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Vang v. Lopey

United States District Court, E.D. California

May 3, 2017

JESSE VANG, et al, Plaintiffs,
v.
SHERIFF JON LOPEY, et al, Defendants.

          ORDER GRANTING DEFENDANTS ALEX NISHIMURA AND CAL FIRE'S MOTION TO DISMISS

          JOHN A MENDEZ, UNITED STATES DISTRICT JUDGE

         Plaintiffs, several Hmong individuals who own property in Siskiyou County (“the County”), allege Defendants California Department of Forestry and Fire Protection (“Cal Fire”) and Alex Nishimura (“Nishimura”), an investigator for the California Secretary of State, violated the Constitution and state and federal law in investigating allegations of voter fraud. Second Amended Complaint (“SAC”), ECF No. 56. Cal Fire and Nishimura (collectively “Defendants”) move to dismiss Plaintiffs' SAC. ECF No. 58. Plaintiffs oppose the motion. ECF No. 60.[1]

         I. FACTS

         The Court takes the facts alleged by Plaintiffs as true for purposes of this motion.

         Many members of the Hmong community in the County attempted to register to vote before the June 2016 election. SAC ¶ 18. County clerk Colleen Setzer forwarded copies of several voter registration cards to the California Secretary of State Election Fraud Division for investigation. SAC ¶ 19. Around May 2016, Plaintiffs received letters from Nishimura indicating the Secretary of State would begin conducting a voter fraud investigation. SAC ¶ 24.

         On June 1, 2016, Cal Fire officer Monte Whipple and other individuals from Siskiyou County participated in voter fraud investigations. SAC ¶ 27. Members of these investigation teams told Plaintiffs “they could not use their property to register to vote, and would be prosecuted if they attempted to vote.” SAC ¶ 31. The investigation team included “at least one officer of a government agency carrying an assault rifle.” Id.

         On June 2, an investigation team visited Dang Xiong's property. SAC ¶ 73. “As Mr. Xiong approached the vehicles, the sheriff's officer and the person in the CAL-FIRE truck pulled out two assault rifles.” SAC ¶ 74. Xiong feared voting after his interaction with the armed Cal Fire agent, but Xiong still voted on June 7 using a provisional ballot. SAC ¶ 78.

         Also on June 2, Nishimura visited Plaintiff Jesse Vang's property and told Vang “he would go to jail if he voted on June 7, 2016, because he did not register properly online.” SAC ¶¶ 47-50. Vang did not vote in the June or November elections because he feared arrest if he voted. SAC ¶ 54.

         Plaintiffs do not make any other specific factual allegations against Nishimura or Cal Fire in their SAC.

         Plaintiffs bring nine claims in total. Six of these claims are against Cal Fire and Nishimura: (1) unreasonable search and seizure under § 1983, (2) violation of the Fourteenth Amendment under § 1983, (3) negligence, (4) violation of California Elections Code § 14027, (5) violation of § 2 of the Voting Rights Act (“VRA”), and (6) negligent infliction of emotional distress (“NIED”). SAC at 29-38. Plaintiffs bring a seventh claim against only Cal Fire for negligent hiring and supervision. SAC at 36.

         II. OPINION

         A. Claims Against Cal Fire

         Cal Fire argues that other than the VRA claim, the Eleventh Amendment bars “all of Plaintiff's claims against the state agency CAL FIRE.” Mot. at 4.

         1. § 1983 Claims Against Cal Fire (First and Second Causes of Action)

         The Eleventh Amendment bars a citizen from bringing a suit against the citizen's own state in federal court. Clark v. California Dep't of Forestry & Fire Prot., 2016 WL 4411816, at *5 (N.D. Cal. Aug. 19, 2016). ‚ÄúThis immunity also ...


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