FINDINGS AND RECOMMENDATIONS ORDER
This case, in which plaintiff is proceeding pro se, was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and Eastern District of California Local Rule 302(c)(21). Defendants move to dismiss plaintiff's second amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and move to strike portions of plaintiff's complaint pursuant to Rule 12(f)(2). Dckt. Nos. 44, 45. Plaintiff opposes the motion. Dckt. No. 47. For the reasons stated herein, the undersigned recommends that the motion to dismiss be granted.
Plaintiff filed a complaint on December 6, 2010 and a first amended complaint on December 27, 2010, which defendants moved to dismiss. Dckt. Nos. 1, 11, 16. The motion to dismiss was granted and plaintiff's first amended complaint was dismissed in its entirety, with leave to amend plaintiff's federal claims only. Dckt. Nos. 32, 36.
On March 2, 2012, plaintiff filed a second amended complaint alleging thirteen causes of action, including both federal and state law claims, against defendants Amador County (the "County"), Linda Van Vleck (a County code enforcement officer), John Hahn (County counsel), Susan Graijiliva (County land use division head), Cara Augustine (identity not pled), and Does 3 through 40 (anonymous complaining witnesses and other involved County officials). Second Am. Compl. ("SAC"), Dckt. No. 43. Specifically, plaintiff alleges the following causes of action: (1) a denial of "Equal Protection of Laws," asserted against the County, all four County officials, and Does 2-24; (2) a violation of "First Amendment [protected] Speech," asserted against all defendants; (3) a purported claim entitled "Equitable Estoppel, Laches," asserted against the County, all four County officials, and Does 2-24; (4) a "Lack of due process, under Fifth or in the alternative Sixth and Fourteenth Amendments," asserted against the County, all four County officials, and Does 2-24; (5) "Declaratory Relief-Unconstitutionally Vague and Overbroad Ordinance," asserted against the County, all four County officials, and Does 2-24; (6) a purported claim labeled "Unlawful regulation of Commerce, Ultra Vires actions," asserted against the County, Van Vleck, Hahn, Graijiliva, and Does 2-24; (7) "Failure to Train or Supervise, Negligent Training and Supervision," asserted against the County, Van Vleck, Graijiliva, and Does 2-24; (8) "Gross Negligence, Deliberate Indifference and Failure to investigate," asserted against the County, Van Vleck, Hahn, Graijiliva, and Does 2-24; (9) "Civil Conspiracy and/or collusion under color of law to violate Constitutional rights," asserted against all defendants except Augustine; (10) "Denial of Due Process Hearing," against the County, Van Vleck, Hahn, Graijiliva, and Does 2-24; (11) "Malicious prosecution and/or Abuse of Process," against the County, Van Vleck, Hahn, Graijiliva, and Does 2-24; (12) a purported claim under California Civil Code §§ 51.7, 52.1(b) a claim plaintiff styled as "Freedom from Violence," asserted against Van Vleck, Hahn, Graijiliva, and Does 2-40; and (13) a claim labeled as "(Private Actors unlawful actions under Color of Law) Harassment, Conspiracy to prevent Plaintiff's enjoyment of rights and liberties under State and Federal laws," asserted against Does 25-40. See generally id.
Despite the length and number of claims asserted in his second amended complaint, plaintiff's allegations appear to be based primarily on defendants' actions regarding two County nuisance ordinances prohibiting over 200 square feet of "junk" from being stored outside on plaintiff's property, which plaintiff contends are unconstitutional. See generally id. (citing Amador County ordinances 19.08.360 and 19.48.130). According to the second amended complaint, plaintiff has received several letters from the County regarding plaintiff's noncompliance with these ordinances. Those letters directed plaintiff to remove or place in enclosed storage many of the items on plaintiff's property, including aircraft parts and other assorted items. Id. ¶¶ 43, 51, 59. Plaintiff received these letters off and on beginning in the fall of 2003 and continuing through the fall of 2010. Id. ¶¶ 20-61. During this time, plaintiff had several interactions with County officials regarding this issue and he wrote several letters "of protest to Defendants in 2003, 2004, 2006, 2007, 2010, as well as recent letters from October 2011 and 2012 . . . ." Id. ¶¶ 20-61, 70 n.20.
On March 16, 2004, plaintiff wrote letters to various County officials requesting that records concerning his property be released to him disclosing the identities of anonymous neighbors who had complained that his property was in violation of the ordinances so he could obtain restraining orders and civilly prosecute them. Id. ¶¶ 33-36. The County denied his request. Id. ¶¶ 34-35. On March 23 or 24, 2004, plaintiff sent an email contesting this denial to defendant Hahn, County counsel, who in response, "stated/threatened via email (and possibly via phone) that all the laws/code violations in dispute (for which Plaintiff was being accused of violating) could 'be prosecuted criminally as well as civilly' and that the County's position would not change 'unless, of course, a court determines otherwise.'" Id. ¶ 35.
Plaintiff continued to have interactions with County actors until April 6, 2006, when plaintiff discovered attached to his property a notice of the County's intention to abate the nuisance pursuant to the junk ordinances. Id. ¶¶ 36-44. This notice identified the "[e]xcessive accumulation of junk stored outdoors" on plaintiff's property as a public nuisance and notified plaintiff of his right to a hearing prior to any County action provided plaintiff made a written request, which he did. Id. ¶¶ 44-46, Exs. 7, 8. However, the abatement hearing was "postponed . . . to a later date if needed" after County officials met with plaintiff on his property on May 3, 2006, and plaintiff subsequently moved certain items to the back of his property. Id. ¶¶ 48-49. Plaintiff asserts that as a result of this meeting and the abatement notice, which required him to remove the "junk" from his property by May 6, 2006, plaintiff relocated airplane wings to the back of his property at "unneeded and great expense." Id. ¶ 51, Ex. 7. He also sold several "still usable" items at a substantial loss, including a "rare and unique International Harvester Class C Tractor with air brakes (which Plaintiff never would have sold . . . )." Id. ¶ 51.
During the spring of 2007, plaintiff received additional letters from the County notifying him that he was again in violation of County ordinances. Id. ¶¶ 53-54. Plaintiff continued to request a hearing. Id. ¶¶ 52-54. In June of 2007, plaintiff constructed a display in his front yard "all in retaliation, protest, and objection to County Defendants' letter received a week earlier, and the anonymous Does actions [of lodging complaints against him with the County]." Id. ¶ 55. Plaintiff describes his display as an "outdoor kitchen and living room display with a written sign in large black letters and white background" that was "clearly directed" at County officials. Id.
¶¶ 55, 59. Plaintiff does not state in the second amended complaint what the sign's message was, but it was spray painted in "foot tall large letters" so as to be "easily read" from the nearby road. Id. ¶ 71.
Plaintiff asserts that a sheriff's officer responded to a complaint regarding his display and "further harass[ed] Plaintiff under Color of law to take down the sign, and remove the display." Id. ¶ 56. Plaintiff removed his sign and later the rest of the display. Id. ¶ 73. Plaintiff claims that his display was purposefully "clearly illegal" under the County's interpretation of the "junk" ordinances as it was comprised of items stored outside and measured over 200 square feet. Id.
¶ 71. It is plaintiff's wish to construct additional displays, but he has not done so because he believes that a little over a week after the incident with the sheriff, County officials in an "undercover vehicle" took photos of his display and then approached the County District Attorney concerning the potential criminal prosecution of plaintiff for the display, and he thus fears potential arrest. Id. ¶¶ 56-57, 73.
Following this incident, plaintiff believed the ordinance issues to have been resolved until October 28, 2010, when plaintiff again received a letter from the County concerning ordinance violations on his property. Id. ¶¶ 59-60. On November 21, 2010, plaintiff again requested access to County records regarding code enforcement, third party complaints against him, and other materials. Id. ¶¶ 124, 126. The County denied the request. Id. Plaintiff then filed the instant action in December 2010. Id. ¶ 60.
Defendants Amador County, Van Vleck, Hahn, and Graijiliva*fn1
now move to dismiss plaintiff's second amended complaint
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6),
and move to strike portions of plaintiff's complaint pursuant to Rule
12(f)(2).*fn2 Dckt. Nos. 44, 45. Defendants raise
several arguments in support of the motion which focus mainly on: the
lack of a final County action for this court to review; the running of
the statute of limitations; the lack of the type of County action
required to support plaintiff's constitutional claims; plaintiff's pleading of defensive doctrines as a claim; and
plaintiff's re-pleading of state law claims previously dismissed
without leave to amend. See generally Dckt. No. 45.
A. Rule 12(b)(6) Standards
To survive a motion to dismiss 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.'" Aschroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when 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. McKeithem, 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 courts 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).
In deciding a Rule 12(b)(6) motion to dismiss, 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 1338, 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).
B. Plaintiff's State Law Claims (Causes of Action # 7, 8, 11, 12)
Plaintiff's second amended complaint alleges several state law claims, even though those claims were dismissed without leave to amend.*fn3 See SAC, Claims 7, 8, 11, 12; see also Dckt. Nos. 32, 36. Defendants therefore move to dismiss these claims. Dckt. No. 45 at 22. Although including those claims without leave to amend was improper, the court notes that the implicit effort to seek reconsideration on the question of leave to amend is meritless.
In his first amended compliant, plaintiff conceded that he did not comply with the California Government Claims Act ("GCA") prior to filing, as required. Dckt. No. 25. Therefore, the claims were dismissed without leave to amend. Dckt. Nos. 32, 36. In his second amended complaint, plaintiff asserts that he has since attempted to comply with the GCA procedure by submitting a claim to the County on April 30, 2011. SAC ¶ 11. However, the GCA requires a party seeking to recover money damages from a public entity or its employees to submit a claim to the entity before filing suit, generally no later than six months after the cause of action accrues. Cal. Gov't Code §§ 905, 911.2, 945, 950.2 (emphasis added); see also Shirk v. Vista Unified Sch. Dist.,42 Cal. 4th 201, 208 (2007) ("Before suing a public entity, the plaintiff must present a timely written claim . . . ") (emphasis added). "The legislature's intent to require the presentation of claims before suit is filed could not be clearer." City of Stockton v. Super. Ct., 42 Cal. 4th 730, 746 (2007). Therefore, plaintiff's subsequent attempted compliance does not and cannot cure this defect. Accordingly, all of plaintiff's state law claims, including any new state law claims alleged in his second amended complaint, must be dismissed without leave to amend.
C. Plaintiff's Federal Claims (Causes of Action # 1-6, 9, 10, 13)
While plaintiff has listed many claims in his second amended complaint, the underlying allegations appear to be rather simple. As discussed above, plaintiff's allegations are based primarily on defendants' actions regarding two County ordinances prohibiting over 200 square feet of "junk" from being stored outside on plaintiff's property. Plaintiff alleges numerous federal claims resulting from defendants' alleged actions, including claims for violation of his First, Fifth, Sixth, and Fourteenth Amendment rights, as well as claims for unlawful regulation of commerce, civil conspiracy, and private action. See generally SAC, Claims 1-6, 9, 10, 13. For the reasons discussed below, each of plaintiff's federal claims should be dismissed.
1. Equal Protection (First Cause of Action)
Plaintiff alleges in a claim under 42 U.S.C. § 1983 that the County defendants violated his rights under the Equal Protection Clause of the Fourteenth Amendment because they purposefully enforced the junk ordinances against him alone for almost a decade, as opposed to other similarly situated property owners. SAC ¶¶ 64-66. Specifically, plaintiff argues that defendants "intentionally and knowingly singled Plaintiff out for unequal enforcement . . . to 'make an example' of Plaintiff, and to unequally enforce, interpret, and prosecute ordinances and laws against him," as opposed to other similarly situated agricultural property owners in the County. Id. ¶¶ 64-65. Plaintiff claims that similar property owners "have had no such enforcement or in the alternative had have substantially less restrictive and/or the continuous multi-agency enforcement for arguably either non-existent or hyper-trivial items over a period of almost a decade." Id. ¶ 65. Plaintiff further claims this practice "is not reasonably related to a valid government interest." Id. ¶ 66.
The Equal Protection Clause of the Fourteenth Amendment forbids a state from "'deny[ing] to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439 (1985). The clause is violated when official state action creates classifications that are not "rationally related to a legitimate state interest" (unless classifications warranting a heightened scrutiny level are at issue, in which case stricter scrutiny of the discriminatory enforcement's relation to a valid state interest is required). Id. at 440.
Such classifications can arise through discriminatory state enforcement. SeaRiver Mar. Fin. Holdings Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002). When a state discriminately enforces a regulation thereby denying a targeted "class of one" equal protection under the law, an unequal enforcement claim can arise. Id. Three elements must be met: (1) selective discriminatory state enforcement, (2) that is "intentional or purposeful" either on its "face" or in "design," (3) for which "there is no rational basis for the difference in treatment." Id.; Snowden v. Hughes, 321 U.S. 1, 8 (1944); Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Defendants argue that plaintiff cannot satisfy the first element, selective discriminatory enforcement, because the enforcement element is lacking; i.e., plaintiff "has not been fined, jailed or otherwise punished." Instead, "the SAC's theme is that [the County] has craftily avoided prosecuting him" in order to exceed the statute of limitations for any potential claims.*fn4
Plaintiff's third cause of action (equitable estoppel and laches) does in fact center on his allegation that the County intentionally delayed enforcement of the ordinances until the statute of limitations could run for any potential claims plaintiff would seek to raise as a result. Plaintiff alleges that the County "should be estopped [from] asserting any statute of limitations defense when their own actions, fraud and deceit caused the delay, laches should bar any civil or administrative prosecution from County actors for the County's prior abandoned prosecution of 2006-2007, that they then re-initiated in 2010 for the same alleged violation that they failed to diligently pursue years earlier for no valid reason." SAC ¶ 81; see also ¶¶ 59-60, 77-80. Plaintiff contends that the "County had an unrestricted opportunity to prosecute the alleged violations of ordinances 19.08.355 and 19.08.360 in 2007 when the dispute was current [and] now when called to task by the current action, they wish to get a second bite at the apple . . . ." Id.
It is inconsistent for plaintiff to allege that the County selectively enforced the junk ordinances against him (first cause of action) while concurrently pleading that the County intentionally refrained from enforcing the ordinances against him (third cause of action). Furthermore, as discussed below regarding plaintiff's due process claims (fourth and tenth causes of action), even assuming all of plaintiff's allegations are true, no action has been taken by or on behalf of the County for this court to review and, while it is possible some event could occur in the future between plaintiff and the County that could warrant review in federal court, this claim is not yet ripe. No such event has occurred at this time. United States v. Streich, 560 F.3d 926, 931 (9th Cir. 2009).
Although pleading alternative legal theories is permissible where done so appropriately, plaintiff asserts factual contentions that simply contradict each other. It is unreasonable to ask the court to accept plaintiff's simultaneous allegations that enforcement did and did not occur depending on which pleading requirements he wishes to meet. See W. Mining Council, 643 F.2d at 624 (the court need not accept unreasonable inferences, or unwarranted deductions of fact). In borrowing plaintiff's language, it is not reasonable for him to have his apple and eat it too. Enforcement is therefore not reasonably shown to have occurred and is in fact negated by plaintiff's claim that it was intentionally avoided. See SAC ¶¶ 59-60, 77-81. Because enforcement is a required element of this claim, and because the deficiency cannot be cured as plaintiff has claimed that enforcement was intentionally avoided, plaintiff's equal protection clause claim should be dismissed without leave to amend. See id. ¶ 78 (alleging that the County "has had at least 6 opportunities to pursue this action over the last 7 years, they have each time failed to diligently ...