United States District Court, E.D. California
ORDER GRANTING DEFENDANTS ALEX NISHIMURA AND CAL
FIRE'S MOTION TO DISMISS
MENDEZ, UNITED STATES DISTRICT JUDGE
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.
Court takes the facts alleged by Plaintiffs as true for
purposes of this motion.
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.
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.
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.
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
do not make any other specific factual allegations against
Nishimura or Cal Fire in their SAC.
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.
Claims Against Cal Fire
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.
§ 1983 Claims Against Cal Fire (First and Second
Causes of Action)
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).
“This immunity also ...