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George B. Adams, Individually and Dba Jms Bottom of the Fifth Sports Bar v. James Trimble

January 26, 2012



This matter comes before the court upon defendants' motion to dismiss plaintiff's complaint, filed on June 13, 2011. Defs.' Mot. Dismiss, ECF No. 7. The court held a hearing on this motion on July 27, 2011. Plaintiff was represented by John Baumgardner and Daniel Russo; defendants were represented by Gregg Thornton.

For the following reasons, the court GRANTS defendants' motion.


On May 19, 2011, plaintiff filed a complaint alleging violations of the First, Fifth and Fourteenth Amendments to the United States Constitution. Compl., ECF No. 2. Plaintiff's federal complaint is similar to a lawsuit filed in state court in 2007. Req. for Judicial Notice Ex. B, ECF No. 9-1. The state trial court dismissed some of plaintiff's causes of action for violating California's Strategic Lawsuits Against Public Participation (SLAPP) law, which is codified at Section 425.16 of the California Code of Civil Procedure. Id. Ex. E, ECF No. 9-2. Defendants appealed the trial court's decision not to dismiss the remaining claims under California's anti-SLAPP statute. Id. Ex. G, ECF No. 9-3. Plaintiff cross-appealed the portion of the trial court's decision that dismissed some of plaintiff's causes of action. Id. Ex. H. The California Court of Appeal sided with defendants, concluding that defendants' anti-SLAPP motion "should have been granted in its entirety" by the state trial court. Id. Ex. I at 1. The state court subsequently dismissed plaintiff's state complaint with prejudice. Id. Ex. M at 2:20--21. Following unsuccessful appeals to the state supreme court, id. Ex. J, and to the U.S. Supreme Court, id. Ex. K, plaintiff filed the instant action.

The instant complaint alleges that plaintiff's First Amendment rights to comment publicly on the conduct of public officials and to petition the government for redress of grievances were infringed when defendants sent a letter to the California Department of Alcoholic Beverage Control (ABC) recommending restrictions on the operating hours of plaintiff's bar. Compl. ¶ 24a. Plaintiff also asserts defendants' "repeated harassment of Plaintiff's patrons and his establishment" amounted to unconstitutional retaliation against plaintiff for the public comments plaintiff made about defendants' behavior near plaintiff's bar. Id. ¶ 24b. Additionally, plaintiff alleges defendants violated plaintiff's due process rights by interfering with plaintiff's plans to sell his bar. Id. ¶ 24c--d.

Plaintiff's second cause of action alleges defendants "made an agreement to violate Plaintiff's First and Fourteenth Amendment rights" in violation of 42 U.S.C. § 1983. Id.

¶ 27, ECF No. 2. However, 42 U.S.C. § 1983 does not create a private right of action to sue multiple parties who agree to violate another person's constitutional rights. Thus, the court construes this second cause of action as a claim for conspiracy to violate constitutional rights in violation of 42 U.S.C. § 1985. See 42 U.S.C. § 1985(3) ("If two or more persons in any State or Territory conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; . . . the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.").

Plaintiff's third and final cause of action charges the City of Benicia and its police chief, James Trimble, with liability under Monell v. Department of Social Services, which held that a municipality may be sued for allegedly unconstitutional action that "implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." 436 U.S. 658, 690 (1978). According to plaintiff's complaint, the City of Benicia and James Trimble "fail[ed] to take necessary, appropriate, or adequate measures to prevent the continued perpetuation of" allegedly unconstitutional actions by Benicia police. Compl. ¶ 31. As such, plaintiff alleges that defendants are liable for "constitutional deprivations visited pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." Monell, 436 U.S. at 690--91.

On June 13, 2011, defendants filed a motion to dismiss plaintiff's entire complaint for failure to state a claim upon which relief can be granted. Defs.' Mot. to Dismiss 1:24--2:4, ECF No. 7. Defendants base their argument for dismissal on three primary theories:

(1) expiration of the applicable statute of limitations, (2) claim preclusion, and (3) issue preclusion. Id. at 2:5--12. Defendants alternatively move to dismiss plaintiff's causes of action brought under the First, Fifth and Fourteenth Amendments for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). Id. at 2:13--18. Defendants argue that plaintiff's claim of Monell liability should be dismissed for lack of an underlying constitutional violation. Id. at 2:19--22. Finally, defendants James Trimble and John McFadden argue they are protected from plaintiff's claims by the doctrine of qualified immunity. Id. at 2:23--25.

Plaintiff filed his opposition to defendants' motion on July 11, 2011. Opp'n, ECF No. 13. On July 19th, defendants submitted their reply to plaintiff's opposition. Reply, ECF No. 15.


A. Legal Standard for Motion to Dismiss

As noted above, defendants move to dismiss based primarily on grounds that the statute of limitations has run on plaintiff's claims, and that the claims are barred by the doctrines of claim- and issue-preclusion. Mot. to Dismiss at 2:5--12, ECF No. 7. These affirmative defenses may be raised in a motion to dismiss "when, as here, the defense raises no disputed issues of fact." Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984) (citations omitted); see also 5 Charles Alan Wright et al., Federal Practice & Procedure § 1277 (3d ed. 2011).

In the instant case, the parties do not dispute that they litigated a nearly identical case in California state court. Indeed, plaintiff admits as much at the outset in his opposition to defendants' motion to dismiss. See Opp'n at 2:2--3:16. Accordingly, there is no required factual inquiry that would bar reaching ...

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