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Spindler v. City of Los Angeles

United States District Court, C.D. California

November 20, 2017

WAYNE SPINDLER, Plaintiff,
v.
CITY OF LOS ANGELES, et al., Defendant.

          MEMORANDUM AND ORDER

          JOSEPHINE L. STATON UNITED STATES DISTRICT JUDGE

         BACKGROUND

         Plaintiff, a practicing attorney proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. section 1983 on January 11, 2017. Defendants are: (1) the City of Los Angeles (“City”); (2) City Councilman and City Council President Herman S. Wesson, Jr., sued in his individual and official capacities; (3) Hugo S. Rossiter, an employee of the Los Angeles City Attorney's Office, sued in his individual and official capacities; and (4) Los Angeles Police Department detectives Eric Reade and Nelly Nava-Mercado.[1]

         On June 22, 2017, Defendants filed a “Motion to Dismiss the Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(6) and Motion to Strike Pursuant to Federal Rules of Civil Procedure 12(f), ” accompanied by a Request for Judicial Notice. On July 21, 2017, Plaintiff filed: (1) “Plaintiff's Memorandum of Points and Authorities in Opposition to Defendants' Motion to Dismiss, etc.” (“Opposition”); (2) a “Filing of Original Declaration of Wayne Spindler”; (3) “Plaintiff's Statement of Genuine Issues”; and (4) “Plaintiff's Request for Judicial Notice, etc.”

         SUMMARY OF ALLEGATIONS IN PLAINTIFF'S COMPLAINT

         The Complaint is confused, rambling and disorganized. Plaintiff's claims appear to arise out of an incident at a City Council meeting on May 11, 2016, at which Plaintiff submitted a speaker card which assertedly caused Plaintiff to be arrested for making criminal threats. Plaintiff alleges the following:

Plaintiff is a “private non-public person” who speaks at and participates in meetings of various municipal bodies including the City Council, the Los Angeles Police Commission and various Committees (Complaint, pp. 3-4.[2] Defendants have targeted Plaintiff as a “troublemaker” and “Racist” for peacefully and lawfully defending Plaintiff's rights (id., p. 4).

         The City has adopted and enforced policies authorizing the selective censorship of Plaintiff's speech expressing views critical of the City and/or its officials. These polices include its “Rules of Decorum” and related practices, the use of criminal prosecutions and restraining orders, the fabrication of reports and statements, the use of press conferences “to further the lies, ” the use of “high powered lobbyist contacts, ” the removal of persons from public meetings and the interference with individuals' rights to speak and assemble at public meetings (id., pp. 4-5). The City has failed to train, supervise, monitor and correct City officials who preside over public meetings and City police officers (id., p. 6).

         Defendants have “trampled on” California's Brown Act by limiting the public to one minute of public comment, cutting speakers off in mid-sentence, expelling speakers from meetings on false claims of disruption, and misplacing, losing or overlooking “speaker cards” (id., p. 8).

         The City's Department of Water and Power (“DWP”) ignores residents' requests for help and has “draconian” ways of dealing with those with whom it disagrees or who expose its corruption (id., p. 9).

         On April 16, 2016, Defendant Rossiter prepared an affidavit in support of a petition for a restraining order stating that Plaintiff had submitted a speaker card at a City Council meeting depicting violent conduct such as hanging (id., p. 17).[3] Rossiter did not register his outside business for payment of tax licenses, etc. (id.). Defendant Wesson did not use his true name in an affidavit filed in support of the petition for a restraining order (id., p. 18). Wesson also “fudged some very important voter registration paperwork in what appears to be voter fraud and perjury” (id.) (emphasis deleted). Wesson secured two mortgages in two different names and defaulted on both (id.).

         At a meeting of the Rules, Elections and Neighborhood Empowerment Committee at the Van Nuys City Hall on May 11, 2016, Defendant Wesson (“who uses the fake first name ‘Herb'”) became angry at Plaintiff because of Plaintiff's comments regarding a DWP proposal and read out Plaintiff's true name, breaching Plaintiff's anonymity (id.). Defendant Wesson called Plaintiff an “idiot” and threatened to beat Plaintiff up (id.). Plaintiff was told to leave the building (id.).

         Defendant Wesson also informed the City Attorney about Plaintiff's “speaker card” which contained a cartoon and comments about Defendant Wesson to the effect that Wesson was “equal to a ‘Nigger'” and the expression “F-U-Herb” (id.). The cartoon showed a person hanging from a tree, a picture resembling a burning cross and a hooded figure with “cute little feet, and a tongue stuck out carrying what [was] a small sign that [read] ‘Herb = ‘Nigger'” (id., pp. 9-10). Many other people have submitted speaker cards with cartoons and doodles, and “black people” and others have called Wesson a “Nigger” because he is a “sell-out” (id., p. 10). The City's mascot for its water conservation program was a blue water drop with features and feet resembling a hooded figure “like a funny KKK caricature” (id.). Plaintiff views the DWP as “lynching” taxpayers, and sees City Hall as a “hooded figure” “coming always to ‘lynch' the rate-payers.” According to Plaintiff, “[t]he City itself is being destroyed by corruption, as if it is a burning cross on a hill” (id.). Wearing a hood and drawing “KKK like” drawings and swastikas are expressions of Plaintiff's political message protected by the First Amendment, evincing Plaintiff's protest of his oppression as a White American by Afro-American and Jewish American City Officials (id., p. 12). The epithets “Nigger” and “Jewboy” are “symbols of blatant racism toward African Americans by LAPD” (id.).

         A police “sergeant at arms” escorted Plaintiff out of the room; however Plaintiff was not arrested (id., p. 11).

         Two days later, on May 13, 2016, police officers surrounded Plaintiff on the steps of City Hall (id.). Defendants Reade and Nava-Mercado took Plaintiff to the Metropolitan Detention Center and booked Plaintiff for a hate crime and making a criminal threat (id.). Defendants set bonds totaling $100, 000 (id.). After eight and a half hours in detention, Plaintiff posted bond and was released (id.). The District Attorney did not file charges (id.). The arrest was unlawful and illegal (id.). The detention constituted excessive force and cruel and unusual punishment (id., p. 12). Defendants previously caused Plaintiff to be arrested for misdemeanor “failure to disperse” (id., p. 11).

         Defendant Rossiter, along with a cameraman and an “entourage” including Defendants Reade and Nava-Mercado, obtained a three-year restraining order from the Los Angeles County Superior Court (id., p. 11).

         The City's Rules of Decorum, as interpreted and applied by Defendants, are impermissible content-based prior restraints on free speech and the right of assembly, are vague and ambiguous, and allow for unbridled discretionary enforcement based on subjective analysis by Defendants (id., p. 13). Depending on a city official's interpretation of the word “impertinent, ” a speaker may be silenced or ejected based on the viewpoint expressed (id., p. 15). The Rules of Decorum do not provide a person of ordinary intelligence a reasonable opportunity to understand what conduct or speech is prohibited, and instead authorize and encourage arbitrary and discriminatory enforcement (id.).

         Defendant Wesson went on a “press barrage” calling for a “lynch mob of every community group possible to attack Plaintiff” (id., p. 18). As a result, Plaintiff has lost nearly all of his business and tens of thousand of dollars, and has received death threats (id.). Plaintiff cannot hold regular business hours for fear of harm to himself and clients (id.). The media has labeled Plaintiff a racist, a misogynist, a homophobe and a KKK member (id., p. 19). These “false light attacks” by Wesson have damaged Plaintiff (id.).

         Wesson and Rossiter conspired with a lobbying firm and the family that owns the Los Angeles Sentinel newspaper (id.). A lobbyist has contacted the State Bar to “agitate” for disbarment proceedings against Plaintiff (id.). Someone has been encouraging Plaintiff's clients to file complaints with the State Bar or demand refunds (id.). The Los Angeles Police Department lobbied the district attorney's office to file charges against Plaintiff (id., p. 20). Plaintiff removed himself from the “voter rolls” (id.). Defendants have created a “life threatening situation where Plaintiff would be attacked and killed without so much as a weapon to defend himself!” (id.) (emphasis deleted).

         Plaintiff went into hiding (id.). Plaintiff believes Defendants schemed to extort money from or to bankrupt Plaintiff (id.).

         The Complaint contains the following claims for relief:

1. Unlawful arrest in violation of the First, Fifth and Fourteenth Amendments (First Claim for Relief);
2. Enforcement of unconstitutional Rule of Decorum in violation of the First, Second, Fourth, Fifth and Fourteenth Amendments (Second Claim for Relief);
3. “Fabrications, ” based on an alleged failure to intervene in unlawful detention and arrest by Defendants, purportedly under United States v. Koon, 34 F.3d 1416 (9th Cir. 1994), rev'd on other grounds, 518 U.S. 81 (1996) (Third Claim for Relief);
4. Violation of the Bane Act, California Civil Code section 52.1, apparently against the City on a theory of vicarious liability (Fourth Claim for Relief);
5. Malicious prosecution, apparently based on the obtaining of the restraining order from a “fabricated set of facts” deeming Plaintiff's speaker card to contain a “criminal threat” (Fifth Claim for Relief); and
6. False imprisonment, attempted extortion, malicious interference with business relations, harassment, retaliation, theft and “Anti-Slapp, ” based on the allegations that Defendants allegedly “detained, attempted to extort money and concessions of liberty, ” deprived Plaintiff of his right to conduct business, harassed, retaliated against and discriminated against Plaintiff, took Plaintiff's guns and ammunition, and engaged in strategic litigation against public participation by obtaining the restraining order and by falsely arresting and detaining Plaintiff (Sixth Claim for Relief).

         Plaintiff seeks injunctive relief and compensatory and punitive damages (id., pp. 16, 26-28).

         Plaintiff attaches a number of exhibits to the Complaint, including: (1) a “City of Los Angeles Speaker Card” dated May 11, 2016. from “Wayne from Encino, ” bearing drawings appearing to be a burning cross, a person hanging from a tree, and a cartoon figure bearing a sign stating “Herb = Nigger”; (2) a “Notice of Lobbying Registration” overwritten with the handwritten statement “FUCK-U HERB”; (3) Plaintiff's tort claims; (4) documents related to Plaintiff's prosecution for making criminal threats in violation of California Penal Code section 422, including a deputy district attorney's “Charge Evaluation Worksheet” memorializing the decision declining to prosecute Plaintiff; (5) a “Workplace Violence Restraining Order After Hearing, ” apparently issued against Plaintiff pursuant to California Code of Civil Procedure section 527.8[4] by a judge of the Los Angeles County Superior Court on June 10, 2016, and a reporter's transcript of proceedings in that case; (6) the “Declaration of Herman J. Wesson, Jr.” and the “Declaration of Deputy City Attorney Hugo S. Rossiter apparently filed in the restraining order case; (7) a letter from a Los Angeles police detective to ...


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