANCE

Plaintiff requests a continuance under Rule 56(f) ofthe Federal Rules of Civil Procedure. He asserts that he hadlimited time to prepare his Opposition to Defendants’ Motiondue to his obligations in other cases, and asks that the Court,in the event it does not grant his summary judgment motionto grant him time to obtain additional declarations andprepare a revised opposition to defendants’ summaryjudgment motion. (Pl. Rev. Opp. at 4; Rev. Reply at 4).

Rule 56(f) of the Federal Rules of Civil Procedureprovides that, “[if] a party opposing the motion [for summaryjudgment] shows by affidavit that, for specified reasons, itcannot present facts essential to justify its opposition,” thecourt may deny the summary judgment motion, or may ordera continuance to enable affidavits to be obtained or to enablefurther discovery. Thus, Rule 56(f) “provides a device forlitigants to avoid summary judgment when they have not hadsufficient time to develop affirmative evidence.” UnitedStates v. Kitsap Physicians Service, 314 F.3d 995, 1000 (9thCir. 2002). However, a party invoking Rule 56(f) must show,by affidavit or declaration: (1) the specific facts that it hopesto elicit; (2) how those facts would preclude summary

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judgment; and (3) that the evidence sought actually exists.California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998); seeTerrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1990)(affirming denial of Rule 56(f) request when party failed toshow the existence of additional essential and discoverableevidence). Moreover, the party must show that it has beendiligent in gathering the evidence. See Pfingston v. RonanEng’g Co., 284 F.3d 999, 1005 (9th Cir. 2000).

Plaintiff's request for a continuance meets none ofthese requirements. He has not specified what additionaldeclarations he would submit, how they would precludesummary judgment, or why he was unable to obtain themearlier. Furthermore, the Court already has granted plaintiffan extension of time to provide transcripts of the depositionexcerpts he submitted to the Court. To the extent plaintiffwants more time to prepare a revised and extended versionof his Opposition, he has already had two opportunities to filean opposition to defendants’ Motion. After the Court struckhis initial Opposition for failure to comply with the localrules, plaintiff was granted additional time to file a revisedOpposition, and was later granted an extension of time.Plaintiff has filed a 25-page revised Opposition to defendants’Motion, a 73-page declaration, and several binders ofevidentiary material. The cross-motions are now undersubmission. Plaintiff’s request for a continuance is DENIED.III. COMPLIANCE WITH LOCAL RULE 7-3

Plaintiff contends that defendants’ counsel did notcomply with Local Rule 7-3 because they did not “discussthoroughly” the substance of the contemplated motion and aproposed resolution. (Revised Opposition at 12-13). Plaintiffis not contesting that the parties conferred, but only thequality of the conference. The Court declines to recommendthat Defendants’ Motion be denied or stricken on this basis.

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DISCUSSIONI. DEFENDANTS ARE ENTITLED TO

SUMMARY JUDGMENT ON PLAINTIFF’SFIRST AMENDMENT CLAIMIn Claim Twelve, plaintiff’s sole remaining federal

claim, plaintiff contends that defendants violated his FirstAmendment rights by removing him from the attorneyappointment list in retaliation for his zealous representationof parolees and advocacy of parolee rights. (Third AmendedComplaint at 173).

In their Motion, defendants contend that they areentitled to summary judgment because: (1) the speech thatplaintiff contends triggered his removal from the attorneyappointment list was not protected by the First Amendmentand (2) plaintiff has no evidence that he was removed fromthe attorney appointment list on account of his speech. (Def.Motion at 5-19). In his cross-motion, plaintiff contends thathe is entitled to summary judgment because: (1) theuncontroverted evidence shows that the decision to removehim from the attorney appointment list was motivated by his“whistleblower complaints” to Board officials; and (2)defendants cannot meet their burden of showing that theywould have removed him from the attorney appointment listeven if he had not engaged in protected speech. (Pl. Motionat 11-17).

A. Applicable LawIn order to sustain a First Amendment retaliation

claim against a public employer, a plaintiff must show that:(1) he or she engaged in constitutionally protected speech;(2) the employer took adverse employment action againsthim or her; and (3) the speech was a substantial ormotivating factor for the adverse action. Freitag v. Ayers, 468F.3d 528, 543 (9th Cir. 2006), cert. denied, 549 U.S. 1323, 127

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S. Ct. 1918, 167 L. Ed. 2d 567 (2007); Coszalter v. City ofSalem, 320 F.3d 968, 973 (9th Cir. 2003); see Board ofCounty Comm’rs v. Umbehr, 518 U.S. 668, 675, 116 S. Ct.2342, 135 L. Ed. 2d 843 (1996). If the plaintiff meets thisburden, the governmental employer can still escape liabilityby showing that it would have taken the same action even inthe absence of the protected speech. Umbehr, 518 U.S. at675; Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429U.S. 274, 287, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977).Moreover, even termination arising from protected speechmay be justified when legitimate countervailing governmentinterests are sufficiently strong. Umbehr, 518 U.S. at 675.

A public employee’s speech is protected under theFirst Amendment only if it falls within the core of FirstAmendment protection – speech on matters of publicconcern. Engquist v. Oregon Dep't of Agr., 553 U.S. 591, 128S. Ct. 2146, 2152, 170 L. Ed. 2d 975 (2008); Connick v.Myers, 461 U.S. 138, 146-47, 103 S. Ct. 1684, 75 L. Ed. 2d708 (1983). “The [Supreme] Court has made clear that publicemployees do not surrender all their First Amendment rightsby reason of their employment. Rather, the FirstAmendment protects a public employee’s right, in certaincircumstances, to speak as a citizen addressing matters ofpublic concern.” Garcetti v. Ceballos, 547 U.S. 410, 417, 126S. Ct. 1951, 164 L. Ed. 2d 689 (2006); see Connick, 461 U.S.at 143; Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S. Ct.1731, 20 L. Ed. 2d 811 (1968). However, the FirstAmendment rights of public employees depend on a balancebetween the interests of the employee, as a citizen, incommenting upon matters of public concern, and theinterests of the government, as an employer, in promotingthe efficiency of the public services it performs through itsemployees. Pickering, 391 U.S. at 568. The government’s

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interests in effectively and efficiently achieving its goals areowed significantly greater deference when the governmentacts as an employer than when it acts as a sovereign.Umbehr, 518 U.S. at 676. Thus, even if a public employee’sspeech touches upon a matter of public concern, thegovernmental employer can restrict that speech if it canprove that the employee’s interest as a citizen incommenting on the matter is outweighed by the interest ofthe governmental employer in promoting effective andefficient public service. See Pickering, 391 U.S. at 568. Thecourt applies a balancing test to determine whether thegovernment lacked adequate justification for treating theemployee differently from any other member of the generalpublic. Garcetti, 547 U.S. at 418 (citing Pickering, 391 U.S. at568).

These principles apply not only to public employees,but also to persons rendering services to the government asindependent contractors. Umbehr, 518 U.S. at 684-85. Thedeference afforded to public employers in regulatingemployee speech is also warranted in regulating the speechof independent contractors because the government “needsto be free to terminate both employees and contractors forpoor performance, to improve the efficiency, efficacy, andresponsiveness of service to the public, and to prevent theappearance of corruption.” Id. at 674, 684-85. There is no“difference of constitutional magnitude between independentcontractors and employees” in the First Amendment context.Umbehr, 518 U.S. at 684 (internal quotation marks andcitation omitted).

In Garcetti, the Supreme Court set forth an additionalrequirement for determining whether a public employee'sspeech is protected under the First Amendment. TheSupreme Court held that even when a public employee’s

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speech touches on matters of public concern, it does notenjoy First Amendment protection if the employee isspeaking pursuant to his or her official duties rather than asa citizen. Garcetti, 547 U.S. at 422. In Garcetti, deputydistrict attorney Ceballo, a calendar deputy, was asked bydefense counsel to look into whether an affidavit filed by thesheriff’s department in support of a search warrant wasinaccurate. Id. at 413-14. According to Ceballo, it was notunusual for defense attorneys to ask calendar deputies toinvestigate aspects of pending cases. Id. at 414. Ceballosubmitted a disposition memorandum to his supervisors, inwhich he concluded that the affidavit contained seriousmisrepresentations and recommended dismissal of the case.Id. After an acrimonious meeting with sheriff’s departmentemployees, the district attorney’s office proceeded with theprosecution, and the trial court later rejected the defensechallenge to the warrant. Id. at 414-15. When Ceballo wassubsequently reassigned, transferred, and passed over for apromotion, he filed suit alleging that his supervisors wereretaliating against him for the disposition memo. Id. at 415.

The Supreme Court held that the memo did notconstitute protected speech because Ceballos did not speakas a citizen when he wrote it. Id. at 421-22. Rather, he spokeas a prosecutor fulfilling his responsibility to advise hissupervisors about how best to proceed with a pending case.Id. at 421. The Supreme Court declared: “We hold that whenpublic employees make statements pursuant to their officialduties, the employees are not speaking as citizens for FirstAmendment purposes, and the Constitution does not insulatetheir communications from employer discipline.” Id.

In Garcetti, the parties did not dispute that Ceballoswrote his disposition memo pursuant to his employmentduties, and the Supreme Court expressly declined “to

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articulate a comprehensive framework for defining the scopeof an employee’s duties in cases where there is room forserious debate.” Garcetti, 547 U.S. at 424. The SupremeCourt declared only that “[t]he proper inquiry is a practicalone,” noting that “[f]ormal job descriptions often bear littleresemblance to the duties an employee actually is expectedto perform.” Id. at 425.

In Posey v. Lake Pend Oreille School District No. 84,546 F.3d 1121 (9th Cir. 2008), the Ninth Circuit held thatalthough the Supreme Court in Connick declared thatwhether speech is protected under the First Amendment isan issue of law, see Connick, 461 U.S. at 148 n.7 (“Theinquiry into the protected status of speech is one of law, notfact.”), after Garcetti, the issue of whether the plaintiff spokeas a public employee or as a private citizen is a mixedquestion of fact and law. Id. at 1127-29. Whether theplaintiff’s speech addressed an issue of public concern,however, is purely an issue of law. Eng v. Cooley, 552 F.3d1062, 1070 (9th Cir. 2009); see also Gibson v. Office of theAttorney General, 561 F.3d 920, 925 (9th Cir. 2009).

Thus, to summarize, in evaluating a First Amendmentretaliation claim by a public employee or independentcontractor, the Court must address a “sequential five-stepseries of questions: (1) whether the plaintiff spoke on amatter of public concern; (2) whether the plaintiff spoke as aprivate citizen or public employee; (3) whether the plaintiff’sprotected speech was a substantial or motivating factor in theadverse employment action; (4) whether the state had anadequate justification for treating the employee differentlyfrom other members of the general public; and (5) whetherthe state would have taken the adverse employment actioneven absent the protected speech.” Eng, 552 F.3d at 1070.Plaintiff has the burden of showing that: (1) “the speech

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addressed an issue of public concern”; (2) “the speech wasspoken in the capacity of a private citizen and not a publicemployee”; and (3) “the state took adverse employmentaction” and the speech “was a substantial or motivating factorin the adverse action.” Id. at 1070-71. Only if plaintiff passesthese three tests does the burden shift to the defendants toshow that, under the Pickering balancing test, thegovernment’s interests outweigh the plaintiff’s FirstAmendment rights, or that it would have taken the sameaction even in the absence of the protected conduct. Id. at1071-72.

B. Protected Status of Plaintiff’s SpeechAs an initial matter, plaintiff does not clearly identify

the speech at issue, i.e., the protected speech that hecontends caused his termination from the attorneyappointment list. At times, plaintiff states that the decision toremove him from the attorney appointment list wasmotivated by his July 14, 2003 letter to defendant Speed andhis September 2, 2003 letter to Wadkins; elsewhere, hecontends that his termination was motivated by other lettershe sent to Board officials, as well as by his advocacy of hisclients’ constitutional rights during hearings and his pursuitof administrative remedies on their behalf. (Jacobson Decl. ¶12 & n.6; Jacobson Rev. Decl. at 14-15, 28-29; Pl. Rev. Oppat 15-16).

1. Plaintiff’s July 14, 2003 Letter toSpeed and September 2, 2003Letter to Wadkins Do Not AddressMatters of Public Concern

Defendants contend that plaintiff's July 14, 2003 letterto defendant Speed and his September 2, 2003 letter todefendant Wadkins do not address matters of public concern.(Def. Motion at 16). This is a question of law for the Court.

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Gibson, 561 F.3d at 925; Eng, 552 F.3d at 1070.In his July 14, 2003 letter to defendant Speed, plaintiff

is responding to Speed’s July 1, 2003 letter notifying plaintiffthat the investigation of the incident involving parole agentMurria was complete and plaintiff would be restored to theattorney appointment list. (Def. Exh. S; Speed Decl., Exh. A).In his July 1, 2003 letter, Speed advised plaintiff that he haddetermined that plaintiff’s cross-examination of Murria,although aggressive, was not inappropriate, but that plaintiffacted inappropriately in approaching her afterwards. (SpeedDecl., Exh. A). In his letter, plaintiff explains why he neededto aggressively cross-examine Murria, and vehementlydisputes that he did anything more than tap her on theshoulder to get her attention, or that she ever told him toremove his hand. (Def. Exh. S). Plaintiff opines that Murrialied both at the hearing and in her account of the incident,and expresses his indignation at his suspension during aninvestigation of the charge. (Id.). Plaintiff argues that such asuspension should be preceded by notice and an informalinvestigation, and expresses a fear that defense counsel ofless firmness and greater financial dependence on parolerevocation appointments than plaintiff will be deterred fromaggressively cross-examining parole agents if any agent canbring about an attorney’s suspension from the list by makinga baseless charge of inappropriate behavior. (Def. Exh. S).

Plaintiff's September 2, 2003 letter to defendantWadkins is a response to Wadkins’ August 28, 2003 letternotifying plaintiff that the Board was contemplating hisremoval from the attorney appointment list as a result ofmissing “second serves” on August 20, 2003, and requestinghim to submit a response. (Def. Exh. T; Wadkins Decl., Exh.B). In his September 2, 2003 letter, plaintiff states thatremoval from the attorney appointment list was a draconian

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penalty for a single accidentally missed “second serve”appointment, and could only have been motivated byretaliation for plaintiff’s successful refutation of the chargesagainst him made by defendant Murria. (Def. Exh. T).Plaintiff expresses concerns about attacks on his professionalreputation and about a hostile work environment faced byhim and other parole revocation defense attorneys. (Id.).

“The Supreme Court has held that speech involves amatter of public concern when it fairly can be said to relate to‘any matter of political, social, or other concern to thecommunity.’"” Gibson, 561 F.3d at 925 (quoting Connick, 461U.S. at 146). Whether an employee’s or contractor’s speechaddresses a matter of public concern, and thus is protectedby the First Amendment, must be decided based on the“content, form, and context of a given statement, as revealedby the whole record.” Connick, 461 U.S. at 147-48.Generally, when an employee or independent contractorcomplains about his own job treatment, his speech does notaddress a matter of public concern. Thomas v. City ofBeaverton, 379 F.3d 802, 808 (9th Cir. 2004) (“[T]he type ofpersonnel matters that we have deemed unprotected underthe public concern test are employment grievances in whichthe employee is complaining about her own job treatment,not personnel matters pertaining to others.” (emphasis inoriginal)); see also Robinson v. York, 566 F.3d 817, 2009 WL1109534, at *3 (9th Cir., 2009) (“Reports pertaining toothers, even if they concern personnel matters includingdiscriminatory conduct, can still be ‘protected under thepublic concern test.’”) (quoting Thomas, 379 F.3d at 808;emphasis added). “[W]hen a public employee speaks not asa citizen upon matters of public concern, but instead as anemployee upon matters only of personal interest, absent themost unusual circumstances, a federal court is not the

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appropriate forum in which to review the wisdom of apersonnel decision taken by a public agency allegedly inreaction to the employee's behavior.” Connick, 461 U.S. at147; see also Gibson, 561 F.3d at 925 (“[S]peech by publicemployees may be characterized as not of ‘public concern’when it is clear that such speech deals with individualpersonnel disputes and grievances and that the informationwould be of no relevance to the public’s evaluation of theperformance of governmental agencies.” (quoting McKinleyv. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983))).

Both the letters at issue here concern the Board’streatment of plaintiff: the July 14, 2003 letter to defendantSpeed concerns plaintiff's investigation and temporarysuspension in connection with the incident involving agentMurria, and the September 2, 2003 letter to defendantWadkins concerns plaintiff’s missed “second serves”appointment and notice that the Board was contemplatingplaintiff’s removal from the list. The issues that plaintiff hasregarding these letters do not involve matters of publicconcern. See Connick, 461 U.S. at 146-47; see also Gibson,561 F.3d at 926 (deputy attorney general’s representation ofco-worker in a private legal malpractice action, which led totheir termination by the attorney general’s office, did notinvolve matters of public concern).

Plaintiff argues that the quality of representationafforded to indigent parole violators is a matter of publicconcern, and that he expressed in his letters a generalconcern that the quality of representation provided toparolees would be chilled if zealous appointed counsel faceda prospect that their zeal would provoke pretextual chargesresulting in their suspension or termination from theappointment list. (Pl. Rev. Opp. at 7-8). The Ninth Circuit hasheld that “statements presenting mixed questions of private

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and public concern properly fall within the scope of FirstAmendment protection.” Posey, 546 F.3d at 1130 n.5(internal quotation marks and citation omitted). Thisstatement, however, contemplated a situation where a letteraddressed both topics of public concern and personalgrievances. See id. at 1124, 1130 (Posey’s letter expressingconcerns about school’s security and safety policies satisfiedthe “public concern” test even though a part of the letteraddressed his private grievances with respect to histreatment by the school principal); see also Connick, 461F.3d at 146-49 (concluding that questionnaire submitted todistrict attorney’s office staff addressed internal officematters not of public concern, except for a question aboutpressure to support political campaigns, which touched upona matter of public concern and was subject to the balancingstage of the protected speech inquiry). Here, the statementsthat plaintiff contends involve matters of public concern areincidental to his arguments that his suspension from theattorney appointment list was unjustified and that apermanent removal from the list would be a disproportionatesanction. (Def. Exh. S). Plaintiff merely draws generalizationsfrom his own experience and speculates as to what wouldhappen if defendants treated other parole revocation defensecounsel the way they treated him. (Id.). He does not contendthat any such chilling effect on other attorneys has occurred;he complains solely about actions directed at him. SeeConnick, 461 U.S. at 154 (warning against attempts toconstitutionalize employee grievances).

In light of the Court’s conclusion that these twoletters do not address matters of public concern but onlyplaintiff’s personal problems with the Board, the Court neednot undertake a Garcetti inquiry into whether the letterswere written pursuant to plaintiff’s contract with the Board.

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Because the letters do not address matters of public concern,they do not constitute protected speech under the FirstAmendment and cannot be the basis of a First Amendmentr e t a l i a t i o n c l a i m . D e f e n d a n t s , 1 0 /

10.

In his Objections, plaintiff invokes the Ninth Circuit’srecent decision in Eng. (Objections at 6 n.8). The plaintiff in Engwas a deputy district attorney who was assigned to investigatepossible fraud and environmental crimes in connection with aschool district project. Eng, 552 F.3d at 1064. He concluded thatno crimes had occurred and, further, that the district attorney’soffice had improperly leaked to the IRS that the school district hadcommitted fraud. Id. According to Eng, his superiors wereunhappy with his conclusions and retaliated against him. Id. Theycommenced a sexual harassment investigation although thealleged victim protested that no sexual harassment had occurred,demoted and suspended him, and brought misdemeanor chargesagainst him for misusing an office computer. Id. at 1065. AfterEng’s attorney told the Los Angeles Times that Eng wasprosecuted because he had refused to file criminal charges againstschool district officials, the district attorney’s office suspendedEng and later passed him over for promotion. Id.

In his Section 1983 action, Eng contended that thedefendants retaliated against him for exercising his FirstAmendment right to comment regarding the school project andthe leaks to the IRS, and to speak through his attorney to thepress. Eng, 552 F.3d at 1066. The district court ruled that Eng’srecommendations that no criminal charges be brought were madepursuant to his job duties and were not protected speech, butdenied summary judgment with respect to Eng’s comments aboutthe leaks to the IRS and his counsel’s statements to the press. Id.The Ninth Circuit affirmed. Id. at 1066. Although the defendantsdid not contest on appeal that plaintiff’s speech pertained to

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therefore, are entitled to summary judgment on this portionof Claim Twelve.

2. There is No Triable Issue as to WhetherOther Speech Identified by Plaintiff AsProtected Speech Was Made Pursuant toHis Duties As Appointed Counsel, Exceptfor Plaintiff’s March 3, 2003 Letter toWashington

In addition to the July 14, 2003 letter to defendantSpeed and September 2, 2003 letter to defendant Wadkins

10. (...continued)

matters of public concern, the Ninth Circuit declared that therewas little doubt that the leaking of information by the districtattorney’s office to the IRS regarding the school district’s lease-purchase arrangement was a matter of public concern, and thatstatements to the press by Eng’s lawyer regarding the retaliatoryprosecution against Eng were relevant to the public’s perceptionof the agency and thus also involved matters of public concern. Id.at 1072-73.

Plaintiff analogizes his July 14, 2003 letter to Speed andhis September 2, 2003 letter to Wadkins to Eng’s counsel’sstatements to the press. (Objections at 6 n.8). Looking at the“content, form, and context” of the statements, however, anysimilarity is superficial. Eng, 552 F.3d at 1070. Eng’s attorney toldthe press that the district attorney’s office was prosecuting Engbecause he refused to file criminal charges after his superiors hadmade highly publicized promises that indictments would issue,and because he complained about leaks to the IRS. Id. at 1065,1072-73. The relevance of this information to the “public'sevaluation of the performance” of the district attorney's office isclear. Id. at 1073. Here, plaintiff’s letters to Board officialscomplaining about his suspension and removal from theappointment list simply do not rise to the same level.

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discussed above, plaintiff describes the following letterswritten by him to Board officials as protected speech: (1)letter dated January 14, 2002 to Associate Chief DeputyCommissioner Washington (Jacobson Rev. Decl. at 29; Pl.Exh. 5); (2) letter dated March 3, 2003 to Washington(Jacobson Rev. Decl. at 32; Def. Exh. R); (3) letter datedMarch 13, 2002 to Washington (Jacobson Rev. Decl. at 30; Pl.Exh. 6); and (4) letter dated September 22, 2002 toWashington (Jacobson Rev. Decl. at 31, 48; Def. Exh. Q). Inaddition, plaintiff also contends that defendants removed himfrom the attorney appointment list in retaliation for hiszealous representation of parolees at parole revocationhearings and his pursuit of administrative appeals on behalfof parolees challenging their parole dispositions. (JacobsonRev. Decl. at 14-15, 17-18).

Defendants do not argue that plaintiff’s complaintsregarding violations of parolee constitutional rights did notpertain to matters of public concern. Thus, for purposes ofthese summary judgment motions only, the Court willassume that this requirement is satisfied, and will proceed tothe Garcetti inquiry, i.e., whether plaintiff spoke as a privatecitizen or as appointed counsel.

Plaintiff vehemently disputes that the Garcettirequirement is applicable to him at all. First, he points outthat the plaintiff in Garcetti was an employee of the districtattorney’s office, not an independent contractor as the Courtpreviously determined plaintiff to be. (Pl. Rev. Opp. at 11-11/

11.

During the briefing on defendants’ Motion to Dismiss theThird Amended Complaint, plaintiff argued that he was anemployee of the Board and thus entitled to pursue a wrongful

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12). However, as previously discussed, the Supreme Courthas held that the restrictions imposed by public employers onthe speech of public employees and independent contractorsare subject to the same analysis. Umbehr, 518 U.S. at 684;see also Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917,923 (9th Cir. 2004); Ansell v. D’Alesio, 485 F. Supp. 2d 80, 84(D. Conn. 2007) (“Numerous courts, including the SupremeCourt, have concluded that for purposes of retaliation claimsbrought under the First Amendment, there is no legaldistinction between independent contractors with pre-existing contracts . . . and full-time employees.” (collectingcases)). There is nothing in Garcetti that would support aconclusion that the Supreme Court’s holding in Umbehr –that there is no constitutionally significant differencebetween government employees and independentcontractors with respect to the analysis of their retaliatorytermination claims – does not apply when the issue iswhether the plaintiff was speaking pursuant to hisprofessional duties or as a private citizen. Plaintiff furtherargues that the reasoning of Garcetti applies only tosituations where plaintiffs are under supervision of personnelwith whom they are “hierarchically aligned” and to whomthey are “substantively accountable,” and does not apply toa situation where a plaintiff is employed or otherwiseretained by the state not to speak on its behalf, but to oppose

(...continued)termination claim under state law. The Court determined thatplaintiff was an independent contractor. (January 17, 2007 Reportand Recommendation at 42-43).

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it. (Pl. Rev. Opp. at 11-12). The Court agrees that plaintiff12/

12.

Plaintiff cites Polk County v. Dodson, 454 U.S. 312, 318-22, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981), in which the SupremeCourt held that a public defender was not acting under color ofstate law in rendering legal services and thus was not subject tosuit under Section 1983, pointing out that she was “free of statecontrol” in exercising her professional judgment regarding how torepresent her client. (Pl. Rev. Opp. at 11). However, the SupremeCourt in Polk was addressing the obligations of a lawyer employedby a public entity to represent an individual vis-a-vis her client,while the issue here is the rights of the lawyer vis-a-vis officialsof the public entity. There is no parallel.

Plaintiff also cites to the Supreme Court’s statement inLegal Services Corp. v. Velazquez, 531 U.S. 533, 542, 121 S. Ct.1043, 149 L. Ed. 2d 63 (2001), that an attorney funded by the LegalServices Corporation (“LSC”) “speaks on the behalf of the clientin a claim against the government for welfare benefits” and “is notthe government’s speaker.” (Pl. Rev. Opp. at 11). The Velazquezdecision involved the constitutionality of regulations prohibitingLSC-funded lawyers from challenging existing welfare laws duringtheir representation of their clients. Id. at 544-45. The SupremeCourt held that the government could not, consistent with theConstitution, insulate its laws from legitimate judicial challenge inthis manner. Id. at 549.

In Eng, the Ninth Circuit cited Velazquez in concludingthat Eng could bring a retaliation claim based on his lawyer'sspeech. Eng, 552 F.3d at 1069-70. The Ninth Circuit stated thatVelazquez suggests that government action seeking to limit alawyer’s advocacy on behalf of a client implicates the client’s aswell as the lawyer’s First Amendment rights, and that lawyers’representation of public employee plaintiffs would be chilled if thestate could retaliate against the employees for their lawyers’

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was not “substantively accountable” to Board officials for themanner in which he defended the parolees whom he wasassigned to represent, or for the defense he elected topresent on their behalf. Even so, his contract with the Boardplaced certain obligations on him with respect to hisrepresentation, such as interviewing his clients before theirhearings, being prepared for the hearings, not missing thehearings – obligations that plaintiff would have in any caseunder the professional norms governing competent attorneyrepresentation, but that were expressly part of his contractand thus were subject to review by Board officials indetermining whether to continue to assign cases to him.(Def. Exh. B at 25, 33, 34). More importantly, there isnothing in Garcetti to suggest that the Supreme Courtcontemplated that there would be exceptions to its scope –situations where a public employee’s or contractor’s speechwould be deemed protected by the First Amendment eventhough the speech fell within the scope of his or herprofessional duties.

While the Court has not been presented withauthority addressing the application of Garcetti to appointedcounsel at parole hearings, courts have applied Garcetti insimilar situations. In Ansell, a lawyer and her law firm wereunder contract with the state of Connecticut’s judicial branchto serve as appointed counsel to indigent children and

(...continued)advocacy on their behalf. Id. at 1069. The Velazquez decision, asexplicated in Eng, has no bearing on whether an attorneyappointed by the Board to represent parolees at a revocationhearing speaks as appointed counsel or as a private citizen whenhe complains of violations of his clients’ rights and, by extension,of flaws in the parole system.

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parents in juvenile court. Ansell, 485 F. Supp. 2d at 81. Whentheir contract was not renewed, they filed suit claiming thatthe failure to renew the contract constituted retaliation forthe lawyer’s vigorous representation of a client, during whichshe engaged in “heated dialogue” with a judge. Id. at 81. TheConnecticut district court held that the First Amendmentclaim was barred by Garcetti, because the lawyer'sstatements to the judge were made “in her official capacity asa court appointed attorney representing a party,” and thereasoning of Umbehr required the application of Garcetti toindependent contractors. Id. at 84-85.

In Maras-Roberts v. Phillippe, 2007 U.S. Dist. LEXIS31661, 2007 WL 1239119 (S.D. Ind. Apr. 27, 2007), theIndiana district court concluded that Garcetti barred aretaliatory termination claim brought by a public defenderagainst the state court judge who employed her. The publicdefender believed that the judge’s practice with respect toplacing individuals on probation contravened state law, andcorresponded regarding the matter with the public defendercouncil. 2007 U.S. Dist. LEXIS 31661, [WL] at *1-2. Shortlyafter she discussed this correspondence with the judge, heterminated her employment, according to him due tocommunication problems, mistakes she made on pleaagreements, and complaints from court staff about herrudeness. 2007 U.S. Dist. LEXIS 31661, [WL] at *3.

Like plaintiff here, the public defender in Maras-Roberts argued that her role as a public defender did notencompass the speech at issue. 2007 U.S. Dist. LEXIS31661, [WL] at *5. The district court held that even thoughthe precise scope of her duties as a public defender was aquestion of fact, there were no facts allowing a reasonablejury to conclude that her speech was made in her capacity asa private citizen. Id. But for her employment as a public

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defender, the plaintiff would not have been permitted to seekthe input of the public defender council, nor would she havehad access to the judge to voice her concerns about theprobation issue. Id. Moreover, the plaintiff’s owncharacterization of her duties to her clients in her email tothe judge showed that she considered her speech to be “animportant aspect of her advocacy obligations as mandated byher role as public defender,” and did not undertake herchallenge to what she described as “systemic practices” as aprivate endeavor disconnected from her publicresponsibilities. Maras-Roberts, 2007 U.S. Dist. LEXIS31661, 2007 WL 1239119, at *6. Finally, the district courtconsidered it immaterial that the plaintiff had a longstandingpersonal interest in the probation infraction issue and hadspoken out about it even before she was hired for the publicdefender position. Id.

This Court similarly concludes that Garcetti appliesto plaintiff’s claim. Thus, plaintiff’s speech was only protectedif plaintiff was speaking in his capacity as a private citizen,and not in his capacity as Board-appointed counsel forparolees. Posey, 546 F.3d at 1131. The Court now turns tothe categories of speech that plaintiff argues were protected.

First, plaintiff contends that defendants retaliatedagainst him for his zealous representation of parolees atrevocation hearings, including his “willingness and ability toidentify untruthful testimony by parole agents and policeofficers through vigorous cross-examination.” (Jacobson Rev.Decl. at 18). Plaintiff, however, appeared at the hearings asappointed counsel for his parolee clients pursuant to hiscontract with the state. Whether vigorous or perfunctory,cross-examination of parole agents and other witnesses is aroutine part of the functions performed by defense counselat a parole revocation hearing. See Morrissey v. Brewer, 408

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U.S. 471, 488-89, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)(parolees entitled to cross-examine witnesses at revocationproceeding). In addition, plaintiff’s role as counselencompassed an obligation to protect the rights of his clientsat their parole revocation hearings, and any statements hemade at the hearings regarding violations of parolee rightswere made pursuant to this duty. “Restricting speech thatowes its existence to a public employee’s professionalresponsibilities does not infringe any liberties the employeemight have enjoyed as a private citizen.” Garcetti, 547 U.S.at 421-22; see Eng, 552 F.3d at 1071 (if plaintiff’s allegations“demonstrate an official duty to utter the speech at issue,then the speech is unprotected”); Ansell, 485 F. Supp. 2d at84 (Garcetti barred claim that state terminated lawyer’scontract to serve as appointed counsel in retaliation forstatements made by her to a judge, because these statementswere made “in her official capacity as a court appointedattorney representing a party”).

Plaintiff also contends that the protected speechincluded his pursuit of administrative remedies on behalf ofparolees after an adverse parole revocation decision. Plaintiffestimated that he prepared between five and fifteenadministrative appeals during the five years he worked asparole revocation counsel. (Jacobson Depo. at 104). Hetestified that he considered preparing administrative appealsfor his clients as part of providing them with representationof superior quality, and from time to time did so even though(except for a period when up to an hour’s compensation wasallowed) his contract with the Board did not allow forcompensation for time spent on administrative appeals.(Jacobson Depo. at 79-80; Pl. Rev. Decl. at 8). Even thoughhe was not required to do so and was not paid for it, plaintiffprepared administrative remedies challenging the parole

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revocation decisions when he deemed it appropriate to do soas part of his representation of the parolees whom he hadbeen assigned to represent. See Maras-Roberts, 2007 U.S.Dist. LEXIS 31661, 2007 WL 1239119, at *5-6 (publicdefender challenged the judge’s practice with respect toprobation infractions as part of her advocacy as a publicdefender). Indeed, plaintiff does not contend that he everprepared administrative remedies for parolees whom he didnot represent. Thus, plaintiff engaged in this speech pursuantto his professional responsibilities to his parolee clients.Under Garcetti, such speech was outside the scope of FirstAmendment protection.

Turning to the letters cited by plaintiff, with oneexception, each letter concerns a parolee that plaintiff wasrepresenting as an appointed counsel under his contract withthe Board. In a March 3, 2003 letter to Chief DeputyCommissioner Washington, however, plaintiff complainsabout procedural and constitutional violations that occurredat the December 27, 2002 and February 5, 2003 parolerevocation hearings of his client Teddy Watson. Plaintiffrequests a rehearing of those charges and a different deputycommissioner to hear the remaining charge against Watson.(Def. Exh. R). In that letter, plaintiff describes himself asprivately retained counsel for Watson. (Id.).

Because plaintiff asserted that he wrote the letter asprivately retained counsel for Watson, it appears that13/

13.

Plaintiff identifies himself as Watson’s privately retainedcounsel in the letter, dated March 3, 2003. (Def. Exh. R).However, in his declaration, plaintiff declares that he began torepresent Watson privately during his temporary suspension from

(continued...)

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plaintiff did not write it pursuant to his duties under hiscontract with the Board. Or, to put it another way, it appearsthat plaintiff was not a public employee when he wrote theMarch 3, 2003 letter. Although this does not per se lead to theconclusion that the letter constitutes protected speech,neither party addresses the significance of plaintiff’semployment status within the context of the Garcetti inquiry.Thus, the Court concludes that there is a triable issueregarding whether plaintiff’s March 3, 2003 letter toWashington constituted protected speech.

As for the other letters cited by plaintiff, each pertainsto a parolee whom plaintiff was representing as appointedcounsel. In his January 14, 2002 letter to Washington,plaintiff complains about a deputy commissioner’s handlingof Johnson’s parole revocation hearing on January 9, 2001,and about the disposition in that case. (Pl. Exh. 5). Plaintiffprotests the deputy commissioner’s behavior at the hearingand his attitude towards plaintiff and his client, detailsvarious procedural infirmities, and requests that Johnsonreceive a new hearing. (Id.).

In his March 13, 2002 letter to Washington, plaintiffaddresses the March 7, 2002 parole revocation hearings oftwo parolees. (Pl. Exh. 6). Plaintiff discusses the factsunderlying the charges against the parolees and theprocedural errors at their hearings, and asks Washington to

(...continued)the attorney appointment list. (Jacobson Rev. Decl. at 65-66). Thisdid not occur until after the incident with Murria on May 21, 2003.In his Objections, plaintiff explains that he misspoke, and that hebegan to represent Watson privately around November 19, 2002.(Objections at 23 n.33, Exh. 3).

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review the decisions. (Id.). In his September 22, 2002 letterto Washington, plaintiff discusses two hearings that werepostponed by defendant Wadkins. (Def. Exh. Q). Plaintiffcomplains that Wadkins was discourteous towards himselfand abusive towards his clients, and requests Chief DeputyCommissioner Washington to reschedule the hearings beforeanother deputy commissioner. (Pl. Exh. 6).

In each of these letters, plaintiff seeks to change theparole dispositions for his clients and to obtain redress forviolations of their rights. Thus, these letters were plainlywritten in the course of plaintiff’s performance of his dutiesas parole revocation attorney representing his parolee clientsand seeking a favorable disposition for them. See Freitag v.Ayers, 468 F.3d 528, 545-46 (9th Cir. 2006), cert. denied, 549U.S. 1323, 127 S. Ct. 1918, 167 L. Ed. 2d 567 (2007)(correctional officer’s letters to superiors complaining thather reports of inmate sexual misconduct were being ignoredwere not protected speech because they were made pursuantto her official duties as a correctional officer; only her letterto a state senator constituted protected speech); Brown v.Chinen, 2009 U.S. Dist. LEXIS 10546, 2009 WL 330209, at*10-11 (D. Haw. Feb. 10, 2009) (concluding that statearcheologist’s comments to his supervisor criticizing agencypractices did not constitute protected speech under Garcettibecause they fell within the requirements of his officialduties, but declining to resolve, on a motion to dismiss,whether plaintiff’s comments to another official were madepursuant to his official duties); contrast Eng, 552 F.3d at1073-74 (statements constituted protected speech becauseEng had no official duty to complain about leaks to the IRS,or to have his counsel complain about retaliatoryprosecutions against Eng); Marable v. Nitchman, 511 F.3d924, 932 (9th Cir. 2007) (engineer’s complaints about his

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state employer’s corrupt overpayment schemes “were not inany way a part of his official job duties” and thus wereprotected speech).

The Ninth Circuit’s discussion of Freitag in Marableis instructive. The Ninth Circuit explained that, in Freitag,the plaintiff correctional officer was required, as part of herofficial duties, to report inmate misconduct and to pursueappropriate discipline. Thus, her complaints to prisonadministrators that her supervisors were ignoring herreports of inmate sexual misconduct could be viewed ascomplaints that “her supervisors’ actions were preventingher from effectively doing her job,” and were directly relatedto her job duties. Marable, 511 F.3d at 932; see Freitag, 468F.3d at 544-46. The plaintiff in Marable, on the other hand,was chief engineer of a ferry, and his job in no way includedpointing out his superiors’ corrupt overpayment schemes.Marable, 511 F.3d at 932. Here, as in Freitag, plaintiff’sduties as appointed counsel required him to protect hisclients’ procedural and constitutional rights at their parolerevocation hearings, and his complaints to senior Boardofficials that deputy commissioners presiding over theirhearings were violating his clients’ rights – or, put otherwise,were attempting to prevent him “from effectively doing [his]job” – were directly related to these duties. See Marable, 511F.3d at 932; Freitag, 468 F.3d at 544-46.

Plaintiff points out that he was not paid for writingthese letters; under the fee schedule in his contract with thestate, he could only receive compensation for up to six hoursfor each case and he had already expended that time by thetime he wrote the letters. He further argues the Boardcontemplated that appointed counsel’s representation wouldterminate after the end of the hearing, and that preparing theletters went beyond the scope of what was expected of him.

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(Jacobson Rev. Decl. at 8, 10-11; Jacobson Depo. at 59-60;Def. Exh. B at 22, 30; see Objections at 18-19). Plaintiff’swillingness to spend uncompensated time to protect hisclients’ interests, while laudable, is not sufficient to redefinehis role as a private citizen speaking on matters of publicconcern, rather than as his clients’ appointed counsel.Indeed, plaintiff testified that he considered the letters partof providing superior quality representation to his clients.(Jacobson Depo. at 80-82, 97). See Maras-Roberts, 2007 U.S.Dist. LEXIS 31661, 2007 WL 1239119, at *6 (public defender,who stated in e-mail to defendant judge that when “oneencounters systemic practices that arguably are not legal andmay hurt the client, then one is obligated to challenge thosepractices. I am unable to do less,” was speaking as a publicdefender, not a private citizen, in challenging judge’sprobation practices). Plaintiff’s speech indisputably “owe[d]its existence to [his] professional responsibilities.” SeeGarcetti, 547 U.S. at 421. While plaintiff may have viewed14/

14.

See also Davis v. Cook County, 534 F.3d 650, 653 (7th Cir.2008) (concluding that although drafting letters of complaint wasnot “a core job function of a nurse,” plaintiff nurse’s memo tosuperiors that discussed patient care, advocated on behalf ofnurses and patients, and described harassment by doctorsreflected the concern of a conscientious nurse for the well-beingof her patients and was made pursuant to her job responsibilities);Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 693 (5th Cir.2007) (athletic director’s memo to school principal criticizingschool’s use of funds collected at athletic events, although notrequired by his job duties, was written pursuant to their scope andwas not protected speech); Haynes v. City of Circleville, 474 F.3d

(continued...)

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the task as a public service, Garcetti holds that “[i]t isimmaterial whether [a plaintiff] experienced some personalgratification from [his speech]; his First Amendment rightsdo not depend on his job satisfaction.” Garcetti, 547 U.S. at419; see also Maras-Roberts, 2007 U.S. Dist. LEXIS 31661,2007 WL 1239119, at *6 (plaintiff was speaking as a publicdefender even though her interest in probation infractionissue predated her public defender role); see also Posey, 546F.3d at 1124 (fact that Posey wrote letter at issue on his owntime and with his own resources was not dispositive ofwhether he wrote it pursuant to his official duties).

Plaintiff argues that, under Posey, the Court cannotdetermine as a matter of law that his letters were writtenpursuant to his duties under his contract with the Board, andthe issue should go to the jury. (Pl. Rev. Opp. at 12-13).However, the Ninth Circuit in Posey did not preclude

(...continued)357, 364 (6th Cir.), cert. denied, 552 U.S. 1009, 128 S. Ct. 538, 169L. Ed. 2d 372 (2007) (police dog trainer’s memo complaining thatproposed reduction in dog-training hours would endanger publicsafety, although not part of his job description, occurred as part ofcarrying out his professional responsibilities of training policedogs and thus was made pursuant to his official duties); Green v.Bd. of County Comm’rs, 472 F.3d 794, 800-01 (10th Cir. 2007)(county juvenile justice center employee who voiced concerns tosupervisors and county officials about the center’s lack of aconfirmation policy for drug screening tests “was notcommunicating with newspapers or her legislators or performingsome similar activity afforded citizens; rather, even if notexplicitly required as part of her day-to-day job responsibilities,her activities stemmed from and were the type of activities thatshe was paid to do”).

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deciding the issue on summary judgment when there is nodispute of material fact regarding the scope of the plaintiff’sduties, as there was in Posey. In that case, Posey wrote aletter to school district officials expressing concerns aboutsecurity at the school where he was employed. Posey, 546F.3d at 1125. The parties agreed that he wrote the letter athome, on his own time, and with his own resources, butdisputed whether he wrote the letter as part of his officialemployment responsibilities. Id. at 1124. Posey was initiallyhired as a parking lot attendant, but during the next nineyears his job title changed periodically, eventually to“security specialist” responsible for preventing andresponding to student misconduct. Id. at 1123-24. At somepoint his job responsibilities were limited to assisting withsecurity and crime prevention and supervising the schoolbuildings, grounds and parking lot. Id. at 1125. Significantly,the parties’ characterizations of Posey’s responsibilitiesduring the pertinent times changed over the course of thelitigation. Posey, 546 F.3d at 1125. The Ninth Circuit heldthat there was a genuine issue of fact as to the scope ofPosey’s job responsibilities and, therefore, the issue ofwhether they encompassed the writing of the letter shouldgo to the jury. Id. at 1129.

Here, unlike Posey, there is no factual disputeregarding the scope of plaintiff’s duties and whether theyencompassed the speech that allegedly triggered histermination. See Posey, 546 F.3d at 1131. Under his contract,it was plaintiff’s duty to represent parolees in connectionwith their parole revocation hearings. Plaintiff’s letters toBoard officials challenging procedural irregularities andconstitutional violations at parole hearings during which herepresented parolees as their appointed counsel, and seekingreview of unfavorable dispositions, were clearly within the

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scope of his representation. No rational jury would find thatplaintiff’s speech was made outside the scope of his duties ascounsel for his parolee clients. See Matsushita Elec. Indus.Co., 475 U.S. at 587; see Maras-Roberts, 2007 U.S. Dist.LEXIS 31661, 2007 WL 1239119, at *5 (even though precisescope of public defender’s job duties was a question of fact,no reasonable jury could find that her speech was not utteredwithin the scope of her duties). Thus, the Court finds thatthere is no issue of material fact with respect to theprotected status of the speech to submit to the jury.

Except for his March 3, 2003 letter to Washington,plaintiff has failed to raise a triable issue of material factregarding an essential element of his retaliation claim,namely, the protected status of the speech that triggered theallegedly retaliatory termination. Defendants, therefore,15/

15.

Defendants discuss two other letters from plaintiff toWashington, one dated June 15, 1999, and one dated April 29,2002. (Def. Motion at 15; Def. Exhs. O, P). Plaintiff's June 15, 1999letter addresses his concern about not having received paroleeassignments for six weeks, and his April 29, 2002 letter requestsreview of a deputy commissioner's decision to postpone arevocation hearing and to extend parole. (Def. Exhs. O, P).

Plaintiff does not contend that these two letters were amotivating factor in his termination from the attorneyappointment list. Moreover, in regards to the June 15, 1999 letter,plaintiff declares that he only began to engage in the speech givingrise to the alleged retaliation “[b]eginning in or about the year2001,” and, in fact, objects to the defendants' discussion of eventsduring 1999. (Jacobson Rev. Decl. at 14). The June 15, 1999 letterpredates that period. In any event, it discusses only plaintiff'sfailure to receive parolee assignments and does not discuss

(continued...)

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are entitled to summary judgment on this portion of ClaimTwelve.C. There is No Triable Issue As to Retaliatory

Motivation with Respect to Plaintiff’s March 3,2003 Letter to WashingtonBecause the Court has concluded that there is a

triable issue of material fact as to whether plaintiff’s March3, 2003 letter to Washington constitutes protected speech,the Court must proceed to the next step of the analysis anddetermine whether there is evidence that the letter was a“substantial or motivating factor” for the adverse actionagainst him. Eng, 552 F.3d at 1071; see Mt. Healthy, 429 U.S.at 287; Coszalter, 320 F.3d at 977; Keyser v. Sacramento CityUnified Sch. Dist., 265 F.3d 741, 751 (9th Cir. 2001). Neitherparty disputes the existence of adverse action; plainly,plaintiff’s removal from the attorney appointment listqualifies as an adverse action. The parties strongly disagree,however, as to whether plaintiff, as the party with the burdenof proof on this issue, has adduced evidence of retaliatorymotivation.

Defendants have met their initial burden underCelotex of identifying portions of the record thatdemonstrate no genuine issue of material fact exists,referencing defendant Speed’s declaration that he made the

(...continued)matters of public concern.

As for the April 29, 2002 letter, it plainly arose out ofplaintiff’s representation of parolee Aulavance Tillman at his April17, 2002 revocation hearing and was written pursuant to plaintiff’sduties as Tillman’s appointed counsel. (Def. Exh. P). For thereasons discussed above, it does not constitute protected speech.See Garcetti, 547 U.S. at 421.

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decision to remove plaintiff from the attorney appointmentlist based on plaintiff’s “history of missing hearings, beinglate to hearings, and being unprepared for hearings,” and theincident with defendant Murria. Speed also stated that he hadnever received any information that plaintiff was overzealousin his representation of parolees or critical of the Californiaparole revocation system. (Speed Decl. ¶¶ 3, 4). The burdenthen shifts to plaintiff to come forth with evidence ofretaliatory motivation. Celotex, 477 U.S. at 322.

Mere evidence that defendants knew of plaintiff’sprotected speech is not sufficient to show retaliatorymotivation. Keyser, 265 F.3d at 751 (mere evidence thatdefendant knew of plaintiffs’ charges did not create a triableissue as to whether his decision to reassign them wasmotivated by the charges); see also Umbehr, 518 U.S. at 685(“Umbehr must show that the termination of his contract wasmotivated by his speech on a matter of public concern, aninitial showing that requires him to prove more than themere fact that he criticized the Board members before theyterminated him.”). To create a genuine issue of material factwhen the defendant knew of the protected speech but thereis no direct evidence of retaliatory motive, the plaintiff mustproduce circumstantial evidence from which retaliatorymotivation can be inferred, such as proximity in timebetween the protected speech and the alleged retaliation, orthe employer’s expressed opposition to the speech, orevidence showing that the employer’s proffered explanationswere false and pretextual. Ulrich v. City and County of SanFrancisco, 308 F.3d 968, 980 (9th Cir. 2002); Allen v. Iranon,283 F.3d 1070, 1077 (9th Cir. 2002); Keyser, 265 F.3d at 751-52.

However, in this case there is no evidence that any ofthe defendants knew of the March 3, 2003 letter to

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Washington. Plaintiff’s March 3, 2003 letter was addressed toWashington and was not copied to any of the defendants. Thedecision to remove plaintiff from the attorney appointmentlist was made by defendant Speed. (Speed Decl. ¶¶ 3, 4;Cater Decl. ¶ 4). Plaintiff identifies no evidence that Speedhad read or was aware of plaintiff’s March 3, 2003 letter toWashington. (See Jacobson Rev. Decl. at 42-68). There is noevidence that Speed’s decision to remove plaintiff from thelist was in any way connected to plaintiff’s criticisms of thedeputy commissioners who presided over Watson’s parolerevocation hearings, or plaintiff’s representation of Watson.Indeed, Speed testified at his deposition that letters fromparolees and their counsel criticizing the deputycommissioners who presided over their revocation hearingswere “fairly commonplace.” (Transcript of Deposition ofMarvin Speed [“Speed Depo.”] at 89-90).

Nor does plaintiff produce any evidence that the otherdefendants were aware of, or influenced by, plaintiff’s March3, 2003 letter to Washington or its subject matter. Instead,16/

plaintiff engages in rank speculation about defendantWadkins’ involvement: he asserts that Wadkins decided tobring about plaintiff’s removal from the attorney appointmentlist as soon as he succeeded to Washington’s position as the

16.

At his deposition, Washington testified that from time totime he forwarded detailed attorney complaint letters to BoardCounsel Moeller. (Deposition Excerpts of Richard Washington, Jr.at 23-24). He characterized the March 3, 2003 letter as a detailedletter, and agreed with plaintiff that it was the type of letter thathe “might have” sent to the Board Counsel. (Id. at 25). However,this does not constitute evidence from which it could be inferredthat the defendants were aware of the letter.

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Acting Chief Deputy Commissioner for the Los AngelesRegion and was in a position to do so, and that “it is likely”that plaintiff’s private representation of Watson “solidifiedWadkins’ determination to purge [plaintiff] from the attorneyappointment list at the earliest opportunity.” (Jacobson 17/

17.

In his Objections, plaintiff attempts to show a causal linkbetween the March 3, 2003 letter and defendant Wadkins.(Objections at 22-24). As discussed, plaintiff's March 3, 2003 letterto Washington criticized the deputy commissioners who presidedover the December 27, 2002 and February 5, 2003 revocationhearings of parolee Watson, who was privately represented byplaintiff. (Def. Exh. R). Plaintiff asserts that defendant Wadkinsmade the finding of probable cause in connection with theattempted murder and other parole violation charges againstWatson, and that Wadkins “may well have formed an animus”against plaintiff for representing Watson because the chargesagainst Watson were so egregious. (Objections at 23). On March26, 2003, plaintiff successfully defended Watson against the paroleviolation charges, and resumed representing him when Watsonwas charged with another parole violation in June 2003.(Objections at 24, Exhs. 3, 4). Sometime in May, Wadkins sentPerez’s memorandum regarding the Murria incident to paroleofficials in Sacramento. (Objections at 24; Deposition Excerpts ofThomas Wadkins. at 21-23). On July 1, 2003, plaintiff wrote toWadkins, apprising him of his private representation of Watsonand mentioning that he had represented Watson at his lasthearing, which had resulted in the dismissal of “a dubiouslybrought serious charge.”. (Objections, Exh. 4). On August 28,2003, Wadkins notified plaintiff that he was being considered forremoval from the attorney appointment list as a result of missing“second serve” appointments; he subsequently recommended todefendant Cater that plaintiff be suspended from the list. (Wadkins

(continued...)

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Rev. Decl. at 48, 49). This is not evidence. “A plaintiff’s beliefthat a defendant acted from an unlawful motive, withoutevidence supporting that belief, is no more than speculationor unfounded accusation about whether the defendant reallydid act from an unlawful motive.” Carmen v. San FranciscoUnified Sch. Dist., 237 F.3d 1026, 1027 (9th Cir. 2001).

It goes without saying that an employer cannot haveretaliated against an employee for his protected speech if itwas not aware of the speech. See Allen, 283 F.3d at 1076(citing Keyser, 265 F.3d at 750-51). Plaintiff has adduced noevidence whatsoever that his statements in his March 3,2003 letter constituted a substantial or motivating factor forhis termination. See Mt. Healthy, 429 U.S. at 287. Thus,plaintiff has not raised a triable issue as to this element of hisclaim. See Celotex Corp., 477 U.S. at 322.

D. ConclusionIn summary, plaintiff’s July 14, 2003 letter to

defendant Speed and September 2, 2003 letter to defendant

(...continued)Decl. ¶ 6, Exhs. A, B). Plaintiff contends that this constitutessufficient circumstantial evidence that Wadkins took these actionsto retaliate against plaintiff for his zealous defense of Watson'sconstitutional rights. (Objections at 25).

All this shows, however, is that defendant Wadkins knew,at least by July 1, 2003, that plaintiff had represented Watson andhad succeeded in obtaining dismissal of the parole violationcharges against him. Missing from this scenario, however, is anyevidence from which it could be inferred that defendant Wadkinsengineered plaintiff’s removal from the attorney appointment listin retaliation for plaintiff’s successful defense of Watson, orplaintiff’s criticisms of the deputy commissioners presiding overWatson’s hearings.

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Wadkins are not, as a matter of law, protected speech underthe First Amendment because they do not address mattersof public concern. With the exception of plaintiff’s March 3,2003 letter to Washington, the undisputed evidence showsthat the other speech that plaintiff contends was protectedspeech was made pursuant to his duties as appointedcounsel. Thus, except for the March 3, 2003 letter, the Courtneed not determine whether plaintiff has adduced evidencethat his speech constituted a substantial or motivating factorfor his termination. Because the speech was not protectedunder the First Amendment, defendants are entitled tosummary judgment regardless of retaliatory motivation.18/

18.

Nevertheless, the Court notes that in all of plaintiff’svoluminous filings there is not a shred of evidence tying defendantMurria, a parole agent, to the decision to terminate plaintiff fromthe attorney appointment list. Plaintiff’s theory in the ThirdAmended Complaint was that defendant Murria fabricated thecharge that he placed his hand on her shoulder, causing him tosuffer a temporary suspension from the list and contributing to hiseventual termination. (Third Amended Complaint ¶¶ 113, 128 &n.42). However, defendant Murria testified that, while plaintiff didindeed place his hand on her shoulder, she never complainedabout it or pursued the matter. (Murria Depo. at 80-81). Thus,what actually happened during plaintiff’s encounter with defendantMurria is irrelevant to his retaliatory termination claim againsther. Plaintiff has come forth with no evidence showing a triableissue as to Murria’s personal involvement in his termination. SeeTaylor, 880 F.2d at 1045. According to the undisputed evidence,she had none.

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With respect to plaintiff’s March 3, 2003 letter,plaintiff has not presented credible evidence of a retaliatorymotive or shown that a triable issue of material fact exists asto this element. Accordingly, defendants’ Motion for19/

Summary Judgment as to Claim Twelve should be grantedand plaintiff's cross-motion should be denied.II. THE COURT SHOULD NOT EXERCISE

SUPPLEMENTAL JURISDICTION OVERPLAINTIFF’S PENDENT STATE CLAIMSClaims Thirteen and Eighteen are pendent state

claims arising under state law. The doctrine of supplementaljurisdiction permits the Court to exercise jurisdiction over“other claims” in the same case or controversy as a claimwithin the district court's original jurisdiction. See 28 U.S.C.§ 1367(a). Title 28, United States Code, Section 1367(c)(3),however, allows the district court to decline to exercisesupplemental jurisdiction over pendent state claims if it hasdismissed all claims over which it has original jurisdiction.See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L. Ed. 2d 218 (1966) (if no viable federal claimsexist, federal court may decline to exercise supplementaljurisdiction over pendent state claims); Voigt v. Savell, 70F.3d 1552, 1565 (9th Cir. 1995); 28 U.S.C. § 1367(c)(3). Inlight of the Court’s conclusion that defendants are entitled tosummary judgment on plaintiff's remaining federal claim, theCourt recommends that the district court decline to exercise

19.

Thus, the burden of proof has not shifted to defendants toshow that they would have terminated plaintiff even in theabsence of his speech, and the Court does not reach plaintiff’sarguments that defendants have not met this burden.

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supplemental jurisdiction over plaintiff's state law claims.

RECOMMENDATIONTHE COURT, THEREFORE, RECOMMENDS that

the district court issue an Order: (1) accepting and adoptingthis Amended Report and Recommendation; (2) grantingdefendants' Motion for Summary Judgment pursuant to Fed.R. Civ. P. 56; (3) denying plaintiff's Motion for SummaryJudgment pursuant to Fed. R. Civ. P. 56; and (4) directingthat judgment be entered dismissing this action, withprejudice as to Claim Twelve and without prejudice as toClaims Thirteen and Eighteen.

DATED: June 24, 2009 /s/ - Jennifer T. Lum

JENNIFER T. LUMUNITED STATESMAGISTRATE JUDGE

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Case 2:04-cv-03629-JFW-JTL Document 229 Filed 06/24/2009 Page 44 of 45

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

ERIC C. JACOBSON, on behalf of himself and his clienteleof California Parolees, one or more of whom may be joinedafter exhausting their administrative remedies and ERIC

JOHNSON, a past and imminent parolee,Plaintiffs -Appellants,

v.

ARNOLD SCHWARZENEGGER, Governor of California, in his individual

capacity; et al.,

Case No. 04-3629-JFW(JTL)

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PROPOSED ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF

STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. Section 636, the Court hasreviewed the Third Amended Complaint, all the records andfiles herein, and the Amended Report and Recommendationof the United States Magistrate Judge. The Court concurswith and adopts the findings, conclusions andrecommendations of the Magistrate Judge.

IT IS ORDERED that: (1) defendants’ Motion forSummary Judgment pursuant to Federal Rules of CivilProcedure 56 is granted; (2) plaintiff's Motion for SummaryJudgment pursuant to Federal Rules of Civil Procedure 56 isdenied; and (3) judgment shall be entered dismissing thisaction with prejudice as to Claim Twelve and withoutprejudice as to Claims Thirteen and Eighteen.

DATED: JOHN F. WALTER UNITED STATES DISTRICTJUDGE

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Case 2:04-cv-03629-JFW-JTL Document 229 Filed 06/24/2009 Page 45 of 45

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

ERIC C. JACOBSON, on behalf of himself and his clienteleof California Parolees, one or more of whom may be joinedafter exhausting their administrative remedies and ERIC

JOHNSON, a past and imminent parolee,Plaintiffs -Appellants,

v.

ARNOLD SCHWARZENEGGER, Governor of California, in his individual

capacity; et al.,

Case No. 04-3629-JFW(JTL)

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PROPOSED JUDGMENT

In accordance with the Amended Report andRecommendation of the United States Magistrate Judge filedconcurrently herewith.

IT IS HEREBY ADJUDGED that this action ifdismissed with prejudice as to Claim Twelve and withoutprejudice as to Claims Thirteen and Eighteen.

DATED: JOHN F. WALTER UNITED STATES DISTRICTJUDGE

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Case 2:04-cv-03629-JFW-JTL Document 230 Filed 06/24/2009 Page 1 of 1

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

ERIC C. JACOBSON, on behalf of himself and his clienteleof California Parolees, one or more of whom may be joinedafter exhausting their administrative remedies and ERIC

JOHNSON, a past and imminent parolee,Plaintiffs -Appellants,

v.

ARNOLD SCHWARZENEGGER, Governor of California, in his individual

capacity; et al.,

Case No. 04-3629-JFW(JTL)

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NOTICE OF FILING OF MAGISTRATE JUDGE’SAMENDED REPORT AND RECOMMENDATION

AND THE LODGING OF PROPOSED JUDGMENTAND/OR ORDER

TO: All Parties of Record:

You are hereby notified that the Magistrate Judge’samended report and recommendation has been filed and aproposed judgment and/or order has been lodged on June24, 2009, copies of which are attached.

Any party having objections to the report andrecommendation and the proposed judgment and/or ordershall, not later than July 14, 2009, file and serve a writtenstatement of objections with points and authorities in supportthereof before the Honorable JENNIFER T. LUM, U.S.Magistrate Judge.

Failure to so object within the time limit specifiedshall be deemed a consent to any proposed findings of fact.Upon receipt of objections, or upon lapse of the time for filingobjections, the case will be submitted to the District Judgefor disposition. Following entry of judgment and/or order, allmotions or other matters in the case will be considered anddetermined by the District Judge.

The report and recommendation of a MagistrateJudge is not a final appealable order. A notice of appealpursuant to Federal Rules of Appellate Procedure 4(a)(1)should not be filed until entry of a judgment and/or order by

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the District Judge.

CLERK, UNITED STATES DISTRICT COURT

Dated: June 24, 2009 By: Celia Anglon-Reed for ShaRon Anthony

Deputy Clerk

Attachments

M-51 (04/09)

NOTICE OF THE MAGISTRATE JUDGE’SREPORT AND RECOMMENDATION AND THE

LODGING OF PROPOSED JUDGMENT AND/ORORDER

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Case 2:04-cv-03629-JFW-JTL Document 233 Filed 08/25/2009 Page 1 of 1

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

ERIC C. JACOBSON, on behalf of himself and his clienteleof California Parolees, one or more of whom may be joinedafter exhausting their administrative remedies and ERIC

JOHNSON, a past and imminent parolee,Plaintiffs -Appellants,

v.

ARNOLD SCHWARZENEGGER, Governor of California, in his individual

capacity; et al.,

Case No. 04-3629-JFW(JTL)

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ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF

STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. Section 636, the Court hasreviewed the Third Amended Complaint, all the records andfiles herein, and the Amended Report and Recommendationof the United States Magistrate Judge. The Court concurswith and adopts the findings, conclusions andrecommendations of the Magistrate Judge.

IT IS ORDERED that: (1) defendants’ Motion forSummary Judgment pursuant to Federal Rules of CivilProcedure 56 is granted; (2) plaintiff's Motion for SummaryJudgment pursuant to Federal Rules of Civil Procedure 56 isdenied; and (3) judgment shall be entered dismissing thisaction with prejudice as to Claim Twelve and withoutprejudice as to Claims Thirteen and Eighteen.

DATED: 8/21/09 /s/ John F. Walter JOHN F. WALTER UNITED STATES DISTRICTJUDGE

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Case 2:04-cv-03629-JFW-JTL Document 234 Filed 08/21/2009 Page 1 of 1

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

ERIC C. JACOBSON, on behalf of himself and his clienteleof California Parolees, one or more of whom may be joinedafter exhausting their administrative remedies and ERIC

JOHNSON, a past and imminent parolee,Plaintiffs -Appellants,

v.

ARNOLD SCHWARZENEGGER, Governor of California, in his individual

capacity; et al.,

Case No. 04-3629-JFW(JTL)

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JUDGMENT

In accordance with the Amended Report andRecommendation of the United States Magistrate Judge filedconcurrently herewith.

IT IS HEREBY ADJUDGED that this action ifdismissed with prejudice as to Claim Twelve and withoutprejudice as to Claims Thirteen and Eighteen.

DATED: 8/21/09 /s/ John F. Walter JOHN F. WALTER UNITED STATES DISTRICTJUDGE

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APPENDIX C Notice of Appeal to the United States Court of

Appeal for the Ninth Circuit

1. Notice of Appeal of the Magistrate and DistrictCourt’s 2009 MSJ Ruling, dated 9/20/2009; Doc.235.

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Case 2:04-cv-03629-JFW-JTL Document 235 Filed 09/20/2009 Page 1 of 22

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

ERIC C. JACOBSON, on behalf of himself and his clienteleof California Parolees, one or more of whom may be joinedafter exhausting their administrative remedies and ERIC

JOHNSON, a past and imminent parolee,Plaintiffs -Appellants,

v.

ARNOLD SCHWARZENEGGER, Governor of California, in his individual

capacity; et al.,

Case No. 04-3629-JFW(JTL)

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NOTICE OF APPEAL TO THE UNITED STATESCOURT OF APPEALS FOR THE NINTH CIRCUIT

OF THE DISTRICT COURT’S GRANT OFDEFENDANTS’ MOTION FOR SUMMARY

JUDGMENT AND ALL PRECEDING ADVERSERULINGS.

District Judge:Hon. John F. Walter

Magistrate Judges:Hon. Jennifer T. Lum (2005 - 2009)

Hon. James W. McMahon (2004 - 2005)

Plaintiffs: • Eric Jacobson, Esq., a state-appointed attorney for

parolees unlawfully purged in retaliation for exerciseof his First Amendment rights to criticize and protestDefendants’ unconstitutional procedures andextralegal practices toward his parolee clientele (onbehalf of himself only); and

• Eric Johnson, a current parolee and aspiringrepresentative class plaintiff, & Eric Jacobson, Esq.(each on behalf of all California parolees subjected tounconstitutional procedures and extralegal practicesbeyond the scope of a predecessor class action caseentitled Valdivia v. Schwarzenegger, Civ.S-94-0671LKK/GGH ; 206 F. Supp.2d 1068 (E.D.Cal.2002)(“Valdivia”)),

respectively, hereby appeal to the United States Court ofAppeals for the Ninth Circuit from the District Court’s

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approval of the Magistrate Court’s (unconsented hearing of)and recommendation granting Defendants’ motion forsummary judgment in Jacobson v. Schwarzenegger, Case No.04-3629-JFW(JTL) (Central Dist. Cal.). Plaintiff furtherappeals from all adverse rulings, findings and/ordeterminations in Jacobson v. Schwarzenegger that preceded,supported and/or informed or surrounded said Jacobsonsummary judgment ruling as further detailed below,including but not in any way limited to the MagistrateCourt’s 1/16/2007 recommendation therein that the Jacobsoncase be sub-divided into two, whereby the parolee rights andclass action dimensions of Jacobson were made to proceedseparately under a new name and new case number, Johnsonv. Schwarzenegger, Case No. CV 07-6176-JFW(JTLx) , and1/

the District Court’s approval thereof. As further detailed2/

1.

Johnson v. Schwarzenegger – plainly a related case toJacobson – is already on appeal to the Ninth Circuit, Docket No.08-55481.

2.

Both the 04-3629-JFW(JTL) Jacobson v. Schwarzeneggercase and the 07-6176 Johnson v. Schwarzenegger case, share thesame operative complaint, entitled:

“THIRD AMENDED CIVIL RIGHTS COMPLAINT

42 U.S.C. Sec. 1983 & Supplemental State Claims; Demand for Jury Trial

Demand for Damages for Retaliatory Termination and

(continued...)

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below, then, Plaintiffs Jacobson and Johnson’s appeal includesany and all adverse rulings, findings or determinations of theJacobson Magistrate and District courts related to:• Jacobson’s employment rights; and • Jacobson’s parolee clientele’s rights – including:

• the denial of both Jacobson’s request to assertparolees’ rights via third party standing, and

• (to the extent it is at issue in this appeal asopposed to the Ninth Circuit Docket No. 08-55481 Johnson appeal) the denial of EricJohnson’s request to assert his fellowparolees’ rights as a class actionrepresentative.

All of the aforementioned rulings in the instant Jacobson v.Schwarzenegger appeal (further detailed in part below) weremade by either or both Magistrate Judges James W.McMahon and Jennifer T. Lum, all of which were approvedby District Judge John F. Walter (Central District ofCalifornia).

Via Plaintiff Jacobson’s original May 21, 2004complaint that prophetically anticipated over five years in

(...continued)Other Wrongs Committed Against a Zealous andProfessional State Appointed Parole Revocation DefenseAttorney Whistleblower; &

Demand for Injunctive Relief Abolishing or ReformingCalifornia’s Unconstitutional Parole System, Via ThirdParty Standing, Joinder of Parties and/or Proposed ClassAction Certification.”

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advance (and may have catalyzed or influenced) many of thethemes and data set forth in the 2009 ruling of the August 4,2009 Three Judge Court in the prison overcrowding cases ,3/

Plaintiff Jacobson brought the instant lawsuit in 2004 for thedual purpose of:(i) obtaining redress (damages and reinstatement) from

state personnel Defendants who terminated him as anappointed counsel for alleged parole violators (on atransparent ultra-flimsy pretext ) after five years of4/

3.

See: Coleman v. Schwarzenegger, No. Civ. S-90-0520 LKKJFM P (Eastern Dist.Cal) Three Judge Court [“TJC”], Opinion&Order Doc. 3641, 8/4/2009; and Plata, et al. v. Schwarzenegger, etal., No. C01-1351 THE (Northern Dist.Cal.) TJC, Opinion&OrderDoc. 2197, 8/4/2009. Jacobson w as ove r 5 y e ars ahe ad of hist ime : Compare: TJC at pp. 132-136, 146, 148-149, 152, 158-159,170, 177 [Defendants irrational “criminogenic”, medically perilousand frequently lethal practice of “churning” of technical paroleviolators]; concluding in p. 181 [“counterproductive parolesystem”] and pp.145-146 [sec.2. Diversion of Technical ParoleViolators] with (substantially similar) Jacobson August 2005 classaction TAC paras. 21 and 26 - 32, describing, inter alia, at Part CDefendants’ “oppressive parole re vocat ion mill” (andcounterpart sections of original May 21, 2004 complaint).

4.

The naivete (or worse) of the Magistrate Judge (Lum) in(apparently) sanctioning the Defendants’ atrocious retaliatoryconduct is an absolute astonishment. The (ultra-conservative)District Judge’s appalling rubber-stamp of the Magistrate Courtless so for its results-oriented ultra-predictability. District Judge

(continued...)

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stellar service in retaliation for Jacobson’s outspokencriticisms of state personnel’s unconstitutionalprocedures and extralegal practices towards hisparolee clients, and subjected him to a precedingspurious and defamatory “investigation” andsuspension. TAC, para. 10 ; and5/

(...continued)Walter’s personal enmity and unwarranted disparagements ofJacobson’s work date back to the 2005-2009 Watson v.Schwarzenegger case. (See fn.9 and text accompanying infra.)

5.

Beginning in or about the year 2001, Jacobson repeatedlyand strenuously articulated the illegal and unconstitutionaltreatment and practices which his clients routinely endured,placed them on record during hearings, and demanded thatcognizance be taken of them by BPT deputy commissioners. Saidwhistle-blowing activity further included, inter alia, writinguncompensated complaint letters following the conclusions ofhearings (i.e., on Jacobson’s own time) to BPT supervisorypersonnel and filing administrative appeals about the misdeeds ofvarious BPT Deputy Commissioners who habitually violated thecivil and Constitutional rights of parolee clients at parolerevocation (a.k.a. Morrissey hearings). For example, Jacobson’sletter to Associate Chief Deputy Commissioner (”ACDC”)Richard Washington, Jr. complained that Deputy CommissionerWADKINS failed to perform the duties of actually deliberatingduring the course of hearings. (TAC, para. 105d). In several othersuch letters to BPT supervisory officials (as well as administrativeappeals) Jacobson firmly criticized misapplications of the law andrelated misconduct by “problem deputy commissioners” andfrequently advocated for rehabilitative dispositions during

(continued...)

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(ii) obtaining injunctive relief for Defendants’ systemicviolations of parolee rights outside the scope of thepredecessor injunctive relief case, Valdivia. In amended complaints filed in January, February and

August 2005 respectively, Jacobson added Eric Johnson (aparolee Jacobson had represented by appointment in January2002 and who had recently re-contacted Jacobson for legalrepresentation) as a co-plaintiff and aspiring parolee classrepresentative; Johnson, an African-American man in hismid-40s, who has suffered from cocaine addiction much of hisadult life, has throughout his participation in the case beeneither on parole or awaiting release to parole from a drugrelated criminal sentence.6/

(...continued)hearings and informal colloquy with deputy commissioners,eliciting reactions ranging from ridicule to overt hostility. (TAC,para. 9.) Significantly, Jacobson also scathingly criticized BPTexecutive director Marvin Speed (who later took responsibility forthe decision to terminate him) in writing for attempting to inducedocility in appointed attorneys by enabling a parole agentdissatisfied with the vigor of an appointed attorney’srepresentation (including cross-examination of a parole agent) towork a suspension of that attorney (and correspondinginterruption of his livelihood) without any procedural due processin advance of said suspension. (Defendant Cater admitted thisrights violation.)

6.

Jacobson added Eric Johnson as an aspiring representativeclass plaintiff in the First Amended Complaint in Jacobson v.Schwarzenegger filed on January 31, 2005 in response to

(continued...)

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In their multi-faceted August 2005 Third AmendedComplaint (“TAC”), co-plaintiffs Jacobson and Johnsonalleged, inter alia, that personnel of the Board of PrisonTerms (“BPT”), other California corrections personnel andsenior state official defendants have for years been openlyand notoriously running a special interest driven, nationallyaberrant high volume “parole revocation mill” operationresponsible for the incarceration of 70,000 parolees annuallyon a “revolving door” basis solely for alleged paroleviolations, approximately half of which re-imprisonments areeither legally unmerited or unnecessary from any rationalpolicy standpoint. TAC, paras. 27-28. 7/

(...continued)Defendants’ opposition to Jacobson’s effort to represent theinterests of his former parolee clients via the doctrine of third-party standing. The First, Second and Third Amended Complaintsmade clear however that Jacobson’s parole e c lie nt and co-plaint iff Eric Johnson sought c lass re pre se ntat ive status INADDITION TO – not in lie u of – Jacobson’s cont inue d que stfor third part y standing t o re pre se nt the inte re st s of allCalifornia parole e s .

7.

Elimination of the re-imprisonment of this half of the70,000 parolees annually unlawfully returned to custody solely forparole violations would (not coincidentally), in turn, le sse n prisonovercrowding in California by almost e xac t ly the numbe r ofinmate s re quire d by the Thre e Judge Court (see citation toColeman and Plata TJC rulings at fn. 3 supra); and correspondinglyenable and hasten the overhaul of California’s shameful, decrepit,unconstitutional medical system and dysfunctional, unlawful and

(continued...)

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In (blunt) sum, then, the Jacobson/Johnson TACalleged, in effect, that the Defendants’ special interest-drivenharsh and abusive administrative machinery of parolerevocation (TAC para. 112) derives from and comprises, anends-means conspiracy (a`la the one involved in Washingtonv. Lee, 263 F. Supp. 327, 331–332 [MD Ala.1966], affirmed390 U.S. 334), along the following lines:• The Defendants’ “e nds” are “ever-increasing the

employment opportunities, remuneration, perquisitesand power of their brethren union members” byfo st e ring , e nc ourag ing and fraudule nt lyinst igat ing re c idivism (parole revocation andmultiple-termers) (TAC, para. 28, lines 19 - 20).

• The v iolat ions of parole e rights comprise the“me ans to the se e nds”. These parolee rightsviolations are currently being sued upon: • by the class plaintiffs seeking injunctive relief

in Valdivia; and by aspiring class plaintiff

(...continued)peculiar (antebellum) penal culture, one which, inter alia, untilrecently officially validated classifications based on race. Seegenerally, Johnson v. California, 543 U.S. 499, 515 (2005) [norelation or connection to Eric Johnson] and state personnel’s(typical and predictable) four year long (and counting) defiancethereof. See, e.g., “Calif. struggles to desegregate its prisoninmates” by Don Thompson, AP 8/11/2009 [http://www3.signonsandiego.com/stories/2009/aug/11/us-california-prisons-race-081109/] Defendants’ illegal human trafficking operation forparolees is an entirely new phenomenon in modern Americanhistory (one reminiscent of the Black Codes) (TAC paras. 101 - 102).

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parolee Eric Johnson seeking injunctive relief(beyond the scope of Valdivia) in the severed07-6176-JFW(JTLx) District Court and NinthCircuit 08-55481 Johnson case; and

• by aspiring class plaintiffs AndranikKarabajakyan and Gary Beltran, and RickyPickett, respectively, in two cases seekingdamages relief for past and ongoing rightsviolations . (The first such aspiring parolee8/

rights class action for damages, Watson v.Schwarzenegger, Ninth Circuit Docket Nos. 06-55673 & 06-56371; District Court Case No.05-0192JFW(CTx) (Central District, Cal.)recently concluded [unsuccessfully forplaintiff] in the Ninth Circuit. )9/

8.

Karabajakyan v. Schwarzenegger, Ninth Circuit Docket No.07-55859 (now merged with Docket No. 07-56042), DC Case No.06-0541OTW(SSx) (Cent. Dist.Cal.); and Pickett v. Schwarzenegger,CV 08-3955-DDP(Ex) (Cent. Dist. Cal.)

9.

Jacobson is currently evaluating the feasibility of seekingU.S. Supreme Court review of the (bitterly disappointing) 914word Watson Memorandum ruling (entirely non-responsive to36,000 words of cumulative briefing) giving no shrift whatsoeverto ANY of the myriad socially and legally consequential issuesJacobson painstakingly framed for the appeals court’sconsideration over a 6 year period, via a writ of certiorari. (If thecurrent appeals panel similarly foresees any significant possibilityof giving the instant appeal similar non-shrift, Jacobson

(continued...)

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The Orders from which Plaintiffs Jacobson andJohnson appeal herein particularly include but are not in anyway limited to:• Magistrate Judge McMahon’s dismissal of the original

May 21, 2004 Complaint on the grounds of non-compliance with FRCP 8 via a cantankerous rulingthat impugned, derided and disrespected without anywarrant whatsoever Jacobson’s objectivity,competency and legal acumen in a published opinion(Jacobson v. Schwarzenegger, 357 F. Supp. 2d 1198,1216 (C.D. Cal. 2004) [Jacobson I”]);

• Magistrate Judge McMahon’s similarly unwarrantedand gratuitously scornful dismissal of the FirstAmended Complaint on the grounds of non-compliance with FRCP 8 (Jacobson v. Schwarzenegger,

(...continued)respectfully asks for the court to give him some sort of pre-briefing notice to this effect, so Jacobson can appropriatelyregulate the level of time and attention to give the briefingprocess. (Jacobson isn’t working “for his health”.) The Watsonappeals’ panel effectively wasted 1-2 years [net] of Jacobson’s life– not because they ruled against Mr. Watson [Jacobson of courserecognized this possibility all along] – but because their rulingcontained no analy sis w hatsoe ve r and gave no indication at allof being a reasoned, legitimate adjudication. This is somethingthat blind-side d and stunne d Jacobson, who had hithertoregarded such an act of [evident] arbitrary judicial nullification ofhis client’s appeal-as-of-right by this honorable appeals’ court asan impossibility.)

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226 F.R.D. 395 (C.D.Cal. 2005) [“Jacobson II”]) ;10/

10.

Said erroneous rulings were partially mooted by successorMagistrate Judge Lum’s denial of Defendants’ motion to dismissthe TAC on FRCP Rule 8 grounds (see Case Doc. No. 541/16/2007), but Jacobson seeks the appeals’ court vindication ofhis reputation as to the FRCP 8-compliant nature of the originaland FAC due to the permanent, published nature of JudgeMcMahon’s scathingly negative opinions. As history has alreadyjudged (insofar as the Three Judge Court’s rulings were and arean indelible “legal shot heard round the world”), there wasNOTHING WHATSOEVER AMISS about either Jacobson’soriginal or FAC from a Rule 8 standpoint, particularly in light ofthe Supreme Court’s newly enunciated doctrine in Ashcroft v.Iqbal, 07-1015 (U.S. 5-18-2009) 129 S.Ct. 1937 [LOISLAW]requiring the non-conclusory pleading of substantial supportingfacts in complaints making socially controversial allegationsagainst high governmental officials – facts that enable a reasonablejurist to reach a conclusion that the complaint plausibly implicatesall the named Defendants in actionable wrongdoing. This isEXACTLY what Jacobson’s original and FAC did. Yet JudgeMcMahon derided such “chapter and verse” in the originalcomplaint as so much inconsequential journalistic drivel,speciously characterizing the densely substantiated complaints asa mere “magazine article” (as if he had never heard of a highlyfact-checked New Yorker article e.g.).

ON THE CONTRARY, beginning with the whistle-blower actions for which Jacobson was terminated, the state claimassociated therewith, as well as via Jacobson’s extensivecorrespondence with: the U.S. Justice Department Civil RightsDivision, and state legislator Gloria Romero (both reproduced inJacobson TAC Exhibit F; and see the DOJ’s reply at TAC Exhibit

(continued...)

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• Magistrate Judge McMahon’s January 2006 Orderdirecting Plaintiffs to show cause why the courtshould not foreclose the 04-3629-JFW case fromproceeding as a class action due to Johnson andJacobson’s violation of Local Rule 23-3’s 90 day rule

(...continued)H), as well as the California Inspector General, and via the initialand amended complaints herein and evidence subsequentlyadduced in support thereof, it is fair to say that Jacobson has donemore (within governmental channels) than any other attorney inCalifornia to alert governmental authorities to the disturbingmilieu of pervasive unconstitutional state action perpetrated fordecades by state personnel surrounding parole revocation.

Jacobson deserved credit and kudos (not thedisparagement and denigration meted out by Judge McMahon inJacobson I and II) for recognizing – long before the ostensiblereformist regime embodied in the Stipulated Order in Valdivia v.Schwarzenegger, Civ.S-94-0671 LKK/GGH; 206 F. Supp.2d 1068(E.D.Cal.2002) (“Valdivia”) (predictably) bogged down in (super-expensive) litigious acrimony – that the injunction therein couldat most succeed in making the Valdivia Defendants’ parolerevocation mill more efficient, and was, by its terms, incapable ofstemming the volume of parole revocation because it did notencompass the root causes of the problem: mainly the frequencywith which parolees were arrested and held without bail without:reasonable suspicion, or determination of whether they meet thecriteria set forth in 15 CCR, sec. 2601(a) [danger to: self or personor property of others; absconder risk; or likely to commit crimedue to deteriorated mental condition]; and the non-neutral, non-detached and unqualified character of the parole board DeputyCommissioner personnel who adjudicate parole revocation (akaMorrissey) hearings.

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(requiring the filing of a class certification motion 90days following service of a complaint purporting toinitiate a class action); and District Judge Walter’s (farsubsequent) ruling thereon that Plaintiff Johnson wasso foreclosed (following severance of the Johnsoncase from the Jacobson case) ;11/

• Magistrate Judge McMahon’s January 2006 Order(sua sponte) directing Plaintiffs to file a special briefregarding Jacobson’s entitlement (or not) to thirdparty standing under the standards set forth in theU.S. Supreme Court case of Kowalski v. Tesmer; andthe Magistrate and District courts’: denial to Jacobsonof third party standing to assert the First - EleventhClaims in the Jacobson TAC for violations of therights of his past and future parolee clients; andrelated finding that the circumstances herein did notbring the Jacobson case within exceptions to thegeneral rule that a party “must assert his own legalrights and interests, and cannot rest his claim to reliefon the legal rights or interests of third parties” citingKowalski v. Tesmer, 543 U.S. 125 (2004) quotingWarth v. Seldin, 422 U.S. 490, 499 (1975);

• all of the findings of fact in Magistrate Judge Lum’s

11.

Jacobson includes Judge Walter’s ruling on McMahon’sOSC in the instant Notice of Appeal (in addition to the Notice ofAppeal in the related Johnson case, where the issue has alreadybeen briefed in Johnson’s pending AOB) in an abundance ofcaution. It is entered as a ruling in the Jacobson case document lognotwithstanding its occurrence after the formal severance ofJohnson from Jacobson.

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January 17, 2007 report and recommendation towhich Jacobson timely objected [Document No. 55]following the issuance of Judge Lum’s comprehensiveruling;

• Magistrate Judge Lum’s recommended ruling (andthe District Judge Walter’s acceptance of same)12/

severing the case’s (non-dismissed) parolee rightsclaims (1,4,5,8&9) from the retaliatory terminationclaims, and the courts’ related conclusion that theJohnson and Jacobson did not meet the requirementsof either compulsory or permissive joinder of theirclaims;

• the Magistrate and District courts’ erroneousdismissal of the following parolee rights claims forrelief in the Jacobson TAC without leave to amend inresponse to Defendants’ motion to dismiss the TAC:a. Plaint iffs’ Se cond c laim that depriving

parolees of rehabilitative services in thecommunity, corruptly siphoning of funds forrehabilitation into the hands of state personneland subcontractors (grifters posing aslegitimate “community organizations”);eschewing rehabilitative best practices whilerailroading parolees in and out of prisonmultiple times throughout their 3-4 paroletenure; inverting the once benignrehabilitative mission of parole (described in

12.

Supra and infra Plaintiff Jacobson refers to suchrecommendation and acceptance actions in the shorthand phrase“the Magistrate and District courts’ ...”

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Gagnon v. Scarpelli, 411 U.S. 778, at pp. 784-85) “180 degrees” by operating a “formal orinformal quota system” favoring therevocation of a “set number of parolees permonth”; incentivizing parole agents to“promote the deterioration of parolees’personal plights and maladjustment tocommunity living; revoking parole “withoutany cause whatsoever or on the flimsiest ofpretexts without any relation whatsoever topublic safety concerns”; all of which has adetrimental effect on public safety, fails the“rational basis” test, “shocks the conscience”and violates parolees’ Substantive DueProcess rights. TAC, paras. 71 - 75 and 163.

b. Plaint iffs’ Third c laim that Defendants’parole revocation pattern and practice violatesthe Equal Protection rights of parolees bytreating identically three very differentlysituated groups of persons (per Cornell v.Hamilton, 80 F. Supp. 2d 1101 (S.D. Cal.1999); (i) adjudicated parole violators andfelons serving their principal sentences, all ofwhom are placed in punitive prison facilities;(ii) felons concluding determinate sentenceswho do not objectively merit parolesupervision (such as those convicted of non-violent victimless crimes) and felonsobjectively meriting parole supervision, all ofwhom are place on parole; and (iii) physicallyaddicted parolees (such as Plaintiff Johnson)and (very differently situated) non-physically

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addicted parolees.13/

c. Plaint iffs’ Six th and Se ve nth Claims. TheMagistrate and District courts also dismissedcertain claims for relief Plaintiffs broughtbased on the factual premise set forth in theTAC that due to Defendants’ wholesaledeparture from the rehabilitative ethos ofparole in favor of unusually frequent andusually unmerited re-imprisonment“California’s aberrant and voluminous parolesystem comprises a parallel informal criminaljustice system for felons residing in thecommunity, compelling state correctionsofficials to accord alleged parole violatorsrights closely approximating those accordedcriminal defendants during revocationproceedings in order to retain fidelity withparolees’ federal constitutional rights.” TAC,section F, paras. 92 - 95. Plaintiffs specificallyasserted in their Sixth claim for relief that theright to a public trial should apply to parolerevocation hearings; and asserted in theirSeventh claim that Defendants should becompelled to accord parolee facing revocationof his or her parole for six months or longer a

13.

Jacobson/Johnson also contend that the courts erroneouslyrejected their claim that it “offend[s] substantive due process toincarcerate a parolee for acts in the service of an addiction.” TAC80(a), per Robinson v. California, 370 U.S. 660 (1962).

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jury trial (or some appropriately modifiedversion thereof). In Plaintiffs’ opposition toDefendants motions to dismiss Plaintiffsargued that the court should compel either areturn to the rehabilitative ethos of parole, oracknowledge the defacto departure from thelegal norms upon which the landmark cases ofMorrissey v. Brewer (1972) 408 U.S. 471and Gagnon v. Scarpelli (1973) 411 U.S. 778, arebased, and enlarge the due process rightsprovided in said cases appropriate to the newsocial reality. The Magistrate Court did not(acknowledge) much less address this corecontention, preferring to evaluate theaforementioned claims within the contours ofexisting law. Plaintiffs Jacobson & Johnsoncontend that the Magistrate & District Courtserred in dismissing these claims in light of thedraconian nature of the system depicted in theTAC.

d. Plaint iffs’ Te nth Claim that in perpetratingsaid parolee rights violations, parolerevocation mill and pattern and practice andby oppressing and subjugating parolees into adowntrodden social caste by intentionallyarresting and re-imprisoning them unusuallyfrequently and in very high volume at a ratedouble the national average, without any orsufficient legal grounds for the primarypurpose of benefitting unionized statepersonnel, Defendants are violating paroleesright under the Eighth Amendment not to

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have cruel and unusual punished inflictedupon them; and violating parolees right not tobe enslaved or subjected to the badges orincidents of slavery under the ThirteenthAmendment.

• the Magistrate and District courts’ ruling that thefactual record (which included facts judiciallynoticeable from Valdivia v. Schwarzenegger) wasinsufficient to position the court to rule onDefendants’ contention that Jacobson/Johnson Claims4-8 overlapped the subject matter of Valdivia andwere consequently barred by res judicata or collateralestoppel. The Court (Lum) ruled that Defendants14/

could re-raise the contention as an affirmativedefense at a later time. (Doc. 54, p. 21 (internal), lines15-21). Plaintiffs contend that this ruling was in error

14.

Here, the Magistrate Court (Lum) wrote :

Res Judicata (Claims Four through Eight)Defendants contend that Claims Four

through Eight of the Third Amended Complaintare barred by the settlement of the Valdivia classaction. (Motion at 5-9). Plaintiffs assert violationsof: the right to effective representation of counselat parole revocation hearings (Claim Four); theright to a parole revocation hearing of sufficientduration (Claim Five), open to the public (ClaimSix), and before a qualified and impartial hearingofficer (Claim Eight); and the right to a jury trial(Claim Seven). (Doc. 54, p. 18 (internal), lines 11-19.)

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and that the denial of Defendants’ motion on the“subject matter overlap” issue should have been“with prejudice”, thereby preventing Defendantsfrom re-raising it at a later time. Plaintiffs Jacobsonand Johnson contend that they successfullydemarcated claims outside the scope of Valdivia andthat Magistrate and District courts erroneously ruledthat Defendants’ assertion that Valdivia was resjudicata over Johnson’s Claims 4 -8 should be denied“without prejudice” (as opposed to “with prejudice”)to Defendants’ ability to re-raise the issue at a laterstage of the case. 1/16/2007 Order. 1 5 /

15.

In further regard to Claims Four through Eight, theMagistrate Court (Lum) did further address and erroneouslyre solve d on the me rit s against Plaintiffs:

(i) Plaintiffs’ attempt to attach two declarations to theiropposition to Defendants’ motion to dismiss; and

(ii) a part of an ex parte application by Plaintiffs (dated March8 , 2006); th

both directly related to Plaintiffs’ claimed violation of parolees’“right to effective representation of counsel at parole revocationhearings (Claim Four).” To briefly amplify, this Claim Four is fordeprivation of effective assistance of counsel to parolees bye mploy me nt of counse l w ho lack any job se curit y andcontends that in appointing attorneys to represent parolees inrevocation proceedings w ho are e mploy e d on a t e rminable at -w ill basis , otherwise lack any job security and are consequentlyincapable of providing effective assistance of counsel, the

(continued...)

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(...continued)Defendants violate Plaintiff Johnson’s and similar situatedparolees’ right to effective assistance of counsel.

Plaintiffs’ attachments to their opposition to Defendants’motion to dismiss included, inter alia, the declaration of anappointed parole revocation attorney, Joanne Warwick (a colleagueof attorney Jacobson employed by the sub-contracting agency ofthe Board of Parole Hearings [successor to the BPT] to representalleged parole violators) who was herself terminated at will inretaliation for providing zealous and capable advocacy on behalf ofparolees and voicing complaints about: injustices towards herclients and malfeasance of her employers. See generally, JoanneWarwick v. University of the Pacific, CDCR et al, Case No. CV08-3904-CW (USDC Northern Dist. Cal.) [Doc. 45, 2/13/2009, JointCase Management Statement and Proposed Order]. Plaintiff alsofiled an ex parte application seeking leave to file the declaration ofa BPT whistleblower, Deputy Commissioner Larry Starn. Onthese matters the Magistrate Court (Lum) ruled as follows:

The Court will not consider the twodeclarations attached to the SupplementalOpposition, because they are not materialsproperly considered on a motion to dismiss underFed. R. Civ. P. 12(b) (6). For the same reason, theCourt DENIES plaintiffs’ ex parte applicationdated March 8, 2006 to the extent it seeks leaveto file a declaration of Larry Starns.[sic].

Plaintiffs contend the Magistrate court erred in so ruling. Plaintiffsrequest appellate review of the Magistrate and District courts’ denial ofPlaintiffs’ attempts to file the declarations of Joanne Warwick and LarryStarn as part of their opposition to Defendants’ motion to dismiss.

(continued...)

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Lastly in this regard and significantly, followingseverance of the case into parolee rights (Johnson)and employment rights (Jacobson) cases respectively,District Judge Walter, in turn, issued (and thenrescinded) in Johnson an order directing the parties tofile cross-motions for summary judgment, butspecifically invited the Johnson Defendants to earlyfile an MSJ on the issue of whether Valdiviaprecluded the bulk of Plaintiff’s claims. See 07-6176-JFW(JTLx) Johnson case Doc. 23 [“...The Courtgrants Defendants leave to file an additional earlymotion for summary judgment on the limited issue ofwhether Plaintiffs claims are barred by the settlementin the Valdivia action.”] Indisputably then, in theevent of a remand of either or both the Jacobson orJohnson cases (either in their present separatedconditions or reunified) the case or cases’ overlap-or-not-with-Valdivia is a threshold issue that will bedeviland likely interminably prolong the litigation of thiscase if not decisively resolved by this appeals courtduring the instant Jacobson and/or Johnson appeals.

• the Magistrate and District courts’ erroneousdismissal of the following employment rights claimsfor relief in the Jacobson TAC without leave to amend

(...continued)Plaintiffs contend in this regard, inter alia, that Plaintiffs’ attachments totheir opposition and ex parte application (at least constructively)requested inclusion of these declarations as additional exhibits to theTAC, and that the Magistrate Court (Lum) abused its discretion in failingto approve the filing of said declarations as supplemental exhibits to theTAC.

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in response to the Defendants’ motion to dismiss theTAC:• Plaint iff’s Fourte e nth Claim for violation of

common law, statutes and public policyoutlawing retaliatory employmenttermination.

• Plaint iff’s Fift e e nth Claim for Defamation.• Plaint iff’s Six t e e nth Claim for Invasion of

Privacy.• Plaint iff’s Se v e nt e e nth Claim for

retaliatory age discrimination and harassmentagainst a zealous, older, formidable andprofessional attorney.

• the Magistrate and District courts’ erroneousrejection of the following employment rights claimsfor relief in the Jacobson TAC in response to theparties cross-motions for summary judgment:• Plaint iff’s Tw e lft h Claim for retaliatory

termination of Jacobson and related wrongfulacts in advance thereof:

1. Unlaw ful de privat ion o f stat eappo int e d at t o rne y ’s sp e e ch ,prope rty and libe rt y int e re st sunde r the U.S. Const itut ion byre taliat ion against a w hist le -blow e r.

• the Magistrate and District courts’ erroneousdeclination to adjudicate in the federal court anddismissal without prejudice (to revival in the state

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court) of the following employment rights claims forrelief in the Jacobson TAC in response to the partiescross-motions for summary judgment:• Plaint iff’s Thirt e e nth Claim for retaliatory

termination of Jacobson and related wrongfulacts in advance thereof:

2. Unlaw ful de privat ion of stat eap p o int e d at t orne y ’s sp e e ch ,prope rty and libe rt y int e re st sunde r the California Const itut ionby re taliat ion against a w hist le -blow e r.

• Plaint iff’s Eight e e nt h Claims forintentional infliction of emotional distress.

• the Magistrate and District courts’ erroneousdismissal of all originally named Defendants (seecaption pp. i-ii supra) from the employment rightsclaims for relief in the Jacobson TAC without leave toamend except: Terry R. Farmer, Thomas Wadkins,Marvin Speed, Ken Cater of the BPT (now Board ofParole Hearings) and parole agent Brigitte Murria16/

Summary De script ion o f the Magist rat e andDistric t Courts’ Othe r Grossly Errone ous Proce dural

16.

Ms. Murria first name has been mis-spelled in virtually allthe preceding paperwork and filings herein; she provided thecorrect spelling in her deposition.

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and Substant ive Rulings Follow ing the Re sumption ofthe Jacobson Case Follow ing the Spin-Off of theJohnson Case . When the spin-off of the parolee rights facetsof the Jacobson/Johnson case was concluded, the MagistrateCourt immediately erred by issuing an important schedulingorder unilaterally and without inviting or receiving any inputfrom the parties (Doc. 60 10/10/2008). This completelycontravened the letter (to say nothing of the spirit) of FRCP16 e xp lic it ly mandat ing the entry of scheduling ordersONLY AFTER consulting with the parties. (Plaintiff timelypetitioned the District Court for a reversal of the JudgeLum’s clearly erroneous reconsideration denial ruling in thisregard, to no avail.) In her unilaterally imposed schedulingorder, the Magistrate Court established a fast track deadlinefor the preparation of a joint status report and equally fasttrack discovery cut-off deadline.

Due to the ruinous nature of the Scheduling Order onPlaintiff’s ability to conduct the discovery phase andultimately make his case in an orderly manner (owing to thevolume of competing obligations in Plaintiff’s super-busypublic interest law practice devoted exclusively to thesafeguarding the civil rights of parolees and their family co-habitants ), Plaintiff filed a number of subsequent17/

applications and motions seeking revision of the Court’sunilaterally imposed schedule. The primary one requestedconsiderable lengthening of the case calendar and an

17.

See O’Neal-Gonzalez, et al. v. City of Inglewood, UnitedStates of America, et al., Ninth Circuit Docket Nos. 08-57039 and09-55785; D.C. Case No. CV 06-178-GAF(CTx)(C.D. Cal.) [reFourth Amendment parole search and seizure].

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enlargement of the discovery cut-off to 11/8/2008, to no avail:In what would become a pattern of case-long peevish

passive-aggressive hostility towards Plaintiff, the MagistrateCourt repeatedly struck Plaintiff’s electronic filings onpicayune grounds (e.g. Docs. 66, 67, 70, 76). As mentioned,18/

the Court denied Plaintiff’s discovery cut-off enlargementrequest (Doc. 80) and motion for reconsideration of saiddenial (Doc. 91 6/26/2009). The District Court likewisedenied Plaintiff’s motion for District Court review of theMagistrate Court’s unilateral (plainly extralegal) schedulingorder. (Doc. 85, 5/13/2008). All of these rulings were clearlyerroneous, constituted flagrant abuses of discretion and afetish for speed over orderly fair, impartial and justadjudication of disputes. Further, they created a scheduling“train wreck” that materially sabotaged Plaintiff’s ability tolitigate the balance of his case in an orderly manner.

When the consequences of the Court’s priorscheduling error manifested itself and compelled Plaintiff toenlist the Court’s assistance in enforcing his discovery, inblatant violation of the letter and spirit of FRCP 1, the Courtissued another series of orders denying Plaintiff any and allassistance. (Doc. 93, 7/14/2008; Doc. 100, 7/28/2008 [byMagistrate Judge Segal]; Doc. 102, 7/31/2009 (another

18.

Electronic filing had just become mandatory on January 1 ,st

2008; the system had idiosyncracies and took some getting usedto by all users. The Magistrate Court personnel, however,repeatedly punished minor deficiencies and struck entire filingsin an altogether deplorable display of pedantry and petty tyrannyevincing outrageous disregard and disrespect for the time andenergy of earnest pro se counsel.

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picayune filing deficiency); Doc. 106, 8/11/2008; Doc 164,10/1/2008). Conversely, the Magistrate Court coldly andcruelly granted Defendants’ sanctions for Plaintiff’s slightdelay in responding to Defendants’ discovery (Doc. 107,8/21/2008). All these rulings stemmed from the Court’sunilateral extralegal scheduling order which had compressedthe litigation tasks Plaintiff had to perform to an altogetherinhumane degree. (Plaintiff nevertheless made his case.)

This situation pertained through the duration of thecase. An acutely objectionable addition of insult to injury wasthe Magistrate Court habit of taking every single hearingduring the entirety of the case off the hearing calendar. (E.g.Doc. 145, 9/17/2008 [taking cross-MSJs off the hearingcalendar]; Doc. 173, 10/27/2008 [taking motion to addFernando Perez as a Defendant off calendar]. This deniedPlaintiff due process of law. Jacobson has ne ve r METJudge Lum.19/

19.

This facet of modern federal court litigation is(wretchedly) inconsistent with the ideals of civil justice. A trialcourt judge who habitually fails to personally interact with lawyersand litigants is temperamentally unfit for the job. (Abse ntvo luntary re signat ion, fre que nt ly offe nding fe de ral judge sin this re gard, as he re , me rit prompt impe achme nt .) Theidea that every single issue in a case (including basic landscapeissues regarding scheduling) must be communicated in writingwithout any human interaction is ANATHEMA to the rule of lawand fair resolution of disputes and should be the rare exceptioninstead of the rule. Plaintiff contends that the courts’ impersonalimperious ways in this regard greatly disadvantaged him, greatly

(continued...)

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Procedurally and substantively, throughout 2008Magistrate Judge Lum harshly ramified the consequences ofher “original sin” (of fast-tracking the case calendar), denyingvirtually every meliorative motion Plaintiff made in an effortto properly make and present his case: e.g. Doc. 164,10/1/2008 [denying motion to compel Interrogatoryresponses by Defendant Cater]; Doc. 179 [denying motion toadd Fernando Perez as Defendant]); Doc. 172, 10/24/2008[striking Plaintiff’s filings]; Doc. 180 [striking Plaintiff’s replyto Defendants’ opposition to Plaintiff’s motion to addFernando Perez as Defendant]; and ultimately attempting toquash Plaintiff’s access to court altogether by ordering himnot to “file any pleading, document or exhibit without leaveof court”. Doc. 210, 12/2/2008. All the while the MagistrateCourt liberally granted Defendants procedural requests. E.g.Doc. 151, 9/17/2008 [granting leave to file discoverydocument].

All this might have been mitigated had the MagistrateCourt accurately applied applicable law to the (virtually)uncontroverted facts in a conscientious manner when calledupon to render a ruling on the parties cross-MSJs. In the end,alas, the Magistrate Court nullified Ninth Circuit andSupreme Court precedents in myriad respects and enteredsummary judgment for Defendants. E.g., the Courtserroneously ruled that most of Plaintiff’s outspokencriticisms had been leveled during the course and scope ofhis employment (when in fact all of Plaintiff’s writings had

(...continued)advantaged the Defendants and denied Jacobson due process oflaw.

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been prepared during interstices when Plaintiff’sindependent contractor relationship with his Defendantemployer had lapsed altogether), and were thereforeprotected by the First Amendment under the rule of Garcettiv. Ceballos, 547 U.S. 410, 126 S.Ct. 1951 (2006). The Courtalso distorted Plaintiff’s other writings to reach theseemingly (dismaying) results-oriented conclusion that thisother speech (plainly) not spoken during his state appointedemployment tenure did not involve matters of publicconcern. A moment’s intellectually honest review of thewritings however, makes it impossible to conclude that thewritings dominantly involved a “personnel dispute” ratherthan issues of public concern.

And, to the extent the courts’ ruled that the evidence,including damning excerpts of Defendants’ depositions,supported Defendants’ contention that they removedJacobson as an appointed attorney for indigent parolees forreasons other than his outspokenness, the courts’ conclusionis slaughtered by the gang of ugly facts contained in thedeposition excerpts and documentary evidence in the case,which evidence cumulatively demonstrate not only by apreponderance but beyond any reasonable doubt whatsoeverthat the Defendants removed Jacobson in retaliation for hisoutspokenness.

For all the reasons specified in- and in light of thesupporting evidence submitted in Plaintiff’s: • own MSJ, and opposition to Defendants’ MSJ;

• motion for reconsideration of the Court’s 3/13/2009ruling on the parties’ cross-motions for summaryjudgment; and in his (inexplicably completely ignoredbut pivotal) reply brief to Defendants’ opposition

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thereto; and

• objections to the Magistrate Court’s 6/24/2009revised ruling on the parties’ cross-MSJs directed (onrequest) to- but then (inexplicably) completelyignored by the Magistrate Court (including but notlimited to objections to all the findings of fac ttherein inconsistent with Plaintiff’s factual account);

the Magistrate Court’s ruling in favor of- and the DistrictCourt’s approval of Defendants on the parties’ cross-MSJs isclearly erroneous as a matter of law.

Apart from the substance of the ruling, the MagistrateCourt book-ended her whopper error at the outset of theretaliatory termination case by hearing and adjudicating thecross-motions for summary judgment without the mutualconsent of the parties, making the Magistrate Court’s rulingultra vires as a matter of law.

In sum, for innumerable reasons to be detailed inPlaintiff’s forthcoming AOB, the Magistrate and DistrictCourts’ grant of Defendants’ MSJ and all preceding adverserulings on both the parolee rights and retaliatory terminationsides of the Jacobson and Johnson 04-3629 case must bereversed and the case must be remanded, along with theJohnson case, to the District Court either with directions to

/

/

/

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grant Plaintiff’s MSJ or to conduct a trial therein.

ERIC C. JACOBSON

PUBLIC INTEREST LAWYER

Dated: September 20, 2009

By: s/ Eric C. Jacobson ERIC C. JACOBSONPro Se Plaintiff on Behalf of Himselfand His Clientele of CaliforniaParolees; and Attorney for Co-PlaintiffEric Johnson and the prospectiveparole class

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APPENDIX DTexts of Constitutional & Statutory Provisions

Involved (Added Appendix Included Per Rule 34.5):

1. U.S. Const.: 1 , 8 , 13 , 14 Amendments; & Cal.st th th th

Const. Art.1 §§1&13; 42 U.S.C. §1983; 28 U.S.C.§636 (b)(1)(A); 28USC §636(c)(1); & Federal Rule ofAppellate Procedure 42(b).

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First Amendment to the U.S. Constitution (re Petitioner’s employment rights):

Congress shall make no law respecting anestablishment of religion, or prohibiting the free exercisethereof; or abridging the freedom of speech, or of the press;or the right of the people peaceably to assemble, and topetition the government for a redress of grievances.

Eighth Amendment to the U.S. Constitution (re parolees’ civil rights):

Excessive bail shall not be required, nor excessivefines imposed, nor cruel and unusual punishments inflicted.

Thirteenth Amendment to the U.S. Constitution (re parolees’ civil rights):

Section 1.Neither slavery nor involuntary servitude, except as

a punishment for crime whereof the party shall have beenduly convicted, shall exist within the United States, or anyplace subject to their jurisdiction.

Section 2.Congress shall have power to enforce this article byappropriate legislation.

/

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Fourteenth Amendment to the U.S. Constitution (re Petitioner’s employment rights and

parolees’ civil rights):

Section 1.All persons born or naturalized in the United States, andsubject to the jurisdiction thereof, are citizens of the UnitedStates and of the state wherein they reside. No state shallmake or enforce any law which shall abridge the privileges orimmunities of citizens of the United States; nor shall anystate deprive any person of life, liberty, or property, withoutdue process of law; nor deny to any person within itsjurisdiction the equal protection of the laws.

Section 2.Representatives shall be apportioned among the severalstates according to their respective numbers, counting thewhole number of persons in each state, excluding Indians nottaxed. But when the right to vote at any election for thechoice of electors for President and Vice President of theUnited States, Representatives in Congress, the executiveand judicial officers of a state, or the members of thelegislature thereof, is denied to any of the male inhabitants ofsuch state, being twenty-one years of age, and citizens of theUnited States, or in any way abridged, except forparticipation in rebellion, or other crime, the basis ofrepresentation therein shall be reduced in the proportionwhich the number of such male citizens shall bear to thewhole number of male citizens twenty-one years of age insuch state.

/

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Section 3.No person shall be a Senator or Representative in Congress,or elector of President and Vice President, or hold any office,civil or military, under the United States, or under any state,who, having previously taken an oath, as a member ofCongress, or as an officer of the United States, or as amember of any state legislature, or as an executive or judicialofficer of any state, to support the Constitution of the UnitedStates, shall have engaged in insurrection or rebellion againstthe same, or given aid or comfort to the enemies thereof. ButCongress may by a vote of two-thirds of each House, removesuch disability.

Section 4.The validity of the public debt of the United States,authorized by law, including debts incurred for payment ofpensions and bounties for services in suppressinginsurrection or rebellion, shall not be questioned. But neitherthe United States nor any state shall assume or pay any debtor obligation incurred in aid of insurrection or rebellionagainst the United States, or any claim for the loss oremancipation of any slave; but all such debts, obligations andclaims shall be held illegal and void.

Section 5.The Congress shall have power to enforce, by appropriatelegislation, the provisions of this article.

/

/

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Article 1 - Declaration of Rights§1 of the California Constitution (re Petitioner’s employment rights):

All people are by nature free and independent andhave inalienable rights. Among these are enjoying anddefending life and liberty, acquiring, possessing, andprotecting property, and pursuing and obtaining safety,happiness, and privacy.

Article 1 - Declaration of Rights§13 of the California Constitution

(re parolees’ civil rights ):20/

The right of the people to be secure in their persons,houses, papers, and effects against unreasonable seizures andsearches may not be violated; and a warrant may not issueexcept on probable cause, supported by oath or affirmation,particularly describing the place to be searched and thepersons and things to be seized.

/

/

/

20.

Cited in People v. Vickers, 8 Cal.3d, 451, 455; 105 Cal. Rptr.305, 503 P.2d 1313 (1972).

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Title 42 U.S.C. Chapter 21, Sub-Chapter1, §1983 Civil Action for Deprivation of Rights

(re Petitioner’s employment rights andparolees’ civil rights):

Every person who, under color of any statute,ordinance, regulation, custom, or usage, of any State orTerritory or the District of Columbia, subjects, or causes tobe subjected, any citizen of the United States or other personwithin the jurisdiction thereof to the deprivation of anyrights, privileges, or immunities secured by the Constitutionand laws, shall be liable to the party injured in an action atlaw, suit in equity, or other proper proceeding for redress,except that in any action brought against a judicial officer foran act or omission taken in such officer’s judicial capacity,injunctive relief shall not be granted unless a declaratorydecree was violated or declaratory relief was unavailable. Forthe purposes of this section, any Act of Congress applicableexclusively to the District of Columbia shall be considered tobe a statute of the District of Columbia.

Title 28 U.S.C. Part III, Chapter 43, §636(a)-(d)Jurisdiction, Powers, and Temporary Assignment

Including 28 U.S.C. §636(b)(1)(A) & 28 U.S.C. §636(c)(1)

(re Petitioner’s employment rights):

(a) Each United States magistrate judge serving under thischapter shall have within the district in which sessions areheld by the court that appointed the magistrate judge, atother places where that court may function, and elsewhere

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as authorized by law–(1) all powers and duties conferred or imposed uponUnited States commissioners by law or by the Rulesof Criminal Procedure for the United States DistrictCourts; (2) the power to administer oaths and affirmations,issue orders pursuant to section 3142 of title 18concerning release or detention of persons pendingtrial, and take acknowledgements, affidavits, anddepositions; (3) the power to conduct trials under section 3401,title 18, United States Code, in conformity with andsubject to the limitations of that section; (4) the power to enter a sentence for a petty offense;and (5) the power to enter a sentence for a class Amisdemeanor in a case in which the parties haveconsented.

(b) (1) Notwithstanding any provision of law to thecontrary—

(A) a judge may designate a magistrate judgeto hear and determine any pretrial matterpending before the court, except a motion forinjunctive relief, for judgment on thepleadings, for summary judgment, to dismissor quash an indictment or information madeby the defendant, to suppress evidence in acriminal case, to dismiss or to permitmaintenance of a class action, to dismiss forfailure to state a claim upon which relief canbe granted, and to involuntarily dismiss anaction. A judge of the court may reconsider

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any pretrial matter under this subparagraph(A) where it has been shown that themagistrate judge’s order is clearly erroneousor contrary to law. (B) a judge may also designate a magistratejudge to conduct hearings, includingevidentiary hearings, and to submit to a judgeof the court proposed findings of fact andrecommendations for the disposition, by ajudge of the court, of any motion excepted insubparagraph (A), of applications for posttrialrelief made by individuals convicted ofcriminal offenses and of prisoner petitionschallenging conditions of confinement. (C) the magistrate judge shall file hisproposed findings and recommendationsunder subparagraph (B) with the court and acopy shall forthwith be mailed to all parties.

Within fourteen days after being served with a copy,any party may serve and file written objections tosuch proposed findings and recommendations asprovided by rules of court. A judge of the court shallmake a de novo determination of those portions of thereport or specified proposed findings orrecommendations to which objection is made. A judgeof the court may accept, reject, or modify, in whole orin part, the findings or recommendations made by themagistrate judge. The judge may also receive furtherevidence or recommit the matter to the magistratejudge with instructions. (2) A judge may designate a magistrate judge toserve as a special master pursuant to the applicable

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provisions of this title and the Federal Rules of CivilProcedure for the United States district courts. Ajudge may designate a magistrate judge to serve as aspecial master in any civil case, upon consent of theparties, without regard to the provisions of rule 53(b)of the Federal Rules of Civil Procedure for the UnitedStates district courts. (3) A magistrate judge may be assigned suchadditional duties as are not inconsistent with theConstitution and laws of the United States. (4) Each district court shall establish rules pursuantto which the magistrate judges shall discharge theirduties.

(c) Notwithstanding any provision of law to the contrary— (1) Upon the consent of the parties, a full-time UnitedStates magistrate judge or a part-time United Statesmagistrate judge who serves as a full-time judicialofficer may conduct any or all proceedings in a jury ornonjury civil matter and order the entry of judgmentin the case, when specially designated to exercisesuch jurisdiction by the district court or courts heserves. Upon the consent of the parties, pursuant totheir specific written request, any other part-timemagistrate judge may exercise such jurisdiction, ifsuch magistrate judge meets the bar membershiprequirements set forth in section 631 (b)(1) and thechief judge of the district court certifies that a full-time magistrate judge is not reasonably available inaccordance with guidelines established by the judicialcouncil of the circuit. When there is more than onejudge of a district court, designation under thisparagraph shall be by the concurrence of a majority of

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all the judges of such district court, and when there isno such concurrence, then by the chief judge. (2) If a magistrate judge is designated to exercisecivil jurisdiction under paragraph (1) of thissubsection, the clerk of court shall, at the time theaction is filed, notify the parties of the availability ofa magistrate judge to exercise such jurisdiction. Thedecision of the parties shall be communicated to theclerk of court. Thereafter, either the district courtjudge or the magistrate judge may again advise theparties of the availability of the magistrate judge, butin so doing, shall also advise the parties that they arefree to withhold consent without adverse substantiveconsequences. Rules of court for the reference of civilmatters to magistrate judges shall include proceduresto protect the voluntariness of the parties’ consent. (3) Upon entry of judgment in any case referredunder paragraph (1) of this subsection, an aggrievedparty may appeal directly to the appropriate UnitedStates court of appeals from the judgment of themagistrate judge in the same manner as an appealfrom any other judgment of a district court. Theconsent of the parties allows a magistrate judgedesignated to exercise civil jurisdiction underparagraph (1) of this subsection to direct the entry ofa judgment of the district court in accordance with theFederal Rules of Civil Procedure. Nothing in thisparagraph shall be construed as a limitation of anyparty’s right to seek review by the Supreme Court ofthe United States. (4) The court may, for good cause shown on its ownmotion, or under extraordinary circumstances shown

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by any party, vacate a reference of a civil matter to amagistrate judge under this subsection. (5) The magistrate judge shall, subject to guidelinesof the Judicial Conference, determine whether therecord taken pursuant to this section shall be takenby electronic sound recording, by a court reporter, orby other means.

(d) The practice and procedure for the trial of cases beforeofficers serving under this chapter shall conform to rulespromulgated by the Supreme Court pursuant to section 2072of this title. [§§ (e)-(h) omitted]

Federal Rule of Appellate Procedure 42Voluntary Dismissal

Including FRAP 42(b)(re Petitioner’s employment rights and

parolees’ civil rights):

(a) Dismissal in the District Court.Before an appeal has been docketed by the circuit clerk, thedistrict court may dismiss the appeal on the filing of astipulation signed by all parties or on the appellant’s motionwith notice to all parties.

(b) Dismissal in the Court of Appeals.The circuit clerk may dismiss a docketed appeal if the partiesfile a signed dismissal agreement specifying how costs are tobe paid and pay any fees that are due. But no mandate orother process may issue without a court order. An appealmay be dismissed on the appellant’s motion on terms agreedto by the parties or fixed by the court.