them of dominion or control over their property
in any significant manner. Id.
For the forgoing reasons, the Court GRANTS Defendants' motion to
dismiss Plaintiffs' Fourth Amendment claim. Because the Court is
persuaded that Plaintiffs would be unable to state a claim upon which
relief could be granted if given leave to amend, dismissal is with
C. Fifth Amendment Claim*fn12
Plaintiffs claim that Defendants violated their Fifth Amendment rights
to liberty and property without due process of law. In their complaint,
Plaintiffs allege a conspiracy among Defendants to "deprive the
plaintiffs of their homes . . . by threat, intimidation and fear of
physical force and violence." Compl. at ¶ 9. They state that
Defendants took actions in November and December of 2001 that were
"intended to deprive plaintiffs of their property without due process of
law in violation of the Fifth Amendment." Id. at ¶ 12.
Plaintiffs' allegations of a violation of their property rights without
due process of law are perhaps the most scant in the complaint, and the
Court has had considerable difficulty ascertaining precisely what actions
Plaintiffs claim Defendants took to infringe upon their Fifth Amendment
rights. What is clear, however, is that with the exception of the
statements regarding a conspiracy among all Defendants to deprive
Plaintiffs of their Fourth and Fifth Amendment rights, Plaintiffs do not
allege any conduct by Defendant Brown or Defendant City of Oakland that
could constitute a due process violation. Therefore, as with their Fourth
Amendment claim, Plaintiffs' Fifth Amendment claim against Defendants
Brown and the City of Oakland is dismissed for failure to satisfy the
heightened pleading standard for conspiracy claims adopted in Harris v.
Roderick and, alternatively, for failure to state any facts to establish
a policy or custom under Monell v. Department of Social Services of New
York. With respect to Defendants Carillo and Llamas, Plaintiffs have
neglected to make any substantive amendments to their complaint that
would allow the Court to find that they have stated a claim upon which
relief may be granted. Plaintiffs' entire Fifth Amendment claim must
accordingly be dismissed.
The burden is on Plaintiffs to allege the two elements of a procedural
due process violation: 1) Plaintiffs possessed a protected liberty or
property interest and 2) Plaintiffs were deprived of that interest without
due process of law. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428
(1982). As the Court noted in its previous order, it is unclear whether
Plaintiffs had a protected property right in their respective residences
during the time period in question. See June 12 Order at 8, citing
Salazar v. Maradeaga, 10 Cal.App.4th Supp. 1, 4 (1992) (holding that a
tenant can maintain a right of possession despite the fact that the
underlying lease is unenforceable).*fn13 However, Plaintiffs have cited
to no authority supporting their
assertion that they had a protected property right in this case.
Plaintiffs allege that Defendants "engaged in a series of actions"
— threats, intimidation, and harassment — in November and
December of 2001 that were designed to deprive them of their property
without due process. Compl. at ¶ 12-13. Plaintiffs provide no
authority in their opposition papers demonstrating that Defendants'
conduct constitutes a deprivation of a protected property interest.
Lastly, it is unclear what "process" Plaintiffs claim they were denied
by Defendants' actions. Plaintiffs' argument seems to be that they were
entitled to have their rights adjudicated in unlawful detainer
proceedings before surrendering their tenancy. Plaintiffs' Opposition at
6. Defendants contend that Plaintiffs received adequate notice and a
meaningful opportunity to be heard under Mathews v. Eldridge, 424 U.S. 319,
333 (1976). Defendants correctly point out Budderman did eventually
institute unlawful detainer actions against Plaintiffs, and they argue
that several circuits have held that such state eviction proceedings
provide tenants with adequate procedural due process protections.
Defendants' Motion at 16-17. See e.g., Colvin v. Housing Authority of
Sarasota, 71 F.3d 864, 866 (11th Cir. 1996). Plaintiffs' participation in
their civil action against Budderman, their role as amici in the city's
nuisance abatement proceeding against the landlord, and their receipt of
relocation benefits further indicate that they received all process to
which they were entitled. This Court cannot see how the Due Process
Clause requires anything more.
At the hearing on Defendants' motion, the Court offered Plaintiffs one
last opportunity to assert a claim for a violation of procedural due
process that would satisfy the permissive standard of Rule 12(b)(6). The
following exchange is revealing:
The Court: But let me ask you this, Mr. Murcko, what
changes would you make in pleading your Fifth
Amendment claim, only the Fifth Amendment claim? If I
were to give you leave to amend that claim one final
time, what would your allegations be for the Fifth
Mr. Murcko: The Fifth Amendment claim for denial of
due process, you mean, Your Honor?
The Court: Yes.
Mr. Murcko: This is it, Your Honor. They were trying
to deprive them of the right —
The Court: Talk like a lawyer now. Amend your
complaint to state what?
Mr. Murcko: I would amend my complaint, Your Honor, to
state that these officials went to the homes of these
[Plaintiffs] with the intent to deprive them of their
right to a jury trial by making threats against them,
by telling them that they had to leave, by telling
them they had to arrest them, and by pushing some of
these people around. That would be the essence of my
due process claim, Your Honor. 
The Court: I've got the amendment there. You've
articulated it, and that's what I would read.
Mr. Murcko: That would be the essence, Your Honor,
and, also, that they a p plied to the City for
relief. They a p plied to the City for relief, and the
City, instead of giving them relief, Your Honor, they
send these individuals out to try to use force and
violence to deprive them of their right of a jury
trial that's guaranteed by the California Constitution
and the California statutes, Your Honor .
Transcript at 17:19-18-25.