Oronde London v. City of Redlands

Filing 55

FINAL REPORT AND RECOMMENDATION issued by Magistrate Judge Kenly Kiya Kato. Re: Complaint - (Discovery), 1 , NOTICE OF MOTION AND MOTION to Dismiss Case 43 (dts)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 10 ORONDE LONDON, Plaintiff, 11 12 13 Case No. EDCV 17-0185-JFW (KK) v. FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE CITY OF REDLANDS, 14 Defendant(s). 15 This Final Report and Recommendation is submitted to the Honorable John 16 17 F. Walter, United States District Judge, pursuant to 28 U.S.C. § 636 and General 18 Order 05-07 of the United States District Court for the Central District of 19 California. 20 I. 21 SUMMARY OF RECOMMENDATION On May 11, 2017, Plaintiff Oronde London (“Plaintiff”), proceeding pro se, 22 23 filed a Second Amended Complaint (“SAC”) pursuant to 42 U.S.C. § 1983 24 (“Section 1983”), against defendant City of Redlands (“Defendant”). On June 1, 25 2017, Defendant filed a Motion to Dismiss the SAC. For the reasons set forth 26 below, the Court recommends GRANTING Defendant’s Motion to Dismiss and 27 dismissing the action with prejudice and without leave to amend. 28 /// 1 II. 2 PROCEDURAL HISTORY 3 On February 2, 2017, Plaintiff filed a Complaint against Defendant for 4 violations of the Freedom of Information Act and for violations of his Fourteenth 5 Amendment rights. ECF Docket No. (“Dkt.”) 1. 6 On April 1, 2017, Defendant filed a Motion to Dismiss. Dkt. 32. On May 1, 7 2017, the Court granted Defendant’s Motion to Dismiss. Id. at 4. As to the 8 violations of the Freedom of Information Act, the Court found, based on 9 allegations and exhibits in the Complaint, “Plaintiff did not make records requests 10 to the federal government or request any records that are maintained by the federal 11 government,” and dismissed the claim without leave to amend. Id. at 3. As to 12 Plaintiff’s constitutional claim, the Court found Plaintiff failed to allege any facts to 13 support a violation of his Fourteenth Amendment rights and dismissed the claim 14 with leave to amend. Id. at 4. The Court explicitly instructed Plaintiff any 15 amended complaint was to be limited to a claim for alleged violations of the 16 Fourteenth Amendment. Id. 17 On May 8, 2017, Plaintiff filed a First Amended Complaint (“FAC”), which 18 contained both a Fourteenth Amendment claim and a tax evasion claim. Dkt. 35. 19 On May 11, 2017, the Court issued an Order to Show Cause (“OSC”) why the 20 Court “should not impose sanctions in the amount of $750.00 against Plaintiff or 21 dismiss his tax evasion claim for failure to comply with the Court’s May 1, 2017 22 Order.” Dkt. 37. 23 On May 11, 2017, Plaintiff filed a response to the Court’s OSC and filed the 24 instant SAC containing only the claim for alleged violations of the Fourteenth 25 Amendment. Dkts. 38, 42. 26 27 28 2 On June 1, 2017, Defendant filed a Motion to Dismiss arguing the SAC 1 2 should be dismissed because Plaintiff lacks standing1 and has failed to allege facts 3 sufficient to state a claim for violations of his Fourteenth Amendment rights. Dkt. 4 43, MTD. On June 5, 2017, Plaintiff filed an Opposition. Dkt. 45. On June 15, 5 2017, Defendant filed a Reply. Dkt. 46. The matter thus stands submitted. 6 III. 7 ALLEGATIONS OF THE SECOND AMENDED COMPLAINT 8 Plaintiff alleges he is a private citizen seeking to determine whether 9 Defendant has complied with all “applicable provisions of Federal, State, and local 10 law relating to building standards, permits, and inspections.” SAC at 5. From 11 August 2015 to October 2016, Plaintiff alleges he submitted an online “building and 12 safety complaint,” one in-person request, and three email requests seeking permits 13 for various buildings in Redlands. See id. at 3-4. Plaintiff claims he received three 14 letters from the Office of the City Manager acknowledging two out of his three 15 email requests and his one in-person request for permits. Id. Plaintiff claims he 16 received some, but not all of the permits he requested. Id. at 5-6. As a result, 17 Plaintiff alleges Defendant has violated his Fourteenth Amendment right to Due 18 Process by failing to (1) acknowledge all of Plaintiff’s requests for public records 19 and provide requested public records in a timely fashion; (2) investigate a private 20 citizen complaint; and (3) comply with its own municipal code. Id. In addition, 21 Plaintiff appears to allege Defendant has violated his Fourteenth Amendment right 22 to Equal Protection based on an alleged right to have his “request/complaint 23 treated the same way as similar cases at the City of Redlands.” Id. at 5. 24 /// 25 /// 26 27 28 1 Defendant argues Plaintiff lacks standing “to proceed in this federal court” because he “has shown no injury-in-fact.” MTD at 7. As Plaintiff has failed to identify any actions by Defendant that violate a protected constitutional interest, the Court declines to rule on the issue of standing at this time. 3 1 IV. 2 STANDARD OF REVIEW 3 A complaint may be dismissed for failure to state a claim pursuant to Federal 4 Rule of Civil Procedure 12(b)(6) “where there is no cognizable legal theory or an 5 absence of sufficient facts alleged to support a cognizable legal theory.” Zamani v. 6 Carnes, 491 F.3d 990, 996 (9th Cir. 2007) (citation omitted). In considering 7 whether a complaint states a claim, a court must accept as true all of the material 8 factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 2011). 9 However, the Court need not accept as true “allegations that are merely 10 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 11 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted). 12 Although a complaint need not include detailed factual allegations, it “must 13 contain sufficient factual matter, accepted as true, to state a claim to relief that is 14 plausible on its face.” Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) 15 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 16 (2009)). A claim is facially plausible when it “allows the court to draw the 17 reasonable inference that the defendant is liable for the misconduct alleged.” Id. 18 (citation omitted). The complaint “must contain sufficient allegations of 19 underlying facts to give fair notice and to enable the opposing party to defend itself 20 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 21 “A document filed pro se is to be liberally construed, and a pro se complaint, 22 however inartfully pleaded, must be held to less stringent standards than formal 23 pleadings drafted by lawyers.” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 24 2008) (citation omitted). The Court has “an obligation where the p[laintiff] is pro 25 se, particularly in civil rights cases, to construe the pleadings liberally and to afford 26 the petitioner the benefit of any doubt.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th 27 Cir. 2012) (citation omitted). 28 4 If the court finds the complaint should be dismissed for failure to state a 1 2 claim, the court has discretion to dismiss with or without leave to amend. Lopez v. 3 Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted 4 if it appears possible that the defects in the complaint could be corrected, especially 5 if the plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 6 1106 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint 7 cannot be cured by amendment, the court may dismiss without leave to amend. 8 Cato, 70 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th 9 Cir. 2009). 10 V. 11 DISCUSSION 12 A. PLAINTIFF HAS FAILED TO IDENTIFY ANY DEPRIVATION OF 13 A PROTECTED CONSTITUTIONAL INTEREST AND 14 THEREFORE FAILS TO STATE A FOURTEENTH AMENDMENT 15 DUE PROCESS CLAIM 16 1. 17 The Due Process Clause of the Fourteenth Amendment protects individuals Applicable Law 18 against deprivations of life, liberty, or property that “shocks the conscience” or 19 “interferes with rights implicit in the concept of ordered liberty.” United States v. 20 Salerno, 481 U.S. 739, 746, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987); U.S. Const. 21 amend. XIV, § 1. It “affords not only a procedural guarantee against the 22 deprivation of ‘liberty,’ but likewise protects substantive aspects of liberty against 23 unconstitutional restrictions by the state.” Kelley v. Johnson, 425 U.S. 238, 244, 24 96 S. Ct. 1440, 47 L. Ed. 2d 708 (1976). 25 “A threshold requirement to a substantive or procedural due process claim is 26 the plaintiff’s showing of a liberty or property interest protected by the 27 Constitution.” Stiesberg v. State of Cal., 80 F.3d 353, 356 (9th Cir. 1996) (quoting 28 Wedges/Ledges of California, Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 62 (9th 5 1 Cir. 1994)). To have a property interest, a plaintiff must allege “a legitimate claim 2 of entitlement.’” Nunez v. City of Los Angeles, 147 F.3d 867, 872 (9th Cir. 1998) 3 (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S. Ct. 4 2701, 33 L. Ed. 2d 548 (1972)). A liberty interest, on the other hand, “may be 5 derived from the Due Process Clause itself or from laws of the states.” Browning 6 v. Vernon, 44 F.3d 818, 821 (9th Cir. 1995). 7 To establish a substantive due process claim, a plaintiff must allege, in 8 addition to a deprivation of a constitutionally protected liberty or property interest, 9 “conscious shocking behavior by the government” that results in the deprivation of 10 the plaintiff’s life, liberty, or property. Brittain v. Hansen, 451 F.3d 982, 991 (9th 11 Cir. 2006). A procedural due process claim, on the other hand, requires a plaintiff 12 to allege both a deprivation of a constitutionally protected liberty or property 13 interest and “a denial of adequate procedural protections.” Brewster v. Bd. of 14 Educ., 149 F.3d 971, 982 (9th Cir. 1998). The failure to follow mandatory 15 procedures does not by itself offend the constitution. See Smith v. Noonan, 992 16 F.2d 987, 989 (9th Cir. 1993) (“[W]e have held that ‘procedural requirements, 17 even if mandatory, do not raise a constitutionally cognizable liberty interest.’” 18 (citation omitted)). Rather, there must be allegations that the procedures 19 themselves were inadequate to protect a valid liberty interest. See Buckley v. 20 Gomez, 36 F. Supp. 2d 1216, 1222 (S.D. Cal. 1997), aff’d, 168 F.3d 498 (9th Cir. 21 1999). 22 2. Analysis 23 Here, Plaintiff fails to allege any facts showing he has been deprived of a 24 constitutionally protected liberty or property interest. Plaintiff alleges Defendant is 25 denying him due process by failing to (1) acknowledge all of Plaintiff’s requests for 26 public records and provide requested public records in a timely fashion; (2) 27 investigate a private citizen complaint; and (3) comply with its own Municipal 28 Code. SAC at 5-6. However, none of these alleged actions implicate a 6 1 constitutional right of which Plaintiff has been deprived. Thus, as discussed below, 2 because Plaintiff has failed to meet the “threshold requirement to a substantive or 3 procedural due process claim,” his Fourteenth Amendment claim is subject to 4 dismissal. Stiesberg, 80 F.3d at 356. First, as to Defendant’s alleged failure to acknowledge Plaintiff’s public 5 6 records requests and provide records in a timely fashion, Plaintiff fails to identify a 7 protected constitutional liberty or property interest. See SAC at 5. The 8 Fourteenth Amendment “do[es] not guarantee the public a right of access to 9 information generated or controlled by government.” Houchins v. KQED, Inc., 10 438 U.S. 1, 16, 98 S. Ct. 2588, 57 L. Ed. 2d 553 (1978). Thus, Plaintiff does not 11 have a constitutionally-protected right to access government records, much less a 12 constitutionally-protected right to have his records request acknowledged or a right to 13 have records provided in a timely fashion.2 Accordingly, Plaintiff has failed to raise a 14 Fourteenth Amendment procedural or substantive due process claim based on 15 Defendant’s failure to acknowledge his records request or provide his records in a 16 timely fashion. Second, as to Defendant’s alleged failure to investigate a private citizen 17 18 complaint, Plaintiff again fails to identify a protected constitutional liberty or 19 property interest. Plaintiff alleges he has “informed the City Manager of possible 20 building standard violations, in addition to personnel actions,” but has not received 21 any response. SAC at 5-6. Additionally, Plaintiff conclusorily claims he is entitled 22 “to have a fair and impartial fact-finding by the city of Redlands when such 23 request/complaint are made by private citizens.” Id. at 5. However, the U.S. 24 25 26 27 28 To the extent Plaintiff is attempting to state a claim based on Defendant’s failure to comply with the requirements of the California Public Records Act (“CPRA”), Plaintiff’s claim also fails. “Plaintiff's exclusive remedy under the CPRA is to file a writ of mandamus in state court.” Brooks v. Vallejo City Unified Sch. Dist., No. 2:09-CV-1815-MCE-JFM, 2009 WL 10441783, at *3 (E.D. Cal. Oct. 30, 2009) (“If plaintiff believes he has not received all of the public documents he requested, he must pursue those claims in the state court mandamus actions.”); Cal. Govt. Code § 6259(d). 7 2 1 Constitution “does not impose any affirmative obligation on the government to 2 listen[ or] to respond [to a citizen complaint].” See Smith v. Arkansas State 3 Highway Emp., Local 1315, 441 U.S. 463, 465, 99 S. Ct. 1826, 60 L. Ed. 2d 360 4 (1979); Page v. Stanley, No. CV 11-2255-CAS (SS), 2013 WL 2456798, at *9 (C.D. 5 Cal. June 5, 2013) (holding the Constitution “does not guarantee that there will be 6 any government response to a petition or that the government will take any action 7 regarding the relief demanded by the petitioner. Specifically, the First Amendment 8 does not impose an affirmative obligation on the government to consider, respond 9 to, or grant any relief on a citizen’s petition for redress of grievances”). Thus, 10 because there is no recognized constitutional right to a government investigation, 11 Plaintiff’s allegations that Defendant is not responding to his citizen complaints 12 fails to implicate a recognized constitutional right and, therefore, does not state 13 either a procedural or substantive due process claim. 14 Third, as to Defendant’s failure to comply with its own city ordinance and 15 municipal codes, Plaintiff fails to identify a protected liberty or property interest of 16 which he has been deprived. Plaintiff claims Defendant has failed to “enforce 17 building codes,” and has “neglected to verify work done at different buildings” 18 identified by Plaintiff. Id. at 5-6. Additionally, Plaintiff alleges Defendant is acting 19 in “‘bad faith’ with intentional deception” and has failed “to meet an obligation or 20 duty.” Id. at 6. However, Plaintiff does not allege that any of these actions or 21 inactions have deprived Plaintiff of a constitutionally-protected liberty or property 22 interest. 23 Moreover, even assuming Plaintiff raised a constitutionally-protected liberty 24 interest of which he has been deprived due to Defendant’s failure to comply with 25 its own municipal codes, the failure alone is insufficient to raise a procedural or 26 substantive due process claim. First, as to a procedural due process claim, Plaintiff 27 does not allege he has been denied notice and an opportunity to be heard prior to 28 any constitutional deprivation. See Mullane v. Cent. Hanover Bank & Tr. Co., 339 8 1 U.S. 306, 313, 70 S. Ct. 652, 94 L. Ed. 865 (1950). Second, as to a substantive due 2 process claim, a state law or municipal code violation committed by a government 3 actor is not alone sufficient to raise a substantive due process claim. See Shanks v. 4 Dressel, 540 F.3d 1082, 1089 (9th Cir. 2008) (holding that the “assumption that 5 every state law violation invariably gives rise to a substantive due process claim is 6 inconsistent with the principle that substantive due process is not a ‘font of tort 7 law’ that superintends all official decision making” (citing Cty. of Sacramento v. 8 Lewis, 523 U.S. 833, 848, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998)). Absent any 9 facts to show “egregious official conduct” that amounts to an “‘abuse of power’ 10 lacking any reasonable justification in the service of a legitimate governmental 11 objective,” Plaintiff fails to state a substantive due process claim. Thus, Plaintiff’s 12 allegations Defendant violated his Fourteenth Amendment right for neglecting to 13 comply with its own city ordinances and municipal code fail to state either a 14 procedural or substantive due process claim. Id. (citing Lewis, 523 U.S. at 846). 15 B. PLAINTIFF FAILS TO STATE A FOURTEENTH AMENDMENT 16 EQUAL PROTECTION CLAIM 17 1. 18 “The Equal Protection Clause of the Fourteenth Amendment commands Applicable Law 19 that no State shall ‘deny to any person within its jurisdiction the equal protection of 20 the laws,’ which is essentially a direction that all persons similarly situated should 21 be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 22 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 23 216, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982)). In order to state a Section 1983 24 equal protection claim, a plaintiff must allege he was treated differently from others 25 who were similarly situated without a rational basis or discriminated against based 26 on his membership in a protected class. See Serrano v. Francis, 345 F.3d 1071, 27 1082 (9th Cir. 2003) (requirements for Section 1983 equal protection claim based 28 on membership in protected class); Gallo v. Burson, 568 F. App’x 516, 517 (9th Cir. 9 1 2014) (affirming district court dismissal of inmate’s equal protection claim). 2 “Similarly situated” persons are those “who are in all relevant aspects alike.” 3 Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S. Ct. 2326, 120 L. Ed. 2d 1 (1992). 4 2. Analysis 5 Here, to the extent Plaintiff is attempting to raise a Fourteenth Amendment 6 Equal Protection claim, this claim is also subject to dismissal. Plaintiff fails to 7 allege any facts to show he is a member of a protected class or has been treated 8 differently from others who are similarly situated. Instead, Plaintiff merely claims 9 that the Fourteenth Amendment requires “[t]reating similar persons in [a] similar 10 manner,” and that he has a right “to have one’s request/complaint treated the 11 same way as similar cases at the City of Redlands.” SAC at 5; Opposition at 5. 12 Thus, absent any factual allegations establishing differing treatment, Plaintiff’s 13 Fourteenth Amendment Equal Protection claim should be dismissed. 14 C. THE SAC SHOULD BE DISMISSED WITHOUT LEAVE TO 15 AMEND 16 As discussed in Sections V.A-B, Plaintiff’s Fourteenth Amendment claims 17 fail. The SAC’s allegations suffer from the same pleading deficiencies the Court 18 identified when it dismissed the Complaint with leave to amend. See Dkt. 32. 19 Thus, despite having an opportunity to correct the deficiencies previously 20 identified by the Court, Plaintiff has failed to do so. In addition, none of the 21 arguments in Plaintiff’s opposition to the Motion to Dismiss suggest he might be 22 able to correct the deficiencies. Moreover, Plaintiff has now had three 23 opportunities to file a proper and legally sufficient complaint, but has failed to do 24 so. See Dkt. 32, 37. 25 In light of Plaintiff’s continued failure to address the pleading deficiencies 26 identified by the Court, the Court recommends dismissing the SAC without leave 27 to amend and with prejudice for failure to state a claim. See Ismail v. County of 28 Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012) (“[A] district court’s 10 1 discretion over amendments is especially broad ‘where the court has already given 2 a plaintiff one or more opportunities to amend his complaint.’” (quoting DCD 3 Programs, Ltd. v. Leighton, 833 F.2d 183, 186 n.3 (9th Cir. 1987))); see also Zavala 4 v. Bartnik, 348 F. App’x 211, 213 (9th Cir. 2009) (“Dismissal with prejudice was 5 proper because Zavala was given two prior opportunities to amend his complaint in 6 order to correct the deficiencies identified by the district court but failed to do 7 so.”). 8 VI. 9 RECOMMENDATION 10 IT IS THEREFORE RECOMMENDED that the Court issue an Order: (1) 11 accepting this Final Report and Recommendation; (2) GRANTING Defendants’ 12 Motion to Dismiss [Dkt. 59]; and (3) directing that Judgement be entered 13 dismissing the action with prejudice and without leave to amend. 14 15 16 17 Dated: September 05, 2017 HONORABLE KENLY KIYA KATO United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 11

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