United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION TO DISMISS WITHOUT PREJUDICE; DENYING MOTION TO STRIKE [AMENDED]
LUCY H. KOH, District Judge.
Jack Smith brings this action against the County of Santa Cruz, several of its employees and entities, members of the Felton Business Association (a local community group), and the State of California for alleged violations of 42 U.S.C. § 1983, the Racketeer Influenced and Corrupt Organizations Act ("RICO"), and a host of state laws. Before the Court now are the Defendants' Motion to Dismiss and Defendants' Motion to Strike the First Amended Complaint. The Court, having considered the briefing on these motions, DENIES the Motion to Strike and GRANTS the Motion to Dismiss without prejudice.
The complaint in this case is not altogether clear, but Plaintiff, who is in his mid or late 70s, appears to allege injuries that result, in broad terms, from two sets of circumstances: the first concerns the condemnation of Plaintiff's house and the second concerns several arrests and his treatment in custody. See ECF No. 27. Plaintiff appears to allege that these incidents led to the deprivation of his constitutional rights, which caused physical and emotional injuries, but other parts of the complaint suggest that Plaintiff may be dead. Id. ¶ 78(C) ("The plan, initiated at a vigilante meeting of the Felton Business Association and the county consisted of... Homelessness and death of Plaintiff, acquisition of Plaintiff's property for sale to an insider.").
With respect to the condemnation, Plaintiff alleges that in February 2011, Defendant Kevin Fitzpatrick tagged Plaintiff's home to give notice that the home did not comply with certain local zoning ordinances. Id. ¶ 42. This tagging, Plaintiff contends, coincided with a "vigilante" meeting of the Felton Business Association, Santa Cruz Sheriff, Santa Cruz Supervisors, and Planning Department, the goal of which was to remove Plaintiff from his house. Id. ¶ 43. As a result of the tagging, in March 2011, Plaintiff was forced to vacate his residence and became homeless. Id. ¶ 50. Plaintiff's home was then sold in what appears to be a foreclosure sale. Id. ¶ 68.
Plaintiff's second set of allegations concern a series of arrests. He alleges that in February 2011, Defendants arrested Plaintiff and made Plaintiff stand in the sun for seven hours while Defendants sought a search warrant. Id. ¶ 96. Plaintiff alleges that he was denied water, shade, and medicine. Id. ¶ 100-01. Plaintiff further alleges that Defendants engaged in a conspiracy that resulted in a separate false arrest in February 2011. Id. ¶ 105. Similar schemes resulted in two similar false arrests in June and August 2011, according to Plaintiff. Id. ¶ 108; 111. In each of these arrests, Plaintiff alleges that several articles of his property were seized. Id. ¶¶ 97, 107, 109. Plaintiff further alleges that in May 2012, while he was in the custody of the Santa Cruz County Jail, he was denied medicines that were prescribed to "alleviate several life threatening conditions." Id. ¶ 117.
Plaintiff filed his complaint on February 11, 2013, and filed a first amended complaint ("FAC") on April 26, 2013, at which point Defendants were served. ECF Nos. 1, 5. The FAC asserts the following causes of action: (1) eminent domain through illegal inverse condemnation under the state and federal constitutional claims; (2) slander and libel; (3) several allegations of false arrest and imprisonment; (4) two separate allegations of cruel and unusual punishment under the Eighth Amendment, California Constitution, and California statute; (5) violations of RICO; and (6) elder abuse in violation of California law. See ECF No. 27.
Several of the Defendants filed a Motion to Dismiss with an accompanying request for judicial notice on May 28, 2013. ECF No. 10. The remaining Defendants joined the Motion to Dismiss. ECF No. 18. On June 10, 2013, Plaintiff filed an opposition that contained redactions, ECF No. 20, and on June 18, 2013, Defendants filed a reply, ECF No. 24. On June 19, 2013, at a Case Management Conference, this Court discovered that the FAC had not been signed by either Plaintiff or his counsel. Accordingly, the Court ordered Plaintiff to refile the FAC with the verification by June 28, 2013. ECF No. 26. The Court's order stated that the verified FAC would replace the initially filed, unverified FAC and that "Plaintiff is not permitted to make any changes to the FAC beyond including the verifications." Id. Plaintiff filed the verified FAC, which included signatures of both Plaintiff and his counsel, on June 27, 2013. ECF No. 27. The Court further ordered Plaintiff to re-file the opposition to the Motion to Dismiss without the redactions contained in the original opposition by June 21, 2013, and to provide the Court and Defendants with the DVDs and exhibits that were attached to the initial opposition by June 24, 2013. ECF No. 26. On June 27, 2013, Plaintiff filed the opposition without the redactions, along with thirty-six exhibits. ECF No. 28. On July 1, 2013, Defendants filed objections to the verified FAC, the re-filed opposition, and the various attached exhibits. ECF No. 29. Defendants contend that the verified FAC contained various changes from the unverified version, that the opposition and exhibits were untimely filed, and that the exhibits cannot be considered because Plaintiff did not seek judicial notice. Id. Defendants further moved to strike the verified FAC on the basis that Plaintiff had made additional changes besides the signature and that Plaintiff had dated the verified FAC on April 23, 2013, which was three days before the unverified FAC had been filed. ECF No. 30. Plaintiff has filed no opposition to the motion to strike.
II. LEGAL STANDARDS
A. Motion to Dismiss
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include "a short and plain statement of the claim showing that the pleader is entitled to relief." A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). The Supreme Court has held that Rule 8(a) requires a plaintiff to plead "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. (internal quotation marks omitted). For purposes of ruling on a Rule 12(b)(6) motion, a court "accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
However, a court need not accept as true allegations contradicted by judicially noticeable facts, Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and a "court may look beyond the plaintiff's complaint to matters of public record" without converting the Rule 12(b)(6) motion into one for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995). A court is not required to "assume the truth of legal conclusions merely because they are cast in the form of factual allegations.'" Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam) (quoting W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Mere "conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); accord Iqbal, 556 U.S. at 678. Furthermore, "a plaintiff may plead herself out of court" if she "plead[s] facts which establish that [s]he cannot prevail on h[er]... claim." Weisbuch v. Cnty. of L.A., 119 F.3d 778, 783 n.1 (9th Cir. 1997) (internal quotation marks and citation omitted).
B. Leave to Amend
If a court determines that the complaint should be dismissed, it must then decide whether to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend "should be freely granted when justice so requires, " bearing in mind that "the underlying purpose of Rule 15... [is] to facilitate decision on the merits, rather than on the pleadings or technicalities." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (internal quotation marks omitted). Nonetheless, a district court may deny leave to amend due to "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment." See ...