United States District Court, N.D. California, San Francisco Division
ORDER GRANTING THE DEFENDANT'S MOTION TO DISMISS
Re: ECF No. 10
BEELER UNITED STATES MAGISTRATE JUDGE
civil rights case involves the placement and removal of
protest signs on private property.The plaintiff, Alonzo Parker,
proceeding pro se, sued the City of Pittsburg and the
Pittsburg Police Department, under 42 U.S.C. §
1983. The city moves to dismiss the complaint
under Rule 12(b)(6) for failure to state a
claim. The court can decide the matter without
oral argument, see Civ. L.R. 7-1(b), and grants the
motion, because the complaint does not provide adequate
notice of the legal theories supporting the claims.
Parker lives in the City of Pittsburg in Contra Costa County,
California. He alleges that from 2011 to 2014, he
“was [a] victim of malicious and illegal prosecution .
. . allowed by attorneys and judges, ” resulting in the
“illegal seizure of [his] real property and financial
accounts.” A final judgment was issued in Mr.
Parker's favor in late 2014, though he did not recover
the cost of his defense. After “exhaust[ing] all avenues
of complaints” for the “illegal seizure of [his]
property and money, ” including the “bar
association, new lawyers, etc., ” Mr. Parker decided to
“wage a protest any way he could.”
April 2016, Mr. Parker hung two signs on his
property. The signs read: “FREEDOM WITH NO
RIGHTS EQUALS SLAVERY” and “YOU CAN HANG A NIGGER
FROM A TREE EQUAL RIGHTS HE'LL NEVER
SEE.” Mr. Parker displayed the signs to protest
against the lawsuits brought against him in
2011. That day, the Pittsburg Police
Department asked Mr. Parker to cover the word
“NIGGER.” Though Mr. Parker explained that the
signs were “his right under the first amendment to
protest a wrong-doing by [the] justice system, ” he
acquiesced. But he removed the covering one day
later, upon “realizing that he considers himself a
‘NIGGER, ' and “is proud of
it.” He wanted the word uncovered to preserve
“the meaning of the content” and “his right
to free speech and protest.” After two days, Mr.
Parker received a citation ordering removal of the sign
within 30 days or, otherwise, the imposition of a $100
fine. Mr. Parker removed the
following months, Mr. Parker displayed signs in his front
yard, and protested at the courthouse, police station,
downtown area, and Pittsburg High School. In August, he
put up a new sign: “BORN A SLAVE MY MASTER IS A
JEW.” About a week later, he met with Hector
Rojas, a Senior Planner, regarding the signs. Mr. Rojas
promised to “determine whether a permit was needed for
[Mr. Parker's] signs.” Later, Mr. Parker learned
“that he will ‘never' be given a permit for
mid-August, Mr. Parker received a citation for
“unpermitted sign.” The next day, Pittsburg
police officers presented a court order to Mr.
Parker. Then, they “forcibly remove[d]
signs from the property after covering up cameras showing
their actions.” The officers “damaged”
his property and took the signs “without compensation
month later, “unknown individuals” removed the
“BORN A SLAVE MY MASTER IS A JEW”
sign. The city issued another
“unpermitted sign” citation for
March 23, 2017, Mr. Parker sued the city and its police
department for violations of his rights to free speech and
protection from unreasonable seizure of
property. The city moves to dismiss the
complaint. Mr. Parker's opposition was due June
14, 2017, but he did not file one.The court gave him a 9-day
extension to file a response. Mr. Parker filed an opposition
on June 23, 2017.
Federal Rule of Civil Procedure 12(b)(6), a complaint may be
dismissed for “failure to state a claim upon which
relief can be granted.” A dismissal under Rule 12(b)(6)
may be based on the lack of a cognizable legal theory or on
the absence of sufficient facts alleged under a cognizable
legal theory. Johnson v. Riverside Healthcare Sys.,
534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001).
complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief” to give the defendant “fair notice”
of what the claims are and the grounds upon which they rest.
See Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007). A complaint does
not need detailed factual allegations, but “a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitlement to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Factual
allegations must be enough to raise a claim for relief above
the speculative level . . . .” Twombly, 550
U.S. at 555 (internal citations omitted).
survive a motion to dismiss, a complaint must contain
sufficient factual allegations, accepted as true,
“‘to state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
“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.” Id. “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. (quoting Twombly, 550 U.S. at 556).
“Where a complaint pleads facts that are ‘merely
consistent with' a defendant's liability, it
‘stops short of the line between possibility and
plausibility of ‘entitlement to
relief.''” Id. (quoting
Twombly, 550 U.S. at 557).
court dismisses a complaint, it should give leave to amend
unless the “the pleading could not possibly be cured by
the allegation of other facts.” Cook, Perkiss and
Liehe, Inc. v. Northern California Collection Serv.
Inc., 911 F.2d 242, 247 (9th Cir. 1990).
First Amendment Claim
Parker asserts a “violation of civil rights” and
later says that the defendants “violated his right to
free speech.” The city moves to dismiss the claim
because it was only enforcing its municipal code, which
requires permits for certain signs, and Mr. Parker does not
allege any facts “to show that the city removed his
signs for an improper or unlawful
court is not convinced that the complaint is so devoid of
improper-purpose allegations. Contrary to the city's
assertions, Mr. Parker does allege facts supporting the
conclusion that it removed his signs for an improper purpose.
He alleges that: (1) he was protesting at the time of the
incident, (2) police officers asked him to cover the word
“NIGGER, ” (3) he received a citation two days
after uncovering it, (4) a municipal employee told him that
he would never receive a permit for his signs, (5) police
officers told him to take down the signs, and (6) when he
continued to display the signs, they were removed by police
officers and “unknown persons.” These allegations
may support a theory of retaliation or censorship. See
Ariz. Students Ass'n v. Ariz. Bd. of Regents, 824
F.3d 858, 867 (9th Cir. 2016); R.A.V. v. City of St.
Paul, 505 U.S. 377, 382 (1992) (noting that
content-based limits on expression are “presumptively
invalid”). The Supreme Court has emphasized that
residential signs are a significant and affordable means of
disseminating protected speech. See City of Ladue v.
Gilleo, 512 U.S. 43, 54 (1994) (holding residential-sign
problem, however, is that Mr. Parker inadequately identifies
the legal theory supporting his claim. It is unclear, for
example, if he is challenging (1) the city's request to
cover the word “NIGGER, ” (2) the citations, (3)
the refusal to issue permits, (4) the removal of his signs,
or (5) the municipal permit requirement, generally - and if
so, for its unequal or improper application, any
content-based impacts, or its financial burden. This is
important because the complaint must give adequate notice of
the claim for the defendant to have a chance to respond.
Twombly, 550 U.S. at 555.
opposition, Mr. Parker appears to clarify his theory, and
adds supporting factual allegations. For example, he says:
(1) his signs should have been exempt under PMC 19.12.040(N),
which exempts noncommercial signs; (2) Rojas informed him
that a permit would cost $900, an “exorbitant
amount”; and (3) Chief Brian Addington and Captain Ron
Raman “clearly stated” that the court order was
granted to remove his signs because “some of the
language and/or the message it contained was
offensive.” These allegations suggest possible
challenges to the city's enforcement of the permit
requirement, or, potentially, to the permit requirement
itself (i.e. because it is overbroad and
burdensome). See, e.g., Berger v. City
of Seattle, 569 F.3d 1029, 1037-40 (9th Cir. 2009)
(holding municipal permit requirement unconstitutional).
cannot raise these new theories and facts in his opposition.
See Nat'l Union of Healthcare Workers v. Kaiser
Foundation Health Plan, Inc., No. 10-CV-03686-WHA, 2013
WL 1616103, at *5 (N.D. Cal. Apr. 15, 2013) (“[T]he
opposition is not the proper arena in which to raise a
critical new legal theory. [The plaintiff] should have
addressed this proposition in the complaint . . . .”);
Patino v. Franklin Credit Mgmt. Corp., No.
16-CV-02695-LB, 2016 WL 4549001, at *7 (N.D. Cal. Aug. 29,
2016) (“The court . . . cannot consider material
outside of the complaint.”). He must include these in
court therefore dismisses Mr. Parker's First Amendment
claim but grants him leave to amend, so that he can add these
- and any additional - legal theories and factual
Fourth/Fourteenth Amendment Claim
Parker's second claim reads: “Violation of Civil
Rights (4th and 14th Amendments/42 U.S.C. §
1983).” The city argues that the complaint
“fails to allege facts to establish how the removal of
[the] signs was unreasonable or otherwise forms a basis for
an unlawful seizure claim.” Mr. Parker does not
address and arguably concedes this point. See, e.g.,