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Hall v. City and County of San Francisco

United States District Court, N.D. California

November 20, 2017

PATRINA HALL, Plaintiff,
v.
CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT RE: ECF, 42

          JON S. TIGAR UNITED STATES DISTRICT JUDGE

         Before the Court is Defendants' motion to dismiss the first amended complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 42. The Court will grant the motion in part and deny it in part.

         I. BACKGROUND

         Plaintiff Patrina Hall, an African American who resides in San Francisco, brings this suit against Defendants City and County of San Francisco; Kevin Ian Kitchingham, project manager; Brian Cheu, director of community development; and Emily Cohen, Office of the Mayor. She is proceeding pro se. Her first amended complaint[1] alleges the following:

         San Francisco “created and instituted local government Black Codes, necessary to refuse equal access to economic opportunities available to all citizens.” ECF No. 11-4 at 5. Defendants “interfered with the Plaintiff's federal and statutory rights by hiring and according economic opportunities to people of color (mulattoes and Latinos) and presenting as black people (African Americans) for the purpose of disfranchising black people and the promotion of City, policing of a radical order (black codes).” Id. at 7.

         The San Francisco Board of Supervisors appointed Hall to a two-year term on the Citizen's Committee on Community Development, headed by Cheu. Id. at 2. Cheu “refus[ed] her votes on issues important to committee work” and also informed Hall “that San Francisco no longer acknowledge[s] black communities, since such communities [have] been dissolved, and replaced by communities of color.” Id. at 2-3. Cheu “also stated that the City was a sanctuary city, and was only interested in providing City funds to people of color (Asians, Latinos and mulattoes), ” and that “the City would provide economic opportunities to black people according to the black population residing within San Francisco, . . . a near six-percent of the City's population.” Id. at 3.

         Cheu also informed Hall that her nonprofit organization “did not qualify to receive City funding because [she] was black (African American)[, ] had slave [descendant] status, and could not enter into a contract with the City and County of San Francisco.” Id. Cheu suggested that Hall speak with Kitchingham, which Hall did in 2017 regarding “procuring City land, necessary to build an affordable housing development, to house [formerly] homeless individuals and families.” Id. Kitchingham told Hall that her organization could not procure City land because Hall “was black (African [descent]), ” that “the City did not award City property to black people, ” and that “he and the City was only interested in awarding City land to Latinos and other people of color, with the exclusion of black people.” Id. at 3-4. Hall “has made various attempts at securing grant funding to facilitate the programs, services and activities of the nonprofit corporation she promotes, but to no avail[.] Plaintiff has been denied such opportunities because of her race, color, national origin and status of a United States black slave [descendant] of African slaves.” Id. at 10. Moreover, grant funding is awarded disproportionately “to nonprofits in black communities, ” as opposed to those “serving white communities and communities of color (Latino, Asian, mulattos), ” both as to the number and amount of awards. Id. at 15-16.

         Several times in 2017, Hall asked Cohen, a Department of Homelessness and Supportive Housing employee, about job opportunities in that department. Id. at 4. Cohen responded that the City “did not have any hiring plans that were inclusive of black people (African Americans), ” and that “her department (the City) awards grant funding to nonprofit organizations, and they hire who they want to hire.” Id. Hall “has made several attempts at securing employment with the City and County of San Francisco, but to no avail . . . because of her race, color, national origin and her status of a United States black slave [descendant] of African slaves.” Id. at 10.

         Hall “conduct[ed] a pre-litigation investigation of San Francisco's hiring practices. And the results revealed that the City hires black people according to their representation of the City's population.” Id. at 13. The City “do[es] not ask the race of potential job applicants, but instead hires mulattos and other people of color and will designate . . . [them] as black (African American.” Id. “[A] fraction of mulatto employees are frequent users of black skin dye, and wear[] it to work on a [consistent] basis.” Id. at 14. Hall's pre-litigation investigation of five City departments and agencies “revealed that black (African American) employees had unequal access to different kinds of labor activities that are associated with lower-wage earning, while white and people of color (mulattos, Asians and Latinos) were employed in positions and labor activities with higher wage earnings.” Id. at 15.

         Hall has also suffered discrimination on public transit: For example, “[w]hen Plaintiff access[es] public transit, the transit operator(s) (either people of color or white) direct Plaintiff to the back of the bus, and most often state that the front seats or the front section of the bus is where people of color and white citizens sit or stand at.” Id. at 12. In addition, “the people of color and white public transit patrons demand that black people (African Americans) do not sit in an empty seat next to them. When they enter the bus, and see black patrons sitting next to a vacant seat, they push the black public transit patrons off the seat.” Id. at 13.

         In addition, Defendants “segregate the public schools during the summer months (with the exclusion of black children and staff) for pay, necessary to promote all Asian schools, all Latino schools, and all white schools.” Id. at 14.

         As a result of the conduct alleged in the complaint, Hall has “suffered injuries to her physical health, finances and reputation.” Id. at 10-11.

         Hall's first amended complaint lists eight claims:[2] (1) employment discrimination; (2) discrimination in grant funding; (3) discrimination in refusing “votes on issues important to committee business”; (4) violation of civil rights “by excluding and dissolving black communities into communities of color (Asians, Latinos, mulattos) with the exclusion of black people (African Americans) in regards to socioeconomic funding activities and housing programs”; (5) violation of civil rights by “politically exclud[ing Hall] from contracting with the City because of her race, color, national origin and status of a black slave (African American) [descendant]”; (6) violation of civil rights “by implementing City sanctioned black codes”; (7) violation of civil rights “by [dismantling] black communities (African American) necessary to construct and fund communities of color, for the purpose of politically incorporating others, people of color (mulattos, Asians, and Latinos)”; and (8) violation of civil rights “by not having an inclusive staffing plan with employment positions available to black applicants (African Americans).” Id. at 17-21. She asserts these claims under several federal statutes, including 18 U.S.C. § 242; 42 U.S.C. §§ 1981, 1982, 1983, and 1985(3); Titles II, VI, and VII of the Civil Rights Act of 1964; and the Civil Rights Reform Act of 1978. Id. at 5-9, 11, 17-22.

         II. REQUESTS FOR JUDICIAL NOTICE AND LATE-FILED DOCUMENTS

         Pursuant to Federal Rule of Evidence 201(b), “[t]he court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” On a motion to dismiss, the court may also “consider materials incorporated into the complaint” when “the complaint necessarily relies upon a document or the contents of the document are alleged in a complaint, the document's authenticity is not in question and there are no disputed issues as to the document's relevance.” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). This is true even if “the plaintiff does not explicitly allege the contents of that document in the complaint.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). The court “must take judicial notice if a party requests it and the court is supplied with the necessary information.” Fed.R.Evid. 201(c)(2). However, courts “cannot take judicial notice of the contents of documents for the truth of the matters asserted therein when the facts are disputed.” Cal. Sportfishing Prot. All. v. Shiloh Grp., LLC, No. 16-CV-06499-DMR, 2017 WL 3136443, at *5 (N.D. Cal. July 24, 2017); see also Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001) (courts may not take judicial notice of disputed facts stated in public records).

         Defendants ask the Court to take judicial notice of a public notice, entitled “Title VI Discrimination and Complaints, ” from the San Francisco Municipal Transportation Agency's (“SFMTA's”) website. ECF No. 42-1. The Court grants Defendants' request because the notice “was made publicly available by government entities . . ., and neither party disputes the authenticity of the web site[] or the accuracy of the information displayed therein.”[3] Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998-99 (9th Cir. 2010). Based on the allegations in the complaint, Hall would dispute the truth of the statement that the SFMTA actually “is committed to operating its programs and services without regard to race, color or national origin.” ECF No. 42-1 at 5. But the Court takes judicial notice only of the existence of the notice, not of the truth of any matters asserted therein.

         Hall seeks judicial notice of multiple documents: an email notice that her name was reached as an alternate for a probation officer assistant position (Ex. A); a list of employment applications she submitted to the City (Ex. B); a facilities use permit application from the San Francisco Unified School District (Ex. C); a letter from the Equal Employment Opportunity Commission (“EEOC”) (Exs. D & F);[4] a handwritten list of agencies Hall contacted (Ex. E); a letter from the San Francisco Human Rights Commission (Ex. G); a certified motion approving that Hall was appointed to the Citizen's Committee on Community Development (Ex. H); a denial of Hall's claim from the Office of the City Attorney (Ex. I); a certificate of service in this case, ECF No. 7-1 (Ex. J); the order granting Hall's application to proceed in forma pauperis in this case, ECF No. 6 (Ex. K); a notice of receipt of a complaint from the EEOC (Ex. L); and a notice of receipt and right-to-sue letter from the California Department of Fair Employment and Housing (“DFEH”) (Ex. M). ECF Nos. 50, 52. Defendants argue that none of these documents are relevant to evaluating the sufficiency of Hall's complaint, but they do not dispute that the exhibits are judicially noticeable except for Exhibit B. The Court does not take judicial notice of Exhibit B because Defendants dispute the exhibit's authenticity. The Court also does not take judicial notice of Exhibit E because the accuracy of handwritten notes can be reasonably questioned. See Fed.R.Civ.P. 201(b)(2) (judicial notice is proper only where the fact “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”). The Court takes judicial notice of the other exhibits because Defendants do not contest their authenticity and they are not completely irrelevant to Hall's claims.

         After Defendants filed their reply, Hall filed a request for judicial notice of three additional documents, ECF No. 57, as well as a “reply” to Defendants' reply, ECF No. 58. Civil Local Rule 7-3(d) provides that, “[o]nce a reply is filed, no additional memoranda, papers or letters may be filed without prior Court approval, ” except to object to reply evidence or to provide a statement of recent decision. Neither exception applies here, and Hall did not obtain approval from the Court to file either document. “[C]ourts are required to afford pro se litigants additional leniency, ” but such leniency “does not extend to permitting surreplies as a matter of course.” Garcia v. Biter, 195 F.Supp.3d 1131, 1134 (E.D. Cal. 2016). Defendants' reply in this case raised no new arguments and presented no evidence, and the Court does not find good cause to allow Hall to file a sur-reply or a subsequent request for judicial notice. Accordingly, neither ECF No. 57 nor ECF No. 58 will be considered.

         III. LEGAL STANDARDS

         A. Federal Rule of Civil ...


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