1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOEL DAVID KAUFMAN, Case No. 22-cv-05043-JSW

8 Plaintiff,

ORDER GRANTING MOTION TO

9 v. DISMISS; DENYING MOTION TO

STRIKE; GRANTING EXTENSION OF

10 KATHY MILEY, TIME 11 Defendant. Re: Dkt. Nos. 14, 19, 22

12 INTRODUCTION 13 Plaintiff, a California parolee proceeding pro se, filed this civil rights case under 42 U.S.C. 14 § 1983. The operative complaint is the amended complaint. (ECF No. 3.) Certain claims were 15 dismissed in the Order of Service; the remaining claims are against Plaintiff’s parole officer, 16 Defendant Kathy Miley. Defendant filed a motion to dismiss under Rule 12(b)(6) of the Federal 17 Rules of Civil Procedure. Plaintiff filed an opposition, and Defendant filed a reply brief. Plaintiff 18 has also filed an additional opposition (ECF No. 21), which the Court has considered. For the 19 reasons discussed below, the motion to dismiss is GRANTED. The other pending motions are 20 addressed below. 21 DISCUSSION 22 A. Standard of Review 23 Failure to state a claim is grounds for dismissal under Rule 12(b)(6) of the Federal Rules of 24 Civil Procedure. Dismissal for failure to state a claim is a ruling on a question of law. Parks 25 School of Business, Inc., v. Symington, 51 F.3d 1480, 1483 (9th Cir. 1995). "The issue is not 26 whether plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his 27 claim." Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). 1 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 2 statement need only give the defendant fair notice of what the . . . . claim is and the grounds upon 3 which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations and internal 4 quotations omitted). Although in order to state a claim a complaint “does not need detailed factual 5 allegations, . . . a plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief' 6 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of 7 action will not do. . . . Factual allegations must be enough to raise a right to relief above the 8 speculative level.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations 9 omitted). A complaint must proffer “enough facts to state a claim for relief that is plausible on its 10 face.” Id. at 1986-87. A motion to dismiss should be granted if the complaint does not proffer 11 "enough facts to state a claim for relief that is plausible on its face." Id. at 570; see, e.g., Ashcroft 12 v. Iqbal, 129 S. Ct. 1937, 1952 (2009). 13 Review is limited to the contents of the complaint, Clegg v. Cult Awareness Network, 18 14 F.3d 752, 754-55 (9th Cir. 1994), including documents physically attached to the complaint or 15 documents the complaint necessarily relies on and whose authenticity is not contested. Lee v. 16 County of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). In addition, the court may take judicial 17 notice of facts that are not subject to reasonable dispute. Id. at 688 (discussing Fed. R. 18 Evid. 201(b)). Allegations of fact in the complaint must be taken as true and construed in the light 19 most favorable to the non-moving party. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 20 (9th Cir. 2001). The court need not, however, “accept as true allegations that are merely 21 conclusory, unwarranted deductions of fact, or unreasonable inferences.” Ibid. 22 A pro se pleading must be liberally construed, and "however inartfully pleaded, must be 23 held to less stringent standards than formal pleadings drafted by lawyers." Twombly, 550 U.S. at 24 570 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Allegations of fact in the complaint 25 must be taken as true and construed in the light most favorable to the non-moving party. 26 Symington, 51 F.3d at 1484. 27 B. Discussion 1 on parole in Santa Clara County. Plaintiff’s remaining claims are: (1) Defendant violated his right 2 to access the courts by denying him permission to travel to Contra Costa County probate court to 3 attend a conservatorship hearing; (2) Defendant violated his First Amendment rights by 4 prohibiting his use of social media; and (3) Defendant violated his First Amendment rights by 5 denying him permission to visit his father in Contra Costa County. 6 “The law is well established that judicial officers and prosecutors are entitled to absolute 7 immunity from civil rights suits when they engage in activities intimately associated with the 8 judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 427, 430 (1976). 9 However, it is the nature of the function performed, not the role or identity of the actor, that 10 determines the scope of absolute immunity. Engebretson v. Mahoney, 724 F.3d 1034, 1039 (9th 11 Cir. 2013). The determination of whether absolute immunity applies turns on "whether the official 12 is 'performing a duty functionally comparable to the one for which officials were rendered 13 immune at common law.'" Swift v. Christian, 384 F.3d 1184, 1190 (9th Cir. (quoting Miller v. 14 Gammie, 335 F.3d 889, 897 (9th Cir. 2003)). Parole officers are absolutely immune from suit 15 arising from “the imposition of parole conditions” under a theory of quasi-judicial absolute 16 immunity. Swift, 384 F.3d at 1189; see also Anderson v. Boyd, 714 F.2d 906, 909 (9th Cir. 1983). 17 “This immunity applies even where parole officers impose allegedly unconstitutional parole 18 conditions.” Chavez v. Robinson, 12 F.4th 978, 997 (9th Cir. 2021) (internal quotations and 19 citation omitted); see also Thornton v. Brown, 757 F.3d 834, 839-40 (9th Cir. 2014). 20 There is no dispute that the conditions of Plaintiff’s parole prohibited him from using 21 social media, attending the court hearing, and visiting his father.1 As Plaintiff’s remaining claims 22 are based upon Defendant’s actions in enforcing these parole conditions, Defendant is entitled to 23 immunity on these claims. Consequently, the remaining claims must be dismissed for failure to 24 state a claim upon which relief may be granted.2 25 C. Motions 26

27 1 The Court takes judicial notice of the agreement setting forth Plaintiff’s parole provisions. (ECF 1 As Plaintiff is proceeding pro se, the Court has considered his supplemental opposition to 2 the motion to dismiss. (ECF No. 21.) His motion for an extension of time to file this 3 supplemental opposition (ECF No. 19) is GRANTED, and Defendant’s motion to strike it (ECF 4 || No. DENIED. The supplemental opposition simply requests that the Court delay resolving 5 || the motion to dismiss because Plaintiff might retain an attorney to represent him. Plaintiff does 6 not show cause for such a delay, however, because he does not submit a declaration from the 7 attorney (who is also not identified) attesting to the fact that she or he is, as Plaintiff asserts, 8 || reviewing the case and considering appearing on Plaintiffs behalf. Should an attorney decide to 9 || represent Plaintiff, she or he may file a motion for reconsideration of this order. 10 CONCLUSION 11 For the foregoing reasons, the motion to dismiss is GRANTED. The motion for an 12 || extension of time is GRANTED. The motion to strike is DENIED. 5 13 The clerk shall enter judgment and close the file.

IT IS SO ORDERED.

3 15 Dated: March 20, 2023 16 1) 18 Titel dea District Judge 19 □

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