Giddens v. City of Suisun et al

Filing 19

FINDINGS and RECOMMENDATIONS, recommending defendants' 6 Motion to Dismiss 1 Complaint be granted in part and denied, signed by Magistrate Judge Allison Claire on 10/20/2014. These Findings and Recommendation are SUBMITTED to District Judge Troy L. Nunley. Within 14 days after being served with these Findings and Recommendatinos, any party may file written Objections with Court and serve a copy on all parties. (Marciel, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD GIDDENS, 12 Plaintiff, 13 14 No. 2:14-cv-0943-TLN-AC v. FINDINGS & RECOMMENDATIONS CITY OF SUISUN, ET AL., 15 Defendants. 16 17 18 On October 15, 2014, the court held a hearing on defendants’ motion to dismiss. Plaintiff 19 Richard Giddens appeared in pro per and Danielle K. Lewis appeared for defendants. On review 20 of the motions, the documents filed in support and opposition, upon hearing the arguments of 21 plaintiff and counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS: RELEVANT FACTUAL AND PROCEDURAL BACKGROUND 22 23 24 A. Factual Allegations of the Complaint On April 18, 2012, plaintiff left his home to attend a “crime conference” being held by the 25 Suisun Police Department at the Nelson Community Center. ECF No. 1 at 5. Around 6:45 P.M. 26 plaintiff backed out of his driveway, where he noticed his neighbor, Mr. Bluford, was playing 27 basketball with a group of people in the street. Id. Mr. Bluford and plaintiff have had a number 28 of disagreements in the past, some of which involving false claims regarding plaintiff by Mr. 1 1 Bluford. Id. at 4. Plaintiff backed out slowly and avoided Mr. Bluford and the others in the street 2 before driving away. Id. at 5. Fifteen minutes after plaintiff drove away Mr. Bluford called the 3 Suisun Police and claimed that plaintiff had tried to hit him with his car. Id. 4 At approximately 6:55 P.M. plaintiff arrived at the crime conference, where he saw 5 defendant Sergeant Andrew White waiting outside the community center. Id. Plaintiff then 6 waited outside of the community center for a short time with another individual, George Guynn, 7 before entering. Id. At the conference, plaintiff and Mr. Guynn asked defendants Chief Edmond 8 Dashido and Commander Tim Mattos several “harsh” questions on topics ranging from crime 9 reporting and statistics to biased policing. Id. After the conference ended at about 8:00 P.M., 10 plaintiff and Mr. Guynn spoke with a member of the local media near the back of the building. 11 Id. at 6. Plaintiff then exited the room and entered a hallway where another member of the media 12 was interviewing an attendee. Id. There, he was greeted by defendants Officer Michael Urlaub 13 and Commander Mattos, who asked to speak with him. Id. Plaintiff agreed and walked down the 14 hallway with Mr. Guynn, Officer Urlaub, and Commander Mattos. Id. At that point, Commander 15 Mattos requested that plaintiff move into a corner where he could not be seen by anyone else. Id. 16 Feeling uncomfortable with the request, plaintiff twice asked Officer Urlaub and Commander 17 Mattos what it is they wanted. Id. 18 Plaintiff then turned and began walking toward a television film crew, exclaiming “hey 19 news media!” Id. Commander Mattos then came up behind plaintiff, slammed his head into the 20 wall, and threw him to the ground, causing blood to fill his left ear. Id. Upon being thrown to the 21 ground plaintiff immediately and repeatedly screamed, “What are you doing? Stop it, you’re 22 hurting me!” Id. Sgt. White and Chief Dashido were both present and witnessed the event. Id. 23 Officer Urlaub and Commander Mattos then escorted plaintiff to a squad car, where he asked, 24 “Why didn’t you just tell me that I was under arrest?” but neither responded. Id. Officer Urlaub 25 and Commander Mattos then escorted plaintiff to jail, however the jail refused to accept plaintiff 26 into custody because of his head injuries. Id. Plaintiff was then taken to a hospital by another 27 officer, but plaintiff refused treatment because of the cost. Id. at 7. 28 The next morning, plaintiff made bail and sought treatment at the Travis AFB DGMC 2 1 Emergency Room. Id. At the ER, plaintiff had a photograph taken of himself with dried blood 2 on his ear. Id. Several days later, plaintiff returned to the ER to document bruises caused by his 3 altercation with the Suisun Police Department. Id. To this day, plaintiff experiences concussive 4 symptoms including, dizziness, headaches, tinnitus, sensitivity and pain from noise, as well as 5 nightmares that cause severe emotional distress. Id. On or about April 21, 2012, plaintiff was 6 criminally charged by the Solano County District Attorney’s Office based on a complaint filed by 7 Sgt. White, Commander Mattos, and Chief Dashido. Id. On February 7, 2014, plaintiff was 8 acquitted of Count 1, assault with a deadly weapon, in part because he had submitted to the court 9 a home security camera video showing him leaving his home for the crime conference peacefully 10 on April 18, 2012. Id.1 The jury was hung with regards to the other three counts against plaintiff. 11 Id. 12 B. Procedural Background 13 On April 17, 2014, plaintiff filed his complaint against defendants, asserting claims of (1) 14 Fourth Amendment-Unlawful Arrest, 42 U.S.C. §1983; (2) Fourth Amendment-Excessive Force, 15 42 U.S.C. §1983, (3) Conspiracy to Commit Constitutional Violations, 42 U.S.C. §1985, (4) 16 Equal Protection, Fourteenth Amendment, 42 U.S.C. §1983, (5) Monell Liability Supervisor 17 Liability (Respondeat Superior), 42 U.S.C. §1983, (6) Monell Liability Failure to Train, 18 Supervise, and Discipline, 42 U.S.C. §1983, (7) Malicious Prosecution, 42 U.S.C. §1983, (8) 19 Assault, (9) Battery, (10) False Imprisonment, (11) Intentional Infliction of Emotional Distress, 20 (12) Violation of Separation of Powers, (13) Dilution of Vote, and (14) Dilution of 21 Representation. ECF No. 1. 2 22 On September 2, 2014, defendants filed their motion to dismiss the following causes of 23 24 25 26 27 28 1 Although plaintiff’s complaint alleges that he was acquitted on February 7, 2012, at the court’s October 15, 2014, hearing plaintiff explained that he had made a typographical error, and that he was in fact acquitted on February 7, 2014. 2 The cover page of plaintiff’s complaint lists his eighth cause of action as assault and his ninth cause of action as battery. ECF No. 1 at 1. However, in the body of plaintiff’s complaint he designates battery as his eighth cause of action and skips his ninth cause of action entirely. Id. at 14. If plaintiff decides to file an amended complaint, he must consecutively number and discuss individually all of his claims. 3 1 action: third (conspiracy), fourth (violation of the Equal Protection Clause of the Fourteenth 2 Amendment), fifth (Monell liability supervisor liability), sixth (Monell Liability failure to train, 3 supervise & discipline), seventh (malicious prosecution), eleventh (intentional infliction of 4 emotional distress), twelfth (violation of separation of powers), thirteenth (dilution of vote), and 5 fourteenth (dilution of representation). ECF No. 6. On September 16, 2014, plaintiff filed its 6 opposition. ECF No. 14. On October 8, 2014, defendants filed their reply. ECF No. 17. 7 LEGAL STANDARDS 8 9 The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 10 578, 581 (9th Cir. 1983). “Dismissal can be based on the lack of a cognizable legal theory or the 11 absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police 12 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a 13 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 14 (2007). Thus, a defendant’s Rule 12(b)(6) motion challenges the court’s ability to grant any relief 15 on the plaintiff’s claims, even if the plaintiff’s allegations are true. 16 In determining whether a complaint states a claim on which relief may be granted, the 17 court accepts as true the allegations in the complaint and construes the allegations in the light 18 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. 19 United States, 915 F.2d 1242, 1245 (9th Cir. 1989); see also Rodriguez v. Panayiotou, 314 F.3d 20 979, 983 (9th Cir. 2002). A court is not “required to accept as true allegations that are merely 21 conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden 22 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 23 If a Rule 12(b)(6) motion is granted, “[the] district court should grant leave to amend even 24 if no request to amend the pleading was made, unless it determines that the pleading could not 25 possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 26 2000) (en banc). That is, leave to amend need not be granted where amendment would be futile. 27 Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002). 28 //// 4 1 2 3 DISCUSSION A. 1983 Claims In order to sue a local government entity or its employees in a federal court for civil rights 4 violations, a plaintiff must rely on statutory provisions that permit individuals to seek relief in 5 federal court. The federal civil rights statute, 42 U.S.C. § 1983, provides in pertinent part: 6 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 7 8 9 10 Section 1983 “creates a cause of action against a person who, acting under color of state 11 law, deprives another of rights guaranteed under the Constitution.” Henderson v. City of Simi 12 Valley, 305 F.3d 1052, 1056 (9th Cir. 2002). “In order to allege a claim upon which relief may 13 be granted under § 1983, a plaintiff must show that he or she has been deprived of a ‘right 14 secured by the Constitution and . . . law of the United States’ and that the deprivation was ‘under 15 color’ of state law.” Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003) (citing Flagg Bros., 16 Inc. v. Brooks, 436 U.S. 149, 155 (1978) (quoting 42 U.S.C. § 1983)). 17 Defendants do not seek dismissal of plaintiff’s §1983 claims alleging unlawful arrest and 18 use of excessive force in violation of his Fourth Amendment rights by individual officers 19 (plaintiff’s first and second causes of action). They do challenge the sufficiency of plaintiff’s 20 other § 1983 claims, which the court now addresses in turn. 21 1. 22 Defendants argue that plaintiff has failed to state a cause of action against defendants Equal Protection Clause 23 Dashido and Mattos for violation of the Equal Protection Clause, because plaintiff has not alleged 24 that he belongs to a protected class. “To state a claim under 42 U.S.C. § 1983 for a violation of 25 the Equal Protection Clause of the Fourteenth Amendment a plaintiff must show that the 26 defendants acted with an intent or purpose to discriminate against the plaintiff based upon 27 membership in a protected class.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 28 Plaintiff alleges that the Suisun Police Department has a policy of recording officers’ interactions 5 1 with him, and no one else. ECF No. 1 at 10. For equal protection purposes, protected classes are 2 those based on race, national origin, religion, sex and, at least in the Ninth Circuit, sexual 3 orientation. See, e.g., Bingham v. City of Manhattan Beach, 341 F.3d 939, 948-49 (9th Cir. 4 2003) (race); Oona . McCaffrey, 143 F.3d 473, 476 (9th Cir. 1998) (sex); SmithKline Beecham 5 Corp. v. Abbott Labs, 740 F.3d 471 (9th Cir. 2014) (sexual orientation). Plaintiff does not allege 6 that he belongs to a protected class, or that he has been discriminated against on the basis of his 7 membership in a protected class.3 Accordingly, the court finds that plaintiff has failed to state a 8 cause of action for a violation of the Equal Protection Clause. 9 At hearing on the motion, plaintiff indicated that he seeks to state an equal protection 10 claim as a “class of one.” Where a governmental entity distinguishes among citizens on grounds 11 other than membership in a protected class, the Equal Protection Clause requires only that it have 12 a rational basis for doing so. See Kadrmas v. Dickerson Public Schools, 487 U.S. 450, 457-58 13 (1988). Accordingly, although an equal protection claim may be brought by a “class of one,” the 14 plaintiff bears the burden of proving that he “has been intentionally treated differently from others 15 similarly situated and that there is no rational basis for the difference in treatment.” SeaRiver 16 Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002). “An equal protection 17 claim will not lie by conflating all persons not injured into a preferred class receiving better 18 treatment than the plaintiff.” Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 19 2005). Because plaintiff does not identify similarly situation individuals who have been treated 20 more favorably for no rational reason, the claim must be dismissed. 21 Defendants request that the court deny leave to amend. However, the court does not find 22 at this stage of the proceeding that plaintiff’s claim could not possibly be cured by the allegation 23 of other facts. Lopez, 203 F.3d at 1127. Accordingly, the court will grant plaintiff leave to 24 amend his Equal Protection Claim. If plaintiff wishes to file an amended Equal Protection Claim 25 3 26 27 28 At the court’s October 15, 2014, hearing plaintiff argued that as a person with a disability he belongs to a protected class; however, “the disabled do not constitute a protected class.” Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001) (citation omitted). Plaintiff also argued that he belongs to a protected class as an elderly person, but the elderly also do not constitute a protected class for equal protection purposes. Lamb v. Scripps College, 627 F.2d 1015, 1018 (9th Cir. 1980). 6 1 he must allege (1) that he is a member of a protected class; and (2) facts demonstrating that 2 defendants Dashido and Mattos discriminated against him because of his membership in a 3 protected class. In the alternative, if he does not claim membership in a protected class, plaintiff 4 must plead facts demonstrating (1) that other individuals are similarly situated and (2) have been 5 treated more favorably, and (3) that the defendants have no rational basis for treating plaintiff 6 differently than the similarly situated others. 7 2. 8 Defendants argue that plaintiff’s fifth cause of action against defendants the City of 9 Fifth Cause of Action Suisun, Suisun City Council, the Suisun Police Department, Mr. Dashido, Mr. Mattos, and Mr. 10 White should be dismissed because plaintiff has failed to allege facts sufficient to establish a 11 policy, custom, or practice. “[A] municipality cannot be held liable under § 1983 on a respondeat 12 superior theory.” Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978). 13 A plaintiff must establish that the municipality “had a deliberate policy, custom, or practice that 14 was the moving force behind the constitutional violation he suffered.” Whitaker v. Garcetti, 486 15 F.3d 572, 581 (9th Cir. 2007) (citation omitted). “In this circuit, a claim of municipal liability 16 under [§ ] 1983 is sufficient to withstand a motion to dismiss even if the claim is based on nothing 17 more than a bare allegation that the individual officers’ conduct conformed to official policy, 18 custom, or practice.” Id. (citation omitted). However, that policy or custom must, in accordance 19 with the standards at the motion to dismiss stage, be a plausible one. Bell Atl. Corp., 550 U.S. at 20 555. 21 Plaintiff alleges that defendants have a policy of prosecuting people who they know have 22 been wrongfully arrested. ECF No. 1 at 11. Plaintiff also alleges that defendants encourage the 23 Suisun Police Department to arrest and convict people without any probable cause in order to 24 make a profit and insulate themselves from liability. Id. Plaintiff fails to explain, however, why 25 defendants would have a policy of arresting and convicting innocent people in the first place, or 26 how they would make a profit from doing so. Id. Nor does plaintiff allege how his constitutional 27 rights have been violated by this policy, other than to say that “[p]laintiff was deprived of his 28 constitutional rights as aforesaid.” Id. Accordingly, the court finds that plaintiff’s fifth cause of 7 1 action does not allege facts sufficient to state a plausible claim for relief. 2 Defendants request that the court dismiss plaintiff’s fifth cause of action without leave to 3 amend. However, the court does not find that plaintiff’s claim could not possibly be cured by the 4 allegation of other facts. Lopez, 203 F.3d at 1127. Accordingly, the court will grant plaintiff 5 leave to amend its fifth cause of action. If plaintiff wishes to file an amended fifth cause of action 6 he must allege (1) that defendants have a plausible policy or practice; and (2) how defendants’ 7 policy or practice violated his constitutional or federal statutory rights. 8 3. 9 Defendants also argue that plaintiff’s sixth cause of action against defendants the City of 10 Suisun, Suisun City Council, the Suisun Police Department, Dashido, and Mattos fails to allege 11 facts sufficient to establish a policy, custom, or practice. Plaintiff’s sixth cause of action alleges 12 that defendants have a policy of refusing to investigate excessive force complaints and that 13 defendant Mattos used excessive force during his arrest because of this policy. ECF No. 1 at 12– 14 13. In the Ninth Circuit even a bare allegation that an officer’s conduct conformed to an official 15 policy is enough to establish that a policy existed at the motion to dismiss stage. Whitaker, 486 16 F.3d at 581. Accordingly, the court finds that plaintiff has stated a claim for relief under § 1983 17 because he has alleged that his Fourth Amendment rights were violated pursuant to an official 18 policy. 19 B. Sixth Cause of Action Conspiracy 20 Defendants argue that plaintiff has failed to state a cause of action for conspiracy under 42 21 U.S.C. § 1985 because he does not allege that he was discriminated against for being a member of 22 a protected class. To prove a conspiracy in violation of the first clause of § 1985(3), a plaintiff 23 must show “(1) that ‘some racial, or perhaps otherwise class-based, invidiously discriminatory 24 animus [lay] behind the conspirators’ action, . . . and (2) that the conspiracy ‘aimed at interfering 25 with rights’ that are ‘protected against private, as well as official, encroachment.’” Bray v. 26 Alexandria Women's Health Clinic, 506 U.S. 263, 267-68 (1993) (citation omitted). Further, the 27 court need not accept as true, even at the motion to dismiss stage, conclusory allegations of 28 conspiracy. Bell Atl. Corp., 550 U.S. 544, 556–57 (2007). To state a claim for conspiracy a 8 1 plaintiff must allege facts demonstrating that a conspiracy existed. Id. 2 Plaintiff alleges that defendants Dashido, Mattos and White conspired to violate his due 3 process rights. ECF No. 1 at 9–10. However, plaintiff does not allege facts that demonstrate such 4 a conspiracy existed. Plaintiff also does not allege that he belongs to a protected class, or that he 5 was discriminated against for belonging to a protected class. Accordingly, the court finds that 6 plaintiff has failed to state a claim for conspiracy in violation of § 1985. 7 Defendants request that the court dismiss plaintiff’s claim for conspiracy without leave to 8 amend. However, the court does not find that plaintiff’s claim could not possibly be cured by the 9 allegation of other facts. Lopez, 203 F.3d at 1127. Accordingly, the court will allow plaintiff 10 leave to amend its claim for conspiracy. If plaintiff files an amended claim for conspiracy under 11 § 1985 he must allege facts demonstrating that defendants entered into a conspiracy to 12 discriminate against him based on his membership in a protected class. 13 C. 14 Malicious Prosecution and Intentional Infliction of Emotional Distress Defendants argue that plaintiff’s claims for malicious prosecution and intentional 15 infliction of emotional distress (IIED) against defendants Dashido, Mattos and White (“Officers”) 16 are barred by California Government Code § 821.6.4 Section 821.6 immunizes “the 17 [municipality] and its employees from liability for the actions or omissions of the investigating 18 officers if: (1) the officers were employees of the County; (2) [the plaintiffs’] injuries were caused 19 by acts committed by the officers to institute or prosecute a judicial or administrative proceeding; 20 and (3) the conduct of the officers while instituting or prosecuting the proceeding was within the 21 scope of their employment.” Cnty. of Los Angeles v. Superior Court, 181 Cal. App. 4th 218, 228 22 (2009), as modified (Jan. 22, 2010) (citing Amylou R. v. Cnty. of Riverside, 28 Cal. App. 4th 23 1205, 1209 (1994)). § 821.6 immunizes public employees even if they have acted maliciously or 24 without probable cause. Id. Further, § 821.6 immunity broadly extends to liability under all state 25 statutory and common law causes of action. Gillan v. City of San Marino, 147 Cal. App. 4th 26 27 28 4 California Government Code § 821.6 states “[a] public employee is not liable for injury caused by instituting or prosecuting any judicial administrative proceeding within the scope of his employment, even if he acts maliciously or without probable cause.” 9 1 1033, 1047-48 (applying § 821.6 immunity to causes of action for defamation and IIED). Based 2 on the facts alleged in plaintiff’s complaint, the court finds both that the Officers are employees 3 of the City of Suisun and that they were acting within the scope of their employment at all times. 4 ECF No. 1 at 13–14, 15. 5 Whether plaintiff’s injuries were caused by the Officers’ conduct in instituting or 6 prosecuting a judicial proceeding is less certain. Plaintiff’s incorporation of facts by reference in 7 the complaint makes the substance of his claims unclear.5 Plaintiff seems to allege that the 8 Officers are liable for malicious prosecution because they filed Mr. Bluford’s complaint knowing 9 that it was meritless. See ECF No. 1 at 13–14. Plaintiff further alleges that in doing so the 10 Officers engaged in a conspiracy to falsely convict him that amounted to extreme and outrageous 11 conduct, causing him severe emotional distress. Id. at 15. Based on these allegations it appears 12 that plaintiff’s claim of malicious prosecution and IIED both arise out of the Officers’ 13 involvement in plaintiff’s criminal prosecution. Accordingly, the court will recommend 14 dismissing plaintiff’s claims of malicious prosecution and IIED.6 15 Defendants request that the court dismiss plaintiff’s malicious prosecution and IIED 16 claims without leave to amend. The court finds that plaintiff’s malicious prosecution claim 17 cannot be cured because it is precluded by the plain language of California Government Code § 18 19 20 21 22 23 24 25 26 27 28 5 Plaintiff incorporates facts by reference throughout his complaint. However, allegations that incorporate each preceding paragraph, regardless of relevancy, are not permitted. Byrne v. Nezhat, 261 F.3d 1075, 1129–1130 (11th Cir. 2001). If plaintiff decides to file an amended complaint, he must include in each cause of action a short and plain statement outlining the relevant facts. 6 Plaintiff argues in his opposition that the Officers are not immune because they violated his clearly established constitutional rights. See Anderson v. Creighton, 483 U.S. 635, 640 (1987). However, plaintiff seems to misunderstand the immunity to which defendants are referring. Plaintiff refers to qualified immunity, which protects government employees from federal and constitutional claims. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Goleta Union Elementary Sch. Dist. v. Ordway, 166 F. Supp. 2d 1287, 1298 (C.D. Cal. 2001) (noting that the qualified immunity doctrine applies solely to federal and constitutional claims). Defendants, however, argue that the Officers are protected by § 821.6 immunity, which protects California agencies and their employees from state and common law claims. Gillan, 147 Cal. App. 4th at 1048. Malicious prosecution and IIED are common law claims governed by state law even when they are brought in federal court. See id. (IIED); Javor v. Taggart, 98 Cal. App. 4th 795, 808 (2002) (malicious prosecution). 10 1 821.6. Accordingly, the undersigned will recommend dismissal of this claim without leave to 2 amend. 3 The court also finds that plaintiff’s IIED claim cannot be cured to the extent that it is 4 based on allegations regarding the Officers’ involvement in his criminal prosecution. If, 5 however, plaintiff alleges in an amended complaint that he suffered extreme emotional distress 6 that arose from acts of the defendants independent of involvement in his criminal charges, § 821.6 7 will not bar the claim. Accordingly, the undersigned will recommend that the IIED be dismissed 8 without leave to amend only insofar as it is predicated on the defendants’ involvement in 9 initiating and/or pursuing criminal charges, and with leave to amend as to any other predicate 10 injury alleged in the complaint. 11 D. 12 Dilution of Vote and Dilution of Representation Defendants argue that plaintiff’s causes of action against defendants City of Suisun and 13 Suisun City Council for dilution of vote and dilution of representation (hereinafter “Voting 14 Claims”) should be dismissed because plaintiff fails to explain their statutory, constitutional, or 15 common law basis.7 “Dismissal can be based on the lack of a cognizable legal theory or the 16 absence of sufficient facts alleged under a cognizable legal theory.” Balistreri, 901 F.2d at 699. 17 Plaintiff bases his Voting Claims on policy arguments regarding the size of Suisun City Council. 18 ECF No. 1 at 18–19. Specifically, plaintiff claims that many of the City of Suisun’s problems 19 arise out of the high ratio of citizens to city councilmembers. Id. 20 Plaintiff’s opposition, which mostly repeats his policy arguments, points to Department of 21 Commerce, et al. v. U.S. House of Representatives, et al., 525 U.S. 316 (1999), to support his 22 claims. ECF No. 14 at 10–11. Department of Commerce held that state residents have standing 23 to challenge the use of Census data that would cause them to lose a state representative, thus 24 diluting their voting power. 525 U.S. at 330. Appellees in Department of Commerce, however, 25 brought a claim under the Census Act, 13 U.S.C. § 1 et seq. Id. at 320. Plaintiff has not brought 26 27 28 7 Plaintiff’s cause of action for dilution of representation does not state who it is being brought against, however, based on its similarity to his dilution of vote claim the court concludes that plaintiff intended to bring both claims against the same parties. 11 1 such a claim. 2 Indeed, nowhere does plaintiff explain what legal theory supports his Voting Claims. Nor 3 does plaintiff identify any legal basis for a private right of action to enforce the political rights he 4 is concerned with. The court is aware of no such basis for suit. Accordingly, the court will 5 recommend dismissal of plaintiff’s claims for dilution of vote and dilution of representation. 6 Defendants request that the court dismiss the Voting Claims without leave to amend. The 7 undersigned is highly skeptical that a basis for suit can be identified. However, in light of 8 petitioner’s pro se status and the Circuit’s policy of liberally permitting amendment, the court will 9 recommend that plaintiff be afforded an opportunity to articulate a cognizable legal theory. If 10 plaintiff files an amended claim for dilution of vote or dilution of representation he must explain 11 their statutory, constitutional, or common law basis. 12 E. Violation of Separation of Powers 13 Defendants also argue that plaintiff’s cause of action against defendants Suisun City 14 Attorney, Suisun City Council, City Manager Suzanne Bragdon, and Chief Dashido for separation 15 of powers violations should be dismissed because plaintiff fails to explain its statutory or 16 common law basis. 17 The factual basis of this claim is as unclear as its legal basis. Plaintiff alleges that the City 18 Attorney meets with members of Suisun City Council and members of the executive branch 19 (including the City Manager) in “closed door sessions” to discuss policy. ECF No. 1 at 16–18. 20 Plaintiff alleges that these discussions encourage collusion and erode “the separation of powers” 21 because they are shielded from public view. Id. However, plaintiff does not explain precisely 22 what meetings he is referring to or what he means by “closed door sessions.” At the court’s 23 October 17, 2014, hearing plaintiff argued that the City of Suisun’s lack of separation of powers 24 is the cause of the unconstitutional policies alleged in his Fifth and Sixth Causes of Action. 25 However, plaintiff did not explain how the city’s relationship with the Suisun City Police 26 Department or other city actors has led to the policies or practices at issue here. Plaintiff 27 nonetheless contends that the city’s policies violate Article 3 Section 3 of the California 28 Constitution (“Art. 3 § 3”), which establishes the State of California’s separation of powers 12 1 2 doctrine. ECF No. 1 at 16–18. As with the Voting Claims, plaintiff has failed to articulate a cognizable legal theory or 3 identify a private right of action. Accordingly, the claim must be dismissed. Again, the court is 4 highly skeptical that a claim can be stated. The separation of powers provision in the California 5 Constitution is, with exceptions not relevant here, “inapplicable to the government below the state 6 level.” Strumsky v. San Diego Cnty. Emps. Ret. Assn., 11 Cal. 3d 28, 36 (1974). This means 7 that “in establishing a governmental structure for the purpose of managing municipal affairs, the 8 Legislature (through statutes) or local entities (through charter provisions and the like) may 9 combine executive, legislative, and judicial functions in a manner different from the structure that 10 the California Constitution prescribes for state government.” Lockyer v. City and Cnty. of San 11 Francisco, 33 Cal. 4th 1055, 1093, n.23 (2004). 12 To the extent that plaintiff seeks to state a claim based on Art. 3 § 3, the court finds that 13 giving leave to amend would be futile. Accordingly, the court will recommend that plaintiff’s 14 claim for violation of separation of powers be dismissed without leave to amend to the extent it is 15 based on an alleged violation of Art. 3 § 3. 16 17 CONCLUSION Based on the foregoing, IT IS HEREBY RECOMMENDED that Defendants’ September 18 2, 2014, motion to dismiss (ECF No. 6) be GRANTED IN PART and DENIED IN PART as 19 follows: 20 1. GRANTED as to Plaintiff’s third (Conspiracy), fourth (Equal Protection), fifth 21 (Unconstitutional Policy), thirteenth (Dilution of Vote) and fourteenth (Dilution of 22 Representation) causes of action, which should be dismissed with leave to amend; 23 24 25 2. GRANTED as to Plaintiff’s seventh (Malicious Prosecution) cause of action, which should be dismissed without leave to amend; 3. GRANTED as to Plaintiff’s eleventh (Intentional Infliction of Emotional Distress) 26 cause of action, without leave to amend insofar as it is predicated on malicious prosecution but 27 without prejudice to an IIED claim based on injuries outside the scope of Cal. Gov. Code § 821.6 28 immunity; 13 1 4. GRANTED as to Plaintiff’s twelfth (Separation of Powers) causes of action, 2 without leave to amend insofar as it is predicated on Article 3 Section 3 of the California 3 Constitution, but without prejudice to a related claim with a different legal basis; and 4 5. 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 7 after being served with these findings and recommendations, any party may file written 8 objections with the court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections DENIED as to plaintiff’s sixth cause of action. 10 shall be served and filed within fourteen days after service of the objections. The parties are 11 advised that failure to file objections within the specified time may waive the right to appeal the 12 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 DATED: October 20, 2014 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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