Wayne Spindler v. City of Los Angeles et al

Filing 18

MEMORANDUM AND OPINION by Judge Josephine L. Staton. The Motion to Dismiss is granted in part and denied in part. The Complaint is dismissed with leave to amend. The Motion to Strike is denied as moot. If Plaintiff still wishes to pursue this action , he is granted thirty (30) days from the date of this Order within which to file a First Amended Complaint. While the Court does not deem insufficient all of Plaintiff's allegations, the Court does require that any First Amended Complaint be co mplete in itself and not refer in any manner to the prior Complaint. Any First Amended Complaint must comply with the requirements of Rule 8 of the Federal Rules of Civil Procedure. Plaintiff may not add Defendants without leave of court. See Order for details. (dml)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WAYNE SPINDLER,

) NO. CV 17-250-JLS(E)
)
Plaintiff,
)
)
v.
) MEMORANDUM AND ORDER
)
CITY OF LOS ANGELES, et al., )
)
Defendant.
)
)
______________________________)

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BACKGROUND

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Plaintiff, a practicing attorney proceeding pro se, filed this

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civil rights action pursuant to 42 U.S.C. section 1983 on January 11,

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2017.

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Councilman and City Council President Herman S. Wesson, Jr., sued in

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his individual and official capacities; (3) Hugo S. Rossiter, an

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employee of the Los Angeles City Attorney’s Office, sued in his

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individual and official capacities; and (4) Los Angeles Police

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///

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///

Defendants are: (1) the City of Los Angeles (“City”); (2) City

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Department detectives Eric Reade and Nelly Nava-Mercado.1

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On June 22, 2017, Defendants filed a “Motion to Dismiss the

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Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(6) and

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Motion to Strike Pursuant to Federal Rules of Civil Procedure 12(f),”

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accompanied by a Request for Judicial Notice.

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Plaintiff filed: (1) “Plaintiff’s Memorandum of Points and Authorities

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in Opposition to Defendants’ Motion to Dismiss, etc.” (“Opposition”);

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(2) a “Filing of Original Declaration of Wayne Spindler”;

On July 21, 2017,

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(3) “Plaintiff’s Statement of Genuine Issues”; and (4) “Plaintiff’s

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Request for Judicial Notice, etc.”

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SUMMARY OF ALLEGATIONS IN PLAINTIFF’S COMPLAINT

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The Complaint is confused, rambling and disorganized.

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Plaintiff’s claims appear to arise out of an incident at a City

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Council meeting on May 11, 2016, at which Plaintiff submitted a

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speaker card which assertedly caused Plaintiff to be arrested for

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making criminal threats.

Plaintiff alleges the following:

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Plaintiff is a “private non-public person” who speaks

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at and participates in meetings of various municipal bodies

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including the City Council, the Los Angeles Police

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The Complaint does not indicate the capacities in which
Plaintiff sues Defendants Reade and Nava-Mercado. However,
“where state officials are named in a complaint which seeks
damages under 42 U.S.C. § 1983, it is presumed that the officials
are being sued in their individual capacities.” Entler v.
Gregoire,
F.3d
, 2017 WL 4448218, at *1 n.1 (9th Cir.
Oct. 6, 2017) (citation omitted).
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Commission and various Committees (Complaint, pp. 3-4.[2]

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Defendants have targeted Plaintiff as a “troublemaker” and

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“Racist” for peacefully and lawfully defending Plaintiff’s

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rights (id., p. 4).

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The City has adopted and enforced policies authorizing

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the selective censorship of Plaintiff’s speech expressing

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views critical of the City and/or its officials.

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polices include its “Rules of Decorum” and related

These

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practices, the use of criminal prosecutions and restraining

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orders, the fabrication of reports and statements, the use

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of press conferences “to further the lies,” the use of “high

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powered lobbyist contacts,” the removal of persons from

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public meetings and the interference with individuals’

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rights to speak and assemble at public meetings (id., pp. 4-

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5).

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correct City officials who preside over public meetings and

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City police officers (id., p. 6).

The City has failed to train, supervise, monitor and

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Defendants have “trampled on” California’s Brown Act by

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limiting the public to one minute of public comment, cutting

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speakers off in mid-sentence, expelling speakers from

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meetings on false claims of disruption, and misplacing,

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losing or overlooking “speaker cards” (id., p. 8).

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///

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Portions of the Complaint contain numbered paragraphs,
while other portions do not. The Court refers to the allegations
in the Complaint by page number.
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The City’s Department of Water and Power (“DWP”)

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ignores residents’ requests for help and has “draconian”

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ways of dealing with those with whom it disagrees or who

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expose its corruption (id., p. 9).

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On April 16, 2016, Defendant Rossiter prepared an

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affidavit in support of a petition for a restraining order

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stating that Plaintiff had submitted a speaker card at a

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City Council meeting depicting violent conduct such as

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hanging (id., p. 17).[3]

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outside business for payment of tax licenses, etc. (id.).

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Defendant Wesson did not use his true name in an affidavit

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filed in support of the petition for a restraining order

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(id., p. 18).

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registration paperwork in what appears to be voter fraud and

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perjury” (id.) (emphasis deleted).

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mortgages in two different names and defaulted on both

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(id.).

Rossiter did not register his

Wesson also “fudged some very important voter

Wesson secured two

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At a meeting of the Rules, Elections and Neighborhood

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Empowerment Committee at the Van Nuys City Hall on May 11,

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2016, Defendant Wesson (“who uses the fake first name

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‘Herb’”) became angry at Plaintiff because of Plaintiff’s

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The copy of this alleged declaration attached to the
Complaint shows an execution date of April 16, 2016,
approximately two weeks before the alleged event giving rise to
Plaintiff’s claims. It is unclear whether the date(s) are in
error or whether the April 16 affidavit related to a meeting
different from the meeting on which Plaintiff’s present claims
are based.
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comments regarding a DWP proposal and read out Plaintiff’s

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true name, breaching Plaintiff’s anonymity (id.).

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Wesson called Plaintiff an “idiot” and threatened to beat

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Plaintiff up (id.).

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building (id.).

Defendant

Plaintiff was told to leave the

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Defendant Wesson also informed the City Attorney about

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Plaintiff’s “speaker card” which contained a cartoon and

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comments about Defendant Wesson to the effect that Wesson

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was “equal to a ‘Nigger’” and the expression “F-U-Herb”

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(id.).

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picture resembling a burning cross and a hooded figure with

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“cute little feet, and a tongue stuck out carrying what

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[was] a small sign that [read] ‘Herb = ‘Nigger’” (id., pp.

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9-10).

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cartoons and doodles, and “black people” and others have

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called Wesson a “Nigger” because he is a “sell-out” (id., p.

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10).

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was a blue water drop with features and feet resembling a

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hooded figure “like a funny KKK caricature” (id.).

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Plaintiff views the DWP as “lynching” taxpayers, and sees

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City Hall as a “hooded figure” “coming always to ‘lynch’ the

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rate-payers.”

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being destroyed by corruption, as if it is a burning cross

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on a hill” (id.).

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drawings and swastikas are expressions of Plaintiff’s

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political message protected by the First Amendment, evincing

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Plaintiff’s protest of his oppression as a White American by

The cartoon showed a person hanging from a tree, a

Many other people have submitted speaker cards with

The City’s mascot for its water conservation program

According to Plaintiff, “[t]he City itself is

Wearing a hood and drawing “KKK like”

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Afro-American and Jewish American City Officials (id., p.

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12).

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blatant racism toward African Americans by LAPD” (id.).

The epithets “Nigger” and “Jewboy” are “symbols of

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A police “sergeant at arms” escorted Plaintiff out of

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the room; however Plaintiff was not arrested (id., p. 11).

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Two days later, on May 13, 2016, police officers

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surrounded Plaintiff on the steps of City Hall (id.).

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Defendants Reade and Nava-Mercado took Plaintiff to the

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Metropolitan Detention Center and booked Plaintiff for a

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hate crime and making a criminal threat (id.).

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set bonds totaling $100,000 (id.).

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hours in detention, Plaintiff posted bond and was released

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(id.).

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The arrest was unlawful and illegal (id.).

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constituted excessive force and cruel and unusual punishment

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(id., p. 12).

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arrested for misdemeanor “failure to disperse” (id., p. 11).

Defendants

After eight and a half

The District Attorney did not file charges (id.).
The detention

Defendants previously caused Plaintiff to be

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Defendant Rossiter, along with a cameraman and an

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“entourage” including Defendants Reade and Nava-Mercado,

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obtained a three-year restraining order from the Los Angeles

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County Superior Court (id., p. 11).

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The City’s Rules of Decorum, as interpreted and applied

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by Defendants, are impermissible content-based prior

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restraints on free speech and the right of assembly, are
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vague and ambiguous, and allow for unbridled discretionary

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enforcement based on subjective analysis by Defendants (id.,

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p. 13).

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the word “impertinent,” a speaker may be silenced or ejected

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based on the viewpoint expressed (id., p. 15).

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Decorum do not provide a person of ordinary intelligence a

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reasonable opportunity to understand what conduct or speech

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is prohibited, and instead authorize and encourage arbitrary

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and discriminatory enforcement (id.).

Depending on a city official’s interpretation of

The Rules of

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Defendant Wesson went on a “press barrage” calling for

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a “lynch mob of every community group possible to attack

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Plaintiff” (id., p. 18).

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nearly all of his business and tens of thousand of dollars,

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and has received death threats (id.).

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regular business hours for fear of harm to himself and

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clients (id.).

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misogynist, a homophobe and a KKK member (id., p. 19).

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These “false light attacks” by Wesson have damaged Plaintiff

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(id.).

As a result, Plaintiff has lost

Plaintiff cannot hold

The media has labeled Plaintiff a racist, a

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Wesson and Rossiter conspired with a lobbying firm and

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the family that owns the Los Angeles Sentinel newspaper

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(id.).

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for disbarment proceedings against Plaintiff (id.).

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has been encouraging Plaintiff’s clients to file complaints

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with the State Bar or demand refunds (id.).

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Police Department lobbied the district attorney’s office to

A lobbyist has contacted the State Bar to “agitate”

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Someone

The Los Angeles

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file charges against Plaintiff (id., p. 20).

Plaintiff

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removed himself from the “voter rolls” (id.).

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have created a “life threatening situation where Plaintiff

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would be attacked and killed without so much as a weapon to

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defend himself!” (id.) (emphasis deleted).

Defendants

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Plaintiff went into hiding (id.).

Plaintiff believes

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Defendants schemed to extort money from or to bankrupt

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Plaintiff (id.).

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The Complaint contains the following claims for relief:

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1.

Unlawful arrest in violation of the First, Fifth and

Fourteenth Amendments (First Claim for Relief);

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2.

Enforcement of unconstitutional Rule of Decorum in violation

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of the First, Second, Fourth, Fifth and Fourteenth Amendments (Second

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Claim for Relief);

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3.

“Fabrications,” based on an alleged failure to intervene in

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unlawful detention and arrest by Defendants, purportedly under United

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States v. Koon, 34 F.3d 1416 (9th Cir. 1994), rev’d on other grounds,

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518 U.S. 81 (1996) (Third Claim for Relief);

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4.

Violation of the Bane Act, California Civil Code section

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52.1, apparently against the City on a theory of vicarious liability

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(Fourth Claim for Relief);

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///
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Malicious prosecution, apparently based on the obtaining of

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the restraining order from a “fabricated set of facts” deeming

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Plaintiff’s speaker card to contain a “criminal threat” (Fifth Claim

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for Relief); and

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False imprisonment, attempted extortion, malicious

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interference with business relations, harassment, retaliation, theft

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and “Anti-Slapp,” based on the allegations that Defendants allegedly

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“detained, attempted to extort money and concessions of liberty,”

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deprived Plaintiff of his right to conduct business, harassed,

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retaliated against and discriminated against Plaintiff, took

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Plaintiff’s guns and ammunition, and engaged in strategic litigation

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against public participation by obtaining the restraining order and by

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falsely arresting and detaining Plaintiff (Sixth Claim for Relief).

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Plaintiff seeks injunctive relief and compensatory and punitive
damages (id., pp. 16, 26-28).

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Plaintiff attaches a number of exhibits to the Complaint,

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including: (1) a “City of Los Angeles Speaker Card” dated May 11,

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2016. from “Wayne from Encino,” bearing drawings appearing to be a

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burning cross, a person hanging from a tree, and a cartoon figure

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bearing a sign stating “Herb = Nigger”; (2) a “Notice of Lobbying

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Registration” overwritten with the handwritten statement “FUCK-U

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HERB”; (3) Plaintiff’s tort claims; (4) documents related to

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Plaintiff’s prosecution for making criminal threats in violation of

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California Penal Code section 422, including a deputy district

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attorney’s “Charge Evaluation Worksheet” memorializing the decision
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declining to prosecute Plaintiff; (5) a “Workplace Violence

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Restraining Order After Hearing,” apparently issued against Plaintiff

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pursuant to California Code of Civil Procedure section 527.84 by a

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judge of the Los Angeles County Superior Court on June 10, 2016, and a

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reporter’s transcript of proceedings in that case; (6) the

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“Declaration of Herman J. Wesson, Jr.” and the “Declaration of Deputy

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City Attorney Hugo S. Rossiter apparently filed in the restraining

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order case; (7) a letter from a Los Angeles police detective to

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Plaintiff recording that Plaintiff allegedly had surrendered his

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firearms for safekeeping due to the issuance of the restraining

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order;5 (8) a “Certificate of Release of Federal Tax Lien” and a

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“Notice of Rescission of Notice of Default” apparently relating to

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Defendant Wesson; and (9) various newspaper articles.

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MOTION TO DISMISS

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I.

Defendants’ Contentions

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Defendants contend:

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1.

Plaintiff assertedly fails to allege a First Amendment

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violation because: (a) Plaintiff allegedly made an unprotected “true

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threat”; (b) detectives assertedly had probable cause to arrest

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4

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Section 527.8 authorizes an employer to seek a
restraining order on behalf of an employee who has “suffered
unlawful violence or a credible threat of violence from any
individual. . . .”
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See Cal. Code Civ. Proc. § 527.9 (requiring person
subject to a restraining order issued pursuant to section 527.8
to relinquish firearms).
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Plaintiff for violation of California Penal Code section 422; (c) the

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Superior Court’s order allegedly did not violate the First Amendment;

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and (d) application of the Rules of Decorum to Plaintiff assertedly

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did not violate the First Amendment;

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2.

Plaintiff assertedly fails to allege a Fourth Amendment false

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arrest or excessive force claim because probable cause assertedly

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existed for the arrest and Plaintiff allegedly suffered no physical

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injury;

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3.

Plaintiff assertedly fails to allege any Fifth or Fourteenth

Amendment due process violation;

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4.

Plaintiff’s excessive force claim allegedly lacks merit

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because Plaintiff assertedly did not suffer any conviction and because

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Plaintiff allegedly fails to allege physical injury;

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5.

Plaintiff assertedly fails to allege a violation of the Free

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Speech Clause of the California Constitution; money damages allegedly

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are unavailable under that provision;

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6.

Plaintiff assertedly failed to allege a section 1983 claim or

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a Monell6 claim;

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///

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///

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7.

Plaintiff’s state law claims for “fabrication,” violation of

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See Monell v. New York City Department of Social
Services, 436 U.S. 658 (1978) (“Monell”).
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the Bane Act, malicious prosecution, false imprisonment, attempted

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extortion, malicious interference with business relations, harassment,

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retaliation, theft and “anti-Slapp” allegedly do not state any claim

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for relief and violate Rule 8 of the Federal Rules of Civil Procedure;

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and

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8.

Plaintiff allegedly is not entitled to punitive damages.

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II.

Standards Governing Motion to Dismiss

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To survive a motion to dismiss under Rule 12(b)(6), “a complaint

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must contain sufficient factual matter, accepted as true, to state a

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claim to relief that is plausible on its face.”

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556 U.S. 662, 678 (2009) (citation and internal quotations omitted).

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“A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that

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the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal,

Id.

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The Court “must accept as true all of the factual allegations

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contained in the complaint.”

Erickson v. Pardus, 551 U.S. 89, 94

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(2007) (citations omitted); Zucco Partners, LLC v. Digimatic Corp.,

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552 F.3d 981, 989 (9th Cir. 2009) (on motion to dismiss, court takes

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as true all non-conclusory factual allegations in the complaint and

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construes the complaint in the light most favorable to the plaintiff).

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Ordinarily the court must construe a pro se litigant’s pleading

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liberally and hold a pro se plaintiff “to less stringent standards

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than formal pleadings drafted by lawyers.”

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551 U.S. at 94 (citation omitted).

See Erickson v. Pardus,

However, licensed attorneys
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representing themselves, such as Plaintiff, “are not entitled to the

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same liberal treatments as pro se litigants if they are registered

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members of the bar.”

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131829, at *3 (S.D. Cal. Jan. 13, 2017) (citing cases).

Osgood v. Main Street Marketing, LLC, 2017 WL

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“Generally a court may not consider material beyond the complaint

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in ruling on a Fed. R. Civ. P. 12(b)(6) motion.”

Intri-Plex

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Technologies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir.

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2007) (citation and footnote omitted).

“When ruling on a Rule

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12(b)(6) motion to dismiss, if a district court considers evidence

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outside the pleadings, it must normally convert the 12(b)(6) motion

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into a Rule 56 motion for summary judgment, and it must give the

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nonmoving party an opportunity to respond.”

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342 F.3d 903, 907 (9th Cir. 2003) (citations omitted).

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the Court is dismissing the Complaint with leave to amend for the

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reasons discussed below, the Court need not and does not convert the

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Motion to Dismiss into a summary judgment motion.

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may consider allegations in Plaintiff’s opposing documents in deciding

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whether to grant leave to amend.

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1026 n.2 (9th Cir. 2003).7

United States v. Ritchie,
Here, because

However, the Court

See Broam v. Bogan, 320 F.3d 1023,

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The Court may not dismiss a complaint without leave to amend

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unless “it is absolutely clear that the deficiencies of the complaint

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could not be cured by amendment.”

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Dep’t, 839 F.2d 621, 623 (9th Cir. 1988) (citations and quotations

Karim-Panahi v. Los Angeles Police

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Except as expressly stated herein, the Court denies
without prejudice the parties’ respective Requests for Judicial
Notice.
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omitted); see also Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000)

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(en banc) (district court should grant leave to amend “unless it

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determines that the pleading could not possibly be cured by the

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allegation of other facts”) (citation and internal quotations

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omitted).

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III. The Complaint States a First Amendment Claim Relating to the
Speaker Card.

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The Free Speech guarantee of the First Amendment is not absolute.

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Virginia v. Black, 538 U.S. 343, 358 (2003).

Among other things, “the

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First Amendment permits a State to ban a ‘true threat.’”

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(citation omitted); see United States v. Bagdasarian, 652 F.3d 1113,

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1116 (9th Cir. 2011).

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“true threats,” and hence Plaintiff’s expulsion from the City Council

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meeting and subsequent arrest assertedly did not violate the First

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Amendment.

Id.

Defendants contend the speaker card contained

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“‘True threats’ encompass those statements where the speaker

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means to communicate a serious expression of an intent to commit an

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act of unlawful violence to a particular individual or group of

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individuals.”

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The speaker need not actually intend to carry out the threat or to

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cause physical harm to the listener.

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prohibition on true threats ‘protect[s] individuals from the fear of

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violence’ and ‘from the disruption that fear engenders,’ in addition

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to protecting people ‘from the possibility that the threatened

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violence will occur.’”

Virginia v. Black, 538 U.S. at 359 (citations omitted).

See id. at 359-60.

“Rather, a

Id. at 360 (citation omitted; original
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1

brackets).

Whether a statement constitutes a true threat generally is

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a question of fact for the trier of fact.

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F.3d 824, 829 (9th Cir. 2008); Melugin v. Hames, 38 F.3d 1478, 1485

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(9th Cir. 1994); see also Nielander v. Bd. of County Commissioners of

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County of Republic, Kan., 582 F.3d 1155, 1166 (10th Cir. 2009).

See Fogel v. Collins, 531

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In United States v. Bagdasarian, 652 F.3d at 1117, the Ninth

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Circuit held that a true threat exists if the speaker subjectively

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intended the statement as a threat.8

The Ninth Circuit previously had

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applied an objective test asking whether “a reasonable person would

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foresee that the statement would be interpreted by those to whom [the

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speaker] communicates the statement as a serious expression of intent

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to harm or assault.”

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States v. Bagdasarian, a criminal case, the Ninth Circuit approved the

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use of a subjective test but ruled that whether the objective test

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also applied depended on the language of the criminal statute at

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issue.

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Circuit has not decided whether both tests apply in a civil case.

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Fogel v. Collins, 531 F.3d at 831 (pre-Bagdasarian civil case

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observing that the Ninth Circuit had “thus far avoided deciding

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whether to use an objective or a subjective standard in demonstrating

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whether there has been a ‘true threat’”; declining to resolve issue);

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Burge v. Colton Sch. Dist., 100 F. Supp. 3d 1057, 1068 (D. Or. 2015)

Fogel v. Collins, 531 F.3d at 831.

United States v. Bagdasarian, 562 F.3d at 1117.

In United

The Ninth

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Other circuits adhere to an objective test. See, e.g.,
United States v. Clemens, 738 F.3d 1, 11-12 (1st Cir. 2013)
(noting circuit split); United States v. Stock, 728 F.3d 287, 296
n.7 (3d Cir. 2013) (same). In United States v. Elonis, 135 S.
Ct. 2001 (2015), the Supreme Court declined to reach the issue
whether a subjective intent to threaten is a necessary component
of a true threat for purposes of the First Amendment. See id. at
2012.
15

See

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(under Bagdasarian, “if only one standard applies in the civil

2

context, it is the subjective standard”; however, the objective

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standard “may also apply, depending on the statute or policy under

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which the speaker has been punished”) (citation omitted).

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6

In the present case, under either test, the Complaint suffices to

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allege facts that could support a conclusion that the speaker card

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Plaintiff submitted was protected by the First Amendment.

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10

First, applying the subjective test, Plaintiff alleges that he

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subjectively intended the “cartoons” and statements on the speaker

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card to express criticism of the City Council and the DWP rather than

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any threat of violence.

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conclusory factual allegations for purposes of ruling on a motion to

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dismiss.

The Court must “accept as true” these non-

See Zucco Partners, LLC v. Digimatic Corp., 552 F.3d at 989.

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In applying the objective test, the trier of fact should consider

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“the entire factual context of the statements including: the

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surrounding events, the listeners’ reaction, and whether the words are

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conditional.”

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(citation, brackets and internal quotations omitted).

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liberally, the Complaint alleges that: (1) Defendant Wesson previously

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had been called “Nigger” many times by both black and white people;

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(2) Plaintiff submitted the speaker card in the relatively formal

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setting of a City Council meeting; (3) Plaintiff was known to be a

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frequent attendee and commenter at City Council meetings (see Exhibit

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H to Complaint); (4) Defendant Wesson became angry at Plaintiff,

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called Plaintiff an “idiot” and threatened to beat Plaintiff up; (5)

United States v. Bagdasarian, 652 F.3d at 1119-20

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Construed

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Plaintiff was not arrested until two days later; and (6) the District

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Attorney declined to prosecute Plaintiff for allegedly making criminal

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threats.

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the Motion to Dismiss, could lead a reasonable person to conclude that

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the speaker card did not communicate a “serious expression of intent

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to harm or assault.”

7

708 (1989) (mere “political hyperbole” does not amount to a true

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threat; reversing conviction of draftee who stated during public event

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in Washington, D.C., that “If ever they make me carry a rifle, the

These factual allegations, accepted as true for purposes of

See Watts v. United States, 394 U.S. 705, 706,

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first person I want to get in my sights is L.B.J. [Lyndon Baines

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Johnson]”); see also Virginia v. Black, 538 U.S. at 363 (although

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cross burning has “a long and pernicious history as a signal of

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impending violence,” burning a cross at a political rally “would

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almost certainly be protected expression”); United States v.

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Bagdasarian, 562 F.3d at 1115, 1119-20 (online messages “Re: Obama fk

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the nigger, he will have a 50 cal in the head soon” and “shoot the

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nig” did not constitute true threats); Bauer v. Sampson, 261 F.3d 775,

18

783-84 (9th Cir. 2001) (professor’s writing of his hope to drop a

19

slate of granite on the head of the university president and

20

professor’s illustration depicting the assembling and pointing of a

21

rifle were not true threats); United States v. Poocha, 259 F.3d 1077,

22

1081-82 (9th Cir. 2001) (statement “Fuck you” uttered to National Park

23

Service ranger and accompanied by the clenching of fists was

24

constitutionally protected speech).

25

///

26

///

27
28

IV.

The Complaint Does Not Show That the Collateral Attack Doctrine
17

1

Applies.

2
3

Defendants contend the Complaint fails to state any First

4

Amendment claim arising from the Superior Court restraining order

5

because the “collateral attack doctrine” supposedly precludes this

6

Court from reviewing that order (Defendants’ Memorandum, etc., pp. 10-

7

11).9

8
9

“The collateral attack doctrine precludes litigants from

10

collaterally attacking the judgments of other courts.”

Rein v.

11

Providian Fin. Corp., 270 F.3d 895, 902 (9th Cir. 2001); see Celotex

12

Corp. v. Edwards, 514 U.S. 300, 313 (1995).

13

a tactic whereby a party seeks to circumvent an earlier ruling of one

14

court by filing a subsequent action in another court.”

15

Ventas, Inc., 365 F.3d 514, 519 (6th Cir. 2004) (citations omitted).

16

For the collateral attack doctrine to apply, the court in the prior

17

proceedings must have addressed and ruled on the specific issue or

18

claim presented in the subsequent proceeding.

19

No. 1 of Grays Harbor Cnty. Wash. v. IDACORP Inc., 379 F.3d 641, 652

20

n.12 (9th Cir. 2004) (noting that there was no impermissible

21

collateral attack in “the absence of a finding” despite plaintiff’s

22

“advanced arguments” on the issue).

“A ‘collateral attack’ is

Pratt v.

See Pub. Util. Dist.

23
24
25
26
27
28

9

An appeal of the restraining order presently is pending
in the California Court of Appeal. See Declaration of Wayne
Spindler, ¶ 13; Plaintiff’s Request for Judicial Notice, Ex. B.
The Court takes judicial notice of the docket in Office of the
City Attorney v. Spindler, California Court of Appeal case number
B276413, which shows the appeal is pending. See Mir v. Little
Company of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (court
may take judicial notice of court records).
18

1

It is unclear from the Complaint whether Plaintiff actually seeks

2

review or circumvention of the Superior Court’s restraining order.

3

Plaintiff generally mentions restraining orders among his allegations

4

concerning the City’s alleged pattern and practice of purportedly

5

suppressing speech (Complaint, p. 5).

6

Defendant Wesson failed to disclose his proper name on an affidavit

7

for a restraining order, and attaches to the Complaint documents

8

including the restraining order and affidavits allegedly filed in

9

support of the petition for a restraining order (id., p. 18; Ex. D).

Plaintiff alleges that

10

Plaintiff also asserts a malicious prosecution claim based apparently

11

on the restraining order (id., p. 25).

12

not appear expressly to allege any First Amendment challenge to the

13

validity of the restraining order itself.10

14

Complaint, the collateral attack doctrine appears inapplicable.

However, the Complaint does

Thus, on the face of the

15
16

V.

Plaintiff’s Challenge to the Rules of Decorum Is Insufficient.

17
18

Plaintiff’s challenge to the Rules of Decorum is unclear and

19

marred by the perhaps inadvertent repetition of some of Plaintiff’s

20

allegations.

21

impermissible prior restraints and allow for unbridled discretionary

Plaintiff alleges that the Rules of Decorum constitute

22
23
24
25
26
27
28

10

In Plaintiff’s Opposition, Plaintiff does assert that
the restraining order “was void the moment it was filed” and that
the statute pursuant to which the restraining order assertedly
was based, California Code of Civil Procedure section 527.8,
purportedly is unconstitutional as applied to Plaintiff (see
Opposition, pp. 11-14). These allegations, if made in a
complaint, might well challenge the validity of the Superior
Court’s order. However, allegations in an opposition cannot
augment allegations in a complaint for purposes of ruling on a
motion to dismiss. See Schneider v. California Department of
Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).
19

1

enforcement.

However, Plaintiff fails to allege how any particular

2

provision or aspect of the Rules of Decorum, or any application

3

thereof by any Defendant, supposedly violated Plaintiff’s rights.

4

Plaintiff refers to the apparent use of various terms such as

5

“impertinent,” “abusive,” “slanderous” or “threatening” (see

6

Complaint, pp. 15-16), but does not allege how (if at all) application

7

of these terms to Plaintiff supposedly violated Plaintiff’s rights.

8
9

Under Rule 8(a) of the Federal Rules of Civil Procedure, a

10

complaint must contain a “short and plain statement of the claim

11

showing that the pleader is entitled to relief.”

12

must be simple, concise, and direct.”

13

“Experience teaches that, unless cases are pled clearly and precisely,

14

issues are not joined, discovery is not controlled, the trial court’s

15

docket becomes unmanageable, the litigants suffer, and society loses

16

confidence in the court’s ability to administer justice.”

17

Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (citations and

18

quotations omitted).

19

concerning the Rules of Decorum are insufficient under these

20

standards.

21

of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

22

///

23

///

24

///

25

///

26

///

27

VI.

28

“Each allegation

Fed. R. Civ. P. 8(d)(1).

Bautista v.

Plaintiff’s confused and conclusory allegations

See Ashcroft v. Iqbal, 556 U.S. at 678, 686; Ivey v. Board

The Complaint States a Fourth Amendment Claim for Alleged False
Arrest and False Imprisonment.
20

1
2

“[A] warrantless arrest by a law officer is reasonable under the

3

Fourth Amendment where there is probable cause to believe that a

4

criminal offense has been or is being committed.”

5

Alford, 543 U.S. 146, 152 (2004) (citations omitted).

6

“exists where, under the totality of the circumstances known to the

7

arresting officers, a prudent person would have concluded that there

8

was a fair probability that the suspect had committed a crime.”

9

v. Mei Chin Penghu, 335 F.3d 970, 976 (9th Cir. 2003), cert. denied,

Devenpeck v.
Probable cause

Peng

10

540 U.S. 1218 (2004) (citation, internal quotations and brackets

11

omitted).

12

officers’ subjective motivations for the arrest are immaterial to the

13

Fourth Amendment analysis.

14

15 (1996).

15

violation of the Fourth Amendment, Plaintiff must allege an absence of

16

probable cause.

17

Cir. 2008).

If the arresting officers had probable cause to arrest, the

Whren v. United States, 517 U.S. 806, 813-

To plead a claim for false arrest and imprisonment in

See Beck v. City of Upland, 527 F.3d 853, 864-66 (9th

18
19

Plaintiff alleges that officers arrested Plaintiff for making a

20

“criminal threat” in supposed violation of California Penal Code

21

section 422(a) (Complaint, p. 11 & Ex. B).

22

section 422(a) provides:

California Penal Code

23
24

Any person who willfully threatens to commit a crime which

25

will result in death or great bodily injury to another

26

person, with the specific intent that the statement, made

27

verbally, in writing, or by means of an electronic

28

communication device, is to be taken as a threat, even if
21

1

there is no intent of actually carrying it out, which on its

2

face and under the circumstances in which it is made, is so

3

unequivocal, unconditional, immediate, and specific, as to

4

convey to the person threatened, a gravity of purpose and an

5

immediate prospect of execution of the threat, and thereby

6

causes that person reasonably to be in sustained fear for

7

his or her own safety or for his or her immediate family’s

8

safety, shall be punished by imprisonment in the county jail

9

not to exceed one year, or by imprisonment in the state

10

prison.

11
12

“[T]he type of threat satisfying the criminal threat provisions

13

of section 422 . . . constitutes speech that falls outside the

14

protection of the First Amendment.”

15

221, 233, 109 Cal. Rptr. 2d 315, 26 P.3d 1051 (2001); see People v.

16

Morera-Munoz, 5 Cal. App. 5th 838, 850 n.7, 210 Cal. Rptr. 3d 409

17

(2016) (section 422 applies to “true threats, which are not protected

18

by the First Amendment”) (citations omitted).

19

discussed above, Plaintiff sufficiently has alleged that the speaker

20

card did not convey a “true threat” outside the protections of the

21

First Amendment.

22

Plaintiff sufficiently has alleged an absence of probable cause for

23

his arrest for making criminal threats.

24

///

25

///

26

///

27

VII.

People v. Toledo, 26 Cal. 4th

For the reasons

Therefore, for purposes of the present motion,

Plaintiff’s Excessive Force Claim Is Insufficient.

28
22

1

The Complaint mentions the Eighth Amendment (Complaint, pp. 22,

2

27).

To the extent Plaintiff attempts to state an Eighth Amendment

3

excessive force claim, this claim is insufficient as a matter of law.

4

The Eighth Amendment’s prohibition against cruel and unusual

5

punishment applies only after conviction.

6

County, Oregon, 76 F.3d 1032, 1042 (9th Cir.), cert. denied, 519 U.S.

7

1006 (1996); see also Kingsley v. Hendrickson, 135 S. Ct. 2466, 2475

8

(2015).

9

detention of Plaintiff do not allege any Eighth Amendment violation.

See Pierce v. Multnomah

Plaintiff’s claims concerning the alleged false arrest and

10

See Sanchez v. City of Los Angeles, 2011 WL 6951822, at *7 (C.D. Cal.

11

Oct. 31, 2011), adopted, 2012 WL 27722 (C.D. Cal. Jan. 5 2012)

12

(citizen removed from City Council meeting and arrested for alleged

13

violation of City’s Rules of Decorum could not assert Eighth Amendment

14

claim).

15
16

Claims of excessive force in the context of an arrest are

17

analyzed under the Fourth Amendment “reasonableness” standard.

18

v. Connor, 490 U.S. 386, 394-95 (1989); Lowry v. City of San Diego,

19

858 F.3d 1248, 1254-55 (9th Cir. 2017) (en banc).

20

objective reasonableness of a particular use of force, a court

21

considers: (1) the severity of the intrusion on the individual’s

22

Fourth Amendment rights by evaluating the type and amount of force

23

inflicted; (2) the government’s interest in the use of force; and

24

(3) the balance between the gravity of the intrusion on the individual

25

and the government’s need for that intrusion.

26

Diego, 858 F.3d at 1256 (citation omitted).

27
28

Graham

In assessing the

Lowry v. City of San

Here, Plaintiff alleges only that his detention on May 13, 2016
“was excessive force and cruel and unusual punishment for something
23

1

[sic] merely to try to speak at public meeting for a minute or two”

2

(Complaint, pp. 12-13).

3

supporting his claim of alleged excessive force.

4

conclusory allegations are insufficient to state a claim of excessive

5

force.

6

relief a plaintiff must allege more than an “unadorned, the-defendant-

7

unlawfully-harmed-me accusation”; a pleading that “offers labels and

8

conclusions or a formulaic recitation of the elements of a cause of

9

action will not do”); Watkins v. Greenwood, 2016 WL 8730860, at *2

Plaintiff fails to allege any facts
Plaintiff’s

See Ashcroft v. Iqbal, 556 U.S. at 678 (to state a claim for

10

(E.D. Cal. Sept. 30, 2016) (conclusory allegations of excessive force

11

during arrest insufficient).11

12
13

VIII.

The Complaint Fails to Plead a Municipal Liability Claim.

14
15

The Court must construe Plaintiff’s official capacity claims

16

against the individual Defendants as claims against the City.

See

17

Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (official capacity

18

claims against municipal employee is a claim against the

19

municipality).

20

for the acts of its agents or employees on a theory of respondeat

21

superior (see Complaint, p. 4).

Plaintiff appears to allege that the City is liable

Plaintiff may not state a section

22
23
24
25
26
27
28

11

Contrary to Defendants’ assertion, a plaintiff alleging
excessive force need not allege more than de minimis physical
injury. See Robinson v. Solano County, 278 F.3d 1007, 1014-15
(9th Cir. 2002) (en banc) (pointing gun at close range at
plaintiff’s head could constitute excessive force); Wilks v.
Reyes, 5 F.3d 412, 416 (9th Cir. 1993) (plaintiff could be
entitled to nominal damages on excessive force claim “even if the
plaintiff suffered no actual damage”). The extent of any injury
is relevant to the determination of whether the use of force was
unreasonable, however. See Lowry v. City of San Diego, 858 F.3d
at 1256.
24

1

1983 claim against the City on a theory of respondeat superior, which

2

is not a theory of liability cognizable under 42 U.S.C. section 1983.

3

See Connick v. Thompson, 563 U.S. 51, 60-61 (2011); Ashcroft v. Iqbal,

4

556 U.S. at 676; Polk County v. Dodson, 454 U.S. 312, 325 (1981);

5

Castro v. County of Los Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016)

6

(en banc), cert. denied, 137 S. Ct. 831 (2017).

7

held liable only if the alleged wrongdoing was committed pursuant to a

8

municipal policy, custom or usage.

9

of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 402-04 (1997);

A municipality may be

See Board of County Commissioners

10

Monell v. New York City Department of Social Services, 436 U.S. 658,

11

691 (1978).

12

municipal liability claim.

13

(plaintiff must allege more than an “unadorned, the-defendant-

14

unlawfully-harmed-me accusation”; a pleading that “offers labels and

15

conclusions or a formulaic recitation of the elements of a cause of

16

action will not do”) (citation and internal quotation marks omitted);

17

Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (en banc), cert.

18

denied, 132 S. Ct. 2101 (2012) (“allegations in a complaint or

19

counterclaim may not simply recite the elements of a cause of action,

20

but must contain sufficient allegations of underlying facts to give

21

fair notice and to enable the opposing party to defend itself

22

effectively”).

Conclusory allegations do not suffice to plead a
See Ashcroft v. Iqbal, 556 U.S. at 678

23
24

Plaintiff also generally alleges that the City has policies

25

and/or practices of purportedly using Rules of Decorum, criminal

26

prosecutions, civil restraining orders, fabricated reports, perjured

27

statements, press conferences and “high-powered” lobbyists to repress

28

speech critical of City officials (Complaint, pp. 4-6).
25

Plaintiff

1

further alleges, in conclusory fashion, that the City assertedly has

2

failed to “train, supervise, monitor and correct” City officials who

3

preside over public meetings and “members of General Services Police

4

Officers, within the Department of Public Safety” (id.).

5

general, vague and conclusory allegations are insufficient to allege a

6

Monell claim against the City.

7

678.12

Plaintiff’s

See Ashcroft v. Iqbal, 556 U.S. at

8
9

IX.

10

There Exists No Damages Remedy for Alleged Violation of the Free
Speech Clause of the California Constitution.

11
12

To the extent Plaintiff requests damages for alleged violation of

13

the free speech clause of the California Constitution, Cal. Const.

14

Art. 1, section 2(a), any such request fails as a matter of law.

15

There exists no damages remedy for violation of this clause.

16

Degrassi v. Cook, 29 Cal. 4th 333, 343-44, 127 Cal. Rptr. 2d 508, 58

17

P.3d 360 (2002).

18

///

19

///

20

///

21

///

See

22
23

X.

Plaintiff’s Remaining State Law Claims Are Insufficient.

24
25
26
27
28

12

Additionally, Plaintiff may not recover punitive
damages against a governmental entity or an individual
governmental officer sued in his or her official capacity. See
City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981);
Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 524 (9th Cir.),
cert. denied, 528 U.S. 1003 (1999).
26

1

Plaintiff’s claims for false imprisonment, attempted extortion,

2

malicious interference with business relations, harassment,

3

retaliation, theft and “anti-Slapp” consist only of headings

4

(Complaint, p. 25).

5

on these purported claims or provide any supporting factual

6

allegations.

7

standards.

8

84 F.3d 1172, 1178 (9th Cir. 1996) (a complaint is subject to

9

dismissal if “one cannot determine from the complaint who is being

Plaintiff does not identify the Defendants sued

Such pleading is manifestly deficient under Rule 8
See Ashcroft v. Iqbal, 556 U.S. at 678; McHenry v. Renne,

10

sued, for what relief, and on what theory . . . .”; Chevalier v. Ray

11

and Joan Kroc Corps. Community Center, 2012 WL 2088819, at *2 (N.D.

12

Cal. June 8, 2012) (complaint which did not “simply, concisely, or

13

directly identify which wrongs were committed by which Defendant”

14

violated Rule 8).13

15
16

Plaintiff’s “Fabrications” claim consists only of the following

17

sentence: “Failure to intervene in the unlawful detention and arrest

18

by Defendants per U.S. v. Koon, 34 F.3d 1416 (9th Cir. 1994).”

19

(Complaint, p. 25).

20

“fabrications,” identify the Defendant(s) against whom this claim is

21

brought, explain the relevance of the reference to United States v.

22

Koon or provide any factual allegations supporting this claim.

Plaintiff does not describe the purported

Such

23
24
25
26
27
28

13

Plaintiff’s purported “anti-Slapp” claim is
particularly obscure. California’s “anti-Slapp” statute,
California Civil Procedure section 425.16, authorizes a person
against whom a cause of action is asserted to move to strike that
cause of action on the ground that the cause of action arises out
of that person’s exercise of his or her rights of petition or
free speech. See Jordan-Benel v. Universal City Studios, Inc.,
859 F.3d 1184, 1188-89 (9th Cir. 2017). The Complaint fails to
elucidate how this statute supposedly authorizes any claim for
relief in the circumstances alleged.
27

1

confusing and conclusory allegations are insufficient.

See Ashcroft

2

v. Iqbal, 556 U.S. at 678; McHenry v. Renne, 84 F.3d at 1178; Fed. R.

3

Civ. P. 8(a).

4
5

The Fourth Claim for Relief, which purports to assert a violation

6

of California’s Bane Act, California Civil Code section 52.1, consists

7

of a heading and the following statement: “City is vicariously liable

8

for its acts of its employees as an employer[.]”

9

Plaintiff does not even attempt to allege any factual allegations

10

satisfying the elements of a Bane Act claim.

11

allegations are insufficient.

(Complaint, p. 25).

Again, such conclusory

See Ashcroft v. Iqbal, 556 U.S. at 678.

12
13

Plaintiff’s malicious prosecution claim is based on the following

14

allegation: “Defendants abused the prosecution of a T.R.O. and 3 year

15

injunction against Plaintiff based upon a fabricated and pre-

16

fabricated set of facts calling a lawful action of handing in a

17

speaker card ‘a criminal threat.’” (Complaint, p. 25).

18

establish a cause of action for malicious prosecution of either a

19

criminal or civil proceeding, a plaintiff must demonstrate that the

20

prior action (1) was commenced by or at the direction of the defendant

21

and was pursued to a legal termination in [plaintiff’s] favor

22

[citations]; (2) was brought without probable cause [citations]; and

23

(3) was initiated with malice [citations].”

24

Beydoun, 32 Cal. 4th 336, 341, 9 Cal. Rptr. 3d 97, 83 P.3d 497 (2004).

25

Plaintiff does not allege any favorable termination of the restraining

26

order proceedings.

27

“a civil action for malicious prosecution will not lie while an appeal

28

in the underlying action is pending.”

“In order to

Casa Herrera, Inc. v.

An appeal of the restraining order is pending, and

28

Friedman v. Stadum, 171 Cal.

1

App. 3d 775, 778, 217 Cal. Rptr. 585 (1985) (citations omitted).

2

Moreover, even if Petitioner could show a favorable termination of the

3

restraining order proceedings, a state law malicious prosecution

4

action does not arise from an unsuccessful petition for a civil

5

restraining order.

6

50 Cal. Rptr. 3d 65 (2006); Siam v. Kizilbash, 130 Cal. App. 4th 1563,

7

1572-74, 31 Cal. Rptr. 3d 368 (2005); Cuviello v. Feld Entertainment,

8

Inc., 671 Fed. App’x 979, 980 (9th Cir. 2016).

See Robinzine v. Vicory, 143 Cal. App. 4th 1416,

9
10

ORDER

11
12

The Motion to Dismiss is granted in part and denied in part.

The

13

Complaint is dismissed with leave to amend.

The Motion to Strike is

14

denied as moot.

15

is granted thirty (30) days from the date of this Order within which

16

to file a First Amended Complaint.

17

insufficient all of Plaintiff’s allegations, the Court does require

18

that any First Amended Complaint be complete in itself and not refer

19

in any manner to the prior Complaint.

20

must comply with the requirements of Rule 8 of the Federal Rules of

21

Civil Procedure.

22

court.

23

Amended Complaint in conformity with this Order may result in the

24

dismissal of this action.

25

642-43 (9th Cir. 2002), cert. denied, 538 U.S. 909 (2003) (court may

26

dismiss action for failure to follow court order); Simon v. Value

27

Behavioral Health, Inc., 208 F.3d 1073, 1084 (9th Cir.), amended, 234

28

F.3d 428 (9th Cir. 2000), cert. denied, 531 U.S. 1104 (2001),

If Plaintiff still wishes to pursue this action, he

While the Court does not deem

Any First Amended Complaint

Plaintiff may not add Defendants without leave of

See Fed. R. Civ. P. 21.

Failure to file timely a First

See Pagtalunan v. Galaza, 291 F.3d 639,

29

1

overruled on other grounds, Odom v. Microsoft Corp., 486 F.3d 541 (9th

2

Cir.), cert. denied, 552 U.S. 985 (2007) (affirming dismissal without

3

leave to amend where plaintiff failed to correct deficiencies in

4

complaint, where court had afforded plaintiff opportunities to do so,

5

and where court had given plaintiff notice of the substantive problems

6

with his claims); Plumeau v. School District #40, County of Yamhill,

7

130 F.3d 432, 439 (9th Cir. 1997) (denial of leave to amend

8

appropriate where further amendment would be futile).

9
10

IT IS SO ORDERED.

11
12

DATED: November 20, 2017.

13
14
_____________________________________
JOSEPHINE L. STATON
UNITED STATES DISTRICT JUDGE

15
16
17
18

PRESENTED this 12th day

19

of October, 2017, by:

20
21
22
23

/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

24
25
26
27
28
30