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James Huling, Plaintiffs v. City of Los Banos

April 19, 2012


The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge



Plaintiff, James Huling, brings this lawsuit against the City of Los Banos ("City"), its Chief of Police, Gary Brizzee, and City Police Officer Eddie Dolzadelli. The First Amended Complaint ("FAC") alleges five state law claims for: (1) invasion of privacy, (2) defamation, (3) intentional infliction of emotional distress, (4) intentional interference with advantageous relationships, and (5) negligence. In addition, Plaintiff advances two federal civil rights claims. FAC Doc. 18. The Sixth Cause of Action, brought under 42 U.S.C. §§ 1983 and 1986, alleges Defendants violated and/or conspired to violate Plaintiffs' "due process right to informational privacy"; and that Defendants violated and/or conspired to "conduct a search and seizure of plaintiff's home and property without a warrant, or probable cause...." FAC at ¶¶ 47-64. This claim also suggests that Defendants deprived Plaintiff of "equal protection of the laws...[and] of equal privileges and immunities under the laws including the use of intimidation or threat....," FAC ¶ 60, and that Defendants violated Plaintiff's "civil rights [to be free from] deprivation of life and liberty and property without due process of law... [and] to be free from interference with his zone of privacy under the First and 14th Amendments," FAC at ¶ 64. The Seventh Cause of Action, also brought under 42 U.S.C. §§ 1983 and 1986, alleges "Supervisory Liability" as to all Defendants, asserting that the City and Chief Brizzee are liable for Dolzadelli's actions. FAC at ¶¶ 65-69.

Defendants move to dismiss the FAC in its entirety. Doc. 19. Plaintiff opposes dismissal. Doc. 23. Defendants replied, and included in their reply a new argument that Defendants are entitled to qualified immunity. Doc. 25. Upon the Court's request, Plaintiff filed a sur-reply on the narrow issue of whether Defendants are entitled to qualified immunity on Plaintiff's informational privacy claim. Docs. 26 & 28. The motion was originally set for hearing on April 12, 2012, but the hearing was vacated and the matter submitted for decision on the papers. Doc. 15.


Plaintiff's original complaint was dismissed with leave to amend on January 25, 2012. Doc. 16. Plaintiff's federal civil rights claims against the city were dismissed for failure to satisfy the requirements of Monell v. Department of Social Services, 436 U.S. 658, 690-91 (1978), which provides that a municipality cannot be liable under § 1983 on a respondeat superior theory (i.e., simply because it employs someone who deprives another of constitutional rights). Id. at 4-6. The federal civil rights claims against Defendant Brizzee were likewise dismissed because Plaintiff "[did] not allege that Defendant Brizzee undertook any specific acts that violated Plaintiff's rights [and Defendant Brizzee cannot be held vicariously liable for the acts of his subordinate." Id. at 6. Likewise, Plaintiff's attempts to state a claim under 42 U.S.C. § 1981 were insufficient, because section 1981 "creates a cause of action only for those discriminated against on account of their race or ethnicity...." Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1123 (9th Cir. 2008), and "[n]othing in the complaint suggests Plaintiff was discriminated against on account of his racial or ethnic background." Id. at 7. Finally, the remaining Section 1983 claims against all Defendants in their individual capacities were dismissed. To the extent Plaintiff was attempting to bring a First Amendment claim, plaintiff failed to identify any protected speech or conduct that motivated any action by Defendant. Id. at 7-8. Plaintiff's non-specific mention of a "search" and an "illegal detention" were insufficient to state a claim under the Fourth Amendment. Id. at 8. Plaintiff's invocation of the Fourteenth Amendment failed to state a claim because "[t]he Complaint entirely fails to explain of what constitutionally protected life, liberty, or property interest Plaintiff was deprived, or what procedural protections were denied him." Id. at 8-9. Finally, embedded in Plaintiff's state law claims were various references to federal and statutory regulatory provisions enacted as part of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). These references did not provide an independent basis for the assertion of federal jurisdiction, and the district court declined to assert supplemental jurisdiction over the remaining state law claims. Id. at 9-12. Plaintiff was afforded "one opportunity to amend," and was warned that "further total disregard for applicable legal standards will not be tolerated." Id. at 13.


Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To sufficiently state a claim to relief and survive a 12(b)(6) motion, the pleading "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. Rather, there must be "enough facts to state a claim to relief that is plausible on its face." Id. at 570. In other words, the "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks omitted).

The Ninth Circuit has summarized the governing standard, in light of Twombly and Iqbal, as follows: "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (internal quotation omitted). Apart from factual insufficiency, a complaint is also subject to dismissal under Rule 12(b)(6) where it lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or where the allegations on their face "show that relief is barred" for some legal reason, Jones v. Bock, 549 U.S. 199, 215 (2007).

In deciding whether to grant a motion to dismiss, a court must accept as true all "well-pleaded factual allegations" in the pleading under attack. Iqbal, 129 S. Ct. at 1950. A court is not, however, "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).


A.Timeliness of Filing Amended Complaint.

The January 24, 2012 Memorandum Decision and Order granted Defendants' motion to dismiss with leave to amend and specifically required amendment within thirty (30) days of electronic service, which was accomplished on January 25, 2012. Doc. 16. Accordingly, any amended complaint was due Friday, February 24, 2012. Plaintiff did not file his FAC until Monday, February 27, 2012, one business day later. Defendant mentions the late filing, but does not move for dismissal on this ground. Doc. 20 at 2. Dismissal is not warranted under such circumstances, where there has been no showing of prejudice.

B.Federal Civil Rights Claims.

Plaintiff's Sixth Cause of Action against all Defendants is brought under 42 U.S.C., sections 1983 and 1986. Plaintiff's Seventh Cause of Action, brought under the same statutory provisions, asserts "Supervisory Liability" as to all Defendants.

1.Plaintiff's Section 1986 Claims.

Plaintiff invokes 42 U.S.C. § 1986 in his Sixth and Seventh Causes of Action, without providing any explanation as to how that statutory provision was violated. Section 1986 provides a cause of action against any person who fails to prevent "any of the wrongs conspired to be done, and mentioned in [42 U.S.C.] section 1985." 42 U.S.C. § 1986. It is well-established that one cannot state a claim under section 1986 without first stating a valid claim under section 1985. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 626 (9th Cir. 1988). "Section 1985 proscribes conspiracies to interfere with certain civil rights," id., and is divided into three sub-sections. Section 1985(1) proscribes conspiracies to prevent any person from "accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof...." Section 1985(2) makes unlawful conspiracies to intimidate any party, witness, or juror from attending or testifying in any court of the United States. Neither of these sub-sections is even arguably applicable to the facts of this case. Section 1985(3) prohibits conspiracies "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws[.]" As the Ninth Circuit succinctly explained in Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005)

The original purpose of § 1985(3), which was passed as the Ku Klux Klan Act of 1871, was to enforce the rights of African Americans and their supporters. See Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir.1992). We have extended § 1985(3) to protect non-racial groups only if "the courts have designated the class in question a suspect or quasi-suspect classification requiring more exacting scrutiny or ... Congress has indicated through legislation that the class require[s] special protection." Id.

Plaintiff has made no effort to establish that he is a member of a class deserving of suspect or quasi-suspect classification. To the extent that the FAC suggests plaintiff suffers or suffered from a mental illness, the federal courts do not treat mental illness as a suspect or quasi-suspect class. See Heller v. Doe by Doe, 509 U.S. 312, 321 (1993) ("We have applied rational-basis review in previous cases involving the mentally retarded and the mentally ill.").

Plaintiff has failed to state a claim under 42 U.S.C. § 1986. Accordingly, Defendants' motion to dismiss any claim based upon Section 1986 claim is DISMISSED. As section 1986 is the only basis for Plaintiff's allegations of a civil rights "conspiracy," any federal civil rights claims based upon the existence of such a conspiracy are likewise DISMISSED.

2.Section 1983 Claims.

Plaintiff advances claims against all Defendants under 42 U.S.C. § 1983, asserting Defendants violated his rights under the First, Fourth, and Fourteenth Amendments.

a.First Amendment Claim.

As the January 24, 2011 Decision explained:

In order to state a claim based upon a First Amendment violation, a plaintiff must allege specific facts suggesting: (1) the plaintiff engaged in speech or conduct protected under the First Amendment; (2) the defendant took action against the plaintiff; and (3) the plaintiff's protected speech or conduct or the chilling of the plaintiff's speech or conduct was a substantial motivating factor for the defendant's actions. See Sloman v. Taslock, 21 F.3d 1463, 1469-70 (9th Cir. 1994) (articulating the general elements of a First Amendment claim); Awabdy v. City of Adelanto, 368 F.3d 1062, 1071 (9th Cir. 2004) (applying the elements articulated in Sloman as pleading requirements).

Doc. 16 at 7-8.

The original complaint alleged:

This is the proper venue for this action under HIPAA § 3261-262,264(a)(b)(c) 42 USC §§ 17931 through 17939; U.S. Cons. 1st. 4th and 14th Amendment in that the illegally disclosed confidential medical information of plaintiffs confinement in Los Banos Memorial Hospital to plaintiffs employer; the search without cause of plaintiffs home; the threats to plaintiffs spouse and other acts alleged herein were committed within this Court's judicial district.

Doc. 1 at ¶ 1. The January 24, 2011 Decision granted Defendants' motion to dismiss any § 1983 claim based upon the First Amendment, reasoning:

This is wholly insufficient under the modern pleading standard set forth in Iqbal, which requires a complaint to "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." 556 U.S. 662, 129 S. Ct. at 1949 (internal quotation marks omitted); see also Moss, 572 F.3d at 969 ("for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to ...

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