IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 1, 2011
CHRISTOPHER D. SCHNEIDER,
AMADOR COUNTY; LINDA VAN VLECK; JOHN HAHN; AND DOES 1 THROUGH 40, DEFENDANTS.
ORDER AND FINDINGS AND RECOMMENDATIONS
This case, in which plaintiff is 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). Currently pending before the court are (1) defendants' motion to dismiss plaintiff's first amended complaint pursuant to Federal Rules of Civil Procedure ("Rule") 12(b)(1) and 12(b)(6), Dckt. No. 16; (2) plaintiff's motion for declaratory judgment, Dckt. No. 19; and (3) plaintiff's ex parte application for additional time to serve the Doe defendants, Dckt. No. 30. For the reasons stated herein, the undersigned recommends that the motion to dismiss be granted and the first amended complaint be dismissed with leave to amend; the motion for declaratory judgment be denied; and the application for additional time to serve the Doe defendants be denied as moot.
The allegations in plaintiff's first amended complaint appear to be based primarily on defendants' enforcement of two county ordinances prohibiting "junk" from being stored on plaintiff's property, which plaintiff contends are unconstitutional. First Am. Compl., Dckt. No. 11 (citing Amador County ordinances 19.08.360 and 19.48.130). According to the first amended complaint, plaintiff has received several letters from Amador County (the "County") directing plaintiff to remove or place in enclosed storage many of the items on plaintiff's property, including several airplanes, a fire engine, restaurant equipment, and other assorted belongings. Id. ¶ 25, 26, 72-79. Plaintiff alleges that the County sent him the letters at issue after receiving anonymous complaints about plaintiff's property. Id. ¶¶ 28, 29. Plaintiff contends that "this 'enforcement' is not about the law, but about all defendants maliciously and unequally harassing him under color of law." Id. at 3. Plaintiff further alleges that defendants have failed to protect him from the unknown harassers since defendants denied plaintiff's request for disclosure of the identity of all individuals complaining about his property. Id. ¶¶ 85, 91-92.
Plaintiff predicates jurisdiction for his first amended complaint on 42 U.S.C. § 1983, the United States Constitution and certain Federal Aviation Regulations, and supplemental jurisdiction for his state law claims. He alleges the following claims against the County, Linda Van Vleck (a County code enforcement officer), John Hahn (County counsel), and Does 1 through 40 (anonymous complaining witnesses and other involved County officials): (1) "lack of due process, vague, [overbroad] ordinances, color of law" in violation of the First and Fourteenth Amendments; (2) "lack of due process, Sixth Amendment, no clear notice of charges"; (3) "failure to prosecute, double jeopardy"; (4) civil conspiracy/collusion under color of law, violation of [California] Government Code §§ 6250 et seq."; (5) "negligence and deliberate indifference; failure to investigate or protect plaintiff from harassment"; (6) "Fourteenth Amendment denial of due process hearing under color of law"; (7) "Fourteenth Amendment, Federal Air Regulations, color of law"; (8) "unlawful regulation of commerce, denial of civil rights under color of law"; (9) 42 U.S.C. § 1983, Cal. Civil Code § 51.7; (10) California Civil Code section 52.3, deprivation of civil rights by law enforcement officer; (11) malicious prosecution and/or abuse of process in violation of the Fourteenth Amendment, common law tort, and equal protection; (12) California Civil Code §§ 43, 51, 51.7, 52.1, interference with exercise of civil rights-remedies, exemplary damages and civil penalty under § 52; and (13) civil assault, ongoing civil conspiracy. See generally id.*fn1
II. MOTION TO DISMISS
A. Standards of Review - 12(b)(1) & 12(b)(6)
"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute . . . . " Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). Rule 12(b)(1) allows a party to seek dismissal of an action where federal subject matter jurisdiction is lacking. "When subject matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Tosco Corp. v. Cmtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001).
A party may seek dismissal for lack of jurisdiction "either on the face of the pleadings or by presenting extrinsic evidence." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir.2003) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). In a factual challenge, the court may consider evidence demonstrating or refuting the existence of jurisdiction. Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008). "In such circumstances, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. (quoting Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987)).
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 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)).
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).
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). A pro se litigant is 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 Federal Claims
While plaintiff has listed many claims in his first amended complaint, the underlying allegations appear to be rather simple. As discussed above, plaintiff's allegations are based primarily on defendants' enforcement of two county ordinances prohibiting "junk" from being stored on plaintiff's property. Plaintiff alleges numerous federal claims resulting from this alleged enforcement, including claims for violation of his First, Fifth, Sixth, and Fourteenth Amendment rights, as well as for malicious prosecution and for violation of the Federal Air Regulations. See generally First Am. Compl., Claims 1-3, 6-8.
Many of plaintiff's federal claims are plainly meritless.*fn2
Specifically, plaintiff cannot state a claim for violation of
his Sixth Amendment right to "due process" since plaintiff does
not allege that he has been accused of any criminal offense and since a
nuisance abatement proceeding is a civil matter and does not
constitute a criminal prosecution for the purpose of the Sixth
Amendment. See Gannett Co. v. DePasquale, 443 U.S. 368, 379-80 (1979)
(noting that the Sixth Amendment provides certain guarantees "to a
person charged with the commission of a criminal offense, and to him
alone"). Plaintiff also has not stated a claim for violation of his
First Amendment rights since plaintiff's display of the materials at
issue in this action does not purport to convey any particularized
message and instead appears to be for plaintiff's personal
convenience. See Anderson v. City of Hermosa Beach, 621 F.3d 1051,
1058 (9th Cir. 2010) ("Conduct intending to express an idea is
constitutionally protected only if it is 'sufficiently imbued with
elements of communication to fall within the scope of the First and
Fourteenth Amendments, which means that '[a]n intent to convey a
particularized message [is] present, and . . . the likelihood [is]
great that the message w[ill] be understood by those who view [ ]
it.'"). Further, although plaintiff mistakenly argues that any issue
involving airplanes is solely within the jurisdiction of the Federal
Aviation Administration and not a local county, and that therefore
defendants have violated the Federal Aviation Act, plaintiff cannot
proceed with a private right of action under the Federal Aviation Act.
See G.S. Rasmussen & Assoc., Inc. v. Kalitta Flying Serv., Inc., 958
F.2d 896, 902 (9th Cir. 1992).
Plaintiff also has not stated a claim under 42 U.S.C. § 1983 for malicious prosecution since plaintiff has not shown that any alleged "prosecution" of plaintiff targets the deprivation of a constitutional right, such as equal protection, or that such "prosecution" was commenced without probable cause, with malice, and terminated in the plaintiff's favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561-62 (9th Cir. 1987) ("In this circuit, the general rule is that a claim of malicious prosecution is not cognizable under 42 U.S.C. § 1983 if process is available within the state judicial system to provide a remedy. . . . However, 'an exception exists to the general rule when a malicious prosecution is conducted with the intent to deprive a person of equal protection of the laws or is otherwise intended to subject a person to a denial of constitutional rights.' In California, the elements of malicious prosecution are (1) the initiation of criminal prosecution, (2) malicious motivation, and (3) lack of probable cause.") (internal citations omitted).
Nor has plaintiff stated a claim under § 1983 for failure to protect plaintiff from his neighbors since such a claim has no basis in federal law and since state and local governments generally lack an obligation to affirmatively provide aid such as protective services to their citizens. See Deshaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 196-97 (1989) (county had no duty to safeguard child from abusive parent); Town of Castle Rock v. Gonzales, 545 U.S. 748, 768-69 (2005) (constitution does not confer on citizens the right to have another person arrested); Johnson v. City of Seattle, 474 F.3d 634, 639 (9th Cir. 2007) (no right to sue over city's failure to prevent riot).
Moreover, with regard to plaintiff's remaining federal claims, the facts underlying plaintiff's allegations reveal that the court lacks jurisdiction over many of those claims at this time and that the allegations fail to state a claim upon which relief could be granted. Specifically, plaintiff's primary hurdle is the fact that he has not alleged any final action by or on behalf of the County with regard to the enforcement of the "junk" ordinances.*fn3 Other than an abatement proceeding in 2006, which was abandoned, plaintiff fails to allege that anything has occurred beyond a request by defendants that he bring his property into compliance with the junk ordinances.*fn4 Plaintiff has not yet been forced to remove any of his belongings from his property, and has not alleged that any state administrative or judicial action has even been commenced, much less completed, or that he has exhausted his available state remedies for any matter alleged.
In fact, in his opposition, plaintiff states that prior to October 30, 2010, he believed all the problems with respect to his property had been resolved, and apparently plaintiff was satisfied. Opp'n, Dckt. No. 25, at 7-9. However, plaintiff complains that on October 30, 2010, he received additional notices from the County regarding his violations of the junkyard ordinances, and he was requested to apprise the County by November 30, 2010 of his efforts to comply with those ordinances.*fn5 Id. The court is not certain what injury plaintiff has suffered, other than receiving notices from the County. Essentially plaintiff argues that his rights have been violated by the County sending him letters stating he must remove junk from his property. Even assuming all of plaintiff's allegations in the first amended complaint are true, no action has been taken by or on behalf of the defendants for this court to review. While it is possible some event could occur in the future between plaintiff and the County that could warrant review in federal court, no such event has occurred at this time.
Additionally, although plaintiff argues that his due process rights were violated because he was never provided a hearing that was promised to him in 2006, First Am. Compl., ¶ 111, plaintiff has alleged no action was taken by the County as a result of not having the 2006 hearing. Nor does there appear to have been any reason for a hearing as the dispute had been settled.*fn6 Plaintiff's own statements indicate that he believed all problems had been resolved regarding this time period. Opp'n at 7. It was only when plaintiff received a letter in 2010 that he determined that his due process rights had been violated years before. However, plaintiff still has not alleged that he has suffered any injury as a result of the abandoned hearing in 2006.*fn7
The court has no jurisdiction to adjudicate claims unless they are ripe. United States v. Streich, 560 F.3d 926, 931 (9th Cir. 2009). The Supreme Court has explained, the basic rationale [of the ripeness doctrine] is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.
Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967) (overruled on other grounds). A claim is not ripe "if it involves 'contingent future events that may not occur as anticipated, or indeed may not occur at all.'" Streich, 560 F.3d at 931 (quoting Thomas v. Union Carbide Agr. Prods. Co., 473 U.S. 568, 580-81 (1985)).
The requirement that a party have "standing" to bring an action is part of the case-or-controversy provisions of Article III of the Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). There are three elements:
First, the plaintiff must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] independent action of some third party not before the court. Third it must be likely as opposed to merely speculative that the injury will be redressed by a favorable decision.
Id. at 560-61 (internal citations and quotation marks omitted). The two doctrines are related: "ripeness can be characterized as standing on a timeline" and often "coincides squarely with standing's injury in fact prong." Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc).
Although plaintiff attempts to argue that the events that have occurred have violated federal law and therefore warrant review in this court, he is mistaken. Despite asserting over a dozen causes of action, the fact remains that there has been no formal decision by defendants or any concrete effects on plaintiff, let alone an injury in fact. As noted above, courts should avoid "entangling themselves in abstract disagreements" such as those in the instant case. Abbott Labs. v. Gardner, 387 U.S. at 148-49. Here, plaintiff seeks prospective injunctive relief, essentially asking this court to invoke jurisdiction under 42 U.S.C. § 1983 to overrule a County order that the County has yet to issue. Thus, plaintiff's action is not ripe for adjudication as "it involves contingent future events that may not occur as anticipated, or indeed may not occur at all."*fn8
Streich, 560 F.3d at 931 (quoting Thomas v. Union Carbide Agr. Prods. Co., 473 U.S. 568, 580-81, (1985)).
In addition, the first amended complaint fails to state a claim for which relief could be granted as it does not "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570). As discussed above, although plaintiff generally describes his interactions with the County, plaintiff has failed to allege sufficient facts that demonstrate cognizable claims and it is not clear what type of relief plaintiff seeks other than prospective injunctive relief that the court cannot provide.
Therefore, defendants' motion to dismiss plaintiff's federal claims should be granted and plaintiff's federal claims should be dismissed. However, plaintiff will be granted thirty days from the date of service of any order adopting these findings and recommendations to file a second amended complaint, so long as he can cure the above-mentioned defects by truthfully alleging facts that are not inconsistent with those contained in his current complaint. In any second amended complaint, plaintiff must plead against which defendants he brings each cause of action, what each defendant did to support relief under each respective cause of action, and what actual injuries plaintiff has suffered as a result of each defendant's conduct.
C. State Law Claims
Defendants also move to dismiss plaintiff's state law claims, arguing
that the claims should be dismissed because plaintiff did not plead
compliance with the California Torts Claims Act ("GCA").*fn9
Dckt. No. 17 at 25-26.*fn10 The GCA requires
that a party seeking to recover money damages from a public entity or
its employees must submit a claim to the entity before filing suit in
court, generally no later than six months after the cause of action
accrues. Cal. Gov't Code §§ 905, 911.2, 945, 950.2 (emphasis added);
see also Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th 201, 208
(2007) ("Before suing a public entity, the plaintiff must present
a timely written claim. . .") (emphasis added). "The legislature's
intent to require the presentation of claims before suit is filed
could not be clearer." City of Stockton v. Super. Ct,, 42 Cal. 4th
730, 746 (2007) ("The purpose of providing public entities with
sufficient information to investigate claims without the expense of
litigation is not served if the entity must file a responsive pleading
alerting its opponent to the claim requirements."). Timely claim
presentation is not merely a procedural requirement of the GCA but is
an element of a plaintiff's cause of action. Shirk, 42 Cal. 4th at
209. Thus, when a plaintiff asserts a claim subject to the GCA, he
must affirmatively allege compliance with the claim presentation
procedure, or circumstances excusing such compliance, in his
complaint. Id. The requirement that a plaintiff asserting claims
subject to the GCA must affirmatively allege compliance with the
claims filing requirement applies in federal court as well.
Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 627 (9thCir. 1988).
In the instant case, plaintiff concedes in his opposition that he has not yet complied with the GCA. Opp'n at 25. Although plaintiff argues that he still has time to comply with the GCA, the GCA required plaintiff to submit a claim to the County before filing the instant action. Therefore, plaintiff's state law claims against defendants must be dismissed. Although leave to amend would normally be proper in order to permit plaintiff to attempt to allege compliance with the GCA, because plaintiff concedes that he has not complied, plaintiff's state law claims should be dismissed without leave to amend to allege compliance.
III. MOTION FOR DECLARATORY JUDGMENT
Plaintiff has also filed a motion for declaratory judgment on his seventh claim for relief.
Dckt. No. 19. Specifically, plaintiff seeks "declaratory judgment, and a writ of prohibition, or in the alternative, a writ of mandate" declaring that defendants "[a]re not authorized to determine the airworthiness or usability of plaintiff's airplane parts, appliances, or other airplane related items" and that such determinations are beyond the scope of the individual defendants' authority. Id. at 2. However, because the court recommends that plaintiff's first amended complaint be dismissed in its entirety, plaintiff's motion for a declaratory judgment should be denied.
IV. MOTION FOR EXTENSION OF TIME TO SERVE DOE DEFENDANTS
On April 6, 2011, plaintiff requested a 120 day extension to ascertain the identities of the Doe defendants and serve the first amended complaint upon them. Dckt. No. 30. However, because the undersigned recommends that plaintiff's first amended complaint be dismissed, plaintiff's request for an extension of time to ascertain the Doe defendants and serve them with that complaint should be denied as moot. If plaintiff has ascertained the identities of the Doe defendants alleged in his first amended complaint, he may name them in any second amended complaint that he files, and may re-allege those claims against them.
Accordingly, it is hereby ORDERED that the status (pretrial scheduling) conference currently set for hearing on September 21, 2011 is vacated.*fn11
It is further RECOMMENDED that:
1. Defendants' motion to dismiss, Dckt. No. 16, be granted.
2. Plaintiff's first amended complaint be dismissed in its entirety.
3. Plaintiff be granted thirty days from the date of service of any order adopting these findings and recommendations to file a second amended complaint asserting federal claims, so long as he can cure the above-mentioned defects by truthfully alleging facts that are not inconsistent with those contained in his current complaint. In any second amended complaint, plaintiff must plead against which defendants he brings each cause of action, what each defendant did to support relief under each respective cause of action, and what actual injuries plaintiff has suffered as a result of each defendant's conduct. The second amended complaint must bear the docket number assigned to this case and must be labeled "Second Amended Complaint." Failure to timely file a second amended complaint in accordance with this order will result in a recommendation this action be dismissed.
4. Plaintiff's motion for declaratory judgment, Dckt. No. 19, be denied without prejudice.
5. Plaintiff's request for an extension to serve the Doe defendants, Dckt. No. 30, be denied as moot.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).