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Lull v. County of Sacramento

United States District Court, E.D. California

September 10, 2019

CHRISTOPHER LULL, Plaintiffs,
v.
COUNTY OF SACRAMENTO, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE

         This 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).[1] 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.

         I. Factual Allegations

         According 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.

         Shortly 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. Id.

         On 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. Id.

         The 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.

         II. Rule 12(b)(6)'s Standards

         A 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.

         Dismissal 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 Cir. 1984).

         Pro se 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)).

         For 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. 2012).

         III. Discussion

         Defendants 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 ...


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