United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
case was before the court on February 6, 2019, for hearing on
defendants' motion to dismiss plaintiff's first
amended complaint pursuant to Federal Rule of Civil Procedure
(“Rule”) 12(b)(6). ECF No. 17. Attorney Jonathan
Paul appeared on behalf of defendants, and plaintiff appeared
pro se. For the following reasons, it is recommended that
defendants' motion be granted in part and denied in part.
to the first amended complaint, plaintiff owns commercial
property located in the County of Sacramento. ECF No. 16 at
3. In January 2017, he allegedly contacted the defendants and
requested to pay his assessed property taxes in one-dollar
bills as a method for protesting and criticizing elected
government officials. Id. at 4. Defendants agreed to
accept that method of payment, which plaintiff submitted
without incident the following month. Id. At the
time the payment was submitted, plaintiff expressed
complaints “about taxation without representation and
simultaneously distributed several novelty dollars that
depicted defendant FROST's face in the middle of the
dollar to symbolize the protest and [plaintiff's]
criticism of FROST.” Id. Plaintiff recorded
his protest and subsequently provided Frost with a copy of
the video footage. Id. Plaintiff also notified
defendants that he would continue to protest his tax payments
until Frost agreed to meet with him. Id.
thereafter, defendant Aspesi allegedly notified plaintiff
that defendants Lamera, Frost, and Penrose were working on a
policy to stop plaintiff from paying his property taxes with
one-dollar bills. Id. at 4-5. Although no such
policy had been approved, defendants Lamera, Frost, and
Penrose instructed Aspesi “to refuse to accept any cash
payments in One Dollar Bills in order to chill Lull's
protest efforts.” Id. at 5. The following
month, plaintiff allegedly criticized the individual
defendants for their efforts to prevent further protests.
April 10, 2017, plaintiff attempted to conduct another
protest by paying his taxes with one-dollar bills.
Id. at 5-6. Before plaintiff could reach the tax
collection department, a security officer acting under
instructions from the individual defendants asked plaintiff
to leave. Id. at 6. Plaintiff ignored the request
and approached defendant Aspei at the public payment counter,
but Aspei refused to accept plaintiff's payment.
Id. Plaintiff claims, however, that he witnessed
several other people making property tax payments in cash.
amended complaint alleges three claims under 42 U.S.C. §
1983 for retaliation in violation of the First Amendment and
violation of plaintiff's substantive due process and
equal protection rights under the Fourteenth Amendment.
Id. at 8-11.
Rule 12(b)(6)'s Standards
complaint may be dismissed for “failure to state a
claim upon which relief may be granted.” Fed.R.Civ.P.
12(b)(6). To survive a motion to dismiss for failure to state
a claim, a plaintiff must allege “enough facts to state
a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). 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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). The plausibility standard
is not akin to a “probability requirement, ” but
it requires more than a sheer possibility that a defendant
has acted unlawfully. Iqbal, 556 U.S. at 678.
under Rule 12(b)(6) may be based on either: (1) lack of a
cognizable legal theory, or (2) insufficient facts under a
cognizable legal theory. Chubb Custom Ins. Co., 710
F.3d at 956. Dismissal also is appropriate if the complaint
alleges a fact that necessarily defeats the claim.
Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th
pleadings are held to a less-stringent standard than those
drafted by lawyers. Erickson v. Pardus, 551 U.S. 89,
93 (2007) (per curiam). However, the Court need not accept as
true unreasonable inferences or conclusory legal allegations
cast in the form of factual allegations. See Ileto v.
Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (citing
Western Mining Council v. Watt, 643 F.2d 618, 624
(9th Cir. 1981)).
purposes of dismissal under Rule 12(b)(6), the court
generally considers only allegations contained in the
pleadings, exhibits attached to the complaint, and matters
properly subject to judicial notice, and construes all
well-pleaded material factual allegations in the light most
favorable to the nonmoving party. Chubb Custom Ins. Co.
v. Space Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir.
2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.
move to dismiss the first amended complaint, arguing that the
complaint fails to allege facts sufficient to state a claim.
They further argue that the individual ...