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Hammerlord v. Filner

United States District Court, Ninth Circuit

August 9, 2013

BOB FILNER, Mayor of the City of San Diego, a municipal corporation, WILLIAM LANSDOWNE, Chief of the San Diego Police Department, RICHARD C. GENTRY, CEO of the San Diego Housing Commission [SDHC], HENDERSHAW AND ASSOCIATES, an individual, CARL MOCCAFICHE, an individual, VICTORIA McCULLOUGH, an individual, and DOES 01 through 25 inclusive, Defendants.


JANIS L. SAMMARTINO, District Judge.

Presently before the Court are Defendant Richard C. Gentry's ("Gentry") motion to dismiss Plaintiff M. Norman Hammerlord's ("Plaintiff") second amended complaint ("SAC"), (ECF No. 49), and Defendants Hendershaw and Associates ("Hendershaw") and Carl Moccafiche's ("Moccafiche") motion to dismiss Plaintiff's SAC, (ECF No. 50). Also before the Court are the parties' oppositions and replies. (ECF Nos. 51-54.) The hearing set for both motions on February 21, 2013 was vacated, and the matter taken under submission on the papers without oral argument. (ECF No. 55.)

Plaintiff brings this action against Defendants Gentry, Hendershaw, and Moccafiche (collectively, "Defendants") alleging claims for constitutional violations, invasion of privacy, violations of the Civil Rights Act, and violations of the California Public Records Act. (ECF No. 46 at 23-29.) Having considered the parties' arguments and the law, the Court GRANTS Defendants' motions to dismiss.


This Order incorporates by reference the background as set forth in the Court's November 2, 2012 Order granting Defendants' motions to dismiss Plaintiff's first amended complaint, and briefly summarizes the most relevant facts here. (ECF No. 42 at 2-3.) Plaintiff was involved in an incident with the San Diego Police Department ("SDPD") on January 3, 2011, when four officers entered Plaintiff's apartment on an anonymous tip. ( Id. at 5.) Plaintiff alleges that Moccafiche, the resident property manager for Plaintiff's apartment complex, was the source of the anonymous tip, and that Moccafiche spread rumors that Plaintiff was a drug dealer and a member of the mafia. ( Id. at 15.)

On February 23, 2011, July 11, 2011, and May 31, 2011, Plaintiff allegedly received various notices regarding the termination of his tenancy from Moccafiche and Hendershaw. ( Id. at 14-18.) Plaintiff alleges that Hendershaw brought a fraudulent unlawful detainer action against Plaintiff, and evicted Plaintiff after obtaining a favorable judgment on November 7, 2011. ( Id. at 17-18.)

Sometime prior to April 21, 2011, Plaintiff alleges that the San Diego Housing Commission ("SDHC") received two letters stating that Plaintiff was a mafia member, a drug dealer, and had pounds of drugs in his apartment. ( Id. at 19.) Plaintiff alleges that the SDHC refused to provide him with information regarding those letters when requested. ( Id. ) Plaintiff also alleges that SDHC employee Cyndi Lofftus ("Lofftus") told Plaintiff the SDHC would punish Plaintiff to "get even" with Plaintiff for filing a lawsuit against the City in 2007. ( Id. at 19.) Plaintiff further alleges that the SDHC subsequently terminated his participation in the Section 8 Rental Assistance Program based on false reports provided by the SDPD. ( Id. at 21-22.) According to Plaintiff, the termination hearing was "a sham and a farce, " and Plaintiff was not provided with complete access to his file when requested. ( Id. )

On December 19, 2012, Plaintiff filed the operative SAC. (ECF No. 46.) Plaintiff seeks an order from the Court awarding compensatory or actual damages, punitive damages, exemplary damages, cost of suit, reasonable attorney's fees, and any further relief the Court may deem just and proper. (ECF No. 46 at 30.)


I. Motion to Dismiss Pursuant to Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted, " generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require detailed factual allegations, '... it [does] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the grounds' of his entitle[ment] 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. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 557).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed.R.Civ.P. 12(b)(6). A claim is facially plausible when the facts pled "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 1950 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]'-that the pleader is entitled to relief.'" Id. Moreover, "[f]or a complaint to be dismissed because the allegations give rise to an affirmative defense[, ] the defense clearly must appear on the face of the pleading." McCalden v. Ca. Library Ass'n, 955 F.2d 1214, 1219 (9th Cir. 1990) (internal quotation marks omitted).

Relevant here, the Court has a duty to liberally construe a pro se's pleadings, see Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988), which is "particularly important in civil rights cases, " Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, a court may not "supply essential elements of the claim that was not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Pro se complaints are to be construed liberally and may be dismissed for failure to state a claim only where it appears beyond a doubt that the plaintiff can prove no set of the facts in support of his claim which would entitle him to relief." Barrett v. Belleque, 544 F.3d 1060, 1061-62 (9th Cir. 2008) (citation and internal quotation marks omitted).

Where a motion to dismiss is granted, "leave to amend should be granted unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would ...

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