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John Duran v. City of Porterville

January 16, 2013


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



Pro se Plaintiff John Duran filed a Complaint against the City of Porterville, California ("City"); the City's Manager, John Lollis; the Porterville Police Department ("PPD"); its Chief of Police, Chuck McMillan; and PPD Officer Richard Standridge. Doc. 1. The Complaint appears to allege that in late May 2012, Plaintiff obtained prior permission from the City Parks and Leisure department to conduct an event in Porterville's Veteran's Park that would include the display of electoral candidate signs. Doc. 1, ¶ 8. Or about June 2, 2012, Officer Standridge required Plaintiff to remove the signs pursuant to City Ordinance. Plaintiff alleges that Standridge's conduct violated Plaintiff's First Amendment rights, that other Defendants ordered or conspired with Standridge to do so, and that Defendants used intimidation to deprive Plaintiff of his rights. Id.

The City moves to dismiss the entire Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted, arguing that Plaintiff fails to allege sufficiently a First Amendment violation. Doc. 12. In the alternative, the City requests that all three causes of action should be merged into one. Id. Plaintiff served three responsive documents upon the City: "Objections Due to Conflict of Interest and Request to Order All Interested Parties to Produce Documentation," a "Response and Objection to Defendant's Motion to Dismiss," and an Affidavit."*fn1 Docs. 14-16. The City replied. Doc. 13. The motion was originally set for hearing on January 21, 2013. However, having reviewed these filings, and in light of the entire record, the Court does not believe oral argument is necessary to aid resolution of this request, and hereby rules on the papers pursuant to Local Rule 230(g). Accordingly, the January 21, 2013 hearing is VACATED.


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." Balisteri 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 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 (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 (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). "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).

"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 (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. 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. 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).


A.Pleading Burden of Pro Se Litigants.

Plaintiff suggests that a pro se litigant's complaint cannot be dismissed for failure to state a claim, citing Haines v. Kerner, 404 U.S. 519 (1972). Doc. 15 at 2.This is decidedly not the law. It is true that a pro se litigant's pleadings must be read more liberally than pleadings drafted by counsel. Id. at 520--21; Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Likewise, when a pro se plaintiff technically violates a rule, the court should act with leniency toward that litigant. Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986). However, "a pro se litigant is not excused from knowing the most basic pleading requirements." Am. Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107-- 08 (9th Cir. 2000). Moreover, "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled on other grounds by Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012). Plaintiff must abide by the applicable basic pleading standards described above.

B.Conflict of Interest Objection.

Plaintiff, who claims to be a City taxpayer, objects that it presents a conflict of interest for Defense counsel, a partner in the law firm of Nelsen & Rozier, to represent the City in this lawsuit, because counsel is being compensated using taxpayer funds. Doc. 14 at 2. Plaintiff offers no authority to support the proposition that a conflict of interest exists per se whenever a municipality uses taxpayer funds to defend itself against litigation brought by a taxpayer. Nor could the Court locate any support for this proposition, ...

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