Barbara A. Vinson et al v. Pacific Gas and Electric Company et al

Filing 20

ORDER by Magistrate Judge Kenly Kiya Kato: granting 7 MOTION to Dismiss & DISMISSING PLAINTIFFS' COMPLAINT WITH LEAVE TO AMEND (Attachments: # 1 Notice of Dismissal) (dts)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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BARBARA A. VINSON, et al.,
Plaintiffs,

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Case No. SACV 16-00514-GHK (KK)

v.
PACIFIC GAS AND ELECTRIC
COMPANY, et al.,

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Defendants.

ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS &
DISMISSING PLAINTIFFS’
COMPLAINT WITH LEAVE TO
AMEND

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I.

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INTRODUCTION

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Plaintiffs Barbara A. Vinson and Lloyd K. Vinson (“Plaintiffs”), have filed a

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pro se civil rights complaint pursuant to Title 42 of the United States Code, section

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1983. Plaintiffs allege Defendants Pacific Gas and Electric Company and Does 1

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through 10 violated: (1) the Safe Drinking Water Act (“SDWA”); and (2) Title 42

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of the United States Code, Sections 1983 (“Section 1983”), 1985(3) (“Section

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1985(3)”), and 1986 (“Section 1986”). Defendant Pacific Gas and Electric

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Company (“Defendant”) filed a Motion to Dismiss, which the Court grants for the

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reasons below.

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II.

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BACKGROUND

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A.

FACTUAL ALLEGATIONS OF THE COMPLAINT

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On March 18, 2016, Plaintiffs filed a civil rights complaint (“Complaint”)

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alleging Defendant violated: (1) the SDWA; and (2) Plaintiffs’ civil rights under

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Sections 1983, 1985(3), and 1986. See ECF Docket No. (“Dkt.”) 1, Compl.
Plaintiffs allege they own property in Hinkley, California and Defendant’s

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products have poisoned aquifers in Hinkley since 1952. Id. at 10. Plaintiffs also

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allege Defendant used “filtering fraud” when testing the aquifers to conceal the

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“excessive concentration” of arsenic and other deadly toxins. Id. at 6, 11-12.

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Plaintiffs further allege they “are in poverty, thus the environmental justice and

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injustice is nothing more than just a dog and pony show,” and “[i]rrational news

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media propaganda has aided in shielding [Defendant] from investigation and

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prosecution.” Id. at 12. Finally, Plaintiffs seek $500,500,000.00 in damages,

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costs, injunctive relief, and declaratory judgment. Id. at 6, 9.

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B.

MOTION TO DISMISS THE COMPLAINT
On April 11, 2016, Defendant filed a Motion to Dismiss (“Motion”). See

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Dkt. 7, Mot. In the Motion, Defendant argues the Court should dismiss the

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Complaint because: (1) Plaintiffs fail to establish subject matter jurisdiction; (2) the

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SDWA preempts Plaintiffs’ civil rights claims under Sections 1983, 1985(3), and

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1986; and (3) Plaintiffs fail to state claims under the SDWA, Sections 1983,

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1985(3), and 1986.1 Id. at 1-12.

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Defendant also argues the Court should strike Plaintiffs’ request for damages
and civil penalties. Dkt. 1, Mot. at 12-13; see Dkt. 16, Reply at 6-7. This issue is
not critical to resolving the Motion, and as explained below, the Court dismisses
the Complaint for failure to state a claim. Thus, the Court declines to address the
propriety of Plaintiffs’ request for damages and civil penalties at this juncture.
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On April 25, 2016, Plaintiffs filed an Opposition (“Opposition”). Dkt. 11,

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Opp. In the Opposition, Plaintiffs argue the Court has subject matter jurisdiction.

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Id. Plaintiffs fail to address the other arguments presented in the Motion. Id.

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On April 29, 2016, Plaintiffs filed an Amended Opposition (“Amended

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Opposition”). Dkt. 13, Am. Opp. In the Amended Opposition, Plaintiffs again

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argue the Court has subject matter jurisdiction and fail to address the other

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arguments presented in the Motion. Id.
On May 13, 2016 Defendant filed a Reply (“Reply”). Dkt. 16, Reply. In the

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Reply, Defendant reasserts the arguments made in the Motion and claims the

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Complaint should be dismissed without leave to amend. Id. This matter is thus

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submitted and ready for decision.

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III.

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DISCUSSION

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A.

THE COURT HAS FEDERAL QUESTION JURISDICTION

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(1)

APPLICABLE LAW

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“In civil cases, subject matter jurisdiction is generally conferred upon federal

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district courts either through diversity jurisdiction, 28 U.S.C. § 1332, or federal

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question jurisdiction, 28 U.S.C. § 1331.” Peralta v. Hispanic Bus., Inc., 419 F.3d

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1064, 1068 (9th Cir. 2005).

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Under federal question jurisdiction, the district court “shall have original

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jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the

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United States.” 28 U.S.C. § 1331. For example, “42 U.S.C. §§ 1983 and 1985

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when coupled with 28 U.S.C. § 1343, confer jurisdiction for actions claiming the

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deprivation of civil rights under the color of state law or by conspiracy.” Luttrell v.

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United States, 644 F.2d 1274, 1275-76 (9th Cir. 1980). Section 1986 similarly

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confers federal question jurisdiction on district courts where a person neglects to

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prevent a violation of Section 1985. 42 U.S.C. § 1986. Further, the SDWA confers

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federal question jurisdiction on district courts. United States v. Alisal Water

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Corp., 431 F.3d 643, 651 (9th Cir. 2005).

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(2)

ANALYSIS

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Here, the Court has subject matter jurisdiction because the Complaint

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presents federal questions. See Peralta, 419 F.3d at 1068; 28 U.S.C. § 1331.

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Specifically, Plaintiffs’ claims for civil rights violations under Sections 1983,

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1985(3), and 1986, and violations under the SDWA confer federal question

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jurisdiction. See Dkt. 1, Compl; Luttrell, 644 F.2d at 1275-76; 42 U.S.C. § 1986;

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Alisal Water Corp., 431 F.3d at 651.
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This Court Has Federal Question Jurisdiction Over
Plaintiffs’ Claim For Civil Rights Violations

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Defendant argues the Court lacks subject matter jurisdiction over Plaintiffs’

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claims for civil rights violations under Sections 1985(3) and 1986. Specifically,

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Defendant argues Plaintiffs’ failure “to include the required allegations of

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invidious discrimination and membership in a protected class” defeats jurisdiction

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over Plaintiffs’ Sections 1985(3) and 1986 claims. Dkt. 7, Mot. at 3; see Dkt. 16,

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Reply at 2-3.
“Failure to state a claim under federal law is not the same thing as failure to

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establish federal question jurisdiction under 28 U.S.C. § 1331.” Bollard v.

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California Province of the Soc’y of Jesus, 196 F.3d 940, 951 (9th Cir. 1999); see

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Seismic Reservoir 2020, Inc. v. Paulsson, 785 F.3d 330, 333 (9th Cir. 2015).

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Despite the purported failure to state a claim under Section 1985(3) or 1986,

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neither claim “appears to be immaterial, wholly insubstantial and frivolous, or

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otherwise so devoid of merit as not to involve a federal controversy.” See Steel Co.

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v. Citizens for a Better Env’t, 523 U.S. 83, 83, 118 S. Ct. 1003, 140 L. Ed. 2d 210

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(1998). Thus, Plaintiffs’ pleading deficiencies have no fatal effect on the Court’s

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jurisdiction over Plaintiffs’ Section 1985(3) or 1986 claims. See 28 U.S.C. § 1331.

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ii.

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This Court Has Federal Question Jurisdiction Over
Plaintiffs’ Claim For SDWA Violations

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Defendant also argues the Court lacks subject matter jurisdiction over

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Plaintiffs’ SDWA claim. Specifically, Defendant argues Plaintiffs’ failure “to

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allege either an ongoing violation or compliance with statutory notice

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requirements” defeats jurisdiction over Plaintiffs’ SDWA claim. Dkt. 10, Mot. at

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3; see Dkt. 16, Reply at 4.
Once again, Plaintiff’s failure to state a SDWA claim (i.e., failure to allege an

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ongoing violation or comply with statutory notice requirements) “is not the same

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thing as failure to establish federal question jurisdiction.” See Bollard, 196 F.3d at

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951. Despite Plaintiffs’ purported failure to state a SDWA claim, the claim does

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not appear “immaterial, wholly insubstantial and frivolous, or otherwise so devoid

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of merit as not to involve a federal controversy.” See Steel Co., 523 U.S. at 83.
Moreover, while Defendant argues the SDWA’s notice requirements “are

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jurisdictional prerequisites to bringing suit,” Dkt. 7, Mot. at 4; see Dkt. 16, Reply at

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4, the SDWA lacks any indication its notice requirements constitute a jurisdictional

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precondition. 42 U.S.C. § 300j-8. “When Congress does not rank a statutory

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limitation on coverage as jurisdictional, courts should treat the restriction as

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nonjurisdictional in character.” Arbaugh v. Y&H Corp., 546 U.S. 500, 502, 126 S.

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Ct. 1235, 163 L. Ed. 2d 1097 (2006); Alisal Water Corp., 431 F.3d at 651 (“We will

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not assume that Congress intended to deprive the court of subject matter

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jurisdiction over enforcement of federal laws where Congress has refrained from

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doing so and where there is no evidence of such intent.”). Thus, Plaintiffs’

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pleading deficiencies have no fatal effect on the Court’s jurisdiction over Plaintiffs’

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SDWA claim.

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B.

THE SDWA PREEMPTS PLAINTIFFS’ CIVIL RIGHTS CLAIMS

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UNDER SECTIONS 1983, 1985(3) & 1986

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(1)

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The SDWA comprises “national primary drinking water regulations,”

APPLICABLE LAW

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which “shall apply to each public water system in each State.” 42 U.S.C. § 300g.

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Because SDWA establishes a comprehensive remedial scheme and grants

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enforcement rights to the government and private citizens, the SDWA preempts all

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other forms of federal relief for SDWA violations – including civil rights claims.

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Mattoon v. City of Pittsfield, 980 F.2d 1, 4 (1st Cir. 1992) (“We have little

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hesitation in concluding that Congress occupied the field of public drinking water

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regulation with its enactment of the SDWA.”); see Ford v. California, No. 1:10-

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CV-00696-AWI, 2013 WL 1320807, at *3 (E.D. Cal. Apr. 2, 2013) (“The SDWA

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preempts all other forms of federal relief for a violation of the SDWA, including . . .

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Section 1983 Constitutional right claims.”).

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(2)

ANALYSIS

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Here, Plaintiffs base their civil rights claims entirely on Defendant’s alleged

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SDWA violations. See Dkt. 1, Compl. Because the SDWA preempts all other

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forms of federal relief for SDWA violations, the SDWA preempts Plaintiffs’ civil

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rights claims under Sections 1983, 1985(3), and 1986. See Mattoon, 980 F.2d at 4.

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Thus, Plaintiffs’ civil rights claims under Sections 1983, 1985(3), and 1986 must be

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dismissed as preempted by the SDWA.

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C.

THE COMPLAINT FAILS TO STATE A CLAIM UNDER THE

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SDWA

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(1)

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While states bear the primary responsibility for enforcing the SDWA, private

APPLICABLE LAW

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citizens may also seek to enforce the SDWA as plaintiffs in district court actions.

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42 U.S.C. §§ 300h-1, 300j-8. However, to maintain a citizen suit under the

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SDWA, citizen plaintiffs must meet certain requirements.
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First, to bring a SDWA claim, citizen plaintiffs must comply with notice

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requirements. For instance, plaintiffs may only bring a citizen suit under the

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SDWA against a private defendant when they provide notice of their claims to the

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prospective defendant and wait sixty days thereafter. Id. § 300j-8(b)(1)(A). Such

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notice must:

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include sufficient information to permit the recipient to identify the

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specific requirement alleged to have been violated, the activity alleged

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to constitute a violation, the person or persons responsible for the

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alleged violation, the location of the alleged violation, the date or dates

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of the alleged violation, and the full name, address, and telephone

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number of the person giving notice.

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40 C.F.R. § 135.12.

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In addition, the SDWA permits citizen suits only against persons “alleged to

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be in violation of any requirements prescribed by or under this subchapter . . .” 42

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U.S.C. § 300j-8(a)(1) (emphasis added). “The most natural reading of ‘to be in

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violation’ is a requirement that citizen-plaintiffs allege a state of either continuous

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or intermittent violation.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

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Found., Inc., 484 U.S. 49, 57, 64, 108 S. Ct. 376, 98 L. Ed. 2d 306 (1987)

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(remanding Clean Water Act suit under Title 33 of the United States Code, section

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1365(a) where plaintiffs made “a good-faith allegation of continuous or intermittent

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violation”).

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(2)

ANALYSIS

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Here, Plaintiffs neither allege they provided Defendant notice of their claim

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nor allege “a state of either continuous or intermittent violation.” See 42 U.S.C. §

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300j-8(b)(1)(A), (a)(1); Gwaltney of Smithfield, Ltd., Inc., 484 U.S. at 57, 64,

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Thus, Plaintiffs’ SDWA claims must be dismissed for failure to comply with notice

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requirements, and allege a continuous or intermittent violation.

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D.

THE COMPLAINT SHOULD BE DISMISSED WITH LEAVE TO

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AMEND

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(1)

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

APPLICABLE LAW

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

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

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

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plaintiffs are 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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(2)

ANALYSIS

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Here, in light of Plaintiffs’ pro se statuses and because it is unclear whether

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Plaintiffs can correct the Complaint’s defects, the Court grants Plaintiffs leave to

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amend. See Lopez, 203 F.3d at 1126-30. In amending the Complaint, Plaintiffs

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must state each claim separately. For each claim, Plaintiffs should clearly,

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precisely, and briefly identify the legal basis and facts underlying it. Plaintiffs

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should identify when the alleged harms occurred, who caused the alleged harms,

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and what actions each alleged wrongdoer committed.

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IV.

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ORDER

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Therefore, the Court ORDERS: (1) Defendant’s Motion to Dismiss is

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GRANTED; and (2) Plaintiffs’ Complaint is DISMISSED with leave to amend.

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A.

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PLAINTIFFS MAY FILE A FIRST AMENDED COMPLAINT
Within twenty-one (21) days of this order, Plaintiffs may file a First

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Amended Complaint. If Plaintiffs choose to file a First Amended Complaint,

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Plaintiffs must clearly designate on the face of the document that it is the “First
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Amended Complaint,” it must bear the docket number assigned to this case, and it

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must be retyped or rewritten in its entirety. Plaintiffs shall not include new

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defendants or new allegations that are not reasonably related to the claims asserted

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in the Complaint. In addition, the First Amended Complaint must be complete

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without reference to the Complaint or any other pleading, attachment, or

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document. Plaintiffs must comply with Central District of California Local Rules.
An amended complaint supersedes the preceding complaint. Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will

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treat all preceding complaints as nonexistent. Id. Because the Court grants

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Plaintiffs leave to amend as to all their claims raised here, any claim raised in a

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preceding complaint is waived if it is not raised again in the First Amended

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Complaint. Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012).
The Court advises Plaintiffs that it generally will not be well-disposed toward

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another dismissal with leave to amend if Plaintiffs file a First Amended Complaint

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that continues to include claims on which relief cannot be granted. “[A] district

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court’s discretion over amendments is especially broad ‘where the court has

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already given a plaintiff one or more opportunities to amend his complaint.’”

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Ismail v. County of Orange, 917 F. Supp.2d 1060, 1066 (C.D. Cal. 2012) (citations

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omitted); see also Ferdik, 963 F.2d at 1261. Thus, if Plaintiffs file a First Amended

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Complaint without claims on which relief can be granted, the First Amended

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Complaint will be dismissed without leave to amend and with prejudice.

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B.

PLAINTIFFS MAY VOLUNTARILY DISMISS THIS CASE
Alternatively, Plaintiffs may request voluntary dismissal of this case. Fed. R.

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Civ. P. 41(a). If Plaintiffs choose this option, this action will be dismissed in its

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entirety without prejudice. The Clerk of Court is directed to mail Plaintiffs a

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blank Notice of Dismissal Form.

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Plaintiffs are explicitly cautioned that failure to timely file a First Amended

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Complaint will result in this action being dismissed for failure to prosecute and/or

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obey Court orders pursuant to Federal Rule of Civil Procedure 41(b).

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Dated: May 17, 2016
HONORABLE KENLY KIYA KATO
United States Magistrate Judge

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