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Christopher D. Schneider v. Amador County; Linda Van Vleck; John Hahn; and Does 1 Through 40

September 1, 2011

CHRISTOPHER D. SCHNEIDER,
PLAINTIFF,
v.
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.

I. BACKGROUND

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 ...


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