Harrell v. Hornbrook Community Services District, et al.

Filing 50

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 09/09/15 ORDERING that plaintiff's 38 Motion for Early Discovery is DENIED; plaintiff's 45 Motion to Amend the Complaint (Request for Service) is DENIED and the USM's 21 Request for Reimbursement is DENIED and RECOMMENDING that the 14 35 Motions to Dismiss be granted in part and denied in part; referred to Judge Kimberly J. Mueller; Objections to these F&Rs due within 14 days. (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PETER T. HARRELL,

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No. 2:14-cv-01595-KJM-GGH

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS;
ORDER

HORNBROOK COMMUNITY
SERVICES DISTRICT, et al.,
Defendants.
This matter is before the undersigned pursuant to Local Rule 302(c)(21). Currently before

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the court is defendant Robert Winston’s motion to dismiss, filed on February 23, 2015, and

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defendants Hornbrook Community Services District (“HCSD”), Michele Hanson, Patricia Brown,

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Sharrel Barnes, Julie Bowles, Clint Dingman, and Ernest Goff’s (collectively “HCSD

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Defendants”) motion to dismiss, filed on May 22, 2015. ECF Nos. 14, 35. Also before the court

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is (1) the HCSD Defendants’ response to the court’s order requiring them to pay the United States

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Marshals Service (“USM”) for the costs of personal service; (2) plaintiff’s motion for early

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discovery; and (3) plaintiff’s motion for leave to amend. ECF Nos. 34, 38, 45. Having reviewed

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the motions, oppositions, and other filings in this matter, the court will recommend that both

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motions to be denied in part and granted with leave to amend. The court will also deny the

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USM’s request for reimbursement, plaintiff’s motion for early discovery, and plaintiff’s motion

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for leave to amend.
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BACKGROUND

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Plaintiff filed his original complaint along with a motion to proceed in forma pauperis on

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July 7, 2014. ECF Nos. 1, 2. On August 6, 2014, the court granted plaintiff’s motion and

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directed him to submit copies of his summons and complaint to the USM and file a notice stating

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he did so within 14 days. ECF No. 3. On October 9, 2014, the court ordered plaintiff to show

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cause why his case should not be dismissed for failure to timely submit those materials to the

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USM. ECF No. 8. On October 30, 2014, plaintiff filed a response to the court’s order, along with

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a motion for leave to amend and the proposed amended complaint. ECF Nos. 9, 10. Plaintiff’s

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proposed first amended complaint (“amended complaint” or “FAC”) asserted claims against the

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HCSD Defendants and Winston for violation of 42 U.S.C. § 1983; California Government Code

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§§ 1090 and 87100; California Business and Professions Code §§ 17200, et seq.; various

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provisions of the California Labor Code; the HCSD bylaws; the covenant of good faith and fair

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dealing; negligence; employment discrimination and retaliation; conspiracy; negligent and

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intentional infliction of emotional distress; and nuisance.1 ECF No. 10.

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The court then discharged its order to show cause, denied plaintiff’s motion for leave to

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amend as unnecessary, and directed plaintiff to file copies of his summons, complaint, and other

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materials with the USM within 14 days.2 ECF No. 11. On December 29, 2014, plaintiff filed a

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notice stating he had filed the necessary documents with the USM. ECF No. 13. On February

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23, 2015, Winston filed both a waiver of service and a motion to dismiss plaintiff’s amended

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complaint for failure to state a claim, arguing that (1) plaintiff’s § 1983 and § 1985, 1986 claims

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against him should be dismissed because he is not a state actor; (2) plaintiff failed to allege facts

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sufficient to d establish a violation of his First Amendment rights; (3) plaintiff’s state law claims

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Plaintiff frames his first cause of action as asserting claims for violation of his constitutional
right to freedom of speech and due process. ECF No. 10 at 27–29. The court construes these as
§ 1983 claims.
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It is unclear what plaintiff’s intended basis for federal subject matter jurisdiction is. However,
while plaintiff asserts federal and constitutional claims, ECF No. 10 at 1, the parties are diverse,
id. at 13 (alleging that defendants are citizens of California, while plaintiff is a citizen of Oregon),
and plaintiff alleges damages in excess of $75,000, id. at 28 (alleging “general and special
damages in the amount of $250,000”). Accordingly, the court finds that it has federal question
and diversity jurisdiction over plaintiff’s claims. See 28 U.S.C. §§ 1331, 1332.
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should be stricken under California’s Anti-SLAPP statute; and (4) plaintiff has failed to allege

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facts sufficient to state a claim for conspiracy. ECF No. 14-1 at 2–3.

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On March 25, 2015, plaintiff filed a motion for a 45-day extension of time to file an

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opposition. ECF No. 18. On April 1, 2015, the court granted plaintiff’s motion in part and took

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Winston’s motion to dismiss under submission. ECF No. 20. On April 6, 2015, the USM filed a

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request for reimbursement for personal service upon the HCSD Defendants, along with summons

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returned executed. ECF Nos. 21, 22. The HCSD Defendants then filed a motion for extension of

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time to respond to plaintiff’s amended complaint on April 22, 2015, which the court granted two

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days later. ECF Nos. 23, 24. On April 28, 2015, plaintiff filed an opposition to Winston’s

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motion to dismiss. ECF No. 29.

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On May 8, 2015, the court ordered the HCSD Defendants to pay the USM for the costs it

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incurred personally serving them or file a response explaining why it is they should not be

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required to pay the costs of personal service. ECF No. 32. On the same day, Winston filed a

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reply to plaintiff’s opposition. ECF No. 33. The HCSD Defendants filed objections to the court’s

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order that they pay the USM for the costs of personal service on May 22, 2015.3 ECF No. 34.

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The HCSD Defendants then filed their motion to dismiss plaintiff’s amended complaint on May

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22, 2015, arguing that (1) plaintiff’s amended complaint should be dismissed for failure to timely

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and properly serve; (2) plaintiff’s § 1983 claims should be dismissed because the HCSD

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Defendants are not state actors; (3) plaintiff fails to allege facts sufficient to state a § 1983 claim;

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(4) plaintiff’s state law claims should be stricken pursuant to California’s Anti-SLAPP statute;

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and (5) plaintiff fails to allege facts sufficient to state a single state law claim. ECF No. 35.

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On June 2, 2015, plaintiff filed a self-styled request for an order permitting written

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discovery, which the court construes as a request to permit early discovery. ECF No. 38.

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Winston filed an opposition to this motion on June 4, 2015, which the HCSD Defendants joined

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on June 12, 2015. ECF Nos. 39, 40. Plaintiff filed a reply to defendants’ opposition on June 19,

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2015. ECF No. 41.

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Plaintiff filed a self-styled opposition to the HCSD Defendants’ objections on May 29, 2015,
arguing that they should be required to pay the costs of personal service. ECF No. 37.
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On July 13, 2015, plaintiff filed a motion for an extension of time to file an opposition to

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the HCSD Defendants’ motion to dismiss. ECF No. 42. The court granted plaintiff’s motion and

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took the HCSD Defendants’ motion to dismiss under submission on July 22, 2015. ECF No. 43.

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On July 24, 2015, plaintiff filed a self-styled request for service of a John Doe Defendant by the

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USM. ECF No. 45. Plaintiff’s motion asks the court to amend his FAC to include two additional

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defendants: Jason J. Sommer and Robert W. Lucas. Id. Accordingly, the court construes

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plaintiff’s motion as a motion for leave to amend.

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On August 12, 2015, plaintiff filed an opposition to the HCSD Defendants’ motion to

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dismiss. ECF No. 48. At the same time, plaintiff filed declarations by two individuals not

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involved in this litigation, Roger J. Gifford and Kimberly R. Olson. ECF Nos. 46, 47. On

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August 20, 2015, the HCSD Defendants filed a reply to plaintiff’s opposition. ECF No. 49.

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DISCUSSION
I.

STANDARDS FOR A MOTION TO DISMISS, AN ANTI-SLAPP MOTION AND THE

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STATE OF THE RECORD ON THESE MOTIONS

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The verbosity of the First Amended Complaint, ECF # 10, the numerous evidentiary

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attachments thereto, including incorporation of exhibits from the superseded complaint, the

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motion of defendant Winston which attaches an evidentiary declaration, plaintiff’s opposition

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which attaches evidentiary declarations, and the conflicting evidence submission standards

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inherent in a Fed.R.Civ.P 12(b)(6) motion combining the state law inspired anti-SLAPP motion,

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make for a tangled mess almost impossible to adjudicate in these multi-party motions to dismiss.

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The undersigned will nevertheless do his best.

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A.

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The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal

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sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir.

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1983). Dismissal may be based either on the lack of cognizable legal theories or the lack of

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pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep’t,

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901 F.2d 696, 699 (9th Cir. 1990). The complaint’s factual allegations are accepted as true.

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Church of Scientology of California v. Flynn, 744 F.2d 694 (9th Cir. 1984). The court construes

Ordinary Legal Standard for Motion to Dismiss

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the pleading in the light most favorable to plaintiff and resolves all doubts in plaintiff's favor.

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Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). General

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allegations are presumed to include specific facts necessary to support the claim. NOW, Inc., 510

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U.S. at 256 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).

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The court may disregard allegations contradicted by the complaint’s attached exhibits.

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Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987); Steckman v. Hart Brewing,

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Inc., 143 F.3d 1293, 1295 (9th Cir. 1998). Furthermore, the court is not required to accept as true

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allegations contradicted by judicially noticed facts. Mullis v. United States Bankr. Ct., 828 F.2d

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1385, 1388 (9th Cir. 1987). The court may consider matters of public record, including

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pleadings, orders, and other papers filed with the court. Mack v. South Bay Beer Distributors,

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798 F.2d 1279, 1282 (9th Cir. 1986), abrogated on other grounds by Astoria Federal Savings and

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Loan Ass’n v. Solimino, 501 U.S. 104 (1991). “The court is not required to accept legal

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conclusions cast in the form of factual allegations if those conclusions cannot reasonably be

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drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752 (9th Cir. 1994).

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Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. See

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Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

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Pro se pleadings are held to a less stringent standard than those drafted by lawyers.

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Haines v. Kerner, 404 U.S. 519, 520–21 (1972). Unless it is clear that no amendment can cure its

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defects, a pro se litigant is entitled to notice and an opportunity to amend the complaint before

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dismissal. See Lopez v. Smith, 203 F.3d 1122, 1127–28 (9th Cir.2000) (en banc); Noll v.

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Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

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Three points are to be made here concerning the record on these motions to dismiss based

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on Rule 12(b)(6). While documents definitional to a claim may be attached to the complaint, e.g.,

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the contract in a breach of contract action, it is not appropriate to submit a myriad of evidentiary

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exhibits. The complaint becomes a large evidentiary mess where the defendant is unsure of what

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to plead to, and unsure of what is presumed true for the purposes of a motion to dismiss.

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Secondly, Winston requests that the court take judicial notice of five documents: (1)
plaintiff’s amended complaint in this matter; (2) Winston’s attorney profile from the State Bar of
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California; (3) a motion to strike filed in Kimberly R. Olson v. Michele Hanson, et al., Case No.

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SCCVPT14-0672 (Siskoyou Cty. Super. Ct. July 24, 2014); (4) a motion to strike filed in Peter T.

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Harrell v. Michele Hanson, et al., Case No. SCCVPT14-0671 (Siskoyou Cty. Super. Ct. June 30,

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2014); and (5) the complaint filed in Hornbrook Cmty. Servs. Dist. V. Kimberly R. Olson, et al.,

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Case No. SCCVPT14-0797 (Siskoyou Cty. Super. Ct. June 30, 2014). Under Rule 201 of the

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Federal Rules of Evidence, a court must take judicial notice of an adjudicative fact that is not

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subject to reasonable dispute because it is either (1) generally known or “(2) can be accurately

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and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R.

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Evid. 201(b). The filings attached to Winston’s request for judicial notice can be determined

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“from sources whose accuracy cannot reasonably be questioned.” Id. Accordingly, the court

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grants Winston’s request for judicial notice, but on a limited basis. Taking judicial notice of a

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document does not mean that facts asserted therein are necessarily subject to judicial notice.

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When the fact of filing itself is at issue, or the fact that something was written or said or stated is

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relevant per se, quite often judicial notice can be taken of documents demonstrating such.

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Nevertheless, when a party is seeing to have disputed facts taken as true merely because their

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assertion appears in a filing in another jurisdiction or forum, that is quite another matter.

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Moreover, the court denies Winston’s request for judicial notice of plaintiff’s amended complaint

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because it is unnecessary for the court to take judicial notice of the filings herein. See Willard v.

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Sebok, No. CV 13–2251–MMM RNB, 2015 WL 391673, at *2 n.2 (C.D. Cal. Jan.28, 2015).

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Plaintiff and defendant Winston have attached evidentiary declarations to the FAC and

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motion to dismiss, opposition thereto, and reply. The primary issue presented by defendants’

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motions to dismiss is whether plaintiff’s amended complaint should be dismissed under Rule

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12(b)(6), i.e., the allegations themselves are insufficient as a matter of law. ECF Nos. 14, 35.

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Submission of testimony via declaration is clearly improper to test the allegations.

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At the motion to dismiss stage, plaintiff’s factual allegations are presumed to be true. Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While the court may transform motions to

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dismiss into motions for summary judgment on the basis of its consideration of submission of

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extra-record facts, see Fed. R. Civ. P 12(d), to do so here would be decidedly improper. Not only
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does plaintiff, appearing pro se, have insufficient notice of such a transformation, the declarations

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contain assertions and counter-assertions which are the hallmark of disputed facts. Accordingly,

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with one exception set forth below, the filing of supporting declarations by third parties on behalf

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of any party on a Rule 12(b) motion (6) is inappropriate and the court will not consider them.

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The one exception occurs in consideration of defendants’ anti-SLAPP motion. That
standard is discussed below.

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B.

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Combining a Rule 12(b)(6) motion which seeks to exclude evidentiary submissions with

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an anti-SLAPP motion which encourages the submission of evidence makes for a schizophrenic

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Standards on an Anti-Slapp Motion

adjudication.

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California's “anti-SLAPP statute was enacted to allow early dismissal of meritless first

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amendment cases aimed at chilling expression through costly, time-consuming litigation.”

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Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 839 (9th Cir. 2001). “A court considering a

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motion to strike under the anti-SLAPP statute must engage in a two-part inquiry.” Vess v. Ciba-

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Geigy Corp. USA, 317 F.3d 1097, 1110 (9th Cir. 2003). “First, a defendant ‘must make an initial

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prima facie showing that the plaintiff’s suit arises from an act in furtherance of the defendant’s

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rights of petition or free speech.’” Id. (quoting Globetrotter Software, Inc. v. Elan Computer

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Group, Inc., 63 F. Supp. 2d 1127, 1129 (N.D. Cal. 1999)). “Second, once the defendant has made

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a prima facie showing, ‘the burden shifts to the plaintiff to demonstrate a probability of prevailing

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on the challenged claims.’” Id.4 It is clear that anti-SLAPP motions contemplate the submission

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of extra-pleading evidence.

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The Ninth Circuit has determined the standard of review of an anti-SLAPP motion, at
least with respect to the “probability” component:

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As defendants recognize, application of anti-SLAPP state law to federal claims is unavailing.
While anti-SLAPP state law may be applied to state claims in a diversity based action, United
States v. Lockheed Missles etc, 190 F.3d 963, 972, 973 (9th Cir. 1999), the state law does not
serve to permit dismissal of federal claims. Bulletin Displays LLC v. Regency Outdoor
Advertising, 448 F. Supp 2d 1172 (C.D. Cal. 2006) (diversity action); Globetrotter Software v.
Elan Computer Group, Inc., 63 F. Supp. 2d 1127, 1128-1130 (N.D. Cal. 1999).

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In the anti-SLAPP context, “probability” is a low bar. To withstand an
anti-SLAPP motion to strike in California, the plaintiff must demonstrate that the
complaint is both legally sufficient and supported by a sufficient prima facie
showing of facts to sustain a favorable judgment if the evidence submitted by the
plaintiff is credited. In deciding the question of potential merit, the trial court
considers the pleadings and evidentiary submissions of both the plaintiff and the
defendant; though the court does not weigh the credibility or comparative
probative strength of competing evidence, it should grant the motion if, as a matter
of law, the defendant's evidence supporting the motion defeats the plaintiff's
attempt to establish evidentiary support for the claim. Manufactured Home
Communities, Inc. v. Cnty. of San Diego, 655 F.3d 1171, 1176–77 (9th Cir.2011)
(internal alterations and quotation marks omitted). The plaintiff's burden
resembles the burden he would have in fending off a motion for summary
judgment or directed verdict. Gilbert v. Sykes, 147 Cal.App.4th 13, 53 Cal.Rptr.3d
752, 763 (2007); see also Mindys Cosmetics, 611 F.3d at 599.

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Roberts v. McAfee, Inc., 660 F.3d 1156, 1163 (9th Cir. 2011).

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The standard is probably easier to state than to apply, especially where the Rule 12(b)(6)

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Motion and the anti-SLAPP motion are jumbled together. The parties seem to use the pleadings

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and evidence interchangeably for each motion. For the adjudicator, it is not always clear to what

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the parties are referring when they discuss the facts, i.e., just the facts in the pleadings or the

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evidence as a whole. The better practice is to bring the anti-SLAPP motion concurrently, but in a

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separately filed motion. In utilizing the above standard, and requiring a separate but concurrent,

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anti-SLAPP motion apart from that of a Rule 12(b)(6) motion to dismiss, we can stop the

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proverbial pounding of the anti-SLAPP square peg into the motion to dismiss round hole.

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II.

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ANALYSIS OF THE PENDING MOTIONS
A.

Motion to Dismiss
1.

Failure to Properly Serve

The HCSD Defendants first argue that plaintiff’s FAC should be dismissed because

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service upon them was both untimely and ineffective. ECF No. 35-1 at 13–14. Specifically, the

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HCSD Defendants argue that plaintiff violated the court’s December 5, 2014, order that plaintiff

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serve them within ninety (90) days. Id. at 13. In addition, they argue that plaintiff’s FAC should

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be dismissed because every HCSD Defendant except for Goff was served the original complaint
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instead of the operative FAC. Id. at 14. The court declines to dismiss plaintiff’s FAC based on

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ineffective or untimely service. First, the court’s December 5, 2014, order does not, as the HCSD

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Defendants contend, order plaintiff to serve defendants within ninety (90) days. What the court’s

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order does do is instruct the USM to alert the court if it is unable to serve any defendant within

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ninety (90) days. ECF No. 11. Second, plaintiff is proceeding in forma pauperis. This means

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that plaintiff is only responsible for submitting copies of the summons and complaint to the USM,

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who are themselves responsible for serving defendants. 28 U.S.C. § 1915(d) (“The officers of the

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court shall issue and serve all process, and perform all duties in such cases.”). An order

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dismissing plaintiff’s FAC for improper service when serving defendants was not even plaintiff’s

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responsibility would be manifestly unjust.5 The HCSD Defendants cite to no authority supporting

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a contrary conclusion. Accordingly, the court will not dismiss plaintiff’s FAC for improper or

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untimely service.

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2.

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Section 1983 et al.
i.

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State Actors

Both Winston and the HCSD Defendants argue that plaintiff’s § 1983 claims (as well as

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§§ 1985, 1986 claims) should be dismissed because the HCSD is not a state actor. ECF Nos. 14-

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1 at 13, 35-1 at 16–17. The court, however, finds plaintiff’s allegation that the HCSD is a

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municipal corporation sufficient to establish it is a state actor at this juncture in light of the

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limited, of record facts asserted by defendants to the contrary.

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“To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a

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right secured by the Constitution or laws of the United States was violated, and (2) that the

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alleged violation was committed by a person acting under the color of State law.” Long v. Cty. of

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Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48

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(1988)). “[G]enerally, a public employee acts under color of state law while acting in his official

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capacity or while exercising his responsibilities pursuant to state law.” Dang Vang v. Vang

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Xiong X. Toyed, 944 F.2d 476, 479 (9th Cir. 1991).

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That is, of course, assuming the HCSD Defendants were even served improperly, an issue the
court declines to decide.
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Plaintiff alleges that the HCSD is a state actor because it is a municipal corporation and a

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political subdivision of the State of California. ECF No. 10 at 1. Defendants, however, argue

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that although the HCSD is organized as a political subdivision of the State, it is not a state actor.

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ECF No. 14-1 at 12–13; ECF No. 35-1 at 7–8. In support of defendants’ argument they cite

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Gorenc v. Salt River Project Agr. Imp. & Power Dist., 869 F.2d 503, 504 (9th Cir. 1989), which

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they assert controls on all fours. Id. In Gorenc, the Ninth Circuit affirmed the dismissal of a

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plaintiff’s § 1983 claims, holding that the Salt River Project Agricultural Improvement and Power

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District (“Salt River”) did not act under color of state law. 869 F.2d at 509. The court noted that

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while Salt River was designated as a political subdivision of the State by the Arizona

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Constitution, it was not a state actor because it ultimately served a very limited governmental

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purpose. Id. at 504. In support of the court’s finding, it noted that Salt River: (1) was only

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immune from taxation on those activities that were its primary government purpose, unlike other

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utilities; (2) had powers “limited to the purposes justifying its political existence;” (3) was owned

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and operated by private individual landowners; (4) was operated for the benefit of the private

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landowners in the district and not the general public; and (5) was “not financed in any way by the

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State save for certain tax exemptions.” 6 Id. at 504–09.

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Defendants have simply not provided judicially noticeable facts supporting their

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contention that the HCSD is a limited political subdivision comparable to the defendants in

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Gorenc. The HCSD Defendants, for example, assert that the HCSD is privately owned and

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operated. ECF No. 35-1 at 8. However, in support of that contention they cite only generally to

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the HCSD’s bylaws in a thirty-page long attachment to plaintiff’s original complaint which

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plaintiff confusingly “incorporates” into his amended complaint. In any event, even if

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considered, such evidence is inadequate in light of (1) the presumption of truth afforded

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plaintiff’s factual allegations at the motion to dismiss stage, Lee v. City of Los Angeles, 250 F.3d

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It is also worth noting that in making its holding the Ninth Circuit relied, in large part, upon an
Arizona state court case that had held Salt River was not a state actor. Gorenc, 869 F.2d at 505
(citing Niedner v. Salt River Project Agr. Imp. & Power Dist., 121 Ariz. 331, 333 (1979) as
persuasive, though not controlling). Defendants have pointed to no such California state court
case.
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668, 679 (9th Cir. 2001), and (2) the liberal reading the court must afford plaintiff’s pleadings as

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a pro se litigant, Erickson v. Pardus, 551 U.S. 89, 94 (2007).

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Moreover, it appears that the governmental or state actor status of municipal corporations

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is quite different from that of Arizona. California municipal corporations have all the indicia of a

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state public agency whose actions entail state action. See Johnson v. Arvin-Edison Water Storage

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District, 174 Cal. App. 4th 729, 741 (2009). It is also more than ironic that in their motion the

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HCSD Defendants assert they are state actors for purposes of the public agency tort filing

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requirements, but that the District is simply a private entity for purposes of § 1983.

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Accordingly, the court finds on the facts presently before it that the HCSD Defendants are

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state actors, and hence their motion to dismiss should be denied on that basis. A motion for

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summary judgment may elicit more facts in this regard; the denial of the motion to dismiss on

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state action grounds should be without prejudice to a summary judgment motion.

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In addition to asserting that the HCSD is not a state actor, Winston argues that even if the

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HCSD is a state actor he did not act under color of state law because he is not an employee of the

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HCSD. Private parties act under color of state law where the private party conspires with state

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officials to deprive others of constitutional rights. See Tower v. Glover, 467 U.S. 914, 920,

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(1984); Crowe v. Cty. of San Diego, 608 F.3d 406, 440 (9th Cir. 2010). Similarly, “[p]rivate

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persons, jointly engaged with state officials in the challenged action, are acting ‘under color’ of

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law for purposes of § 1983 actions.” Dennis v. Sparks, 449 U.S. 24, 27–28 (1980) (under § 1983,

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a claim may lie against a private party who “is a willful participant in joint action with the State

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or its agents”); Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (“A private individual may be

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liable under § 1983 if she conspired or entered joint action with a state actor.”).

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“To prove a conspiracy between the state and private parties under [§] 1983, the [plaintiff]

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must show an agreement or meeting of the minds to violate constitutional rights. To be liable,

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each participant in the conspiracy need not know the exact details of the plan, but each must at

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least share the common objective of the conspiracy.” United Steelworkers of Am. v. Phelps

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Dodge Corp., 865 F.2d 1539, 1540–41 (9th Cir. 1989) (en banc) (internal quotation marks and

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citations omitted). “To be liable as a co-conspirator, a private defendant must share with the
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public entity the goal of violating a plaintiff's constitutional rights.” Franklin v. Fox, 312 F.3d

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423, 445 (9th Cir. 2002). The Ninth Circuit requires a “substantial degree of cooperation”

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between the government and a private citizen before finding such a conspiracy. Id.

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Plaintiff concedes that Winston is not a state actor, but claims that Winston conspired with

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the HCSD Defendants to deprive him of his constitutional rights and in so doing acted under

6

color of state law. ECF No. 10 at 6–7, 11. However, plaintiff alleges virtually no facts to support

7

his contention that a conspiracy existed between Winston and the HCSD Defendants. Plaintiff

8

does allege that defendants met at Winston’s office on June 27, 2014, in order to have a closed

9

session meeting. Id. at 14–15. However, plaintiff does not allege that defendants entered into

10

any kind of conspiracy while they were at Winston’s office. Nor would such an allegation,

11

without more, be plausible in light of the fact that Winston was representing the HCSD, Michele

12

Hanson, Patricia Brown, and Sharrel Barnes in litigation against plaintiff at the time. See ECF

13

No. 14-9 (Ex. E, Complaint in Hornbrook Cmty. Servs. Dist. V. Kimberly R. Olson, et al., Case

14

No. SCCVPT14-0797 (Siskoyou Cty. Super. Ct. June 30, 2014)). Plaintiff’s complaint is also

15

peppered with general allegations that Winston conspired with, directed, and aided the HCSD

16

Defendants in order to deprive him of his constitutional rights. These allegations are not entitled

17

to the presumption of truth because they are legal conclusions. See Ashcroft v. Iqbal, 556 U.S.

18

662, 664 (2009). Accordingly, the court finds that plaintiff has not alleged facts sufficient to

19

show Winston is a state actor and will grant Winston’s motion to dismiss plaintiff’s federal claims

20

with leave to amend on that basis.7

21

ii.

Constitutional Violations

22

Although plaintiff has sufficiently alleged that the HCSD Defendants are state actors, the

23

court should nevertheless dismiss his federal claims because he has not alleged facts sufficient to

24

state a claim for violation of his rights to due process or freedom of speech. Plaintiff alleges that

25

defendants violated his right to procedural due process by (1) terminating him as HCSD’s Acting

26

7

27
28

Again, while the third party declarations may contain further factual support for plaintiff’s
position, the undersigned is not considering those extra-record facts at this point. If plaintiff can
alleges such facts in an amended complaint in good faith, the court will then consider them on
any further motion to dismiss.
12

1

General Manager and Systems Operator, and (2) refusing to hire him as HCSD’s General

2

Manager. ECF No. 10 at 34–35. Plaintiff also alleges that defendants did the foregoing in

3

retaliation for the complaints he made about the HCSB Board to the HCSD Board itself, the

4

courts, and various California agencies, as well as for statements made at public board meetings.

5

Id. at 27–28. Plaintiff claims that by doing so defendants violated his right to freedom of speech.

6

Id.

7

Plaintiff, however, does not allege facts sufficient to show a violation of his constitutional

8

rights. Generally, a government employee can only state a due process claim based on

9

deprivation of property when he is removed from a position in which he has “a legitimate claim

10

of entitlement.” Board of Regents v. Roth, 408 U.S. 564, 577 (1972). The position holder needs

11

“an individual entitlement grounded in state law, which cannot be removed except ‘for cause,’”

12

Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982), in order to establish a deprivation of

13

due process. Under California law, county charters, rules and regulations generally determine

14

whether there is such an entitlement. Cal. Const. art. 11, § 4(f); American Fed’n of State, Cty. &

15

Mun. Employees Local 685 v. Los Angeles Cty., 146 Cal. App. 3d 879, 888–89 (1983). See also,

16

Weisbuch v. County of Los Angeles, 119 F.3d 778, 780-81 (9th Cir. 1997). Plaintiff alleges in

17

conclusory terms that he had a property right in his position with the HCSD. ECF No. 10 at 28.

18

Such allegations are insufficient to state a claim, however, as they are legal conclusions that are

19

not entitled to the presumption of truth. See Iqbal, 556 U.S. at 664. Plaintiff does not allege facts

20

establishing that he could only be removed for cause either as a Systems Operator or Acting

21

General Manager, and thus that he had a legitimate claim of entitlement. Accordingly, the court

22

will recommend dismissal of plaintiff’s § 1983 claim against the HCSD Defendants based on the

23

violation of his right to due process because he has not alleged sufficient facts.

24

Plaintiff also fails to allege sufficient facts to show that defendants violated his right to

25

freedom of speech. The First Amendment significantly limits government’s ability to punish or

26

prohibit speech when government acts as a sovereign. Engquist v. Oregon Dep’t of Agr., 553

27

U.S. 591, 599–601 (2008) (quoting Connick v. Myers, 461 U.S. 138, 147 (1983)). The Supreme

28

Court has held that government’s actions as a sovereign, however, are distinct from government’s
13

1

actions “as proprietor,” with the latter including management of its own employees. Id. at 2151.

2

In light of this distinction, the Court has held that “constitutional review of government

3

employment decisions must rest on different principles than review of . . . restraints imposed by

4

the government as sovereign.” Id. (quoting Waters v. Churchill, 511 U.S. 661, 674 (1994)).

5

The Ninth Circuit has articulated a five step series of questions to determine whether a

6

public employer impermissibly retaliated against an employee for protected speech:

7

(1) whether the plaintiff spoke on a matter of public concern; (2)
whether the plaintiff spoke as a private citizen or public employee;
(3) whether the plaintiff’s protected speech was a substantial or
motivating factor in the adverse employment action; (4) whether the
state had an adequate justification for treating the employee
differently from other members of the general public; and (5)
whether the state would have taken the adverse employment action
even absent the protected speech.

8
9
10
11
12

Anthoine v. N. Cent. Counties Consortium, 605 F.3d 740, 748 (9th Cir. 2010); see also Gibson v.

13

Office of Atty. Gen., State of Cal., 561 F.3d 920, 925 (9th Cir. 2009) (applying the foregoing test

14

in the context of a motion to dismiss).

15

The first issue is whether the speech was on a matter of public concern. This is a question

16

of law. Anthoine, 605 F.3d at 748 (citing Eng, 552 F.3d at 1070). “Although the boundaries of

17

the public concern test are not well defined,” the Supreme Court has directed courts to “examine

18

the content, form, and context of a given statement, as revealed by the whole record.” City of San

19

Diego v. Roe, 543 U.S. 77, 83–84 (2004) (quoting Connick, 461 U.S. at 147–48) (internal

20

quotations removed). Content is the most important factor. Anthoine, 605 F.3d at 748 (citing

21

Desrochers v. City of San Bernardino, 572 F.3d 703, 710 (9th Cir. 2009)).

22

Plaintiff alleges that defendants violated his First Amendment right to freedom of speech

23

by terminating him in retaliation for his complaints about the HCSD Board. ECF No. 10 at 27.

24

The problem is that plaintiff does not describe these complaints in any detail. For example,

25

plaintiff states that defendants Hanson, Brown, and Barnes denied him current and back wages

26

and declined to appoint him as the General Manager because of “a stated perception concerning

27

Plaintiff’s citizenship, age, and marital status, but also in retaliation because of protected conduct

28

by Plaintiff arising [out] of Plaintiff’s desire that the District operate within the bounds of the
14

1

laws, and also specifically due to Plaintiff[‘s] complaints concerning non-compliance with the

2

laws as made to the Board, to OSHA, and to the California Labor Commissioner.” ECF No. 10 at

3

8. Plaintiff does not otherwise describe the content of his complaints in any way.

4

Until plaintiff clearly describes the speech at issue, including who his complaints were

5

made to and what they were about, he cannot establish that his speech was of public concern, and

6

he cannot state a claim. What’s more, even if plaintiff’s FAC did establish his speech was of

7

public concern it would still fail because it does not address whether plaintiff spoke as a private

8

citizen or public employee. Accordingly, the court will dismiss with leave to amend plaintiff’s §

9

1983 claims based on defendants’ violation of his First Amendment rights because he has not

10

alleged facts sufficient to show that the HCSD Defendants impermissibly retaliated against an

11

employee for protected speech.

12

Plaintiff also alleges that the HCSD Board failed on numerous occasions to adequately

13

notice its meetings publicly in violation of California’s Brown Act, Gov’t Code § 54953. ECF

14

No. 10 at 9, 10, 13, 14, 15, 16–17, 18, 19, 20. It is not clear whether plaintiff is asserting that the

15

HCSD Board’s failure to notice their meetings violated his constitutional rights. 8 Even if

16

plaintiff is asserting such a claim however, his claim must fail because there is no constitutional

17

right “to be heard by public bodies making decisions of policy.” Bridgeport Way Cmty. Ass’n v.

18

City of Lakewood, 203 F. App’x 64, 66 (9th Cir. 2006) (quoting Minn. State Bd. for Cmty. Colls.

19

v. Knight, 465 U.S. 271, 283 (1984)).

20

It is important to note that plaintiff’s lack of specificity when it comes to his constitutional

21

claims is exacerbated by his use of “shotgun pleading.” Shotgun pleadings are pleadings that

22

overwhelm defendants with an unclear mass of allegations and make it difficult or impossible for

23

defendants to make informed responses to the plaintiff’s allegations. They are unacceptable.

24

Federal pleading standards require that plaintiffs give the defendants a clear statement about what

25
8

26
27
28

It is clear that plaintiff does not allege he was specifically excluded from HCSD Board
meetings either individually or based on his association with a group. This distinguishes
plaintiff’s claims from other matters, like Salvador Reza v. Russell Pearce, et al., __F.3d__, 2015
WL 4899122 (9th Cir. March 12, 2015), in which the plaintiff alleges that he was excluded from
a legislative session because of the content of his speech.
15

1

the defendants allegedly did wrong. See Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d

2

1097, 1104 (9th Cir. 2008) (“Under Rule 8(a), the plaintiff must give the defendant fair notice of

3

what the . . . claim is and the grounds upon which it rests.” (internal quotation marks omitted)).

4

One common type of shotgun pleading is where the plaintiff recites a collection of general

5

allegations toward the beginning of the complaint, and then each count incorporates every

6

antecedent allegation by reference. Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001).

7

“The result is that each count is replete with factual allegations that could not possibly be material

8

to that specific count, and that any allegations that are material are buried beneath innumerable

9

pages of rambling irrelevancies.” Id.

10

This is exactly what plaintiff has done in his FAC. While it is proper to generally allege

11

in a factual section background facts which will be applicable to all claims, plaintiff’s amended

12

complaint includes claims that incorporate by reference 26 single-spaced pages of factual

13

allegations, regardless of their relevance. ECF No. 10 at 27. This approach greatly exacerbates

14

the elusive nature of plaintiff’s allegations, and cannot be repeated on amendment if plaintiff

15

wishes to state a claim. That is, the factual elements of the claims themselves should be pled

16

within each claim.

17

3.

18

State Law Claims
i.

19

Anti-SLAPP, Cal. Civ. Proc. Code § 425.169

The court finds that defendants have not established their conduct is protected by the First

20

Amendment and accordingly, will deny their motions to strike. The general standards for ant-

21

SLAPP suits has been set forth previously.

22

The applicability of anti-SLAPP to public agencies/districts for claims based on state law

23

is much in flux at this time. However, the weight of authority permits application of anti-SLAPP

24

protections to public officials for speech within public hearings and for the officials’ public

25

decisions. However, anti-SLAPP is not permitted to be raised by the District entity itself.

26
27
28

9

As do many California cases, the undersigned uses the nomenclature “anti-SLAPP” to define
the motion to strike brought by a defendant who believes the plaintiff is attempting to squelch
protected speech.
16

1

Schwarzburd v. Kensington Police CSP, 225 Cal. App. 4th 1345 (2014); San Ramon Valley Fire

2

Pro. District, 343 (2004). But see Montebello v. Vasquez, 226 Cal. App. 4th 1084 (2014) (not

3

permitting public officials to seek anti-SLAPP protection, review granted 175 Cal. Rptr. 252

4

(2014).

5

The HCSD Defendants argue that defendants’ conduct is protected by California’s anti-

6

SLAPP statute because it “arise[s] out of either the HCSD Defendants acting during their board

7

meetings or in furtherance of defending themselves against Harrell’s state court complaint.” ECF

8

No. 35-1 at 12–13. Such a broad assertion, in and of itself, is insufficient to show that

9

defendants’ conduct is protected by § 425.16, especially because plaintiff (in his evidence) asserts

10

state law violations occurring outside of Board meetings and at extra-record Board meetings.

11

Moreover, as stated previously, it is unclear based on plaintiff’s amended complaint what conduct

12

his claims are based on. This is, in no small part, because of plaintiff’s aforementioned use of

13

shotgun pleading throughout his complaint. What is clear is that some of plaintiff’s claims are

14

based on his termination, which he alleges was in retaliation for his complaints to the HCSD

15

Board itself and various government agencies. The Board itself would not be protected by anti-

16

SLAPP protections in any event. In light of the factual mileu at this time, defendants have not

17

demonstrated that their conduct is protected by § 425.16. Therefore the court need not at this

18

time determine whether plaintiff has met the “probability” aspect at this time.

19

For his part, Winston argues that the conduct forming the basis of plaintiff’s claims is his

20

representation of the HCSD and its board members, which is protected by § 425.16. ECF No. 14-

21

1 at 17–19. A lawyer’s representation of his or her client constitutes conduct protected by

22

California’s anti-SLAPP statute. See Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 734

23

(2003). However, for reasons the court has already touched on, it is not clear whether plaintiff’s

24

claims are based solely on Winston’s representation of the HCSD and its board. Winston

25

dutifully cites to numerous portions of plaintiff’s FAC in his motion, ECF No. 14-1 at 17–18, but

26

his citations are simply not enough to establish protected status given the different aspects of

27

plaintiff’s complaint.

28

Accordingly, the court should deny defendants’ motions to strike because they have not
17

1

made a clear showing that plaintiff’s claims arise out of conduct in furtherance of defendants’

2

rights to petition or freedom of speech. However, the denial should be without prejudice to the

3

filing of a separate anti-SLAPP motion to strike after the filing of an amended complaint.

4
5

ii.

California Tort Claims Act, Cal. Gov’t Code § 945.4

The HCSD Defendants also argue that plaintiff’s state law claims should be dismissed for

6

failure to state a claim because he fails to allege facts sufficient to show he complied with the

7

California Tort Claims Act (“CTCA”). The court agrees and will recommend dismissal of

8

plaintiff’s state law claims against the HCSD Defendants accordingly.

9

As a prerequisite for money damages litigation against a public entity, the CTCA requires

10

presentation of the claim to that entity. See Cal. Gov. Code § 945.4; State of Cal. v. Super. Ct.,

11

32 Cal. 4th 1234, 1240–44 (2004) (“Bodde”). Compliance with the CTCA is an element of a

12

cause of action against a public entity. Willis v. Reddin, 418 F.2d 702, 704 (9th Cir. 1969);

13

Bodde, 32 Cal. 4th at 1240. As such, “compliance with the claims statute is mandatory and

14

failure to file a claim is fatal to the cause of action.” Hacienda La Puente Unified School Dist. v.

15

Honig, 976 F.2d 487, 494 (9th Cir. 1992); City of San Jose v. Super. Ct., 12 Cal. 3d 447, 455

16

(1974); see also Bodde, 32 Cal. 4th at 1240. In federal court, the failure to allege facts that either

17

demonstrate or excuse compliance with the CTCA will subject a state law claim to dismissal. See

18

Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995); Karim–Panahi v.

19

Los Angeles Police Dep’t, 839 F.2d 621, 627 (9th Cir. 1988); cf. Bodde, 32 Cal. 4th at 1239. The

20

CTCA also requires that a lawsuit be filed either: (1) within six months of a plaintiff receiving a

21

written denial from the municipal entity; or (2) within two years of the date the plaintiff’s cause

22

of action accrued if no written denial is given. Cal. Gov. Code § 945.6(a); Westcon Construction

23

Corp. v. Cty. of Sacramento, 152 Cal. App. 4th 183, 190 (2007).

24

Plaintiff alleges that prior to commencing this action he “notif[ied] Defendant HCSD, and

25

HCSD President Michele Hanson, of his State law and Bylaw claims and assertions as set forth

26

herein.” ECF No. 10 at 4. Plaintiff further alleges that he has “provided timely cease and desist,

27

as well as cure and correct notices to the Defendants concerning their Brown Act violations.” Id.

28

These allegations are insufficient to satisfy the CTCA’s requirements because they do not
18

1

constitute a timely claim in this matter. In order to survive a motion to dismiss plaintiff must

2

allege facts showing either that he timely filed a claim with the HCSD or that he is excused from

3

the CTCA’s timeliness requirement. The written claim must be in substantial compliance with

4

the requirements of Cal. Govt. Code 910.

5

In accordance with the foregoing, the court will recommend the grant of HCSD

6

Defendants’ motion to dismiss plaintiff’s state law claims for failure to comply with the CTCA.

7

However, although the potential for substantial compliance with the CTCA claims filing

8

requirement is doubtful, plaintiff should be given leave to amend. On amendment, plaintiff

9

should specify when any written claim(s) to HCSD were made, what they alleged and when they

10

were denied. The amendment shall demonstrate that the claim(s) made substantially comply with

11

the requirements of Cal. Govt. Code section 910. Here, if it exists, an exhibit to the amended

12

complaint would be helpful.

13

iii.

Remaining State Law Grounds for Dismissal in HCSD’s Motion

14

Because it is unlikely that plaintiff will be able to amend to set forth substantial

15

compliance with the CTCA’s claim filing requirements, the undersigned declines at this time to

16

review the remainder of HCSD’s grounds to dismiss state law claims.

17

iv.

Conspiracy (Winston)

18

Winston argues that plaintiff’s state law claims should be dismissed because he fails to

19

allege facts sufficient to support his claim that Winston conspired with the HCSD Defendants.

20

The court will dismiss plaintiff’s state law claims because they rely entirely upon plaintiff’s

21

conspiracy claims, which go factually unsupported.

22

Allegations of conspiracy supported by nothing more than bare legal conclusions are not

23

entitled to the presumption of truth. See State ex rel. Metz v. CCC Info. Servs., Inc., 57 Cal. Rptr.

24

3d 156, 168 (2007) (“In making such allegations bare legal conclusions, inferences, generalities,

25

presumptions, and conclusions are insufficient.”). Plaintiff’s state law claims rely entirely upon

26

his conclusory conspiracy claims. The state law sections in plaintiff’s FAC include no factual

27

allegations against Winston individually. Instead, plaintiff’s claims refer to defendants

28

collectively and incorporate previously alleged facts by reference wholesale regardless of their
19

1

relevance. See ECF No. 10 at 37 (citing “Defendants’ acts as aforesaid” and “[t]he conduct of

2

Defendants as aforesaid”). Once again, this type of shotgun pleading makes it difficult if not

3

impossible to discern whether plaintiff alleged any facts relevant to his state law claims. See

4

Magluta, 256 F.3d at 1284 (“The complaint is replete with allegations that “the defendants”

5

engaged in certain conduct, making no distinction among the fourteen defendants charged, though

6

geographic and temporal realities make plain that all of the defendants could not have participated

7

in every act complained of.”). Accordingly, the court will recommend dismissal of plaintiff’s

8

state law claims against Winston because he fails to allege any facts to support them. However,

9

plaintiff should be given leave to amend.

10

4.

Leave to Amend

11

The undersigned has recommended that plaintiff be given leave to amend in several

12

respects. A pro se litigant must be given leave to amend his or her complaint, and some notice of

13

its deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be

14

cured by amendment. Cato v. U.S., 70 F.3d 1103, 1106 (9th Cir. 1995) (citing Noll v. Carlson,

15

809 F.2d 1446, 1448 (9th Cir. 1987)). However, futile amendments should not be permitted.

16

See, e.g., DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 188 (9th Cir. 1987) (quoting Klamath–

17

Lake Pharmaceutical Ass’n v. Klamath Medical Service Bureau, 701 F.2d 1276, 1293 (9th Cir.

18

1983)). For example, leave to amend would be futile, and leave to amend properly denied, where

19

a plaintiff's alleged facts, even if true, provide no basis for federal subject matter jurisdiction. See

20

Orsay v. U.S. Dept. of Justice, 289 F.3d 1125, 1136 (9th Cir. 2002); Pink v. Modoc Indian Health

21

Project, Inc., 157 F.3d 1185, 1189 (9th Cir. 1998); Cato, 70 F.3d at 1110. The court finds that

22

here leave to amend is not futile and accordingly, will grant plaintiff leave to amend his claims.

23

If plaintiff chooses to amend his FAC, aside from the curing the deficiencies noted above,

24

he must set forth the jurisdictional grounds upon which the court’s jurisdiction depends. As a

25

model for drafting a second amended complaint, plaintiff is directed to McHenry v. Renne, 84

26

F.3d 1172, 1177 (9th Cir. 1996). There, the Ninth Circuit Court of Appeal upheld the dismissal

27

of a complaint it found to be “argumentative, prolix, replete with redundancy, and largely

28

irrelevant. It consists largely of immaterial background information.” It observed that the
20

1

Federal Rules require that a complaint consist of “simple, concise, and direct” averments. Id.

2

Phrased another way, “[v]igorous writing is concise.” William Strunk, Jr. & E.B. White, The

3

Elements of Style, § III, ¶ 13. Accordingly, any amended complaint should not exceed twenty-

4

five pages. Plaintiff must distinguish among defendants and show particular claims against each

5

one. Plaintiff can do this by alleging in specific terms how each named defendant is involved and

6

which claims or causes of action are relevant to which defendant. Defendants may be grouped in

7

meaningful ways, but claims vaguely referring to “defendants” are insufficient. See McHenry v.

8

Renne, 84 F.3d 1172, 1175 (9th Cir. 1996). Plaintiff must not provide evidentiary attachments to

9

the complaint.10

10

In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

11

make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

12

complaint be complete in itself without reference to any prior pleading. This is because, as a

13

general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

14

F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

15

longer serves any function in the case. Therefore, in an amended complaint, as in an original

16

complaint, each claim and the involvement of each defendant must be sufficiently alleged.

17

B.

18

The court will deny plaintiff’s motion for early discovery for lack of good cause.

Motion for Early Discovery

19

Generally, discovery is not permitted without a court order before the parties have conferred

20

pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 26(d)(1). Yet, “in rare cases,

21

courts have made exceptions, permitting limited discovery to ensue after filing of the complaint to

22

permit the plaintiff to learn the identifying facts necessary to permit service on the defendant.”

23

Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v.

24

Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). Courts grant these requests when the moving party

25

shows good cause for the early discovery. Semitool, Inc. v. Tokyo Elec. Am., Inc., 208 F.R.D.

26

273, 275–76 (N.D. Cal. 2002). Plaintiff argues that the court should grant him early discovery

27
28

10

While a complaint must contain specific allegations directed to specific defendants, it should
not include evidentiary matters.
21

1

because it would help him in responding to defendants’ motions. ECF No. 38. Plaintiff does not,

2

however, explain how early discovery would assist him in stating a claim. Accordingly, the court

3

finds that plaintiff has not shown good cause for permitting early discovery and it will deny his

4

motion.

5

C.

6

The HCSD Defendants argue that they should not be required to pay the costs of personal

7
8
9

Reimbursement for Personal Service

service because Federal Rule 4(d) does not apply to them.
Federal Rule 4(d) states that “[a]n individual, corporation, or association that is subject to
service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the

10

summons. The plaintiff may notify such a defendant that an action has been commenced and

11

request that the defendant waive service of a summons.” If a defendant subject to service under

12

Rule 4(e), (f), or (h) fails to waive service without good cause the court must impose both (1) the

13

expenses incurred in making service, and (2) any expenses associated with any motion required to

14

collect the costs of service. Fed. R. Civ. P. 4(d)(2). States and local governments, however, are

15

not required to waive service, and neither are their officers. See Fed. R. Civ. P. 4(d)(1) (requiring

16

individuals, corporations, partnerships, and associations to waive service, but not the state or

17

federal government); see also 1993 Advisory Committee Note to Rule 4(d) (“The United States is

18

not expected to waive service for the reason that its mail receiving facilities are inadequate to

19

assure that the notice is actually received by the correct person in the Department of Justice. The

20

same principle is applied to agencies, corporations, and officers of the United States and to other

21

governments and entities subject to service under subdivision (j).”).

22

The HCSD is a political subdivision of the state of California. Accordingly, it was not

23

required to waive service under Rule 4(d). The remaining HCSD Defendants, as officers of the

24

HCSD, were also not required to waive service. Accordingly, the court finds that the HCSD

25

Defendants have shown good cause for failing to waive service and will deny the USM’s request

26

for reimbursement.

27

D.

28

The court will deny plaintiff’s separately filed motion for leave to amend. Local Rule

Motion for Leave to Amend

22

1

137(c) requires that all motions for leave to amend be accompanied by the proposed amended

2

complaint. Plaintiff’s motion does not include a proposed amended complaint. What’s more, the

3

court is granting plaintiff leave to amend his complaint upon its dismissal, so his motion is moot.

4

If plaintiff wishes to assert claims against Jason J. Sommer and Robert W. Lucas he may do so on

5

amendment.

6

CONCLUSION

7

In accordance with the foregoing, THE COURT HEREBY ORDERS that:

8

1. Plaintiff’s motion for early discovery, ECF No. 38, is hereby DENIED;

9

2. Plaintiff’s motion for leave to amend, ECF No. 45, is hereby DENIED;

10

3. The USM’s request for reimbursement, ECF No. 21, is hereby DENIED; and

11

IT IS HEREBY RECOMMENDED

12

1. HSCD Defendants’ motions to dismiss section 1983 claim based on a lack of state

13

action should be denied (ECF Nos. 14 and 35) ; defendant Winston’s motion should

14

be granted, but plaintiff should be granted leave to amend;

15

2. All defendants’ motions to dismiss based on failure to state a section 1983 federal

16

claim on the merits (ECF Nos. 14 and 35) should be granted, but plaintiff should be

17

granted leave to amend

18

3. All defendants’ motions to strike plaintiff’s state law claims (anti-SLAPP motion),

19

(ECF Nos. 14, 35), should be hereby DENIED without prejudice to renewal if brought

20

as a separate motion after plaintiff amends the complaint;

21

4. Defendants’ motions to dismiss state law claims for failure of plaintiff to file a CTCA

22

claim (ECF Nos. 14 and 35) are granted, but plaintiff should be granted leave to

23

amend;

24
25
26

5. Defendant Winston’s motion to dismiss state law claims based on conspiracy should
be granted, but plaintiff should be granted leave to amend.
Any amended complaint must comply with the requirements for such as outlined above.

27

The amended complaint must bear the docket number assigned this case and must be labeled

28

“Second Amended Complaint;” plaintiff must file an original and two copies of the amended
23

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complaint; failure to file an amended complaint will result in a recommendation that these

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defendants be dismissed from this action.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. Failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: September 9, 2015

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH17/harr1595.dism

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