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

Filing 38

ORDER granting 9 Motion to Dismiss signed by Judge John A. Mendez on 5/29/12. (Kaminski, H)

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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 NEIGHBOR
DEFENDANTS’ MOTION TO DISMISS

This matter is before the Court on Defendants Michelle R.

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Kirwan, Trevor Kirwan, Leland Murray, Jr., Mary Murray, Stephanie

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Murray, Anthony Larish, Alan Spinner, and Jonathan Hanly’s

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(collectively the “Neighbor Defendants”) Motion to Dismiss (Doc.

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#9).1

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“Plaintiffs”) oppose the motion (Doc. #32).

Plaintiffs Garr Ooley and Janis Starkey (collectively

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I.

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This action arises out of Plaintiffs’ allegations that the

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FACTUAL ALLEGATIONS

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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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Neighbor Defendants, acting to aid and abet officers associated

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with the Citrus Heights Police Department (the “CHPD Defendants”),

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engaged in a campaign to violate Plaintiffs’ civil rights.

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Plaintiffs allege in a 98 page complaint and 50 pages of exhibits

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that the Neighbor Defendants engaged in a campaign of harassment

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consisting of a series of minor incidents and confrontations

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including newspaper theft, cursing, angry verbal exchanges,

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flipping “the bird,” applications for restraining orders, chest

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bumping, false accusations of assault, poisoning of decorative

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vegetation, irregular postal service, lies, and general

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denigration.

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eventually convicted of vandalizing Defendant Leland Murray’s

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truck, but he was acquitted of assault and battery charges arising

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from the same incident.

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these incidents were recorded on Plaintiffs’ home surveillance

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system.

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See Compl. (Doc. #2) ¶¶ 49-53.

Plaintiff Ooley was

Plaintiffs allege that the majority of

Plaintiffs allege that the Neighbor Defendants’ campaign of

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harassment was precipitated by neighborhood meetings organized by

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CHPD officers.

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officers defamed Plaintiff Ooley by telling his neighbors that he

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was a sexual pervert and pedophile.

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Neighbor Defendants became antagonistic toward them following these

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meetings.

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At these meetings, Plaintiffs allege that the

Plaintiffs allege that the

The parties dispute the Court’s subject matter jurisdiction.

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Plaintiff brings one federal cause of action, violation of 42

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U.S.C. § 1983, and several state law claims against the Neighbor

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Defendants.

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cause of action for failure to state a claim under Federal Rule of

The Neighbor Defendants seek dismissal of the federal

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Civil Procedure 12(b)(6), and the remaining state law claims for

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lack of federal subject matter jurisdiction under Federal Rule of

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Civil Procedure 12(b)(1) .

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II.
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
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

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all reasonable inferences in favor of the plaintiff.

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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.”

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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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In considering a motion to dismiss, the

Scheuer v.

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

To survive a motion to dismiss, a

Twombly, 550 U.S. at 570.

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

2. 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.”

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

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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).

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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).

A plaintiff bears the

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B.

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The Neighbor Defendants argue that Plaintiffs fail to properly

Failure to State a Claim Under 42 U.S.C. § 1983

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state a § 1983 claim against them.

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dismissal of this claim on the grounds that they are private actors

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to whom § 1983 liability applies only in limited circumstances.

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The Neighbor Defendants contend that Plaintiffs failed to allege

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that the Neighbor Defendants exercised control over state actors, a

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necessary element of private actor liability under § 1983.
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The Neighbor Defendants seek

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Plaintiffs respond that under an aiding and abetting theory of

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liability, the Neighbor Defendants are liable for the CHPD

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Defendants’ conduct so long as the Neighbor Defendants were the

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proximate cause of Plaintiffs’ injuries.

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that the Neighbor Defendants “furthered the agenda of the defendant

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police officers by knowingly and improperly carrying out a campaign

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of harassment [against Plaintiffs].”

Plaintiffs’ theory is

Opp. at 6.

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“A § 1983 plaintiff must demonstrate a deprivation of a right

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secured by the Constitution or laws of the United States, and that

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the defendant acted under color of state law.”

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326 F.3d 1088, 1092 (9th Cir. 2003) (citing West v. Atkins, 487

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U.S. 42, 48 (1988)).

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action.

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835 (9th Cir. 1999) (citing Harvey v. Harvey, 949 F.2d 1127, 1130

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(11th Cir. 1992) (“Only in rare circumstances can a private party

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be viewed as a “state actor” for section 1983 purposes.”)).

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order to state a claim against a private party for the conduct of a

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state official, a plaintiff must allege that the private party

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exercised some control over the state official’s decision.

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Franklin v. Fox, 312 F.3d 423, 445–46 (9th Cir. 2002) (citing King

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v. Massarweh, 782 F.2d 825, 829 (9th Cir. 1986)).

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Kirtley v. Rainey,

Private conduct is presumed not to be state

Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826,

In

In this case, Plaintiffs claim that the Neighbor Defendants

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aided and abetted the CHPD Defendants in violating Plaintiffs’

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civil rights.

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credibly allege that the Neighbor Defendants exercised some control

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over the CHPD Defendants, thereby causing them to violate

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Plaintiffs’ civil rights.

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the Complaint, arguing that those paragraphs contain sufficient

Accordingly, to state a claim Plaintiffs must

Id.

Plaintiffs cite paragraphs 49-51 of

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allegations to state a § 1983 claim against the Neighbor

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Defendants.

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against Plaintiffs.

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CHPD Defendants took steps to turn the Neighbor Defendants against

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Plaintiffs.

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are allegations that the Neighbor Defendants exercised control over

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the CHPD Defendants.

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the CHPD Defendants exercised control over the Neighbor Defendants,

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convincing them to harass Plaintiffs by falsely announcing at

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neighborhood meetings that Plaintiff Ooley was a sex offender.

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Compl. ¶ 41.

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Those paragraphs detail a campaign of harassment
Paragraphs 39-49 contain allegations that the

Compl. ¶¶ 39-49.

Absent from the Complaint, however,

To the contrary, the Complaint alleges that

Plaintiffs theory of liability, aiding and abetting, is simply

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not applicable to the private conduct alleged in the Complaint

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under 42 U.S.C. § 1983.

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this claim is dismissed.

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not legally cognizable, this claim cannot be saved by amendment and

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it is therefore dismissed without leave to amend.

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Capital, 316 F.3d at 1052.

See Sutton, 192 F.3d at 835.

Accordingly,

Since Plaintiff’s theory of liability is

See Eminence

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C.

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The Neighbor Defendants seek dismissal of Plaintiffs’

Subject Matter Jurisdiction Over the State Law Claims

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remaining state law claims due to a lack of federal subject matter

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jurisdiction.

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federal claim against them is dismissed, the remaining state law

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claims must also be dismissed because the Court lacks jurisdiction

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pursuant to 28 U.S.C. § 1331.

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characterize the remaining state law claims as “petty neighborhood

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disputes which have no factual relationship the civil rights

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claims” against the CHPD Defendants.

The Neighbor Defendants argue that once the single

The Neighbor Defendants also

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Reply 7.

Plaintiffs oppose

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dismissal arguing that the court retains jurisdiction, at its

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discretion, pursuant to 28 U.S.C. § 1367(c) because the state law

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claims are related to Plaintiffs’ federal claims against the CHPD

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Defendants.

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Federal courts have jurisdiction over federal claims pursuant

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to 28 U.S.C. § 1331 and over pendent state law claims pursuant to

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28 U.S.C. § 1367(a).

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claim pursuant to 28 U.S.C. § 1367(a) is constitutional so long as

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the state law claim is part of the same case or controversy as a

Federal jurisdiction over a pendent state law

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substantial federal claim.

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Health & Welfare Trust v. Desert Valley Landscape & Maint., Inc.

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(Desert Valley Landscape), 333 F.3d 923, 925 (9th Cir. 2003).

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State and federal claims are part of the same case when they arise

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from the same “common nucleus of operative fact” and “are such that

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a plaintiff ‘would ordinarily be expected to try them in the one

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judicial proceeding.’”

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Gibbs, 383 U.S. 715, 725 (1966)).

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discretion, decline to exercise supplemental jurisdiction over

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parties over whom there is no independent basis for federal

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jurisdiction.

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(9th Cir. 2002).

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Trs. of Constr. Indus. & Laborers

Id. (quoting United Mine Workers of Am. v.
Federal courts may, at their

Mendoza v. Zirkle Fruit Co., 301 F.3d 1163, 1174

In light of the Court’s dismissal of Plaintiffs’ sole federal

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claim against the Neighbor Defendants, the Court no longer has

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federal question jurisdiction over the Neighbor Defendants pursuant

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to 28 U.S.C. § 1331.

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to exercise or not exercise jurisdiction over the state law claims

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against the Neighbor Defendants because there is no basis of

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jurisdiction independent of 28 U.S.C. § 1367.

It is therefore within the Court’s discretion

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Mendoza, 301 F.3d at

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1174.

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Neighbor Defendants arise from a minor neighborhood dispute that is

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better adjudicated in a state forum.

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declines to exercise jurisdiction over the Neighbor Defendants,

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their motion to dismiss the state law claims is granted without

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prejudice, and they are hereby dismissed from this lawsuit.

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the Court declines jurisdiction over the state law claims against

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the Neighbor Defendants, leave to amend the state law claims is

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denied because any amendment would be futile for lack of

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The Court finds that the state law claims against the

Accordingly, the Court

Since

jurisdiction.

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III. ORDER

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For the reasons given, the Neighbor Defendants’ Motion to

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Dismiss is GRANTED with respect to Plaintiffs’ third cause of

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action, Aiding and Abetting a Civil Rights Violation.

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cause of action is hereby dismissed with prejudice.

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Defendants’ Motion to Dismiss Plaintiff’s fourth through seventh

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causes of action is GRANTED and those claims are dismissed without

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prejudice.

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The third

The Neighbor

Leave to amend the state law claims is denied.

IT IS SO ORDERED.
Dated: May 29, 2012

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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