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Schneider v. County of Sacramento

United States District Court, E.D. California

August 21, 2014

JAY SCHNEIDER, et al., Plaintiffs,
v.
COUNTY OF SACRAMENTO, et al., Defendants.

ORDER

KIMBERLY J. MUELLER, District Judge.

Defendant David Bieber's motion to dismiss the Third Amended Complaint (TAC) was submitted without argument and the court now DENIES the motion.

I. BACKGROUND

On September 27, 2012, plaintiffs Jay Schneider, Susan Schneider, Jake Schneider, Leland A. Schneider, Katherine Schneider, Leland H. Schneider and Jared Schneider (collectively, "plaintiffs" or "Schneiders") filed a complaint raising two civil rights claims against the County of Sacramento, Roger Dickinson, Robert Sherry, Jeff Gamel, Cindy Storelli, Leighann Moffitt, Tammy Derby, Carl Simpson, and David Bieber. Compl., ECF No. 1 ¶¶ 3-5. They alleged that defendants' actions in connection with plaintiffs' property violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the Takings/Due Process Clause of the Fifth Amendment, and substantive due process.

On May 20, 2013, defendants County of Sacramento, Derby, Dickinson, Moffitt, Sherry, Simpson and Storelli answered the complaint. ECF Nos. 28-35.

On June 5, 2013, defendant Bieber filed a motion to dismiss, arguing, among other things, the complaint did not allege his personal participation in constitutional violations. ECF No. 37.

On August 1, 2013, the court granted defendant Bieber's motion to dismiss, giving plaintiffs' leave to amend to allege Bieber's personal participation in the alleged constitutional violations. ECF No. 44.

On August 21, 2013, plaintiffs filed their First Amended Complaint (FAC). ECF No. 45. Bieber moved to dismiss and on December 16, 2013, the court granted the motion, giving plaintiffs leave to amend their substantive due process claim. ECF No. 61.

Plaintiffs filed their Second Amended Complaint (SAC) on January 3, 2014. ECF No. 62. Bieber again filed a motion to dismiss. ECF No. 64. In its January 3, 2014 order, the court dismissed a portion of plaintiffs' substantive due process claim with prejudice, but gave them leave to amend other portions. In addition, the court noted plaintiffs appeared to be alleging a First Amendment retaliation claim and so gave them leave to amend in that respect as well. ECF No. 69.

Plaintiffs filed their Third Amended Complaint on April 3, 2014, including both substantive due process and First Amendment retaliation claims against Bieber. ECF No. 70 ¶¶ 263-290. The following facts, simplified to exclude facts relating solely to other defendants, are taken from the Third Amended Complaint:

Plaintiffs own, and Joseph Hardesty operates, the Schneider Historic Mine (Mine) in Sacramento County. TAC, ECF No. 70 ¶¶ 3, 28. Plaintiffs have a vested right to mine their property, recognized by Sacramento County (County). Id. ¶¶ 3, 40, 44.

Under the Surface Mining and Reclamation Act, Cal. Pub. Res. Code §§ 2710, et seq. (SMARA), all mines must have a Reclamation Plan approved by the "lead agency, " in this case Sacramento County, outlining how the mine area will be reclaimed upon the cessation of mining. Id. ¶¶ 124, 125, 184. SMARA dictates what a plan must cover. In 2002, the Sacramento County Board of Supervisors approved a hundred-year reclamation plan covering the 3, 800 acre Mine. Id. ¶ 51.

Mines regulated under SMARA must have financial assurances in place to cover the potential cost of reclaiming the land should the owners fail to undertake reclamation. Id. ¶ 123. The reclamation plan provides the framework for calculating the financial assurance cost estimate (FACE). Id. ¶¶ 123-124. Once the lead agency agrees to the FACE, it is implemented through a Financial Assurance Mechanism (FAM), which is a Certificate of Deposit payable to the County. Id. ¶ 185.

Under the Schneider Reclamation Plan (Plan), the land must be left in a condition suitable for grazing and outdoor recreation or other uses permitted under the Williamson Act.[1] Id. ¶¶ 123, 184. It also allows for post-reclamation depths of mining pits not to exceed thirty feet. Id.

In April 2008, an agent of Teichert Aggregates, a competitor, told plaintiffs and Hardesty that Teichert was going to put them out of business. Id. ¶ 57. After Teichert representatives contacted government officials, the defendants and other government employees not named as defendants undertook inspections and evaluations of the Mine operations in an attempt to find environmental, zoning, and mining violations. Id. ¶¶ 58-78. The County essentially closed the operation by finding the Mine lacked the necessary zoning and use permits. Id. ¶¶ 80, 111.

In November 2009, the County entered into a contract with Geocon Consultants and Bieber for the latter to provide independent third-party review of the Mine's reclamation plan and to conduct SMARA compliance inspections. Id. ¶ 119. In March 2010, Bieber's contract was amended to cover recommendations on plaintiffs' FACE. Id. ¶ 190. Under the terms of this contract, defendant Bieber inspected the Mine in 2009, 2010, 2011, and 2012 and prepared compliance inspection reports required under SMARA. Id. ¶ 118. Bieber represents himself as an expert in SMARA and the County has relied on Bieber as a SMARA expert. Id. ¶¶ 126, 200. Since 2009, the County has adopted Bieber's allegations of SMARA violations at the Mine and later adopted his recommendations as to plaintiffs' FACE. Id. ¶¶ 134, 192.

In 2011, Bieber initially recommended an increase in plaintiffs' FACE from $164, 233 to $830, 490, justifying the increase on a determination that resloping he had previously approved was no longer compliant with the reclamation plan; he eventually concurred with plaintiffs' consultant that the FACE should be set at $177, 952. Id. ¶¶ 132, 170, 198, 206. The Board accepted the latter amount. Id. ¶¶ 170, 210.

Plaintiffs filed suit on September 27, 2012. Id. ¶ 209.

Bieber inspected the mine on October 10, 2012 and prepared an inspection report, dated November 16, 2012. Id. ¶ 211. On November 28, 2012, defendant Gamel sent plaintiffs a copy of this report, as amended on November 27, 2012; it recommended an increased FACE of $8, 818, 074. Id. ¶ 212. Between February 2012, when the County approved the $177, 952 FACE, and November 2012, there was no additional land disturbed at the Mine, revegetation had been undertaken, and the Mine operator had removed large quantities of scrap, as part of reclamation. Id. ¶ 214. Nevertheless, Bieber justified this increase by claiming the Board of Zoning Appeals (BZA) had ruled the pits at the Mine had to be backfilled, requiring 1.14 million cubic yards of topsoil, despite earlier approval of a thirty foot depth for pits. Id. ¶ 218

The November 2012 FACE exceeds the total non-mining value of the property and was designed to cripple plaintiffs financially because it makes the property unmarketable and unusable as collateral. Id. ¶¶ 221, 223. In addition, if plaintiffs do not post adequate financial reserves, the County can forfeit the already-posted FAM and take over the Mine. Id. ¶ 222. Bieber and the others created the excessive FACE as punishment for plaintiffs' filing this lawsuit. Id. ¶ 219. This increased FACE has restricted plaintiffs' ability to fund this litigation. Id. ¶ 224.

The complaint contains two claims against Bieber. The first is a claim that Bieber's recommendation for this exponentially increased FACE violated plaintiffs' substantive due process rights. Id. ¶¶ 263-280. The second is that Bieber violated plaintiffs' First Amendment right of access to the court by proposing the increased FACE in retaliation for plaintiffs' filing the lawsuit. Id. ¶¶ 281-290.

In the instant motion, Bieber seeks dismissal of plaintiffs' substantive due process and First Amendment retaliation claims. ECF No. 74 at 8.

II. STANDARDS FOR A MOTION TO DISMISS

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Although a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), in order to survive a motion to dismiss this short and plain statement "must contain sufficient factual matter... to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than "an unadorned, the-defendant-unlawfully-harmed-me accusation" or "labels and conclusions' or a formulaic recitation of the elements of a cause of action.'" Id. (quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Ultimately, the inquiry focuses on the interplay between the factual allegations of the complaint and the dispositive issues of law in the action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

In making this context-specific evaluation, this court must construe the complaint in the light most favorable to the plaintiff and accept as true the factual allegations of the complaint. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). This rule does not apply to "a legal conclusion couched as a factual allegation, '" Papasan v. Allain, 478 U.S. 265, 286 (1986), quoted in Twombly, 550 U.S. at 555, nor to "allegations that contradict matters properly subject to judicial notice" or to material attached to or incorporated by reference into the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988-89 (9th Cir. 2001). A court's consideration of documents attached to a complaint or incorporated by reference or matter of judicial notice will not convert a motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003); Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); compare Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002) (noting that even though court may look beyond pleadings on motion to dismiss, generally court is limited to face of the complaint on 12(b)(6) motion).

Defendant claims the action against him should be dismissed for four reasons: (1) in its earlier order of January 3, 2014, the court found the substantive due process claim to be subsumed in the retaliation claim; (2) the litigation history shows defendant did not have knowledge of the suit when he recommended the increased FACE in 2012; (3) the action is barred by the Noerr-Pennington doctrine; and (4) he is entitled to qualified immunity.

III. ANALYSIS

A. Substantive Due Process

1. Introduction

The parties dispute whether the First Amendment retaliation claim preempts the substantive due process claim. ECF No. 74 at 9; ECF No. 78 at 11. Before analyzing the preemption issue, the court addresses some preliminary matters.

First, this court has not "previously explained" that the "substantive due process claim is pre-empted by the First Amendment." ECF No. 74 at 8. Bieber apparently misconstrues the court's January 3, 2014 grant of leave to amend to allege a First Amendment retaliation claim. ECF No. 69 at 11. In that order, the court's reference to the doctrine of preemption appeared as part of a more general discussion on the applicable rule of law that would apply if the plaintiffs were able to properly plead a First Amendment retaliation claim. Id. at 10 (discussing the rule in Graham v. Connor, 490 U.S. 386, 395 (1989), that a substantive due process claim is preempted when another amendment controls). Contrary to Bieber's assertion, however, the court did not decide at that time that the "substantive due process claim is pre-empted by the First Amendment." ECF No. 74 at 8. Rather, the court granted leave to amend. ECF No. 69 at 11. In any event, as the First Amendment retaliation claim was a matter outside of the pleadings as of January 3, 2014, that claim was not properly before the court on a motion to dismiss. Fed.R.Civ.P. 12(b)(6). Thus, the court could not have previously decided the preemption issue.

Second, Bieber contends plaintiffs have alleged "identical cause[s] of action." ECF No. 74 at 10. The claims are not literally identical: one arises under the First Amendment and one under the Fourteenth Amendment. ECF No. 70 ¶¶ 263-290. The court understands Bieber to mean that the claims are duplicative in the sense that plaintiffs attempt to impermissibly "double up" their constitutional claims, an issue discussed below. Ramirez v. Butte-Silver Bow Cnty., 298 F.3d 1022, 1029 (9th Cir. 2002) (analyzing claim under the Fourth Amendment but not under substantive due process), aff'd on other grounds Groh v. Ramirez, 540 U.S. 551 (2004).

Third, Bieber is incorrect that plaintiffs are "resurrect[ing] the Substantive Due Process Claim." ECF No. 79 at 3. This claim was never completely dismissed. In its January 3, 2014 order, the court expressly dismissed without leave to amend the substantive due process claim with respect to the 2011 FACE, ECF No. 69 at 9, but dismissed with leave to amend "plaintiffs' remaining substantive due process claim, " id. at 11. Furthermore, the court's statement that, "[i]n this case, then, the First Amendment provides the explicit textual source of constitutional protection' for plaintiffs claim, " cannot be construed as a legal conclusion that the court has altogether dismissed the substantive due process claim. Id. at 10-11. Rather, the phrase, "[i]n this case, " can only fairly be read as meaning, "if it is the case that...", a construction that is supported by the next sentence in the paragraph, "This may state a First Amendment claim." Id. at 11 (emphasis added). Thus, the court's January 3, 2014 order left open to a later date the determination of whether plaintiffs would be able to state a revised substantive due process claim, a First Amendment retaliation claim, neither, or both.

2. Preemption Analysis Under Graham

The court's first step in a Section 1983 claim is to clarify the allegations of the complaint by "identify[ing] the specific constitutional right allegedly infringed." Albright v. Oliver, 510 U.S. 266, 271 (1994) (plurality opinion). Here, plaintiffs assert a First Amendment retaliation claim, ECF No. 70 ¶ 281, as well as a substantive due process claim for violations of a "property-interest in their right to produce aggregate on their ranch, and in the material they have mined and stockpiled on the Property, " a "liberty interest in pursuing their chosen occupation or profession of surface mining, " and a "right to be free of government conduct toward them which shocks the conscience." Id. ¶¶ 265-267.

Bieber argues that "[p]laintiffs' substantive due process cause of action is preempted by a cause of action under the First Amendment." ECF No. 74 at 9. Bieber relies on Albright, which held that "[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims." 510 U.S. at 274 (citing Graham, 490 U.S. at 395) (internal quotation marks omitted); ECF No. 74 at 10; ECF No. 79 at 3-4.

Graham does not preempt plaintiffs' substantive due process claim in this case. The Ninth Circuit has explained that " Graham simply requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process." Crown Point Dev., Inc. v. City of Sun Valley, 506 F.3d 851, 855 (9th Cir. 2007) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 843 (1998)) (internal quotation marks omitted). In other words, Graham would apply only if plaintiffs were trying to bring what is essentially a duplicative First Amendment claim under the "more generalized notion of substantive due process." Albright, 510 U.S. at 273 (internal quotation marks omitted). But plaintiffs are not trying to base a substantive due process claim on a violation of their First Amendment rights. ECF No. 70 ¶¶ 263-280. Instead, they base their substantive due process claim on a violation of their right to be free from arbitrary and capricious government interference with a property interest, of their right to liberty of occupation, and of their right to be free from government conduct that shocks the conscience. Id. ¶¶ 265-267. This is a case in which two different and independent rights arise out of one set of facts.

When a court is faced with several possible claims on the same set of facts, "[t]he proper question is not which Amendment controls but whether either Amendment is violated." United States v. James Daniel Good Real Property, 510 U.S. 43, 50 (1993); Webb v. Cnty. of Trinity, 734 F.Supp.2d 1018, 1027 (E.D. Cal. 2010) ("Of course, an action may violate multiple constitutional prohibitions, and not every substantive due process claim will be duplicative.").

Certain wrongs affect more than a single right and, accordingly, can implicate more than one of the Constitution's commands. Where such multiple violations are alleged, we are not in the habit of identifying as a preliminary matter the claim's "dominant" character. Rather, we examine each constitutional provision in turn.

Soldal v. Cook Cnty., Ill., 506 U.S. 56, 70 (1992); accord James Daniel, 510 U.S. at 49 ("We have rejected the view that applicability of one constitutional amendment pre-empts the guarantees of another.").

Graham stands for the Court's "reluctan[ce] to expand the concept of substantive due process" where there is an "explicit textual source of constitutional protection." Lewis, 523 U.S. at 842 (internal quotation marks omitted); accord Armendariz v. Penman, 75 F.3d 1311, 1325 (9th Cir. 1996) (en banc) (" Graham reflects the principle that courts should not expand the constitutional protections afforded by the Bill of Rights in those areas specifically addressed by the first eight amendments."), overruled in part on other grounds as stated in Crown Point Dev., Inc. v. City of Sun Valley, 506 F.3d 851 (9th Cir. 2007). Under Graham, preemption occurs only when the substantive due process claim "can be vindicated under a different - and more precise - constitutional rubric." Action Apartment Ass'n v. Santa Monica Rent Control Bd., 509 F.3d 1020, 1025 (9th Cir. 2007). In Graham, the Supreme Court rejected a substantive due process claim under the Fourteenth Amendment "[b]ecause the Fourth Amendment provides an explicit textual source" of a challenge to a seizure. 490 U.S. at 395. In Albright, the Court rejected a substantive due process claim because the Fourth Amendment addresses matters of pretrial deprivations of liberty. 510 U.S. at 274-75. Thus, to the extent that the "conduct alleged" within a plaintiff's substantive due process claim "falls within" an explicit textual source in the constitution, the claim "must be analyzed" under the more explicit constitutional amendment. Crown Point, 506 F.3d at 855-56; accord Richardson v. City of Antioch, 722 F.Supp.2d 1133, 1145 n.5 (N.D. Cal. 2010) (noting that substantive due process claims exceeding the scope of other constitutional claims were not preempted by Graham ).

In addition, Graham is intended to prevent plaintiffs from "doubl[ing] up' constitutional claims." Ramirez, 298 F.3d at 1029. In Hufford v. McEnaney, the court found that a firefighter's First Amendment retaliation claim preempted a substantive due process claim based on the same retaliatory discharge. 249 F.3d 1142, 1151 (9th Cir. 2001). The court reasoned that "because the First Amendment explicitly covers Hufford's claim, the First Amendment, not the Fourteenth Amendment's guarantee of substantive due process, should guide the analysis of [plaintiff's] claim[s]." Id. (internal quotation marks omitted); see Buchanan v. Garza, No. 08cv1290 BTM, 2010 WL 2985075, at *4 & n.3 (S.D. Cal. July 27, 2010) (declining to consider a substantive due process claim when plaintiff based First Amendment access to courts and retaliation claims on the same behavior); Occhionero v. City of Fresno, No. CV F 05-1184 LJO SMS, 2007 WL 1302432, at *5 (E.D. Cal. May 1, 2007) (considering both First Amendment retaliation and Takings claims). To determine whether a claim is preempted under Graham, the court "examine[s] each constitutional provision in turn." Soldal, 506 U.S. at 70.

To establish a violation of substantive due process, plaintiffs must show that the state action was "arbitrary and irrational, " Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496, 1508 (9th Cir. 1990), and "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare, " Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926); see Shanks v. Dressel, 540 F.3d 1082, 1089 (9th Cir. 2008) (stating that a "sudden change in course, malice, bias or pretext" suggests constitutional arbitrariness). "An arbitrary deprivation of [rights in real property] may give rise to a viable substantive due process claim in any case in which the Takings Clause does not provide a preclusive cause of action." Action Apartment, 509 F.3d at 1026.

Plaintiffs allege that Bieber's actions were "arbitrary and irrational" in light of the massive increase in the FACE from 2011 to 2012 without an accompanying change in conditions justifying the increase. Del Monte Dunes, 920 F.2d at 1508; ECF No. 70 ¶¶ 206, 207, 212, 214. Moreover, to the extent the sharp increase is based on reasons not justified by the actual conditions on the mine, it is the sort of "invention" that could support a claim that Bieber's actions were arbitrary and capricious. See Simi Inv. Co. v. Harris Cnty. 236 F.3d 240, 254 (5th Cir. 2000) ("We hold that the invention of a park solely to deny private property holders lawful access to an abutting street is an abuse of governmental power, which... rises to the level of a substantive due process violation."); Merrill v. Cnty. of Madera, No. 1:05-CV-0195 AWI SMS, 2013 WL 1326542 at *7 (E.D. Cal. Mar. 29, 2013) (unpublished) ("The court recognizes that a defendant's invention' of an illegitimate reason to support a land use action and regulation can be arbitrary and capricious.").

In addition, plaintiffs allege the existence of "political pressure." Del Monte Dunes, 920 F.2d at 1508 (finding the City's denial of building permit "arbitrary and irrational" where the City "was motivated, not by legitimate regulatory concerns, but by political pressure from neighbors and other residents of the city"). Plaintiffs describe a "politically backed plan" to put plaintiffs out of business. ECF No. 70 ¶ 73. Plaintiffs allege collusive political activity between various members of state and local government, as well as the neighbors "immediately south of the Schneider ranch." Id. ¶¶ 56-79.[2]

As discussed more completely below, a First Amendment retaliation claim has three elements: (1) plaintiff was engaged in protected activity; (2) defendant's actions injured plaintiff in a way that would chill a person of ordinary firmness from further protected activities; and (3) defendant's actions were a response to plaintiff's exercise of constitutionally protected conduct. Corales v. Bennett, 567 F.3d 554, 563 (9th Cir. 2009). Plaintiffs allege that Bieber recommended the increased FACE in part because of a desire to cripple their pursuit of the instant lawsuit.

Here, the conduct alleged within the plaintiffs' substantive due process claim falls outside the "explicit textual source" of the First Amendment. Soldal, 506 U.S. at 70 (internal quotation marks omitted). Plaintiffs allege non-First Amendment harm to their property interests, liberty interest in occupation, and right to be free from government conduct that is shocking to the conscience, as noted. ECF No. 70 ¶¶ 265-267. Even if the claims stem from the single "wrong" of the 2012 FACE, a single "wrong[]... can implicate more than one of the Constitution's commands." Soldal, 506 U.S. at 70. For Graham to apply, the claims would have to "target[] the same sort of governmental conduct." Id. Here, plaintiffs based their substantive due process claim on actions that were arbitrary and irrational or motivated by improper political pressure, among other things, and their retaliation claim on actions designed to hamper their pursuit of this case. ECF No. 70 ¶¶ 263-280. Thus, as these claims target different government conduct, the substantive due process claim is not preempted by the First Amendment retaliation claim.

B. First Amendment

"A First Amendment retaliation claim requires Plaintiff to show three elements: (1) that the plaintiff was engaged in constitutionally protected activity; (2) that the defendant's actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the defendant's adverse action was substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct.'" Corales 567 F.3d at 563; Tranquilla v. City of San Francisco, No. CV-11-04763 JSC, 2014 WL 554536, at *6 (N.D. Cal. Feb. 7, 2014).

"The First Amendment right of the people... to petition the Government for a redress of grievances, ' which secures the right of access to the courts, has been termed one of the most precious of liberties safeguarded by the Bill of Rights.'" Ringgold-Lockhart v. Cnty. of Los Angeles, ___F.3d ___, 2014 WL 3805579, at *2 (9th Cir. Aug. 4, 2014) (quoting BE & K Const. Co. v. NLRB, 536 U.S. 516, 524-25 (2002)) (internal quotation marks omitted; alteration in original). Plaintiffs allege Bieber's sharply increased FACE recommendation came after plaintiffs had exercised their right of access to the courts by filing the instant law suit and was motivated by it. In addition, they allege the increased FACE effectively put them out of business, something likely to chill a person of ordinary firmness from continuing with the protected activity. See Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989) (stating that claim of retaliation for public criticism of defendants stated a First Amendment retaliation claim).

Defendant argues he was unaware plaintiffs had filed suit when he recommended the 2012 FACE and points to the summons on the court's docket, showing he was served on April 29, 2013. ECF No. 74 at 12; ECF No. 12. Whether plaintiffs will be able to fend off summary judgment on this claim is not before the court: at this stage of the proceedings, the court must draw reasonable inferences and read the complaint in the light most favorable to plaintiffs. Here the complaint sufficiently pleads Bieber was aware of the suit when he recommended the increased FACE in his report of November 16, 2012. ECF No. 70 ¶¶ 211, 282, 284.

Defendant also argues the increased FACE has not injured plaintiffs in a way that would chill someone from pursuing this suit because they have not alleged the County has actually required them to post the new FAM or that they have pursued their statutory appeal rights. ECF No. 74 at 12-13. As noted, however, plaintiffs allege the County has followed Bieber's recommendations since 2009. ECF No. 70 ¶¶ 134, 192. They also allege the increased FACE exceeds the value of the mine, rendering it unsaleable. Id. ¶ 221. This is a sufficient injury.

C. The Noerr-Pennington Doctrine

The Noerr-Pennington doctrine derives from the First Amendment clause guaranteeing "the right of the people... to petition the Government for a redress of grievances." Sosa v. DIRECTV, Inc., 437 F.3d 923, 929 (9th Cir. 2005). Although it originally protected those who petition the legislature from being vulnerable to antitrust liability, it now applies more broadly, covering the petitioning of any branch of government, including litigation activities before courts and administrative tribunals. Theme Promotions Inc., v. News Am. Marketing FSI, 546 F.3d 991, 1006-07 (9th Cir. 2008); Fischer Sand & Aggregate Co. v. City of Lakeville, 874 F.Supp. 957, 959 (D. Minn. 1994) (extending immunity to government officials' opposition to request for new zoning designation); Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510-11 (1972) (extending the doctrine to activities before administrative tribunals). The Ninth Circuit has described the doctrine as "a generic rule of statutory construction, applicable to any statutory interpretation that could implicate the rights protected by the Petition Clause." Sosa, 437 F.3d at 931. "[T]he First Amendment rationale of the Noerr-Pennington doctrine extends beyond anti-trust suits to civil rights actions as well. Thus, activity protected by Noerr-Pennington cannot form the basis of section 1983 liability." Boulware v. State of Nev., Dep't of Human Res., 960 F.2d 793, 800 (9th Cir. 1992).

While "petitioning" literally refers to communications directed toward a court, protecting the First Amendment right to petition requires that courts also give "breathing space" to speech made outside of court but that is related to litigation. Sosa, 437 F.3d at 932. Thus, the Noerr-Pennington doctrine applies to "conduct incidental to the prosecution of the suit, such as pre-suit demand letters, id. at 925, and other actions "undertaken in the course of representing a client in litigation.'" Ungureanu v. A. Teichert & Son, No. CIV S-11-0316 LKK GGH PS, 2012 WL 1108831, at *7 (E.D. Cal. Apr. 2, 2012) (quoting Lynn v. Friedenthal, No. CV 09-08717-PSG (VBK), 2011 WL 6960823, at *7 (C.D. Cal. Dec. 2, 2011)). Thus, "conduct incidental to' a petition is protected by Noerr-Pennington if the petition itself is protected, " Freeman v. Lasky, Hass & Cohler, 410 F.3d 1180, 1184 (9th Cir. 2005) (quoting Theofel v. Farey-Jones, 359 F.3d 1066, 1078 (9th Cir. 2004)), as is conduct undertaken by lawyers, employees and agents of the petitioning party. Id. at 1186.

Defendant acknowledges the court rejected his Noerr-Pennington challenge to the original complaint, but argues the Third Amended Complaint provides additional detail. ECF No. 74 at 16. Specifically he says the Third Amended Complaint identifies him as a consultant for potential litigation concerning the mine and connects his inspections to the proceedings before the BZA. Id.

It is true the Third Amended Complaint describes Bieber as a "consultant to provide expert assistance, third-party expert analysis, and potential expert witness services as needed in response to potential litigation...." ECF No. 70 ¶ 115. Defendant has not cited and the court has not found a case extending the immunity to a person hired as potential expert witness when there is nothing suggesting a lawsuit was in fact contemplated when he was hired. He has not suggested how a lawsuit burdens petitioning activity when there is only the potential of such activity. See Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 644 (9th Cir. 2009) (stating the first step in Noerr-Pennington analysis is whether the lawsuit imposes burden on petitioning rights).

In addition, defendant claims the Third Amended Complaint connects his inspection of the mine to proceedings before the BZA. ECF No. 74 at 16. He points to paragraph 119 of the Third Amended Complaint, which says nothing about the BZA but rather identifies how he allegedly describes himself in his various reports, and paragraph 126, which claims defendant has represented himself as an expert in SMARA. Paragraph 126 does say he "has been used by the county in multiple hearings, " but as the paragraph does not identify the hearings, the court cannot determine whether they were part of the County's petitioning activity. Paragraph 141 mentions a hearing before the BZA, but does not connect defendant to that proceeding.

Defendant fares better with paragraphs 158 and 169, which discuss Bieber's testimony before the BZA in connection with his 2011 FACE proposal. However, this court has previously found that defendant's activities in connection with the 2011 FACE do not state a claim, so his petitioning activity in connection with that recommendation cannot be said to be burdened by this lawsuit. As he has not otherwise identified any petitioning activities in connection with the 2012 FACE, his reliance on the Noerr-Pennington doctrine is misplaced.

D. Qualified Immunity

As he has in earlier motions to dismiss, defendant argues he is entitled to qualified immunity. ECF No. 74 at 17-21. The court did not address the argument in connection with the Second Amended Complaint in light of the dismissal of the substantive claims with leave to amend. ECF No. 69 at 11. In rejecting the claim made as part of the motion to dismiss the First Amended Complaint, the court observed defendant had not borne his burden of demonstrating his entitlement to the doctrine. ECF No. 61 at 9-10.

In the current motion, defendant relies on Filarsky v. Delia, arguing that under this case, qualified immunity extends to those who undertake governmental functions on a temporary or occasional basis. ___ U.S. ___, 132 S.Ct. 1657, 1667 (2012). In Filarsky, the Supreme Court considered whether an attorney who assisted government employees in their investigation of a firefighter alleged to be faking his injuries was entitled to rely on qualified immunity. Id. at 1660-61. The court agreed that the attorney's part-time status did not control the inquiry, id. at 1665, but instead examined the common law in 1871, when 42 U.S.C. § 1983 was enacted, to determine whether it distinguished between public and private citizens in extending immunity to those involved in the type of investigation at issue. Id. at 1662. It then considered whether the purposes behind qualified immunity are also applicable when a private actor undertakes a governmental function. Id. at 1662-66; see also McCullum v. Tepe, 693 F.3d 696, 701-02 (6th Cir. 2012) (stating the first prong of Filarsky's analysis requires a court to determine "whether a person in the same position as the party asserting qualified immunity would have been immune from liability under the common law of the late Nineteenth Century").

Defendant argues the policies underlying qualified immunity-avoiding timidity in the performance of public duties, ensuring that people are not deterred from public service, and preventing lawsuits from distracting people from government work-apply equally to a contractor engaged to inspect mines and enforce environmental laws. ECF No. 74 at 19.

Defendant provides no independent examination whether a geologist or one involved in civil enforcement would have been entitled to immunity in 1871, but instead relies on the Filarsky court's examples: immunity was extended to private citizens who acted as justices of the peace and assisted in the execution of warrants, among other things. Id. at 1665. He analogizes his position to those enlisted to execute warrants, arguing that he is empowered to enter onto mine property to carry out an inspection. ECF No. 74 at 20.

In addition, he attempts to distinguish Richardson v. McKnight, 521 U.S. 399 (1997), which held that a guard employed by a private prison was not entitled to qualified immunity, by saying that the Supreme Court itself recognized Richardson 's narrow holding. Id. at 408-13. In Richardson, the Supreme Court said "a private firm, systematically organized to assume a major, lengthy administrative task... with limited direct supervision by the government for profit and potentially in competition with other firms" was not entitled to assert qualified immunity, whereas "a private individual briefly associated with a government body, serving as an adjunct to government in an essential governmental activity, or acting under close official supervision" might be able to claim protection. Id.

Although defendant makes a more robust showing now in support of his claim for qualified immunity, the court need not at this point definitely decide whether he has established the historical basis for his claim of immunity. Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In determining whether a governmental officer is immune from suit based on the doctrine of qualified immunity, the court generally considers two questions. The district court may decide the order of addressing these questions and answer only the second, in accordance with fairness and efficiency and in light of the circumstances of a particular case. Pearson v. Callahan, 555 U.S. 223, 236 (2009). The first is, taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds by Pearson, 555 U.S. 223. A negative answer ends the analysis, with qualified immunity protecting defendant from liability. Id. If a constitutional violation occurred, a court must further inquire "whether the right was clearly established." Id. "If the law did not put the [defendant] on notice that [his] conduct would be clearly unlawful, " he is entitled to the protection of qualified immunity." Id. at 202. A right is clearly established if "the state of law at the time gives officials fair warning that their conduct is unconstitutional." Ellins v. City of Sierra Madre, 710 F.3d 1049, 1065 (9th Cir. 2013). The Supreme Court has emphasized that "the qualified immunity inquiry must be undertaken in light of the specific context of the case." Brosseau v. Haugen, 543 U.S. 194, 198 (2004).

As noted above, plaintiffs have adequately pleaded that in 2012 defendant deprived them of property rights arbitrarily, in response to political pressure; yet the Ninth Circuit had said that a city council's rejection of the landowner's request to build condominiums because of pressure from neighboring landowners violated due process, Del Monte Dunes, 920 F.3d at 1508, and an arbitrary deprivation of a property right might give rise to a substantive due process claim. Action Apt. Ass'n, 509 F.3d at 1026. Moreover, the court has also recognized that actions taken in retaliation for protected activities are improper. Soranno's Gasco, 874 F.2d at 1314. A reasonable county official would have been aware that arbitrary, retaliatory actions could have violated plaintiffs' rights. Defendant has not shown he is entitled to qualified immunity.

IT IS THEREFORE ORDERED that:

1. Defendant's motion to dismiss, ECF No. 74, is denied; and

2. Defendant's answer is due within twenty-one days of the date of this order.


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