UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ANTHONY MCGEE, Case No. 23-cv-05161-TSH Plaintiff, ORDER DENYING MOTION FOR v. JUDGMENT ON THE PLEADINGS
Re: Dkt. No. 29, 31, 36 THE CITY OF HERCULES, et al., Defendants. I. INTRODUCTION Pending before the Court is a Motion for Judgment on the Pleadings brought by
Defendants City of Hercules and Hercules Police Department pursuant to Federal Rule of Civil Procedure 12(c). ECF No. 29. Plaintiff Anthony McGee filed an Opposition (ECF No. 58) and Defendants filed a Reply (ECF No. 60). The Court finds this matter suitable for disposition without oral argument. Civ. L.R. 7-1(b). For the reasons stated below, the Court DENIES
Defendants’ motion. [1]
II. BACKGROUND
On or about September 15, 2023, Plaintiff Anthony McGee entered the City Hall for the City of Hercules, California, which contains a section for employees of the Hercules Police Department (“HPD”). Compl. ¶¶ 2, 3, ECF No. 1. Plaintiff alleges that on the morning of September 15, 2023, he spoke with an HPD commanding officer named Dwayne Collard, who informed Plaintiff that he was out of compliance with the provisions of California Penal Code §§ 290 et seq , the Sex Offender Registration Act (“the Act”). ¶ 4. Plaintiff alleges he did not have a conviction on his criminal record for an offense that would require him to register. Id. ¶ 25. Plaintiff requested an opportunity to rebut what he had been told and provided the officer a copy of Plaintiff’s reasons why he believed he was not required to comply with the Act. Id. ¶¶ 5, 16, 17.
Three officers were present at the time. Id. ¶¶ 19, 22. At least two of the three officers present told Plaintiff he was being placed under arrest for failing to register as a sex offender. Id. ¶ 18. Plaintiff was restrained and insisted upon his immediate release. Id. ¶ 20. Plaintiff was then transported to Contra Costa County Jail and booked by the Contra Costa County Sheriff’s Department for failure to register as a sex offender. Id. ¶ 25. Plaintiff alleges that none of the officers informed Plaintiff of their legal basis to determine that Plaintiff was out of compliance with the Act. Id. ¶ 22. Plaintiff alleges he was never presented with a sufficient legal or factual basis for Officer Collard to demand compliance with the registration requirements of the Act, or to arrest Plaintiff for violating the terms or conditions of the Act. Id. ¶¶ 13–15, 19. Plaintiff posted bail from the Contra Costa County Jail. Id. ¶ 26. Plaintiff later returned to the Hercules Police Department to register under California Penal Code § 290. Id. Plaintiff alleges that he registered under coercion and “out of fear for his liberty and freedom from undue attention and harassment[.]” Id. Plaintiff alleges that he proffered several reasons he was not obligated to register to the registering officer before applying his signature to the terms and conditions of the registration. Id. ¶ 27. Plaintiff was not able to convince the officer processing the registration that he was not required to register under the Act. Id. ¶ 28. The officer continued to process the registration. Id.
Plaintiff alleges that his detention, arrest, transport and transfer of custody to the Contra Costa County Sheriff were a misuse of authority and against the law. Id. ¶ 23. Plaintiff alleges that each of the officers and deputies that knew about the facts underlying these actions was acting under the color of authority and knew or should have known that those actions were against the law and a misuse of authority. Id.
On October 10, 2023, Plaintiff filed this action in this Court against the City of Hercules, HPD and unnamed defendants, alleging a constitutional violation under 42 U.S.C. § 1983. ¶ 22. Plaintiff seeks six hundred million dollars in damages. Id. at 7 (Relief Sought). On November 21, 2023, Defendants filed an answer to Plaintiff’s complaint. ECF No. 11. On July 11, 2024, Defendants City of Hercules and HPD filed the instant Motion for Judgment on the Pleadings. ECF No. 29.
On January 25, 2024 and July 29, 2024, Plaintiff’s case was stayed pending the conclusion of supervised release proceedings in United States v. McGee , No. 3:12-cr-00052-EMC, a criminal action in this district in which Mr. McGee is the defendant. ECF Nos. 19, 35. On October 8, 2024, the Court granted Plaintiff’s motion to lift the stay of proceedings and to proceed with briefing on Defendants’ Motion for Judgment on the Pleadings. ECF No. 43.
III. LEGAL STANDARD
“After the pleadings are closed—but early enough not to delay trial—a party may move for
judgment on the pleadings.” Fed. R. Civ. P. 12(c). “Judgment on the pleadings is properly
granted when, accepting all factual allegations in the complaint as true, there is no issue of
material fact in dispute, and the moving party is entitled to judgment as a matter of law.”
Chavez
v. United States
,
Judgment on the pleadings should thus be entered when a complaint does not plead
“enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly
,
A district court generally may not consider materials outside the pleadings in deciding a
motion under Rule 12(c), and if such materials are presented and not excluded, the motion must be
treated as a motion for summary judgment under Rule 56. Fed. R. Civ. P. 12(d). A district
court may, however, consider the following materials without converting a Rule 12(c) motion to a
Rule 56 motion: “(1) exhibits to the nonmoving party’s pleading, (2) documents that are referred
to in the non-moving party’s pleading, or (3) facts that are included in materials that can be
judicially noticed.”
Yang v. Dar Al-Handash Consultants
,
A. Requests for Judicial Notice (ECF Nos. 31, 36)
Federal Rule of Evidence 201 allows the Court to “judicially notice a fact that is not
subject to reasonable dispute because it . . . can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). Courts may consider
“matters of public record” in deciding a motion to dismiss.
Northstar Fin. Advisors Inc. v.
Schwab Invs.
,
Defendants ask the Court to take judicial notice of two records: 1. Order on Government’s Motion to Revoke Defendant’s Supervised Release issued by U.S. District Judge Edward Chen in United States v. McGee , No. 3:12-cr-00052-EMC-1, a criminal case currently pending in the Northern District of California and on appeal before the Ninth Circuit. No. 12-cr-52-EMC-1, ECF No. 258 (N.D. Cal. Aug. 15, 2023), appeal docketed , No. 24-5532 (9th Cir.).
2. Sex Offender Registration form, signed and dated September 25, 2023. ECF Nos. 31 (Defs.’ Req. for Judicial Notice); Ex. A to Defs.’ Req. for Judicial Notice, ECF No. 31 at 5–12 (Order on Mot. to Revoke Supervised Release); Ex. B to Defs.’ Req. for Judicial Notice, ECF No. 31 at 13–20 (signed Sex Offender Registration form).
Plaintiff argues that the Court should not consider these records because Defendants did
not include these documents as part of their answer to Plaintiff’s complaint. Opp’n at 2;
see
ECF
No. 11 (Defs.’ Answer to Compl.). Whether a defendant included a document or made an
argument in a previously filed answer has no bearing on what a district court may consider in
deciding a motion for judgment on the pleadings.
See Yang
,
The Court declines to take judicial notice of the signed Sex Offender Registration form, as
its contents are subject to reasonable dispute.
See
Compl. ¶¶ 26 (alleging that Plaintiff was
“forced by coercion” into completing registration). However, Plaintiff’s complaint references
what he describes as his coerced registration on September 25, 2023 as a sex offender pursuant to
California Penal Code § 290.
See id.
¶¶ 26–28. Plaintiff does not dispute the authenticity of the
Sex Offender Registration form.
See generally
Opp’n. Accordingly, the Court considers Mr.
McGee’s signed Sex Offender Registration form, dated September 25, 2023, as incorporated by
reference in Plaintiff’s complaint.
Lee v. City of Los Angeles
,
Mr. McGee asks the Court to take judicial notice of the following cases in which he is a party:
1. McGee v. Enfante et al, No. 3:23-cv-00375-AGT (N.D. Cal.). 2. McGee v. Milpitas Police Department, No. 5:23-cv-02559-VKD (N.D. Cal.). 3. McGee v. Bonta et al, No. 5:23-cv-02831-PCP (N.D. Cal.)
4. McGee v. Palo Alto Police Department et al, No. 5:22-cv-09094- NC (N.D. Cal.). 5. McGee v. City of Palo Alto et al, No. 3:23-cv-02113-JD (N.D. Cal.). 6. McGee v. Alameda County Sheriff Department, No. 3:24-cv- 00949-JD (N.D. Cal.), appeal docketed , No. 24-7593 (9th Cir.). 7. McGee v. Alameda County Sheriff Dept., No. 3:24-cv-04588-CRB (N.D. Cal.). 8. McGee v. Santa Clara County District Attorney Office et al, No. 3:24-cv-02608-CRB (N.D. Cal.), appeal docketed , No. 24-5356 (9th Cir.). 9. McGee v. Oakland Police Department et al, No. 3:24-cv-07044- CRB (N.D. Cal.). 10. United States v. McGee, No. 3:12-cr-00052-EMC (N.D. Cal.) (July 26, 2024 exhibits entered into the record), appeal docketed , No. 24-5532 (9th Cir.). 11. The People v. Antoine McGhee, 22-cr-003383 (Alameda County) 12. The People v. Anthony McGee, B2300636 (Santa Clara County) Pl.’s First Req. for Judicial Notice, ECF No. 36.
The Court takes judicial notice of the fact that Plaintiff is a party in the above-listed cases. To the extent Plaintiff requests that the Court take judicial notice of all records filed on the docket for those cases, the Court declines to take judicial notice.
As to United States v. McGee , No. 3:12-cr-00052-EMC, Plaintiff seeks judicial notice of the “July 26, 2024 exhibits entered into the record.” Pl.’s First Req. for Judicial Notice at 2. There are several docket entries that pertain to a July 26, 2024 evidentiary hearing in that case, including a minute entry noting that “Exhibits 3, 1, 2, 4, 5, 6, 7, 10, B, and 8” were admitted into the record. United States v. McGee , No. 3:12-cr-00052-EMC, ECF No. 298 (Amended Crim. Minutes for July 26, 2024); see also No. 3:12-cr-00052-EMC, ECF Nos. 297 (minute entry for proceedings held on July 26, 2024), 314 (transcript order for July 26 proceedings), 320 (transcript of proceedings), 323 (sealed transcript of proceedings). None of these entries include a copy of the exhibits, and the Court has been unable to determine whether they were filed elsewhere on the docket. Accordingly, the Court is unable to determine whether judicial notice of the exhibits entered into the record in United States v. McGee on July 26, 2024 is proper. Plaintiff’s request that the Court take judicial notice of these documents is thus denied. Exhibits Offered in Support of Plaintiff’s Opposition
Plaintiff attaches several exhibits to his opposition to Defendants’ motion. ECF No. 58 at
11–138 (pagination refers to ECF header). Plaintiff does not identify or describe any of these
documents in the declaration he filed in support of his opposition, nor does he include any
individualized description of these exhibits. ECF No. 58 at 7–10 (McGee Decl.) (pagination refers
to ECF header). These attached exhibits have thus not been sufficiently authenticated for the
Court to determine whether any of these documents may be incorporated by reference in
Plaintiff’s complaint or whether judicial notice is proper for any of these documents. Because the
Court may not consider materials outside the pleadings unless they are incorporated in Plaintiff’s
complaint or have been judicially noticed, the Court does not consider these exhibits in deciding
the instant motion.
B. Motion for Judgment on the Pleadings (ECF No. 29)
“[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method
for vindicating federal rights elsewhere conferred.’”
Graham v. Connor
,
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .
“[A] litigant complaining of a violation of a constitutional right does not have a direct cause of
action under the United States Constitution but must utilize 42 U.S.C. § 1983.”
Arpin v. Santa
Clara Valley Transp. Agency
,
In support of their motion, Defendants submit the declaration of Corporal Karson
Kauffroath of the Hercules Police Department. ECF No. 30. In this declaration, Kauffroath
describes the databases and other sources of information on which Kauffroath relied before
deciding to arrest Mr. McGee.
Id
. ¶¶ 5-8. However, in deciding a motion for judgment on the
pleadings, “the court may only consider the complaint, documents incorporated by reference in the
complaint, and judicially noticed facts.”
Evolutionary Intel., LLC v. Sprint Nextel Corp.
, 137 F.
Supp. 3d 1157, 1163 (N.D. Cal. 2015), aff’d,
Accordingly, the Court does not consider the Kauffroath declaration in deciding Defendants’ motion for judgment on the pleadings. Fourth Amendment False Arrest Claim Under Section 1983
“A claim for unlawful arrest is cognizable under § 1983 as a violation of the Fourth
Amendment, provided the arrest was without probable cause or other justification.”
Dubner v.
City & Cnty. of San Francisco
,
The determination of whether probable existed to support an arrest is objective.
See
Devenpeck v. Alford
,
a. Probable Cause
California’s Sex Offender Registration Act (the “Act”), California Penal Code §§ 290
et
seq
, generally requires individuals convicted of certain violations of the California Penal Code to
register with the chief of the police of the city in which the individual is residing, unless the duty
to register is terminated. Cal. Penal Code § 290(a)-(c). Section 290.013(a) of the Act requires that
individuals subject to the requirements of the Act register at their new address within five working
days. Failure to register as a sex offender is a general intent crime under California law.
See, e.g.
,
People v. Bejarano
,
still is, required to register as a sex offender under the Act. Defendants contend that Judge Chen’s August 15, 2023 order on the government’s motion to revoke Plaintiff’s supervised release in United States v. McGee , a criminal case in which Mr. McGee is the defendant, confirms that Mr. McGee remains subject to the Act’s registration requirements. Mot. at 5, 8–9. Defendants further assert that judgment should be granted in Defendants’ favor because Mr. McGee was not entitled to post-release notification of the registration requirements and never petitioned for removal from the sex offender registry. Id. at 10–11.
In the Court’s August 15, 2023 order, Judge Chen denied the government’s motion to revoke Mr. McGee’s supervised release, finding that the government had not demonstrated by a preponderance of the evidence that Mr. McGee’s failure to register as a sex offender before May 11, 2023 was willful. No. 3:12-cr-00052-EMC-1, ECF 258 at 8 (Order on Mot. to Revoke Supervised Release). However, Judge Chen concluded that his August 15, 2023 order put Mr. McGee “on notice of his obligation to register [as a sex offender] until at least November 2026.” Id. Judge Chen ordered Mr. McGee to file an affidavit attesting his compliance with the registration requirement no later than 14 days after the date of the order. A month after Judge Chen issued his order, Mr. McGee was arrested for failing to register as a sex offender. Compl. ¶¶ 2, 4, 20, 24–25. Judge Chen’s order, in conjunction with the facts alleged in Plaintiff’s complaint, establishes that Plaintiff was required to register as a sex offender under the Act at the time of his September 2023 arrest. [2]
However, “[i]t is well-settled that a fair and reliable determination of probable cause [is] a
condition for any significant pretrial restraint of liberty.”
Gonzalez
,
Accordingly, the Court DENIES Defendants’ motion for judgment on the pleadings as to Plaintiff’s Fourth Amendment claim, without prejudice to Defendants bringing a motion for summary judgment.
3. Fifth Amendment Due Process Claim
In their motion for judgment on the pleadings, Defendants argue they are entitled to
judgment on the pleadings as to Plaintiff’s Fifth Amendment Due Process Claims because the
Hercules Police Department Officers involved in Plaintiff’s arrest were local, rather than federal,
law enforcement officers. The Court does not interpret Plaintiff’s complaint as stating any claim
for violation of the Fifth Amendment. Because Plaintiff does not allege a violation of the Fifth
Amendment, the Court
DENIES
Defendants’ motion to dismiss any Fifth Amendment due
process claim.
Qualified Immunity
Defendants further argue that judgment on the pleadings is warranted because the officers
are entitled to qualified immunity. The defense of qualified immunity protects “government
officials . . . from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald
,
immunity must determine whether the plaintiff has alleged the deprivation of an actual
constitutional right and whether such right was “clearly established.”
Pearson v. Callahan
, 555
U.S. 223, 236 (2009). Where there is no clearly established law that certain conduct constitutes a
constitutional violation, a defendant cannot be on notice that such conduct is unlawful.
Rodis v.
City & Cnty. of San Francisco
,
Defendants argue they are entitled to qualified immunity because the there was no constitutional violation and “there was no Ninth Circuit or Supreme Court authority stating that a lawful arrest for failure to register as a sex offender or to report an address change” under California Penal Code § 290 would have violated a clearly established constitutional right. Mot. at 12–13, 14. That qualified immunity argument adds nothing to the motion because it presupposes that Defendants have established that the arrest was lawful. Because the Court declines to grant judgment on the pleadings as to Plaintiff’s unlawful arrest claim, Defendants’ qualified immunity argument fails.
V. CONCLUSION
For the reasons stated above, the Court DENIES Defendants’ motion for judgment on the pleadings.
IT IS SO ORDERED.
Dated: May 19, 2025 THOMAS S. HIXSON United States Magistrate Judge
Notes
[1] The parties consent to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). ECF Nos. 3, 12.
[2] A subsequent decision revoking Mr. McGee’s supervised release and imposing a new sentence
24
is currently on appeal before the Ninth Circuit.
United States v. McGee
, No. 3:12-cr-00052-EMC-
1, ECF Nos. 300 (notice of appeal), 301 (minute entry for proceedings held on September 10,
25
2024). Mr. McGee’s pending appeal of Judge Chen’s September 10, 2024 decision does not affect
the finality of his judgment that Mr. McGee was required to register as a sex offender under the
Act.
Collins v. D.R. Horton, Inc.
,