Hauseur v. Clark et al

Filing 45

ORDER Adopting 31 FINDINGS AND RECOMMENDATIONS in Part, GRANTING 15 Motion to Dismiss in Part, ALLOWING Leave to Amend Certain Claims, and REFERRING Matter to Magistrate Judge signed by District Judge Dale A. Drozd on 1/31/2017. (Sant Agata, S)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARK HAUSEUR, 12 13 14 15 No. 1:14-cv-01987-DAD-EPG Plaintiff, v. NATALIE CLARK, et al., Defendants. 16 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN PART, GRANTING MOTION TO DISMISS IN PART, ALLOWING LEAVE TO AMEND CERTAIN CLAIMS, AND REFERRING MATTER TO MAGISTRATE JUDGE (Doc. Nos. 15) 17 18 Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 19 U.S.C. § 1983. In his complaint plaintiff alleges that his First Amendment rights to free exercise 20 of religion and to be free from retaliation were violated by defendants. In addition, plaintiff’s 21 complaint asserts various state law causes of action. Plaintiff originally filed this action in the 22 Kings County Superior Court. It was removed to this court by defendants on December 10, 2014. 23 (Doc. No. 2.) The matter was then referred to a United States Magistrate Judge pursuant to 28 24 U.S.C. § 636(b)(1)(B) and Local Rule 302. 25 On April 29, 2016, defendants filed a motion to dismiss. (Doc. No. 15.) The assigned 26 magistrate judge issued findings and recommendations on November 23, 2016, recommending 27 that defendants’ motion to dismiss be granted in part and denied in part. (Doc. No. 31.) The 28 parties were given thirty days to file objections to the findings and recommendations, and ten 1 1 days thereafter to file replies to any objections submitted. (Id. at 13.) Neither party has filed 2 objections to the findings and recommendations and the time for doing so has passed. 3 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, the 4 undersigned has conducted a de novo review of this case. Having carefully reviewed the entire 5 file, the undersigned finds the findings and recommendations to be supported by the record and 6 proper analysis, save and except as discussed below. 7 The magistrate judge concluded that plaintiff could not state a claim under the Bane Act, 8 California Civil Code § 52.1, because none of plaintiff’s allegations involve violence or the threat 9 of violence. (Doc. No. 38 at 7–8.) The undersigned disagrees. An allegation of either violence 10 or the threat of violence is only necessary if the alleged violations of the Bane Act are based 11 entirely on speech. See Hearns v. Gonzales, No. 1:14-cv-01177-DAD-MJS, 2016 WL 110437, at 12 *1–2 (E.D. Cal. Jan. 11, 2016) (“[T]here is no requirement under California law to allege an act 13 of violence has occurred or was threatened in order to state a claim under § 52.1, but rather only 14 that the exercise of rights protected either by federal law or California law was ‘interfered with’ 15 by ‘threat, intimidation, or coercion.’”); see also Venegas v. County of Los Angeles, 32 Cal. 4th 16 820, 827-28 (2004) (permitting claims under § 52.1 based on allegedly unlawful searches and 17 seizures by several law enforcement officers, despite the fact that there were no allegations of 18 violence or threats of violence against the two plaintiffs); Moreno v. Town of Los Gatos, 267 Fed. 19 App. 665, 666 (9th Cir 2008) (“[S]ection 52.1 does not require violence or threat of violence.”)1 20 Otherwise, a plaintiff must allege only two things to state a cognizable Bane Act claim under 21 California law: 1) “intentional interference or attempted interference with a state or federal 22 constitutional or legal right,” and; 2) that “the interference or attempted interference was by 23 threats, intimidation or coercion.” Allen v. City of Sacramento, 234 Cal App. 4th 41, 67 (2015) 24 (citing Jones v. Kmart Corp., 17 Cal 4th 329, 334 (1998)). In this case, the magistrate judge screened plaintiff’s complaint and found that it stated 25 26 27 28 cognizable § 1983 claims based on both the alleged interference with plaintiff’s right to free 1 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 36–3(b). 2 1 exercise of religion and for retaliation, both under the First Amendment. (Doc. No. 14 at 5–6.) 2 According to the screening order, plaintiff stated a cognizable retaliation claim because he alleged 3 the defendants threatened to use their authority to purposefully continue to violate his free 4 exercise rights if he did not withdraw his administrative appeals. (Id. at 6.) Following this threat 5 and plaintiff’s decision not to withdraw his appeal, defendants allegedly did inhibit plaintiff’s 6 ability to engage in the free exercise of religion. (Id.) As alleged, these actions constitute threats 7 and coercion and are sufficient to state a cognizable Bane Act claim. 8 9 10 For these reasons, the undersigned declines to adopt the findings and recommendations only in this regard, and defendants’ motion to dismiss plaintiff’s Bane Act claim will be denied. The findings and recommendations are otherwise adopted. 11 Accordingly: 12 1. The court adopts the findings and recommendations issued by the magistrate judge on 13 November 23, 2016 (Doc. No. 31) save and except as indicated above; 14 2. Defendants’ motion to dismiss (Doc. No. 15) is granted in part and denied in part; 15 3. To the extent plaintiff asserted a cause of action under California Civil Code § 51 16 (Unruh Civil Rights Act), defendants’ motion to dismiss is granted without leave to amend; 4. Defendants’ motion to dismiss is granted as to plaintiff’s cause of action brought under 17 18 California Civil Code § 51.7. However, plaintiff is granted leave to amend with respect to this 19 claim and any amended complaint2 or notice of plaintiff’s intention not to file an amended 20 complaint is to be filed and served within thirty (30) days of the date of this order; 5. Defendants’ motion to dismiss is granted as to plaintiff’s cause of action under 21 22 23 24 25 26 27 28 California Civil Code § 52 without leave to amend; 2 As indicated by the magistrate judge in the findings and recommendations, plaintiff is advised that the court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967), overruled on other grounds by Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012). Once an amended complaint is filed, the original pleading no longer serves any function in the case. Finally, any amended complaint plaintiff may elect to file must bear the docket number assigned to this case and be labeled “Amended Complaint.” 3 1 2 3 4 5 6 7 6. Defendants’ motion to dismiss is denied as to plaintiff’s Bane Act cause of action brought under California Civil Code § 52.1; 7. Defendants’ motion to dismiss based upon their entitlement to immunity under California Government Code § 845.2 is denied without prejudice; and 8. This case is referred back to the magistrate judge for further proceedings. IT IS SO ORDERED. Dated: January 31, 2017 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?