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Sanchez v. City of Fresno

United States District Court, E.D. California

December 26, 2012

Luis SANCHEZ, Plaintiffs,
CITY OF FRESNO, Ashley Swearengin, Mark Scott, Bruce Rudd, Greg Barfield, Jerry Dyer, Phillip Weaterhs, Malcolm Dougherty, and Does 1-100, inclusive, Defendants.

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Naureen Mohammad Nalia, Christina Skaf Hathaway, Central California Legal Services, Inc., Fresno, CA,

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Paul Alexander , Arnold & Porter LLP, Palo Alto, CA, Suzanne Flora Swenk, Central California Legal Services, Visalia, CA, for Plaintiffs.

James B. Betts, Joseph D. Rubin, Betts, Rubin & McGuinness, C. Russell Georgeson, Georgeson Belardinelli & Noyes, Fresno, CA, for Defendants.


LAWRENCE J. O'NEILL, District Judge.


Luis Sanchez, a homeless resident of the City of Fresno, alleges that his personal property, including property necessary for his survival, essential to his health, and of personal and emotional value, was seized and immediately destroyed as part of the City of Fresno's efforts to clean up homeless encampments in Downtown Fresno in late 2011 and early 2012. This case is but one of more than thirty similar cases filed by homeless individuals arising out of these cleanup activities, all of which have been consolidated for pretrial purposes, with the above-captioned matter serving as the lead case. See Doc. 27.

Before the Court for decision are separate, but partially overlapping, motions to dismiss Sanchez's first amended complaint (" FAC" ) pursuant to Fed.R.Civ.P. 12(b)(6), filed by (1) the City of Fresno (the " City" ), Doc. 38-1, and (2) individual City employee Defendants Ashley Swearengin, Mark Scott, Bruce Rudd, Greg Barfield, Jerry Dyer, Phillip Weathers, and Malcolm Dougherty (collectively, " Individual Defendants" ), Doc. 45. In the alternative, Defendants move for a more definite statement pursuant to Fed. R. Civ. P 12(e) and to strike certain allegations from the complaint pursuant to Fed.R.Civ.P. 12(f). The motions address allegations that are contained in all consolidated complaints, and the Parties have stipulated that any ruling will be applicable to all related cases. Doc. 26 at 2. Plaintiff filed a consolidated opposition. Doc. 40. Defendants filed a consolidated reply. Doc. 43. The matter was originally set for hearing on December 6, 2012, but given the voluminous materials submitted to the Court, the hearing was vacated. Doc. 44. After reviewing the submissions of the parties in light of the entire record, the Court does not believe oral argument is necessary to aid resolution of the disputes, and hereby rules on the papers pursuant to Local Rule 230(g).



The Kincaid Case. [1]

This case cannot be understood in a vacuum, as the City of Fresno and its homeless population have a history of conflict and litigation. In October 2006, a group of homeless individuals residing in the City of Fresno filed a class action complaint against the City and various other defendants, challenging cleanup operations conducted over the course of more than a year in which defendants implemented a policy of seizing and immediately destroying personal property belonging to homeless individuals. See Kincaid v. City of Fresno, 244 F.R.D. 597, 598 (E.D.Cal.2007).

In late October 2006, the district court found plaintiffs were likely to succeed on their claims that defendants' conduct violated the Fourth, Fifth and Fourteenth

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Amendments of the United States Constitution, as well as Article 1, Section 13 (unlawful searches and seizures) and Article 1, Section 7(A) (due process) of the California Constitution. Kincaid, 1:06-cv-01445 OWW SMS, Doc. 34 at 13-14. A preliminary injunction was entered, barring Defendants from " immediately destroying the property of homeless persons during protective sweeps, activities to remove homeless persons from temporary shelter sites, or other activities to seize the personal property of homeless persons, without providing constitutionally adequate notice and meaningful opportunity to be heard concerning the seizure and destruction of such personal property." Id. at 14.

On August 14, 2007, plaintiffs' motion for class certification was granted, permitting the case to proceed on behalf of a class of " [a]ll persons in the City of Fresno who were or are homeless, without residence, after October 17, 2003, and whose personal belongings have been unlawfully taken and destroyed in a sweep, raid or cleanup by any of the Defendants." Kincaid, Doc. 147. The case proceeded through several rounds of dispositive motions toward trial, which was set for early June 2008. On the eve of trial, the parties reached a settlement, which was eventually approved by the district court. Kincaid, Docs. 321 & 323. The City agreed to pay $1,400,000 [2] to the class, to be allocated by a well-known local homeless advocate in the form of small cash allowances to be paid directly to class members and additional living allowances to be paid to third parties to cover housing expenses. Kincaid, Doc. 321-2 at 3.1.1 (City Settlement), Doc. 321-4 (Settlement Plan). The City also agreed to pay $850,000 in attorney's fees and costs to class counsel. Kincaid, Doc. 321-2 at 3.1.1.

In addition, the City agreed as follows:

The City of Fresno Defendant and all agents and employees of the City of Fresno will, for a period of not less than 5 years from the day this settlement is approved by the Court, comply with the provisions of Fresno Administrative Order No. 6-23[ ]. Before making any change in Administrative order 6-23 during this 5 year period, the City of Fresno Defendants will meet and confer with counsel for Plaintiffs and the Plaintiff class with respect to any such change and, following that meet and confer, seek leave of Court, and absent exigent circumstances, give Plaintiffs' counsel no less [sic] than 30 days notice of its intention to seek such leave and of the terms of the change. If exigent circumstances arise, the City of Fresno Defendants will give as much notice as reasonably possible of any proposed change and attempt in good faith to resolve any issue giving rise to such circumstances. The Court shall retain jurisdiction of this matter to resolve any dispute that may arise with respect to compliance with or changes to Administrative Order 6-23.

Id. at 3.1.2.[3]

Fresno Administrative Order (" AO" ) 6-23, which is discussed in greater detail below, sets forth detailed procedures relating to the clean up of materials in and around areas in which individuals have erected temporary shelters. See Kincaid, Doc. 321-5 (AO 6-23). Absent any immediate threats to health or safety, specific forms of notice must be required prior to any clean up. In addition, " materials of

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apparent value which appear to be the property of any individual" may not be destroyed. Id. at I. A(3). AO 6-23 acknowledges that " the fact that property is unattended does not necessarily mean that it has been discarded," and directs that " [r]easonable doubt about whether property is ‘ trash or debris' or valuable property should be resolved in favor of the conclusion that the property is valuable and should not be discarded." Id. at I.A(4).


The Present Allegations. [4]

Beginning in or about September 2011, Defendants set in motion a plan to eradicate a number of small shelters used by homeless individuals in an area in the City of Fresno known generally as " south of Ventura Street." FAC ¶ 20. It is alleged that Defendants knew these shelters were being used by Plaintiff and the Plaintiffs in related actions as " homes to provide not only protection from the elements but also contained personal property of great personal value and significance to both their physical and emotional health, including personal property such as medications, photographs, and important personal effects from family and loved ones...." FAC ¶ 9. Plaintiff further alleges that Defendants knew that Plaintiff and others in Plaintiff's position had no alternative shelter or means of protection from the elements nor any other means of keeping their personal property safe, and that no safe shelter was available to Plaintiff or to large numbers of other homeless residents, including many Plaintiffs whose cases have been consolidated with this one. Id.

Nonetheless, Defendants planned, directed, and implemented the demolition of these shelters and their contents, even though Defendants were advised that the demolition involved the destruction of valuable personal property and the demolition of entire tents and shelters. See id. It is alleged that Defendants engaged in this conduct " [d]espite the extreme weather conditions" prevailing at the time, and " know or should reasonably know that their conduct threatened plaintiff's continued survival." FAC ¶ 22. According to the FAC, Defendants failed to provide adequate notice of their intent to seize and destroy Plaintiff's property, nor any means of retrieving seized property. FAC ¶ 21. Plaintiff concedes that at the time his property was destroyed, he " had left his shelter temporarily for a brief time," but " had in no way either abandoned his shelter or the contents of his shelter." Id. When Plaintiff returned to the area, he witnessed Defendants demolishing other property in the area. Id.


A. Motions to Dismiss.

1. Standard of Decision.

A motion to dismiss pursuant to Fed R. Civ. P. 12(b)(6) is a challenge to the sufficiency of the allegations set forth in the complaint. A 12(b)(6) dismissal is proper where there is either a " lack of a cognizable legal theory" or " the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990). In considering a motion to dismiss for failure to state a claim, the court generally accepts as true the allegations in the complaint, construes the pleading in the light most favorable to the party opposing the

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motion, and resolves all doubts in the pleader's favor. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir.2008).

To survive a 12(b)(6) motion to dismiss, the plaintiff must allege " enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " 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." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). " The plausibility standard is not akin to a ‘ probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). " Where a complaint pleads facts that are ‘ merely consistent with’ a defendant's liability, it ‘ stops short of the line between possibility and plausibility for entitlement to relief’ " Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955).

" While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘ grounds' of his ‘ entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007) (internal citations omitted). Thus, " bare assertions ... amount[ing] to nothing more than a ‘ formulaic recitation of the elements'... are not entitled to be assumed true." Iqbal, 556 U.S. at 681, 129 S.Ct. 1937. A court should " dismiss any claim that, even when construed in the light most favorable to plaintiff, fails to plead sufficiently all required elements of a cause of action." Student Loan Marketing Ass'n v. Hanes, 181 F.R.D. 629, 634 (S.D.Cal.1998). In practice, " a complaint ... must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562, 127 S.Ct. 1955. To the extent that the pleadings can be cured by the allegation of additional facts, the plaintiff should be afforded leave to amend. Cook, Perkiss and Liehe, Inc. v. Northern California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir.1990) (citations omitted).

2. Threshold Issue: Relationship of this Case to Kincaid.

Among other things, Plaintiff asserts that he has a contractual right to enforce the benefits and protections of the Kincaid Settlement Agreement and the corresponding court Order approving it. The City correctly notes that in the approval Order, the district court retained jurisdiction to hear any disputes over implementation of the Settlement Agreement, including any disputes over the City's compliance with AO 6-23. However, nothing in the Settlement Agreement or the Order approving it requires any such issues to be raised within the now-closed Kincaid case, and nothing precludes or waives Plaintiff's right to file a separate lawsuit challenging the City's post-settlement conduct. Defendants point to no such language and in fact do not seek dismissal on this ground. The matter seems to be raised for no particular procedural reason at this point in the litigation, as there is no dispute that this Court has jurisdiction to hear most (if not all) of the claims raised in the present Complaint. The Court will therefore ignore this extraneous reference.

3. Federal ( 42 U.S.C. § 1983 ) Claims.

a. City's Motion to Dismiss.

(1) Municipal Liability Under Monell.

Defendants move to dismiss the federal civil rights claims against the City,

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arguing that Plaintiff has failed to satisfy the requirements of Monell v. Department of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (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). Rather, liability only attaches where the municipality itself causes the constitutional violation through a " policy or custom, whether made by its lawmakers or those whose edicts or acts may fairly be said to represent official policy." Id. at 694, 98 S.Ct. 2018. Therefore, municipal liability in a § 1983 case may be premised upon: (1) an official policy; (2) a " longstanding practice or custom which constitutes the standard operating procedure of the local government entity; " (3) the act of an " official whose acts fairly represent official policy such that the challenged action constituted official policy" ; or (4) where " an official with final policy-making authority delegated that authority to, or ratified the decision of, a subordinate." Price v. Sery, 513 F.3d 962, 966 (9th Cir.2008).

(a) Official Policy.

As part of the Kincaid settlement, the City developed AO 6-23 as a formal policy regarding the cleanup of shelters erected by homeless individuals and any belongings found in and around such shelters. AO 6-23 details how the City will provide notice regarding planned cleanup of such structures and belongings, and defines " trash and debris" to include " property that appears to have been discarded by its owner." AO 6-23 at I. A(4). While the AO does not prohibit the City from disposing of such " trash and debris," it specifically prohibits the destruction of " any materials of apparent value which appear to be the personal property of any individual." AO 6-23 at I.A(3). The AO also specifies that " the fact that property is unattended does not necessarily mean that it has been discarded" and that " reasonable doubt about whether property is ‘ trash or debris' or valuable property should be resolved in favor of the conclusion that the property is valuable and has not been discarded." AO 6-23 at I.A(4).

The FAC alleges that individual agents of the City acted in contravention of AO 6-23. This is indisputably insufficient to trigger municipal liability under Monell and Plaintiff offers no other basis upon which this form of liability could exist. Accordingly, City Defendants' motion to dismiss is GRANTED WITHOUT LEAVE TO AMEND as to any Monell claim based on an official policy.

(b) Longstanding Practice or Custom.

Defendant argues that the FAC fails to allege sufficiently Monell liability based upon a longstanding practice or custom, because the complaint concerns only one episode of purportedly unconstitutional conduct: the cleanup that resulted in the demolition of Plaintiff's shelter in November 2011. " A single constitutional deprivation ordinarily is insufficient to establish a longstanding practice or custom." Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir.1999).

Municipal liability is only appropriate where a plaintiff has shown that a constitutional deprivation was directly caused by a municipal policy. Oviatt v. Pearce, 954 F.2d 1470, 1477-78 (9th Cir.1992). Such a policy must result from a deliberate choice made by a policy-making official, id., and may be inferred from widespread practices or " evidence of repeated constitutional violations for which the errant municipal officers were not discharged or reprimanded," Gillette v. Delmore, 979 F.2d 1342, 1349 (9th Cir.1992). " A plaintiff cannot prove the existence of a municipal policy or custom based solely on the occurrence of a

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single incident or unconstitutional action by a non-policymaking employee." Davis v. City of Ellensburg, 869 F.2d 1230, 1233 (9th Cir.1989).

Nadell v. Las Vegas Metro. Police Dept., 268 F.3d 924, 929 (9th Cir.2001), abrogated on other grounds as recognized in Beck v. City of Upland, 527 F.3d 853, 862 n. 8 (9th Cir.2008).

A longstanding practice or custom is one that is so " persistent and widespread" that it constitutes a " permanent and well settled" governmental policy. Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.1996). " Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy." Id. (emphasis added). The line between " isolated or sporadic incidents" and " persistent and widespread conduct" is not clearly delineated, although where more than a few incidents are alleged, the determination appears to require a fully-developed factual record. Compare Davis v. City of Ellensburg, 869 F.2d 1230, 1233-34 (9th Cir.1989) (single incident of excessive force inadequate to establish liability); Meehan v. County of Los Angeles, 856 F.2d 102, 107 (9th Cir.1988) (two incidents insufficient) with Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir.2005) (triable issue of fact existed as to whether Seattle had an unconstitutional policy or custom of suppressing certain political speech based on the testimony of several individuals that their entry to a particular area was permitted by police only after they removed offending buttons and stickers, coupled with the testimony of the officer in charge that the City would not permit " demonstrations" in the area); see also Jarbo v. County of Orange, 2010 WL 3584440, *9-13 (C.D.Cal. Aug. 30, 2010) (reviewing circumstances in which Monell custom/practice claims were permitted past summary judgment).

Here, the FAC alleges generally that the demolition of Plaintiff's shelter was " part of a demolition of all homeless encampments in the areas of Santa Fe, H Street, G Street, F Street, E Street, San Benito Street, Santa Clara Street, Ventura Street, Golden State, and surrounding areas." FAC ¶ 21. Standing on its own, this suggests the existence of a custom or practice, but lacks the specificity required to determine whether the complaint plausibly alleges a " persistent and widespread" course of conduct. The Court takes judicial notice of the fact that this cleanup operation resulted in multiple individual lawsuits, which have been consolidated for pretrial purposes with the above-captioned matter. The original complaints filed in these cases allege cleanups occurred on multiple days, from as early as late October 2011 through mid-December 2011. However, the Court is not aware of any caselaw that permits consideration of the content of related/consolidated complaints to satisfy the applicable pleading requirements. Plaintiff must provide sufficient detail in his own complaint to satisfy the requirements of Monell and Twombly / Iqbal.

Accordingly, City Defendants' motion to dismiss is GRANTED WITH LEAVE TO AMEND as to any Monell claim based on a longstanding practice or custom.


Official Policymaker. [5]

Monell liability may also attach where " the individual who committed the constitutional tort was an official with

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final policy-making authority and [ ] the challenged action itself thus constituted an act of official governmental policy...." Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir.1992). " Whether a particular official has final policy-making authority is a question of state law." Id.

The FAC alleges that high-ranking policymakers within City government, including the Mayor, the City Manager, the Assistant City Manager, the Chief of Police, and the Homeless Prevention and Policy Manager personally approved of and or directed others to implement a policy very different from that set forth in AO 6-23, one that called for " the demolition of shelters and personal property of great importance to plaintiff and others like him with knowledge of the devastating personal damage caused by these actions." FAC ¶ 9; see also FAC ¶¶ 10-13.[6] For purposes of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), these allegations must be assumed true.[7]

Defendants argue that none of the named individual City officials possesses the authority to set City policy regarding the cleanup of homeless encampments because of the nature of the Settlement Agreement in Kincaid, which gave rise to the passage of AO 6-23. As part of the Settlement Agreement, executed by the City of Fresno, its then Mayor Alan Autry, and several other City Officials, the City agreed that for a period of five years following court approval of the Settlement, the City, as well as all of its agents and employees, must comply with the provisions of AO 6-23 and must not modify AO 6-23 without leave of Court. Settlement Agreement at 3.1.2. The Kincaid court approved the Settlement on July 25, 2008.

There seems to be little doubt that the City would be in breach of the Settlement Agreement and the court Order approving it if the City or any of its agents or officers adopted a formal policy contrary to AO 6-23 within the five-year window, which will not expire until July 25, 2013. However, does this necessarily mean that the Mayor lacks authority to do so? Under Section 400 of the Fresno City Charter, the " executive power of the City is vested in the office of the Mayor," who " shall be the Chief Executive Officer of the City ..." and " shall be responsible ... for the proper and efficient administration of all affairs of the City." Charter of the City of Fresno, Art. IV, § 400. Further, the City Manager " shall exercise control over all departments, offices and agencies under his or her jurisdiction." Id. at Art. VII, § 705.

The key question in determining whether a person is " a final policymaker" is whether " he or she [is] in a position of authority such that a final decision by that person may appropriately be attributed to the Municipality." Lytle v. Carl, 382 F.3d 978, 983 (9th Cir.2004). " Municipal liability attaches only where the decisionmaker possesses final authority to establish

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municipal policy with respect to the action ordered." Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Whether the Mayor and/or the City Manager had power to set policy unilaterally on the subject of homeless encampment cleanup would be easier to resolve if the requirement of Court approval prior to modification of AO 6-23 had been embodied in AO 6-23 itself or in any other City Ordinance or Order. [8] As it stands, it is debatable whether the court Order approving the Settlement actually modifies the Mayor's otherwise obvious power to set policy regarding garbage collection and City cleanup activities, or whether the Mayor may still exercise that power despite the fact that doing so may violate a federal court Order. The Court is unable to conclude at this stage of the litigation that the Mayor and/or other Individual Defendants were not final policymakers. Further factual development appears necessary to resolve this matter. Accordingly, Defendants motion to dismiss any Monell claim based upon the act of a final policymaker is DENIED.

(2) Fifth Amendment Due Process Claim.

The caption of the Second Claim for Relief alleges " denial of [the] Constitutional Right to Life, Liberty and Due Process of Law [based upon] the Fifth Amendment and 42 U.S.C. § 1983." FAC at 21. It is well established that Plaintiff cannot advance a Fifth Amendment due process claim against a local government entity or its employees, because the due process and equal protection components of the Fifth Amendment apply only to the federal government. Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir.2001) (dismissing Fifth Amendment due process and equal protection claims brought against the City of Los Angeles because defendants were not federal actors); see also Low v. City of Sacramento, 2010 WL 3714993 (E.D.Cal. Sept. 17, 2010).

Plaintiff does not dispute the essence of these holdings but nevertheless insists that he has stated a Fifth Amendment due process claim. The only authority cited by Plaintiff that even arguably supports this contention is the following quote from justice Stevens' concurrence in Chavez v. Martinez, 538 U.S. 760, 788, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003):

By its terms, the Fifth Amendment itself has no application to the States. It is, however, one source of the protections against state actions that deprive individuals of rights " implicit in the concept of ordered liberty" that the Fourteenth Amendment guarantees. Indeed, as I pointed out in my dissent in Oregon v. Elstad, 470 U.S. 298, 371, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), it is the most specific provision in the Bill of Rights " that protects all citizens from the kind of custodial interrogation that was once employed by the Star Chamber, by ‘ the Germans of the 1930's and early 1940's,’ and by some of our own police departments only a few decades ago." Whenever it occurs, as it did here, official interrogation of that character is a classic example of a violation

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of a constitutional right " implicit in the concept of ordered liberty."

(Footnotes omitted.) Plaintiff fails to acknowledge that Chavez concerned the self-incrimination clause of the Fifth Amendment, which has undeniably been made applicable to the States in full through incorporation by the Due Process Clause of the Fourteenth Amendment. See id. at 790, 123 S.Ct. 1994. With this in mind, the Court is unconvinced that this non-binding concurrence should open the door to a Fifth Amendment due process claim against a local government entity in this case.

Defendants' motion to dismiss any claim based upon the Fifth Amendment due process clause is GRANTED WITHOUT LEAVE TO AMEND, as amendment could not possibly cure the defect described above.

(3) Fourteenth Amendment Due Process.

Although the caption of the Second Claim for Relief invokes only the Fifth Amendment, the text of that claim alleges that Defendants' policies, practices, and conduct violate plaintiff's right to life, liberty and due process of law under the Fifth and Fourteenth Amendments." FAC ¶ 36.

The Fourteenth Amendment bars " any State [from] depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV, § 1. The Due Process Clause of the Fourteenth Amendment encompasses two types of protections: substantive rights (substantive due process) and procedural fairness (procedural due process). See Zinermon v. Burch, 494 U.S. 113, 125-28, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990).

(a) Substantive Due Process.

Under substantive due process jurisprudence, the Fourteenth Amendment " guarantees more than fair process, and the ‘ liberty’ it protects includes more than the absence of physical restraint." Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). In this conception, due process encompasses certain " fundamental" rights. Reno v. Flores, 507 U.S. 292, 301-302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). Substantive due process also " forbids the government from depriving a person of life, liberty, or property in such a way that shocks the conscience or interferes with the rights implicit in the concept of ordered liberty." Corales v. Bennett, 567 F.3d 554, 568 (9th Cir.2009) (internal citations and quotations omitted). The substantive component of the Due Process Clause is violated by executive action only when it " can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense." Collins v. City of Harker Heights, 503 U.S. 115, 128, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992).

Defendants move to dismiss any substantive due process claims in the FAC on the ground that the facts alleged in support of the claim are more appropriately evaluated under the construct of the Fourth Amendment. Doc. 38-1 at 10. Where government behavior is governed by a specific constitutional amendment, claims under section 1983 alleging unlawful government action must be evaluated under that specific constitutional provision, rather than under the rubric of " substantive due process." Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); see also Picray v. Sealock, 138 F.3d 767, 770 (9th Cir.1998) (refusing to acknowledge a Fourteenth Amendment liberty interest in entering a polling place wearing political buttons, instead evaluating arrest for such conduct under the Fourth Amendment). Defendants maintain

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that Plaintiff has failed to explain how the alleged violation of his due process rights is any different from the alleged violation of his Fourth Amendment rights. Doc. 38-1 at 10.

The key inquiry is whether the more particular Amendment (in this case the Fourth) " provides an explicit textual source of constitutional protection against a particular sort of government behavior." Albright, 510 U.S. at 273, 114 S.Ct. 807 (internal citations and quotations omitted). Here, some of the government conduct alleged in the FAC arguably falls within the purview of the Fourth Amendment's prohibition against unreasonable searches and seizures. See Lavan v. City of Los Angeles, 693 F.3d 1022, 1027-30 (9th Cir.2012) (holding that the City's immediate destruction of homeless individuals' personal property constituted an unreasonable seizure under the Fourth Amendment). It is therefore appropriate to evaluate that same conduct (the alleged seizure) under the Fourth Amendment, rather than the Fourteenth Amendment. However, the allegations in the FAC do not stop at the seizure itself.

Plaintiff alleges that Defendants violated his " fundamental right to life, liberty and property by creating a policy and plan for the homeless plaintiffs that physically threatened their ability to live." [9]. For example, the FAC alleges:

22. Despite the extreme weather conditions, and despite the fact that they have destroyed plaintiff's shelter and property essential to protection from the elements, defendants continue this custom, practice and policy. Defendants know or should reasonably know that their conduct threatened plaintiff's continued survival, but nonetheless continued their conduct in a manner that has created substantial risk to his ability to continue to survive and is shocking to the conscience ...
24.... Defendants timed the demolitions and destruction of property to occur at the onset of the winter months that would bring cold and freezing temperatures, rain, and other difficult physical conditions. Defendants knew or should reasonably have known that their conduct would have a substantial harmful effect on homeless residents because they engaged in this conduct at a time when those residents were particularly vulnerable and when that conduct would cause substantial physical and emotional damage to plaintiff and create a substantial and ongoing threat to plaintiff's right to life and liberty. As a further direct and proximate result of defendants' conduct, plaintiff has been left without any shelter or adequate clothing or other protection from the elements, ...

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