Ooley et al v. Citrus Heights Police Dept. et al

Filing 37

ORDER signed by Judge John A. Mendez on 5/24/12 GRANTING 6 Motion to Dismiss. D Christensen, Citrus Heights Police Department, Christine Ford, Janet Schaefer, Brian Barron and Chris Boyd DISMISSED with prejudice. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GARR OOLEY, et al.,

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Plaintiffs,

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v.
CITRUS HEIGHTS POLICE
DEPARTMENT, et al.,
Defendants.

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Case No. 2:12-cv-00095-JAM-CKD
ORDER GRANTING THE CHPD
DEFENDANTS’ MOTION TO DISMISS

This matter is before the Court on Defendants Citrus Heights

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Police Department, Brian Barron, Janet Schaefer, D. Christensen,

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Christine Ford, and Chris Boyd’s (collectively the “CHPD

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Defendants”) Motion to Dismiss the Complaint of Plaintiff, Janis

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Starkey (Doc. #6).1

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the motion (Doc. #26).

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Plaintiff Janis Starkey (“Starkey”) opposes

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was originally
scheduled for April 18, 2012.
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I.

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FACTUAL ALLEGATIONS

This action arises out of Starkey and Plaintiff Garr Ooley’s

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(“Ooley”) allegations, contained in a 98 page complaint and 50

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pages of exhibits (Doc. #2), that the CHPD Defendants violated

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their civil rights.

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false statements that he was a sexual offender and pedophile during

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neighborhood meetings.

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retaliation for Ooley’s part in complaining to Defendant Nicholas

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Maurer about activities that Ooley and other neighbors found

Ooley alleges that the CHPD Defendants made

The false statements were allegedly made in

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offensive. The alleged false statements induced a group of

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neighbors also named as defendants in this action (the “Neighbor

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Defendants”) to conduct a campaign of harassment against Ooley.

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Because Ooley lived with Starkey in a house owned by her, she and

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her property were allegedly swept up in the campaign against Ooley.

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As a result, Starkey is also bringing claims against the CHPD

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Defendants and the Neighbor Defendants in this lawsuit.

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The second claim for relief is made by Starkey against the

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CHPD Defendants for Violation of Federal Civil Rights Act.

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alleges that the CHPD Defendants violated her rights by unlawfully

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taking her property, violating her due process rights, infringing

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her freedom of religion, violating her right to equal protection,

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and denying her right to petition the government.

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Starkey

The principle allegation raised by Starkey is that she was

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ordered by CHPD officers to turn off a home surveillance system.

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According to the Complaint, Starkey was ordered by Defendant Ford

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to turn off her home surveillance system during an incident that

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occurred on November 1, 2010.

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during this incident.

Compl. ¶ 101.

Id. ¶ 57.

Ooley was arrested

Also during this incident, a
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video recorder and a voice recorder were taken by CHPD officers

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from Ooley.

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given to her, and they were after repeated requests.

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Compl. ¶ 67.

Starkey requested that the recorders be
Compl. ¶ 71.

The remainder of the Complaint primarily alleges that Ooley

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was harassed by the CHPD and Neighbor Defendants in a series of

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minor incidents in which the neighbors allegedly entered Starkey’s

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property and harassed Ooley.

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alleges that Defendant Barron made two statements to him:

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1) I only answer to two things: the Seventh Day
Adventist Church and my two daughters.
2) I am glad to be part of the group that took
part in your arrest to remove people like you
from this community.

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While Ooley was in CHPD custody, he

Compl. ¶ 120.
Starkey claims that the Court has jurisdiction over her claims

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pursuant to 28 U.S.C. §§ 1331, 1343, 1337 and 42 U.S.C. § 1983.

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The CHPD Defendants contest the Court’s subject matter jurisdiction

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under Federal Rule of Civil Procedure 12(b)(1), contending that

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Starkey fails to plead sufficient facts to support federal subject

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matter jurisdiction.

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pursuant to Rule 12(b)(6), arguing that Starkey failed to state a

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claim upon which relief can be granted.

The CHPD Defendants also seek dismissal

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II.

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A.

OPINION

Legal Standard for Motion to Dismiss
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Failure to State a Claim

A party may move to dismiss an action for failure to state a

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claim upon which relief can be granted pursuant to Federal Rule of

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Civil Procedure 12(b)(6).

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court must accept the allegations in the complaint as true and draw

In considering a motion to dismiss, the

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all reasonable inferences in favor of the plaintiff.

Scheuer v.

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Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by

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Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319,

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322 (1972).

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are not entitled to the assumption of truth.

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556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)).

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plaintiff needs to plead “enough facts to state a claim to relief

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that is plausible on its face.”

Assertions that are mere “legal conclusions,” however,
Ashcroft v. Iqbal,

To survive a motion to dismiss, a

Twombly, 550 U.S. at 570.

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Dismissal is appropriate where the plaintiff fails to state a claim

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supportable by a cognizable legal theory.

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Police Department, 901 F.2d 696, 699 (9th Cir. 1990).

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Balistreri v. Pacifica

Upon granting a motion to dismiss for failure to state a

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claim, the court has discretion to allow leave to amend the

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complaint pursuant to Federal Rule of Civil Procedure 15(a).

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“Dismissal with prejudice and without leave to amend is not

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appropriate unless it is clear . . . that the complaint could not

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be saved by amendment.”

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316 F.3d 1048, 1052 (9th Cir. 2003).

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2.

Eminence Capital, L.L.C. v. Aspeon, Inc.,

Lack of Subject Matter Jurisdiction

A court may dismiss an action under Rule 12(b)(1) “when the

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District Court lacks subject matter jurisdiction over the claim.”

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Fed. R. Civ. P. 12(b)(1).

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“may either attack the sufficiency of the pleadings to establish

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federal jurisdiction, or allege an actual lack of jurisdiction

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which exists despite the formal sufficiency of the complaint.”

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Meaunrit v. ConAgra Foods Inc., 2010 WL 2867393, *3 (N.D. Cal. July

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20, 2010) (internal citations omitted).

A motion made pursuant to Rule 12(b)(1)

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A plaintiff bears the

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burden of proving jurisdiction “with the manner and degree of

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evidence required at the successive stages of the litigation.”

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Barnum Timber Co. v. U.S. E.P.A., 633 F.3d 894, 899 (9th Cir. 2011)

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(quoting Lujan v. Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct.

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2130 (1992)). At the motion to dismiss stage, a plaintiff must

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plead facts sufficient to show that the jurisdictional elements are

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plausibly met. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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570 (2007).

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B.

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Failure to State a Claim

The CHPD Defendants move to dismiss Starkey’s Complaint on the

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ground that Starkey fails to state a claim that entitles her to

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relief.

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to relief for her 42 U.S.C. § 1983 claim based on several different

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violations of her constitutional rights.

Starkey opposes the motion, arguing that she is entitled

1. Equal Protection and Freedom of Religion

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Starkey argues that her right to equal protection was violated

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when the CHPD Defendants were hostile toward her because she is not

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a member of the Seventh Day Adventist Church.

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argues that her First Amendment right guaranteeing freedom of

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religion was violated by the CHPD Defendants alleged preference

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toward Seventh Day Adventists.

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harassment and hostility directed toward Starkey is not pleaded in

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the Complaint, making dismissal appropriate.

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Similarly, Starkey

The CHPD Defendants respond that

“[T]he [First Amendment to the] Constitution guarantees that

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government may not coerce anyone to support or participate in

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religion or its exercise, or otherwise act in a way which

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‘establishes a [state] religion or religious faith, or tends to do

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so.’”

Lee v. Weisman, 505 U.S. 577, 587 (1992) (quoting Lynch v.
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Donnelly, 465 U.S. 668, 669 (1984)).

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Protection Clause of the Fourteenth Amendment commands that no

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State shall ‘deny to any person within its jurisdiction the equal

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protection of the laws,’ which is essentially a direction that all

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persons similarly situated should be treated alike.”

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Cleburne v. Cleburne Living Ctr, Inc.

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Amendment and the Equal Protection clause, the CHPD Defendants are

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prohibited from harassing Starkey because she is not a Seventh Day

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Adventist.

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Similarly, the “Equal

City of

Thus, under both the First

The facts supporting Starkey’s claim are so thin that she is

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not plausibly entitled relief on either her equal protection claim

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or First Amendment claim.

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because of her religion is predicated entirely on one off-hand

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comment made by Defendant Barron to Ooley.

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Complaint to suggest that any other CHPD Officer shares Defendant

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Barron’s faith, let alone that an official policy or unofficial

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practice to favor Seventh Day Adventists is followed by CHPD.

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Further, as the CHPD Defendants point out, the Complaint does not

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contain allegations that Starkey was harassed by the CHPD

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Defendants all.

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The allegation that Starkey was targeted

There is nothing in the

Reading the Complaint in the light most favorable to

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Plaintiffs, it appears that Ooley was targeted either because the

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CHPD Defendants believed that he was a sexual predator or in

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retaliation for a neighborhood petition that he organized.

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and her property were then caught up in the resulting controversy,

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which also included the Neighbor Defendants.

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the Complaint clearly indicate that the small amount of activity

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directed toward Starkey was because of animosity toward Ooley, not
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Starkey

The allegations in

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because of her religious beliefs.

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enough facts to plausibly allege that she was treated differently

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because of her religion, the motion to dismiss her First Amendment

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and Equal Protection claims is granted.

Twombly, 550 U.S. at 570.

2. Substantive Due Process

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Since Starkey fails to plead

Starkey claims that the CHPD Defendants violated her

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substantive due process rights by interfering with the quiet

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enjoyment of her property in violation of the Fourteenth Amendment.

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The CHPD Defendants argue that this claim is inadequately pled.

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“Federal courts have ‘always been reluctant to expand the

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concept of substantive due process because guideposts for

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responsible decisionmaking in this uncharted area are scarce and

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open ended.’”

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2006) (quoting Albright v. Oliver, 510 U.S. 266, 271–72 (1994)).

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“[T]he Fourteenth Amendment is not a ‘font of tort law to be

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superimposed upon whatever systems may already be administered by

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the States . . . .’” Cnty. of Sacramento v. Lewis, 523 U.S. 833,

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848 (1998) (quoting Paul v. Davis, 424 U.S. 693, 701 (1976)).

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Brittain v. Hansen, 451 F.3d 982, 990 (9th Cir.

In this case, Starkey cites only California state law

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authority to support her position that a right to quiet enjoyment

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of property is a cognizable constitutional right.

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Additionally, those cases deal with inverse condemnation, which is

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derived from the California Constitution.

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however, only gives rise to violations of the federal Constitution.

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See Monroe v. Pape, 365 U.S. 167, 171 (1961), overruled on other

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grounds by Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658

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(1978).

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Sacramento cases, supra, the Court finds that in the absence of any

See Opp. 12.

42 U.S.C. § 1983,

Thus, in accordance with the Brittain and County of

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authority supporting the extension of substantive due process to a

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right of quiet enjoyment of property, doing so is improper.

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CHPD Defendants’ motion to dismiss this claim is granted.

The

3. Takings Clause

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Starkey also contends that she suffered an uncompensated

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taking of property when the CHPD Defendants instigated a campaign

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of harassment against her.

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Starkey does not plead sufficient facts to maintain her claim.

The CHPD Defendants respond that

The Court agrees with the CHPD Defendants.

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As discussed

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above, the Complaint contains few facts, if any, that plausibly

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support the allegation that Starkey was subject to a campaign of

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harassment by the CHPD Defendants.

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alleged harassment actually affecting Starkey’s property originated

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from the Neighbor Defendants, not the CHPD Defendants.

Further, the bulk of the

The Complaint also alleges that the CHPD Defendants

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confiscated two recorders from Ooley and after a delay turned them

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over to Starkey.

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her home surveillance system.

Starkey was also allegedly ordered to turn off

In order to state a claim under the Fifth Amendment, a

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plaintiff must allege that private property was taken for a public

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use without just compensation.

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Wood, 970 F. Supp. 824, 831 (E.D. Wash. 1997).

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to plead facts demonstrating that her property was converted to a

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public use.

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control, but the CHPD Defendants did not convert them to public

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use.

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alleges that she was ordered to turn off the system, but fails to

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allege that the system was converted to a public use.

U.S. Const. Amend. V; Allen v.
Here, Starkey fails

The recorders were temporarily removed from Ooley’s

The same is true for the home surveillance system.

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Starkey

Accordingly,

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the motion to dismiss this claim is granted.
4. Right to Petition Government

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Finally, Starkey claims a right to recover on the grounds

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that the CHPD Defendants retaliated against her because she filed a

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complaint with the CHPD Internal Affairs unit.

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respond that this claim is pled with respect to Ooley, not Starkey.

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The CHPD Defendants

The Court agrees with the CHPD Defendants.

The paragraphs

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cited by Starkey in her Opposition reference a call made by Ooley

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to the CHPD internal affairs officer.

Opp. 17 (citing Compl.

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¶¶ 124-127, 161(e), 169).

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complained to CHPD.

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the government.

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allegations sufficient to maintain this claim, and it is also

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dismissed.

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There is no allegation that Starkey also

Starkey does not allege that she petitioned

The Complaint therefore does not contain factual

Starkey fails to state a cognizable claim under 42 U.S.C.

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§ 1983 and therefore the second cause of action against the CHPD

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Defendants is dismissed in its entirety.

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C.

Subject Matter Jurisdiction

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The CHPD Defendants also move to dismiss Starkey’s claim for

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lack of federal subject matter jurisdiction.

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discussed in the previous section, Starkey’s Complaint does not

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state a federal claim against the CHPD Defendants and her claim

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against them is dismissed on that basis.

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dismissed, it is not necessary for the Court to determine whether

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or not it would have had subject matter jurisdiction over that

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claim.

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D.

For the reasons

Since that claim is

Leave to Amend

The final issue before the Court is whether or not to grant
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leave to amend Starkey’s Complaint to cure defects in her 28 U.S.C.

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§ 1983 claim.

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indicate what amendments she will make.

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granting leave to amend, but do not indicate why permitting further

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amendment would be futile.

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Starkey requests leave to amend, but she does not
The CHPD Defendants oppose

“Dismissal with prejudice and without leave to amend is not

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appropriate unless it is clear . . . that the complaint could not

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be saved by amendment.”

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316 F.3d 1048, 1052 (9th Cir. 2003).

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Eminence Capital, L.L.C. v. Aspeon, Inc.,

In this case, Starkey submitted a 98 page complaint reciting

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the facts giving rise to her constitutional claim.

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exhaustive detail and lengthy recitation of facts in Starkey’s 98

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page complaint, she was unable to adequately plead a valid federal

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civil rights claim.

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activity was directed toward Ooley.

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argue, primarily a witness to that activity and not the object the

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CHPD Defendants’ alleged conduct.

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Complaint, it is readily apparent that all of the allegations

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Starkey can plead are now before the court, and that Starkey would

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be unable to state a federal civil rights claim against the CHPD

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Defendants if given leave to amend, i.e. any further amendment

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would be futile.

It is clear that the bulk of the alleged

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Starkey was, as Defendants

Because of the detailed

III. ORDER

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Despite the

For the reasons discussed above, Plaintiff Janis Starkey’s
claims against the CHPD Defendants are dismissed with prejudice.
IT IS SO ORDERED.
Dated: May 24, 2012

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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