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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ORONDE LONDON,
Plaintiff,

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Case No. EDCV 17-0185-JFW (KK)

v.

FINAL REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE

CITY OF REDLANDS,

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Defendant(s).

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This Final Report and Recommendation is submitted to the Honorable John

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F. Walter, United States District Judge, pursuant to 28 U.S.C. § 636 and General

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Order 05-07 of the United States District Court for the Central District of

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California.

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I.

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SUMMARY OF RECOMMENDATION
On May 11, 2017, Plaintiff Oronde London (“Plaintiff”), proceeding pro se,

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filed a Second Amended Complaint (“SAC”) pursuant to 42 U.S.C. § 1983

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(“Section 1983”), against defendant City of Redlands (“Defendant”). On June 1,

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2017, Defendant filed a Motion to Dismiss the SAC. For the reasons set forth

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below, the Court recommends GRANTING Defendant’s Motion to Dismiss and

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dismissing the action with prejudice and without leave to amend.

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II.

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PROCEDURAL HISTORY

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On February 2, 2017, Plaintiff filed a Complaint against Defendant for

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violations of the Freedom of Information Act and for violations of his Fourteenth

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Amendment rights. ECF Docket No. (“Dkt.”) 1.

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On April 1, 2017, Defendant filed a Motion to Dismiss. Dkt. 32. On May 1,

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2017, the Court granted Defendant’s Motion to Dismiss. Id. at 4. As to the

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violations of the Freedom of Information Act, the Court found, based on

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allegations and exhibits in the Complaint, “Plaintiff did not make records requests

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to the federal government or request any records that are maintained by the federal

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government,” and dismissed the claim without leave to amend. Id. at 3. As to

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Plaintiff’s constitutional claim, the Court found Plaintiff failed to allege any facts to

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support a violation of his Fourteenth Amendment rights and dismissed the claim

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with leave to amend. Id. at 4. The Court explicitly instructed Plaintiff any

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amended complaint was to be limited to a claim for alleged violations of the

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Fourteenth Amendment. Id.

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On May 8, 2017, Plaintiff filed a First Amended Complaint (“FAC”), which

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contained both a Fourteenth Amendment claim and a tax evasion claim. Dkt. 35.

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On May 11, 2017, the Court issued an Order to Show Cause (“OSC”) why the

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Court “should not impose sanctions in the amount of $750.00 against Plaintiff or

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dismiss his tax evasion claim for failure to comply with the Court’s May 1, 2017

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Order.” Dkt. 37.

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On May 11, 2017, Plaintiff filed a response to the Court’s OSC and filed the

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instant SAC containing only the claim for alleged violations of the Fourteenth

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Amendment. Dkts. 38, 42.

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On June 1, 2017, Defendant filed a Motion to Dismiss arguing the SAC

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should be dismissed because Plaintiff lacks standing1 and has failed to allege facts

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sufficient to state a claim for violations of his Fourteenth Amendment rights. Dkt.

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43, MTD. On June 5, 2017, Plaintiff filed an Opposition. Dkt. 45. On June 15,

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2017, Defendant filed a Reply. Dkt. 46. The matter thus stands submitted.

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III.

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ALLEGATIONS OF THE SECOND AMENDED COMPLAINT

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Plaintiff alleges he is a private citizen seeking to determine whether

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Defendant has complied with all “applicable provisions of Federal, State, and local

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law relating to building standards, permits, and inspections.” SAC at 5. From

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August 2015 to October 2016, Plaintiff alleges he submitted an online “building and

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safety complaint,” one in-person request, and three email requests seeking permits

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for various buildings in Redlands. See id. at 3-4. Plaintiff claims he received three

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letters from the Office of the City Manager acknowledging two out of his three

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email requests and his one in-person request for permits. Id. Plaintiff claims he

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received some, but not all of the permits he requested. Id. at 5-6. As a result,

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Plaintiff alleges Defendant has violated his Fourteenth Amendment right to Due

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Process by failing to (1) acknowledge all of Plaintiff’s requests for public records

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and provide requested public records in a timely fashion; (2) investigate a private

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citizen complaint; and (3) comply with its own municipal code. Id. In addition,

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Plaintiff appears to allege Defendant has violated his Fourteenth Amendment right

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to Equal Protection based on an alleged right to have his “request/complaint

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treated the same way as similar cases at the City of Redlands.” Id. at 5.

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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.

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IV.

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STANDARD OF REVIEW

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A complaint may be dismissed for failure to state a claim pursuant to Federal

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Rule of Civil Procedure 12(b)(6) “where there is no cognizable legal theory or an

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absence of sufficient facts alleged to support a cognizable legal theory.” Zamani v.

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Carnes, 491 F.3d 990, 996 (9th Cir. 2007) (citation omitted). In considering

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whether a complaint states a claim, a court must accept as true all of the material

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factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 2011).

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However, the Court need not accept as true “allegations that are merely

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conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re

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Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted).

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Although a complaint need not include detailed factual allegations, it “must

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contain sufficient factual matter, accepted as true, to state a claim to relief that is

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plausible on its face.” Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011)

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(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868

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(2009)). A claim is facially plausible when it “allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id.

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(citation omitted). The complaint “must contain sufficient allegations of

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underlying facts to give fair notice and to enable the opposing party to defend itself

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effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

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“A document filed pro se is to be liberally construed, and a pro se complaint,

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however inartfully pleaded, must be held to less stringent standards than formal

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pleadings drafted by lawyers.” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir.

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2008) (citation omitted). The Court has “an obligation where the p[laintiff] is pro

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se, particularly in civil rights cases, to construe the pleadings liberally and to afford

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the petitioner the benefit of any doubt.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th

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Cir. 2012) (citation omitted).

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If the court finds the complaint should be dismissed for failure to state a

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claim, the court has discretion to dismiss with or without leave to amend. Lopez v.

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Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted

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if it appears possible that the defects in the complaint could be corrected, especially

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if the plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103,

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1106 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint

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cannot be cured by amendment, the court may dismiss without leave to amend.

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Cato, 70 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th

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Cir. 2009).

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V.

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DISCUSSION

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A.

PLAINTIFF HAS FAILED TO IDENTIFY ANY DEPRIVATION OF

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A PROTECTED CONSTITUTIONAL INTEREST AND

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THEREFORE FAILS TO STATE A FOURTEENTH AMENDMENT

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DUE PROCESS CLAIM

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1.

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The Due Process Clause of the Fourteenth Amendment protects individuals

Applicable Law

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against deprivations of life, liberty, or property that “shocks the conscience” or

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“interferes with rights implicit in the concept of ordered liberty.” United States v.

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Salerno, 481 U.S. 739, 746, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987); U.S. Const.

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amend. XIV, § 1. It “affords not only a procedural guarantee against the

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deprivation of ‘liberty,’ but likewise protects substantive aspects of liberty against

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unconstitutional restrictions by the state.” Kelley v. Johnson, 425 U.S. 238, 244,

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96 S. Ct. 1440, 47 L. Ed. 2d 708 (1976).

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“A threshold requirement to a substantive or procedural due process claim is

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the plaintiff’s showing of a liberty or property interest protected by the

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Constitution.” Stiesberg v. State of Cal., 80 F.3d 353, 356 (9th Cir. 1996) (quoting

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Wedges/Ledges of California, Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 62 (9th
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Cir. 1994)). To have a property interest, a plaintiff must allege “a legitimate claim

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of entitlement.’” Nunez v. City of Los Angeles, 147 F.3d 867, 872 (9th Cir. 1998)

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(quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S. Ct.

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2701, 33 L. Ed. 2d 548 (1972)). A liberty interest, on the other hand, “may be

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derived from the Due Process Clause itself or from laws of the states.” Browning

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v. Vernon, 44 F.3d 818, 821 (9th Cir. 1995).

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To establish a substantive due process claim, a plaintiff must allege, in

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addition to a deprivation of a constitutionally protected liberty or property interest,

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“conscious shocking behavior by the government” that results in the deprivation of

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the plaintiff’s life, liberty, or property. Brittain v. Hansen, 451 F.3d 982, 991 (9th

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Cir. 2006). A procedural due process claim, on the other hand, requires a plaintiff

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to allege both a deprivation of a constitutionally protected liberty or property

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interest and “a denial of adequate procedural protections.” Brewster v. Bd. of

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Educ., 149 F.3d 971, 982 (9th Cir. 1998). The failure to follow mandatory

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procedures does not by itself offend the constitution. See Smith v. Noonan, 992

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F.2d 987, 989 (9th Cir. 1993) (“[W]e have held that ‘procedural requirements,

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even if mandatory, do not raise a constitutionally cognizable liberty interest.’”

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(citation omitted)). Rather, there must be allegations that the procedures

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themselves were inadequate to protect a valid liberty interest. See Buckley v.

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Gomez, 36 F. Supp. 2d 1216, 1222 (S.D. Cal. 1997), aff’d, 168 F.3d 498 (9th Cir.

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1999).

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2.

Analysis

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Here, Plaintiff fails to allege any facts showing he has been deprived of a

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constitutionally protected liberty or property interest. Plaintiff alleges Defendant is

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denying him due process by failing to (1) acknowledge all of Plaintiff’s requests for

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public records and provide requested public records in a timely fashion; (2)

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investigate a private citizen complaint; and (3) comply with its own Municipal

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Code. SAC at 5-6. However, none of these alleged actions implicate a
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constitutional right of which Plaintiff has been deprived. Thus, as discussed below,

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because Plaintiff has failed to meet the “threshold requirement to a substantive or

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procedural due process claim,” his Fourteenth Amendment claim is subject to

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dismissal. Stiesberg, 80 F.3d at 356.
First, as to Defendant’s alleged failure to acknowledge Plaintiff’s public

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records requests and provide records in a timely fashion, Plaintiff fails to identify a

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protected constitutional liberty or property interest. See SAC at 5. The

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Fourteenth Amendment “do[es] not guarantee the public a right of access to

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information generated or controlled by government.” Houchins v. KQED, Inc.,

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438 U.S. 1, 16, 98 S. Ct. 2588, 57 L. Ed. 2d 553 (1978). Thus, Plaintiff does not

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have a constitutionally-protected right to access government records, much less a

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constitutionally-protected right to have his records request acknowledged or a right to

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have records provided in a timely fashion.2 Accordingly, Plaintiff has failed to raise a

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Fourteenth Amendment procedural or substantive due process claim based on

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Defendant’s failure to acknowledge his records request or provide his records in a

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timely fashion.
Second, as to Defendant’s alleged failure to investigate a private citizen

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complaint, Plaintiff again fails to identify a protected constitutional liberty or

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property interest. Plaintiff alleges he has “informed the City Manager of possible

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building standard violations, in addition to personnel actions,” but has not received

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any response. SAC at 5-6. Additionally, Plaintiff conclusorily claims he is entitled

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“to have a fair and impartial fact-finding by the city of Redlands when such

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request/complaint are made by private citizens.” Id. at 5. However, the U.S.

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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).
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Constitution “does not impose any affirmative obligation on the government to

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listen[ or] to respond [to a citizen complaint].” See Smith v. Arkansas State

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Highway Emp., Local 1315, 441 U.S. 463, 465, 99 S. Ct. 1826, 60 L. Ed. 2d 360

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(1979); Page v. Stanley, No. CV 11-2255-CAS (SS), 2013 WL 2456798, at *9 (C.D.

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Cal. June 5, 2013) (holding the Constitution “does not guarantee that there will be

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any government response to a petition or that the government will take any action

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regarding the relief demanded by the petitioner. Specifically, the First Amendment

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does not impose an affirmative obligation on the government to consider, respond

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to, or grant any relief on a citizen’s petition for redress of grievances”). Thus,

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because there is no recognized constitutional right to a government investigation,

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Plaintiff’s allegations that Defendant is not responding to his citizen complaints

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fails to implicate a recognized constitutional right and, therefore, does not state

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either a procedural or substantive due process claim.

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Third, as to Defendant’s failure to comply with its own city ordinance and

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municipal codes, Plaintiff fails to identify a protected liberty or property interest of

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which he has been deprived. Plaintiff claims Defendant has failed to “enforce

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building codes,” and has “neglected to verify work done at different buildings”

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identified by Plaintiff. Id. at 5-6. Additionally, Plaintiff alleges Defendant is acting

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in “‘bad faith’ with intentional deception” and has failed “to meet an obligation or

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duty.” Id. at 6. However, Plaintiff does not allege that any of these actions or

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inactions have deprived Plaintiff of a constitutionally-protected liberty or property

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interest.

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Moreover, even assuming Plaintiff raised a constitutionally-protected liberty

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interest of which he has been deprived due to Defendant’s failure to comply with

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its own municipal codes, the failure alone is insufficient to raise a procedural or

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substantive due process claim. First, as to a procedural due process claim, Plaintiff

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does not allege he has been denied notice and an opportunity to be heard prior to

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any constitutional deprivation. See Mullane v. Cent. Hanover Bank & Tr. Co., 339
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U.S. 306, 313, 70 S. Ct. 652, 94 L. Ed. 865 (1950). Second, as to a substantive due

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process claim, a state law or municipal code violation committed by a government

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actor is not alone sufficient to raise a substantive due process claim. See Shanks v.

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Dressel, 540 F.3d 1082, 1089 (9th Cir. 2008) (holding that the “assumption that

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every state law violation invariably gives rise to a substantive due process claim is

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inconsistent with the principle that substantive due process is not a ‘font of tort

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law’ that superintends all official decision making” (citing Cty. of Sacramento v.

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Lewis, 523 U.S. 833, 848, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998)). Absent any

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facts to show “egregious official conduct” that amounts to an “‘abuse of power’

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lacking any reasonable justification in the service of a legitimate governmental

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objective,” Plaintiff fails to state a substantive due process claim. Thus, Plaintiff’s

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allegations Defendant violated his Fourteenth Amendment right for neglecting to

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comply with its own city ordinances and municipal code fail to state either a

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procedural or substantive due process claim. Id. (citing Lewis, 523 U.S. at 846).

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B.

PLAINTIFF FAILS TO STATE A FOURTEENTH AMENDMENT

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EQUAL PROTECTION CLAIM

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1.

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“The Equal Protection Clause of the Fourteenth Amendment commands

Applicable Law

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that no State shall ‘deny to any person within its jurisdiction the equal protection of

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the laws,’ which is essentially a direction that all persons similarly situated should

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be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432,

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439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985) (quoting Plyler v. Doe, 457 U.S. 202,

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216, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982)). In order to state a Section 1983

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equal protection claim, a plaintiff must allege he was treated differently from others

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who were similarly situated without a rational basis or discriminated against based

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on his membership in a protected class. See Serrano v. Francis, 345 F.3d 1071,

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1082 (9th Cir. 2003) (requirements for Section 1983 equal protection claim based

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on membership in protected class); Gallo v. Burson, 568 F. App’x 516, 517 (9th Cir.
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2014) (affirming district court dismissal of inmate’s equal protection claim).

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“Similarly situated” persons are those “who are in all relevant aspects alike.”

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Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S. Ct. 2326, 120 L. Ed. 2d 1 (1992).

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2.

Analysis

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Here, to the extent Plaintiff is attempting to raise a Fourteenth Amendment

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Equal Protection claim, this claim is also subject to dismissal. Plaintiff fails to

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allege any facts to show he is a member of a protected class or has been treated

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differently from others who are similarly situated. Instead, Plaintiff merely claims

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that the Fourteenth Amendment requires “[t]reating similar persons in [a] similar

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manner,” and that he has a right “to have one’s request/complaint treated the

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same way as similar cases at the City of Redlands.” SAC at 5; Opposition at 5.

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Thus, absent any factual allegations establishing differing treatment, Plaintiff’s

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Fourteenth Amendment Equal Protection claim should be dismissed.

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C.

THE SAC SHOULD BE DISMISSED WITHOUT LEAVE TO

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AMEND

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As discussed in Sections V.A-B, Plaintiff’s Fourteenth Amendment claims

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fail. The SAC’s allegations suffer from the same pleading deficiencies the Court

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identified when it dismissed the Complaint with leave to amend. See Dkt. 32.

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Thus, despite having an opportunity to correct the deficiencies previously

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identified by the Court, Plaintiff has failed to do so. In addition, none of the

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arguments in Plaintiff’s opposition to the Motion to Dismiss suggest he might be

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able to correct the deficiencies. Moreover, Plaintiff has now had three

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opportunities to file a proper and legally sufficient complaint, but has failed to do

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so. See Dkt. 32, 37.

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In light of Plaintiff’s continued failure to address the pleading deficiencies

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identified by the Court, the Court recommends dismissing the SAC without leave

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to amend and with prejudice for failure to state a claim. See Ismail v. County of

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Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012) (“[A] district court’s
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discretion over amendments is especially broad ‘where the court has already given

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a plaintiff one or more opportunities to amend his complaint.’” (quoting DCD

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Programs, Ltd. v. Leighton, 833 F.2d 183, 186 n.3 (9th Cir. 1987))); see also Zavala

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v. Bartnik, 348 F. App’x 211, 213 (9th Cir. 2009) (“Dismissal with prejudice was

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proper because Zavala was given two prior opportunities to amend his complaint in

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order to correct the deficiencies identified by the district court but failed to do

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so.”).

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VI.

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RECOMMENDATION

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IT IS THEREFORE RECOMMENDED that the Court issue an Order: (1)

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accepting this Final Report and Recommendation; (2) GRANTING Defendants’

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Motion to Dismiss [Dkt. 59]; and (3) directing that Judgement be entered

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dismissing the action with prejudice and without leave to amend.

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Dated: September 05, 2017
HONORABLE KENLY KIYA KATO
United States Magistrate Judge

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