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Butcher v. City of Marysville

United States District Court, E.D. California

July 24, 2019

BRIGITTE RAELYN BUTCHER, BILLY JOHN REID, JOLENE ANN REID, SUSAN EXTEIN, STANLEY EXTEIN, MICHAEL ELLIOT, CHRYSTAL MOTLEY, DICK VEIT, DENNIS OWENS, DERECK DEMPSEY, CARRIE ANTRAPP, WILBUR BARTHOLOMEW, ANNETTE SKEEN, individually and on behalf of themselves and all others similarly situated; MARYSVILLE HOMELESS UNION, CALIFORNIA HOMELESS UNION/STATEWIDE ORGANIZING COUNCIL, Plaintiffs,
v.
CITY OF MARYSVILLE, MARYSVILLE POLICE DEPARTMENT, RICKY SAMAYOA, BRENT BORDSEN, COUNTY OF YUBA, YUBA COUNTY CODE ENFORCEMENT, and DOE 1 to 100, Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART THE CITY OF MARYSVILLE'S MOTION TO DISMISS ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO STRIKE COUNTY OF YUBA'S AFFIRMATIVE DEFENSES

          JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE.

         In October 2018, Brigitte Raelynnn Butcher and twelve other plaintiffs filed a putative class action against H&H Trenching as well as several public-entity and public-employee defendants. Compl., ECF No. 1. The City of Marysville (“the City”) was among the public entities Plaintiffs named. Compl. ¶ 1. The City filed a motion to dismiss, ECF No. 4, which the Court ultimately granted in part and denied in part. February 22, 2019 Order (“Order”), ECF No. 17.

         Plaintiffs filed an amended complaint, reviving several claims the Court dismissed without prejudice. First Am. Comp. (“FAC”), ECF No. 20. The City filed another motion to dismiss. Mot. to Dismiss (“Mot.”), ECF No. 23. Plaintiffs opposed the motion, Opp'n, ECF No. 27. They also filed a motion to strike six of the affirmative defenses listed in the County of Yuba and Yuba County Code Enforcement's (collectively “the County”) Answer to Plaintiffs' amended complaint. Mot. to Strike, ECF No. 25, see also Amended Answer with Jury Demand (“Answer”), ECF No. 24.[1]

         For the reasons discussed below, the Court GRANTS in part and DENIES in part the City's motion to dismiss. The Court DISMISSES Plaintiffs' First and Eighth Amendment claims WITH PREJUDICE. To the extent Plaintiffs' Section 1983 claim is premised on the City's 13-step plan to evacuate homeless encampments using trespass law, the Court DISMISSES their Equal Protection claim WITH PREJUDICE. But to the extent Plaintiffs' Section 1983 claim is premised on the City's municipal custom of displacing homeless persons and destroying their property, the Court DENIES the City's motion to dismiss Plaintiffs' Equal Protection claim. The Court also DENIES the City's motion to dismiss Plaintiffs' Bane Act and state constitution claims. Finally, the Court DENIES the City's motion to dismiss Plaintiffs' class allegations and requests for equitable relief as premature.

         The Court GRANTS in part and DENIES in part Plaintiffs' motion to strike. The Court STRIKES the County's second affirmative defense to the extent the County asserts it against Plaintiffs' federal claims. The Court STRIKES the County's fifth and eighth affirmative defenses in full and WITH PREJUDICE. The Court STRIKES the County's third, sixth, and seventh, affirmative defenses in full but WITHOUT PREJUDICE.

         I. FACTUAL ALLEGATIONS

         The parties are familiar with Plaintiffs' allegations against the City. In short, Plaintiffs contend the City engaged in a campaign of displacing homeless individuals from their riverbank encampments and destroying their property. See generally FAC. Plaintiffs contend that, on at least four occasions from February 2016 to January 2017, the City evacuated Plaintiffs from their encampments or barred re-entry due to flooding or the threat thereof. FAC ¶¶ 17-37. Notwithstanding this rationale, the City relocated Plaintiffs to other flood zones, where it eventually repeated the process of evacuating residents and destroying their property. Id.

         II. OPINION

         A. Motion to Dismiss

         1. Judicial Notice

         In its reply brief, ECF No. 29, the City requests the Court take judicial notice of its charter. RJN, ECF No. 29-1. Plaintiffs filed objections to this request, ECF No. 31, arguing (1) it was untimely, (2) the charter is not a proper subject of judicial notice, and (3) the charter is irrelevant to the issues being resolved. Objections at 2-3.

         Under the Local Rules, requests for judicial notice are generally better-suited in a party's opening brief. See E.D. Cal. L.R. 230(b). This is particularly true when a party uses the request to expand an argument that “was inadequately developed in the initial motion.” Cf. Ass'n of Irritated Residents v. C&R Vanderham Dairy, 435 F.Supp.2d 1078, 1089 (E.D. Cal. 2006). But here, the City's reply brief and accompanying request for judicial notice do not aim to expand an earlier argument. Rather, they respond to an argument Plaintiffs make in their opposition brief-namely, that “it is plausible Defendants Samayoa and Borsden [sic.] possessed policymaking authority.” See Reply at 1 (citing Opp'n at 8). Plaintiffs lack authority for the proposition that a request for judicial notice included in a reply brief is untimely even if it is in response to an argument made by the other party.

         Nevertheless, the Court finds the City's request for judicial notice is inappropriate. As Plaintiffs argue, Federal Rule of Evidence 201(b)(2) only allows courts to take judicial notice of the existence of matters of public record; not of the truth of information in those documents. Lasar v. Ford Motor Co., 399 F.3d 1101, 1117 n.14 (9th Cir. 2005). Here, the City requests the Court take judicial notice of its charter “to show the fact that all legislative power, and all other powers granted to and invested in the City . . . shall be exercised by the Council of the City of Marysville.” RJN at 2. Judicial notice does not serve this function. The Court, therefore DENIES the City's request.

         2. Legal Standard

         Federal Rule of Civil Procedure 8(a)(2) requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Courts must dismiss a suit if the plaintiff fails to “state a claim upon which relief can be granted.” Fed. R. Civ. Proc. 12(b)(6). When considering a motion to dismiss, a Court “must accept as true all of the allegations contained in a complaint” and “draw []reasonable inference[s]” in Plaintiffs' favor. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Courts are not, however, “bound to accept as true a legal conclusion couched as a factual allegation.” Id. “Unwarranted inferences” are likewise “insufficient to defeat a motion to dismiss for failure to state a claim.” Epstein v. Washington Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996).

         Rule 12(b)(6)'s plausibility standard “is not akin to a probability requirement, but asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. A claim is plausible “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.

         3. Analysis

         a. Statute of Limitations

         Section 1983 does not have its own statute of limitations. Butler v. Nat'l Cmty. Renaissance of Cal., 766 F.3d 1191, 1198 (9th Cir. 2014). Rather, federal courts “apply the forum state's statute of limitations for personal injury actions.” Butler, 766 F.3d at 1198. California's statute of limitations for personal injury claims is two years. Butler, 766 F.3d at 1198 (citing Cal. Civ. Proc. Code § 335.1). Even so, the continuing violations doctrine allows claims that would ordinarily be time-barred to proceed if the plaintiff can show those claims arose out of a “systematic policy or practice of discrimination that operated, in part, within the limitations period.” Morgan v. Nat'l RR Passenger Corp., 232 F.3d 1008, 1015 (9th Cir. 2000).

         The City argues Elliott and Motley's claims are barred by the statute of limitations. Mot. at 7-8. The Court has already rejected this argument, finding the continuing violations doctrine brought Elliot and Motley's Section 1983 claims within the statute of limitations. Opp'n at 10; Order at 11-12. That decision is now law of the case. Gilman v. Brown, No. 05-cv-830-LKK-GGH, 2013 WL 1904424 at *13 n.31 (E.D. Cal. May 7, 2013).

         The City also argues that Viet, Owens, Dempsey, Antrapp, Bartholomew, and Skeen's Section 1983 claims are time-barred. Paragraph 37 of the complaint states, “over a time period roughly stretching from March 2016 through October 2016, ” these Plaintiffs “lived at each of the homeless encampments.” The City maintains this allegation is conclusory and fails to show that any act against these Plaintiffs fell within the statute of limitations. Mot. at 8. The Court declines to read this paragraph in isolation as the City would have it do. See id. Paragraphs 21-33 of the complaint lay out factual content relevant to the time period referenced in Paragraph 37. These paragraphs include allegations of municipal misconduct ranging from March 2016 to October 17, 2016. FAC ¶¶ 21, 28-29, 32-33. Although some of the conduct Viet, Owens, Dempsey, Antrapp, Bartholomew, and Skeen challenge lies beyond the two-year statute of limitations, Plaintiffs allege conduct as part of a “systematic policy or practice of discrimination that operated, in part, within the limitations period.” Morgan v. Nat'l RR Passenger Corp., 232 F.3d 1008, 1015 (9th Cir. 2000); see also infra at 10-12. Because the continuing violations doctrine applies to these Plaintiffs' Section 1983 claims, the Court DENIES the City's motion to dismiss them as time-barred.

         b. Municipal Liability

         To impose Section 1983 liability on a local government, plaintiffs bear the burden of showing that a “municipal policy” or “custom” was the “moving force” behind their injuries. Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 694 (1978). To prove a “municipal policy, ” plaintiffs must identify: (1) a “policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers” or (2) an act taken by an official with final policymaking authority in that area. City of St. Louis v. Prapotnik, 485 U.S. 112, 121-23 (1998). A court may not simply hold a municipality vicariously liable for its employees' actions. Connick v. Thompson, 563 U.S. 51, 60 (2011) (internal quotations omitted). But absent a “written law or express municipal policy, ” plaintiffs may allege the City maintained an unconstitutional custom-“the existence of a widespread practice that . . . is so permanent and well settled as to constitute a custom or usage with the force of law.” Id. at 127 (internal quotations omitted).

         Here, Plaintiffs properly identified both a municipal policy and a municipal custom. But, as pled, neither resulted in plausible violations of the First or Eighth Amendment. Accordingly, the Court DISMISSES these claims WITH PREJUDICE. Plaintiffs did, however, adequately allege that the municipal custom identified was the moving force behind the City's violation of Equal Protection Clause. The Court DENIES the City's motion to dismiss this claim.

         i. Policy

         The City argues Plaintiffs failed to identify a policy in support of their municipal liability because (1) the “13-step plan to expel homeless persons” referenced in the Complaint was never “voted on, ratified, or adopted by the City”; and (2) none of the individually-named Defendants in Plaintiffs' complaint possess “final policymaking authority” for the City. Mot. at 7-8. The City's first argument fails. When challenging an express municipal policy, it is true that plaintiffs must identify “a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.” Monell, 436 U.S. at 690. But Plaintiffs allegations satisfy the “adoption” requirement. Plaintiffs allege the City of Marysville joined the “Marysville Police Department, County of Yuba, and Yuba County Code Enforcement” to “develop[] a '13-step plan to expel homeless persons from the encampments located on City-owned property outside the City's limits.” FAC ¶ 21. The “City-County Liaison Committee” originally devised this plan in an effort to “remove homeless persons from the [homeless] encampments using trespass law.” FAC ¶ 22. They titled the plan “Tasks and Timeline for Removing Unauthorized Occupants from City-Owned Lands, ” assigning “specific shared responsibilities” to each of the group's members. FAC ¶ 21. Given these allegations and the complaint as a whole, the Court finds Plaintiffs adequately alleged the City “adopted” the 13-step plan, such that it amounted to an official policy.

         The City's second argument withstands Plaintiffs' opposition. The complaint ascribes final policy-making authority to the City of Marysville Mayor, Ricky Samayoa, and the City Attorney, Brent Bordsen. FAC ¶ 6-7. Plaintiffs argue that “these allegations must be assumed true.” Opp'n at 8 (quoting Sanchez v. City of Fresno, [cite]). But, as both parties concede, the question of whether an official possesses final policymaking authority is a question of state law. See Opp'n (citing Barone v.City of Springfield, 902 F.3d 1091, 1107-08 (9th Cir. 2018)); Reply at 1 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469 482-83 (1986)). Plaintiffs' legal conclusions, couched as factual allegations, do not receive the presumption of truth. Ashcroft v. Iqbal,556 U.S. 662, 678 (2009). It was, therefore, incumbent on Plaintiffs to oppose the City's motion by identifying a state or local law that granted the Mayor or City Attorney “final authority ...


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