FINDINGS AND RECOMMENDATIONS
This case, in which plaintiffs are proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Pending before the undersigned are (1) defendants Jeff Neves, County of El Dorado, and Helen Bauman's motion to dismiss plaintiff's third amended complaint, Dckt. No. 83; (2) plaintiffs' motion for recusal, Dckt. No. 85; and (3) plaintiffs' motions to strike defendants' motion to dismiss, Dckt. No. 86, 90.*fn1 For the reasons stated herein, the undersigned recommends that the motion to dismiss be granted and that the remaining motions be denied. amend pursuant to Rule 8 and for failure to comply with the requirements set forth in the June 9, 2009 order. Dckt. No. 75.
On October 20, 2008, plaintiffs filed a 132-page first amended complaint. Dckt. No. 5.
Defendants County of El Dorado, Vern Pierson, Dick Jones, Worth Dikeman, Ray Nutting, Helen Bauman, Brenda Bailey, Jeff Neves, Fred Kollar, and Dan Johnson's (the "County defendants"), Bob Anderson, Ted Gaines, and Steve Davey moved to dismiss that complaint on various grounds. Dckt. Nos. 6, 8, 28. Defendants moved to dismiss and on June 9, 2009, the undersigned granted those motions and gave plaintiffs thirty days to file a second amended complaint that conformed to directives set forth therein and the pleading requirements set forth in Federal Rule of Civil Procedure ("Rule") 8(a). Dckt. No. 34.
Plaintiffs filed a second amended complaint on July 9, 2009. Dckt. No. 45. The claims stated therein stemmed generally from an alleged dispute between plaintiffs and their former neighbor, defendant David Randall, and from the other defendants' alleged failure to protect plaintiffs from Randall. Id. Plaintiffs contended, inter alia, that defendants' failure to protect plaintiffs (or to apprehend Randall for his allegedly criminal activities) was in retaliation for complaining about defendants' conduct. Id. Plaintiffs asserted various claims for relief, including RICO, 18 U.S.C. § 1962; state law negligence; 42 U.S.C. § 1983 conspiracy to deprive rights; First Amendment; Fourth Amendment; Fourteenth Amendment; Cal. Civ. Code § 1708.7; and intentional infliction of emotional distress. Id.
The defendants again moved to dismiss, and on February 19, 2010, the undersigned issued findings and recommendations ("F&Rs"), recommending that defendants Gaines, Davey, and Brown be dismissed with prejudice from the action; that plaintiffs' First Amendment claims, Fourteenth Amendment due process claims for failure to enforce restraining orders, defamation claims, RICO claims, and § 1983 claims against defendants Anderson and Randall be dismissed without leave to amend; that plaintiffs' § 1983 conspiracy claims, § 1983 claims against El Dorado County and Neves, and intentional infliction of emotional distress claim be dismissed with leave to amend; and that the remaining claims and defendants be dismissed with leave to On March 19, 2010, the district judge adopted the F&Rs in full and dismissed the claims and defendants as set forth in the February 19 F&Rs. Dckt. No. 78. The March 19 order provided plaintiffs leave to amend the complaint "one final time as to the claims and defendants discussed in the magistrate judge's findings and recommendations." Id. at 2. Plaintiffs then sought reconsideration of the March 19 order, and the district judge denied that motion. Dckt. Nos. 79, 81.
Thereafter, plaintiffs filed a third amended complaint. Third Am. Compl. ("TAC"), Dckt. No. 82. The third amended complaint names the County of El Dorado, former El Dorado County Sheriff Jeff Neves, and El Dorado County Supervisor Helen Bauman, and Does 1-40 as defendants and asserts nine claims for relief: (1) retaliation for exercising First Amendment rights (against Neves, Bauman, and Does 1-40); (2) conspiracy to deprive rights pursuant to 42 U.S.C. § 1983 and California law (against Neves, Bauman, and Does 1-40); (3) supervisory defendants in individual capacity pursuant to 42 U.S.C. § 1983 (against Does 1-40); (4) final policymaker acts pursuant to 42 U.S.C. § 1983 (against Neves and Bauman); (5) unconstitutional policies and practices pursuant to 42 U.S.C. § 1983 (against Neves, Bauman, El Dorado County, and Does 1-40); (6) breach of fiduciary duty (against Bauman and Does 21-40); (7) libel per se (against Bauman, El Dorado County, and Does 1-40); (8) negligence (against all defendants); and (9) tortious interference (against all defendants). Id. The complaint once again alleges that defendants ignored the criminal acts of plaintiff's neighbor, David Randall, and were vindictive and retaliatory when plaintiffs complained about their conduct. Id. ¶ 1. Plaintiffs also allege that they were denied police services, code enforcement services, and the right to political discourse with their local representatives, in violation of the Equal Protection Clause. Id.
Defendants County of El Dorado, Neves, and Bauman ("defendants") now move to dismiss plaintiff's third amended complaint. Dckt. No. 83. Additionally, plaintiffs move to recuse the undersigned and Judge England from this action. Dckt. No. 85.
To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
In considering a motion to dismiss, the court must accept as true the factual allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. U.S. Bankr. Ct., 828 F.2d at 1388, and matters of public record, including pleadings, orders, and other papers filed with the court. Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers.
Haines v. Kerner, 404 U.S. 519, 520 (1972); Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985). However, the court's liberal interpretation of a pro se litigant's pleading may not supply essential elements of a claim that are not plead. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Furthermore, "[t]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). A pro se litigant is, however, entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
B. Plaintiff's Claims 1. First Amendment (First Claim for Relief; Against Neves, Bauman, and Does) Defendants Bauman and Neves move to dismiss plaintiffs' First Amendment claim, arguing that the claim is barred by the March 19, 2010 order, which dismissed plaintiffs' First Amendment claims with prejudice. Dckt. No. 83-1 at 4 (citing Dckt. No. 78).
As defendants correctly point out, plaintiffs' First Amendment claim was dismissed with prejudice in the March 19 order. Dckt. No. 78. The February 19 F&Rs, which were adopted in full in the March 19 order, noted that the second amended complaint only alleged First Amendment claims against three defendants (Gaines, Davey, and Brown) who were dismissed from the action with prejudice on alternative grounds. Dckt. No. 75 at 10. The F&Rs went on to find that "to the extent plaintiffs' First Amendment claims are asserted against the other defendants, they should also be dismissed without leave to amend." Id. The F&Rs noted that "[p]laintiffs allege that they were retaliated against for exercising their First Amendment rights and that their right to petition the government was violated by defendants' failure to enforce their restraining orders against Randall, by defendants' failure to obtain a criminal conviction against Randall, and by defendants' failure to keep plaintiffs abreast of all matters and/or to allow them to testify at Randall's criminal case." Id. However, the F&Rs found that "[a]lthough plaintiffs [were] dissatisfied with the manner in which defendants handled plaintiffs' disputes with Randall and defendants' failure to convict Randall, and although plaintiffs complained about those things to defendants, the First Amendment does not impose any affirmative obligation on the government to respond to the petitions raised by individual citizens, does not guarantee that citizens' speech will be heard, and does not require that every petition for redress of grievances be successful." Id. (citing Smith v. Ark. State Highway Employees, Local 1315, 441 U.S. 463, 464-65 (1979) ("The First Amendment right to associate and to advocate 'provides no guarantee that a speech will persuade or that advocacy will be effective.' . . . The public employee surely can associate and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so. . . . But the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it.")); DeGrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir. 2000) ("the First Amendment does not guarantee that citizens' speech will be heard").
Plaintiffs argue that their retaliation claim in their third amended complaint is not based upon a refusal to allow them to be heard, but upon being heard and then subjected to retaliation for exercising their right of free speech. Dckt. No. 89 at 2, 3. Specifically, plaintiffs contend that their complaint "is to stop retaliation and vindicate the constitutional violations done by defendants for their exercising Free Speech." Id. at 2. They argue that "defendants retaliated against [them] for complaining to other officials about their negligence as officials." Id. at 11.
Plaintiffs contend that the conduct constituting retaliation was not a "failure to arrest people," or a "failure to hear" plaintiffs' speech, but rather was defendants' conduct of "arrest[ing] criminals and releas[ing] them to assault his accusers because they complained to defendants peers causing them damages, their motive for vindictive animus and retaliation." Id. at 2, 3. Plaintiffs contend that they contacted Bob Berger, an El Dorado County Republican Party Committee member, and explained that defendants were "ignoring a public safety issue," and that Mr. Berger then contacted Bauman's office about the issue. Id. at 3, 4. Plaintiffs allege that Bauman's office "responded by falsely libeling plaintiffs, stating that her county had 'arrested' plaintiffs in an overt but ignorant attempt to recruit Mr. Berger into a conspiracy to believe that the plaintiffs were El Dorado County criminal defendants that were under 'numerous arrests.'" Id. at 4. Plaintiffs contend that "[o]ne day after Bauman was caught lying, in an email dated September 26, 2007 from [Bauman's] office, Mr. Berger received an apology by the Secretary Brenda Bailey (Exhibit A2) for the fraudulent deception that she, at 'Bauman's directions'" emailed to Mr. Berger. Id. at 5. Essentially, plaintiffs contend that Bauman "create[d] false arrest reports for plaintiffs." Id. at 6. Plaintiffs contend that the emails from Bailey, Exhibits A1 and A2 to plaintiffs' complaint, evidence "an express policy that county officials inform state and county elected officials, State employees, County employees that plaintiffs . . . intend to mislead officials because they are 'arrested' 'numerously' as criminal defendants not to be trusted," and is plaintiffs' "direct proof of animus, conspiracy, and intent to set policy." Id. at 9, 17; TAC ¶ 1. Plaintiffs allege that because they "exposed the negligence about [El Dorado County] officials, the officials became outraged and this was the vindictive animus that is required in this 1983 suit." Dckt. No. 89 at 19; TAC ¶ 32.
Although plaintiffs expressly contend that they have not alleged a cause of action for "failure to protect" them from private violence or for "failure to enforce a restraining order," id. at 17, plaintiffs do allege that defendants failed to protect them from Randall, who plaintiffs allege is mentally ill, and that the only rational basis for doing so was as "a reward for stalking the plaintiffs, more vindictive animus and extreme malice." Id. at 6, 7; TAC ¶¶ 15, 24, 28, 29. Plaintiffs further contend that defendants were "deliberately indifferent" to plaintiffs' safety. Id. at 15; TAC ¶¶ 15, 50, 60. In their third amended complaint, plaintiffs specifically allege that defendants violated plaintiffs' rights by falsely accusing them of having been arrested; denying plaintiffs "their constitutional right to have police services, code enforcement services and political discourse with plaintiffs' elected representatives administered in a non-discriminatory manner"; and by intentionally treating them differently from other crime victims. TAC ¶¶ 1, 15, 16, 18, 21, 52, 53.
The First Amendment forbids government officials from retaliating against individuals for speaking out. Hartman v. Moore, 547 U.S. 250, 256 (2006); see also Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986). "To recover under § 1983 for such retaliation, a plaintiff must prove: (1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action." Blair v. Bethel School Dist., 608 F.3d 540, 543 (9th Cir. 2010) (citing Pinard v. Clatskanie School Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006)).
Here, plaintiffs' First Amendment retaliation claim fails because plaintiffs have not alleged, and do not appear to be able to allege, that they were "subjected to adverse action by the defendants that would chill a person of ordinary firmness from continuing to engage in the protected activity." Additionally, plaintiffs' First Amendment retaliation claim fails because plaintiffs have not alleged, and do not appear to be able to allege, that there was a substantial causal relationship between their complaints about defendants' allegedly negligent conduct and any "adverse action" plaintiffs purported to suffer. In fact, it is unclear what "adverse action," if any, plaintiffs are complaining about. See Peoples v. Schwarzenegger, 2010 WL 4296667, at *1 (9th Cir. Oct. 29, 2010) (finding that the district court properly dismissed plaintiff's "retaliation claim because his conclusory allegations did not connect any defendant's alleged misconduct with the alleged infringement of his First Amendment rights."); see also Taylor ...