United States District Court, C.D. California
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
& DISMISSING PLAINTIFF’S FIRST AMENDED COMPLAINT
WITH LEAVE TO AMEND
HONORABLE KENLY KIYA KATO United States Magistrate Judge
Darlene Herring Jenkins (“Plaintiff”) has filed a
pro se First Amended Complaint (“FAC”)
pursuant to Title 42 of the United States Code, section 1983.
Plaintiff alleges Defendants Pacific Gas and Electric Company
and Does 1 through 10 violated Title 42 of the United States
Code, Sections 1983 (“Section 1983”) and 1985(3)
(“Section 1985(3)”). Defendant Pacific Gas and
Electric Company (“Defendant”) filed a Motion to
Dismiss the FAC (“Motion”), which the Court
grants for the reasons below.
March 18, 2016, Plaintiff filed a civil rights complaint
(“Complaint”) alleging Defendant violated (1) the
Safe Drinking Water Act (“SDWA”); and (2)
Plaintiff’s civil rights under Sections 1983, 1985(3),
and 1986. See ECF Docket No. (“Dkt.”) 1,
Compl. On June 2, 2016, the Court dismissed the Complaint
with leave to amend, finding the SDWA preempted
Plaintiff’s civil rights claims and Plaintiff failed to
state a SDWA claim. Dkt. 27, Order.
7, 2016, Plaintiff filed the FAC alleging Defendant violated
Plaintiff’s civil rights under Sections 1983 and
1985(3). Dkt. 29, FAC. According to the FAC, Plaintiff owns
real property in Hinkley, California. Id. at 6.
Plaintiff alleges Defendant failed to remove hexavalent
chromium from Hinkley’s aquifers and the aquifers have
“connection via private individual water well . . .
made by similarly situated Plaintiff(s).” Id.
at 7. Plaintiff further alleges Defendant poisoned
Hinkley’s aquifers “with URANIUM, in
concentration way over 1000%, thus way over the EPA’s
legal limits.” Id. at 14. Additionally,
Plaintiff alleges Defendant caused the water beneath
Plaintiff’s real property, “the only source of
ground drinking” water to be “poisoned with
ARSENIC, and URANIUM, way over the Federal and State
EPA’s legal limits.” Id. at 12.
Plaintiff claims to have suffered “irreparable harm
health injuries as a direct result of being poisoned with
toxic chemicals by Defendant’s operations.”
Id. at 6.
addition, Plaintiff alleges Defendant “has performed
CONCERTED, I[N]TERTWINED, AND JOIN[T] ACTIVITY’S ACTION
with state actors” to poison water in Hinkley.
Id. at 7. Plaintiff further alleges Defendant and
state actors “conspired for the purpose of depriving
Plaintiff(s) of equal protection of the law and for the
purpose of preventing and hindering the constituted
authorities from giving and securing to Plaintiff(s) equal
protection of the law and deprivation of life, liberty and
property without due process of law.” Id. at
10. Plaintiff also alleges Defendant was “a willful
participant in joint activity with the State or its
agents” and violated Plaintiff’s
“constitutional rights under color of law, in bad
faith, and with malicious purpose in reckless, wanton, and
willful disregard of Plaintiff(s) human, safety, and property
rights.” Id. at 4, 8. Plaintiff seeks monetary
damages and costs. Id. at 16-17.
24, 2016, Defendant filed the Motion to Dismiss the FAC. Dkt.
32-1, Mot. Defendant argues: (1) the SDWA preempts
Plaintiff’s Section 1983 and 1985(3) claims; (2)
Plaintiff “alleges neither membership in a protected
class nor invidious discrimination” in her Section
1985(3) claim; (3) Plaintiff fails to allege “she
suffered injury as a result of [Defendant]’s concerted
action with government actors” in the Section 1983
claim; and (4) Plaintiff’s claims are
untimely. Id. at 2-8. On July 6, 2016,
Plaintiff filed an Opposition. Dkt. 36, Opp.; Dkt. 37, Mem.
Points & Authorities; Dkt. 38, Decl. On July 14, 2016,
Defendant filed a Reply. Dkt. 39, Reply. This matter is thus
submitted for decision.
complaint may be dismissed for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6)
“where there is no cognizable legal theory or an
absence of sufficient facts alleged to support a cognizable
legal theory.” Zamani v. Carnes, 491 F.3d 990,
996 (9th Cir. 2007) (citation and internal quotation marks
omitted). In considering whether a complaint states a claim,
a court must accept as true all of the material factual
allegations in it. Hamilton v. Brown, 630 F.3d 889,
892-93 (9th Cir. 2011). However, the Court need not accept as
true “allegations that are merely conclusory,
unwarranted deductions of fact, or unreasonable
inferences.” In re Gilead Scis. Sec. Litig.,
536 F.3d 1049, 1055 (9th Cir. 2008) (citation and internal
quotation marks omitted).
a complaint need not include detailed factual allegations, it
“must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Cook v. Brewer, 637 F.3d 1002, 1004
(9th Cir. 2011) (citation and internal quotation marks
omitted). A claim is facially plausible when it “allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id.
(citation and internal quotation marks omitted). The
complaint “must contain sufficient allegations of