The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING CITY DEFENDANTS' MOTION TO DISMISS SECOND AMENDED COMPLAINT WITH PREJUDICE [doc. #75] and DIRECTING ENTRY OF JUDGMENT
Defendants City of San Diego Department of Development Service and the City of San Diego ["City defendants"] move to dismiss plaintiff's second amended complaint ("SAC")*fn1 or in the alternative, for a more definite statement. [doc. #75]. The motion was set for hearing which is the manner for determining when an opposition is due under the Civil Local Rules for the Southern District of California. Plaintiff did not file a timely opposition to defendants' motion to dismiss. See CIV. L.R. 7.1.e.2. Nor has plaintiff sought an additional period of time in which to file her opposition. Civil Local Rule 7.1.f.3.c. provides:
If an opposing party fails to file the papers in the matter required by Civil Local Rule 7.1.e.2, that failure may constitute a consent to the granting of a motion or other request for ruling by the court.
Notwithstanding the lack of an opposition by plaintiff, the Court makes a determination of the merits of the City defendants' motion to dismiss.
LEGAL STANDARD FOR MOTION TO DISMISS
Under Federal Rule of Civil Procedure 8(a)(2), the plaintiff is required to set forth a "short and plain statement" of the claim showing that plaintiff is entitled to relief and giving the defendant fair notice of what the claim is and the grounds upon which it rests. Conley v. Gibson, 355U.S. 41, 47 (1957). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). When reviewing a motion to dismiss, the allegations of material fact in plaintiff's complaint are taken as true and construed in the light most favorable to the plaintiff. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Although detailed factual allegations are not required, factual allegations "must be enough to raise a right to relief above the speculative level." Bell Atlantic v. Twombly,127 S.Ct. 1955, 1965 (2007). Although a complaint filed by a pro se plaintiff is held to less stringent standards than pleadings drafted by attorneys, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), the Court also may dismiss a claim as frivolous if it is based on an indisputably meritless legal theory or if the factual contentions are clearly baseless or nonsensical. A claim is frivolous if it lacks an arguable basis either in law or Neitzke v. Williams, 109 S.Ct. 1827, 1831-32 (1989). Finally, if the court dismisses the complaint, it should grant leave to amend "'unless it determines that the pleading could not possibly be cured by the allegation of other facts.'" Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc)(quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)).
The Court first notes that plaintiff's SAC does not meet the minimal standards of Federal Rule of Civil Procedure 8. The SAC is a rambling, stream-of-consciousness listing of various problems plaintiff contends she has endured based upon alleged shoddy construction in a remodeling project on her home. Although prolix, the SAC offers little more than vague and obtuse allegations that fail to satisfy the notice requirement of Rule 8 with respect to the City defendants. Plaintiff attempts to allege violations of her federal civil right under 42 U.S.C. §§ 1983, 1981, 1982 and 1988, and the Federal Tort Claims Act based upon her dissatisfaction with improvements made on her home by a private contractor and his employees. (SAC at 1, 12.) The City of San Diego and the City of San Diego Building Permits Inspection Office are named defendants because plaintiff contends the City defendants improperly inspected the construction of the home improvements and failed to hire, train and supervise the inspectors.
In granting plaintiff leave to file a second amended complaint, the Court noted that in order to support her claim based upon an alleged violation of her federal civil rights, 42 U.S.C. § 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. (citing 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988); Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 328 (1986)).
Plaintiff was advised that in filing a second amended complaint, she must set forth how the conditions complained of have resulted in a deprivation of plaintiff's constitutional rights, see Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980) and the complaint must allege in specific terms how each named defendant is involved in the constitutional violation. As the Court further noted, there can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed constitutional deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v., 588 F.2d 740, 743 (9th Cir.1978).
It should be beyond dispute that there is no constitutional right to have home construction completed to one's satisfaction. There is no liberty interest in being "able to sit in her back yard and relaxing and observing her beautiful plant and flower garden, and being able to invite others into her home without feeling that things are not finished with the home improvement projects or are coming loose at the seams from such defective activities of defendants[.]" (SAC at 25-26.) To suggest that an unsatisfactory construction project is a constitutional deprivation is an affront to the importance of the Constitution.
Plaintiff first asserts that the City's building inspectors failed to take notice of deficiencies in the remodeling construction. The City's inspection of building projects is not intended to determine if construction is being completed to the home owner's satisfaction. Instead, during construction, building officials periodically inspect work for conformance with the local building code and verify that contractors performing the work hold licenses required by law. Upon substantial completion of construction, the building official inspects the completed work to verify that it has been constructed in conformance with code and, if found to be so, to issue a certificate of occupancy authorizing the owner's occupancy and use of the project for its intended purposes.
Plaintiff also alleges the City defendants hired unqualified building inspectors and failed to train and supervise those inspectors. (SAC at 9.)
These causes of action against the City defendants may arise under state law because they appear to be based on a theory of negligence. But "[i]n California, all government tort liability must be based on statute. Government Code section 815 . . . Abolished all common law or judicially created forms of liability for public entities, . . . . Thus, public entities may be liable if a statute declares them to be liable." Harshbarger v. ...