United States District Court, E.D. California
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,
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
A. MENDEZ, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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.
Motion to Dismiss
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.
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.
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.
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).
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.
Statute of Limitations
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).
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).
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.
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).
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.
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.
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 ...