Dayton v. James et al

Filing 14

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 1/6/2017 RECOMMENDING that: the 7 Motion to Dismiss be granted; Plaintiff's claim under 42 USC 1983 be dismissed with prejudice; any remaining state law cl aims be dismissed without prejudice; and the clerk be directed to close this case. It is hereby ORDERED that all pleading, discovery, and motion practice in this action are STAYED. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Donati, J)

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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 EDWARD R. DAYTON, 12 Plaintiff, 13 14 No. 2:16-cv-1735-KJM-KJN PS v. ORDER AND DAVID JAMES, et al., 15 FINDINGS AND RECOMMENDATIONS Defendants. 16 17 INTRODUCTION Plaintiff Edward Dayton, proceeding without counsel, initially commenced this action on 18 19 July 25, 2016, and paid the filing fee. (ECF No. 1.)1 Presently pending before the court is 20 defendants David James, Fairfield Police Department, and City of Fairfield’s motion to dismiss 21 plaintiff’s first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF 22 No. 7.) Plaintiff has timely opposed the motion, and defendants filed a reply brief. (ECF Nos. 23 11, 12.)2 After carefully considering the parties’ written briefing, the court’s record, and the 24 25 applicable law, the court recommends that the motion be GRANTED. 26 1 27 28 2 This case proceeds before the undersigned pursuant to Local Rule 302(c)(21). The court finds the motion appropriate for resolution without oral argument pursuant to Local Rule 230(g). As such, the January 12, 2017 hearing is VACATED. 1 1 2 BACKGROUND The background facts are taken from plaintiff’s operative first amended complaint. (ECF 3 No. 4.) According to plaintiff, he has been the subject of inspections, citations, and abatement 4 actions by the City of Fairfield and David James, who is alleged to be a supervisory code 5 enforcement officer for the City of Fairfield, since 2005. Around January 31, 2012, some of 6 plaintiff’s personal property was purportedly removed from the street in front of his home by the 7 Solano Garbage Company. 8 9 That same day, on January 31, 2012, plaintiff submitted a request under the California Public Records Act (“CPRA”) to the City of Fairfield Police Department, requesting the reason 10 and legal authority for removal of the property, as well as any documentation regarding the 11 removal. James apparently responded that no relevant records or documents existed. 12 Subsequently, on July 23, 2015, plaintiff submitted another CPRA request to the City of 13 Fairfield Police Department and other City of Fairfield departments, requesting the names and 14 titles of any police officers and others who were present or engaged in any way with the removal 15 of plaintiff’s property, as well as documents, recordings, photographs, and reports regarding such 16 removal. On July 24, 2015, James again responded that no public records existed relevant to 17 plaintiff’s request. 18 Plaintiff claims that James abused his power and intentionally failed to comply with the 19 CPRA, which violated plaintiff’s civil rights under 42 U.S.C. § 1983. Plaintiff also purports to 20 state some type of state common law negligence claim based on the alleged improper handling 21 and processing of his public records requests. Plaintiff names David James, the City of Fairfield 22 Police Department, and the City of Fairfield as defendants. Plaintiff requests $250,000.00 in 23 damages, plus an award of punitive damages. 24 LEGAL STANDARD 25 A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) 26 challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase 27 Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the “notice pleading” standard 28 of the Federal Rules of Civil Procedure, a plaintiff’s complaint must provide, in part, a “short and 2 1 plain statement” of plaintiff’s claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see 2 also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). “To survive a motion to dismiss, 3 a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that 4 is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. 5 Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads 6 factual content that allows the court to draw the reasonable inference that the defendant is liable 7 for the misconduct alleged.” Id. 8 In considering a motion to dismiss for failure to state a claim, the court accepts all of the 9 facts alleged in the complaint as true and construes them in the light most favorable to the 10 plaintiff. Corrie v. Caterpillar, Inc., 503 F.3d 974, 977 (9th Cir. 2007). The court is “not, 11 however, required to accept as true conclusory allegations that are contradicted by documents 12 referred to in the complaint, and [the court does] not necessarily assume the truth of legal 13 conclusions merely because they are cast in the form of factual allegations.” Paulsen, 559 F.3d at 14 1071. The court must construe a pro se pleading liberally to determine if it states a claim and, 15 prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity 16 to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez v. 17 Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); accord Balistreri v. Pacifica Police 18 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) (stating that “pro se pleadings are liberally construed, 19 particularly where civil rights claims are involved”); see also Hebbe v. Pliler, 627 F.3d 338, 342 20 & n.7 (9th Cir. 2010) (stating that courts continue to construe pro se filings liberally even when 21 evaluating them under the standard announced in Iqbal). 22 In ruling on a motion to dismiss filed pursuant to Rule 12(b)(6), the court “may generally 23 consider only allegations contained in the pleadings, exhibits attached to the complaint, and 24 matters properly subject to judicial notice.” Outdoor Media Group, Inc. v. City of Beaumont, 506 25 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). Although the court may not 26 consider a memorandum in opposition to a defendant’s motion to dismiss to determine the 27 propriety of a Rule 12(b)(6) motion, see Schneider v. Cal. Dep’t of Corrections, 151 F.3d 1194, 28 1197 n.1 (9th Cir. 1998), it may consider allegations raised in opposition papers in deciding 3 1 whether to grant leave to amend, see, e.g., Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2 2003). 3 DISCUSSION 4 Federal Claim under 42 U.S.C. § 1983 5 As noted above, the first amended complaint alleges a violation of 42 U.S.C. § 1983 based 6 on James’s alleged intentional failure to comply with the CPRA. For the reasons discussed 7 below, that claim is not viable. 8 9 The first amended complaint itself does not identify a specific constitutional provision that was allegedly violated, but plaintiff’s opposition brief clarifies plaintiff’s position that James’s 10 responses to plaintiff’s CPRA requests violated plaintiff’s due process rights under the Fourteenth 11 Amendment. However, it is well established that “[n]either the First Amendment nor the 12 Fourteenth Amendment mandates a right of access to government information or sources of 13 information within the government’s control.” Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978); 14 see also Brooks v. Vallejo City Unified School District, 2:12-cv-1466-GEB-EFB, ECF Nos. 28, 15 33 (dismissing 42 U.S.C. § 1983 claims for violation of First Amendment free speech rights and 16 Fourteenth Amendment due process and equal protection rights based on alleged CPRA 17 violations); Brooks v. Vallejo City Unified School District, 2:09-cv-1815-MCE-JFM, ECF Nos. 18 41, 47 (dismissing 42 U.S.C. § 1983 claims for violation of First Amendment free speech rights 19 and Fourteenth Amendment due process rights based on alleged CPRA violations), ECF No. 59 20 (Ninth Circuit opinion summarily affirming dismissal in reliance on Houchins). Consequently, 21 plaintiff does not allege a cognizable Fourteenth Amendment due process violation to support a 22 claim under 42 U.S.C. § 1983. 23 Furthermore, even assuming, without deciding, that James actually violated the CPRA, 24 such a violation by itself is insufficient to state a claim under 42 U.S.C. § 1983, which requires 25 violation of a federal constitutional or statutory right. See Galen v. Cnty. of Los Angeles, 477 26 F.3d 652, 662 (9th Cir. 2007) (“Section 1983 requires Galen to demonstrate a violation of federal 27 law, not state law.”); Ove v. Gwinn, 264 F.3d 817, 824 (9th Cir. 2001) (“To the extent that the 28 violation of a state law amounts to the deprivation of a state-created interest that reaches beyond 4 1 that guaranteed by the federal Constitution, Section 1983 offers no redress.”). Plaintiff does have 2 an avenue for seeking relief under the CPRA, but such relief must be pursued in state court. See 3 Cal. Gov’t Code §§ 6258, 6259. 4 5 6 Therefore, plaintiff’s claim under 42 U.S.C. § 1983, as pled in the first amended complaint, is subject to dismissal. In his opposition brief, plaintiff argues that he should be granted leave to amend to assert 7 additional proposed factual allegations. As discussed below, that argument is unavailing, because 8 those proposed factual allegations cannot plausibly cure plaintiff’s 42 U.S.C. § 1983 claim. 9 Plaintiff proposes to allege additional facts in, and attach documents to, a second amended 10 complaint showing that the information requested in his CPRA requests was in fact available, and 11 that James thus lied when he stated that no relevant responsive documents existed. Such 12 additional allegations may potentially bolster plaintiff’s contention that James’s alleged CPRA 13 violation was intentional and an abuse of power. Nevertheless, a CPRA violation, whether 14 intentional or unintentional, still cannot support a Fourteenth Amendment due process claim 15 under 42 U.S.C. § 1983 for the reasons discussed above. 16 Plaintiff also proposes to allege that his failure to receive documents responsive to the 17 CPRA requests prejudiced plaintiff in his ability to oppose a substantive motion filed in litigation 18 that plaintiff had initiated against James and the City of Fairfield in state court, thereby violating 19 plaintiff’s due process rights. That argument lacks merit. As noted above, Houchins forecloses 20 an independent Fourteenth Amendment due process claim based on an alleged violation of the 21 CPRA as asserted in this federal case. To the extent that plaintiff contends that he was not 22 afforded an adequate opportunity to obtain necessary discovery before the state court ruled on the 23 dispositive motion in the state case, that is a matter that should be properly raised on appeal of the 24 state court case to the state appellate courts. 25 The court has carefully considered whether plaintiff should be granted leave to amend his 26 42 U.S.C. § 1983 claim. Ordinarily, the court, consistent with applicable law, liberally grants 27 leave to amend, especially to pro se litigants, if it appears that a potentially cognizable claim 28 could be stated. However, given the nature of plaintiff’s allegations in the first amended 5 1 complaint, the proposed allegations in plaintiff’s opposition brief, and the existence of binding 2 law that forecloses the type of claim that plaintiff is attempting to assert, the court concludes that 3 granting leave to amend here would be futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 4 339 (9th Cir. 1996). 5 Accordingly, plaintiff’s 42 U.S.C. § 1983 claim should be dismissed with prejudice. 6 Remaining State Law Claim(s) 7 Because the parties here are not diverse, and there are no federal claims remaining, the 8 court finds it appropriate to decline to exercise supplemental jurisdiction over any remaining state 9 law claims, especially given that the case is only in its infancy. See 28 U.S.C. § 1367(c)(3) (“The 10 district courts may decline to exercise supplemental jurisdiction over a claim...if – the district 11 court has dismissed all claims over which it has original jurisdiction”); see also Acri v. Varian 12 Associates, Inc., 114 F.3d 999, 1000-01 (9th Cir. 1997) (“‘in the usual case in which all federal- 13 law claims are eliminated before trial, the balance of factors . . . will point toward declining to 14 exercise jurisdiction over the remaining state-law claims’”), quoting Carnegie-Mellon University 15 v. Cohill, 484 U.S. 343, 350 n.7 (1988). Consequently, any remaining state law claims should be 16 dismissed without prejudice. 17 CONCLUSION 18 For the reasons outlined above, IT IS HEREBY RECOMMENDED that: 19 1. Defendants’ motion to dismiss (ECF No. 7) be GRANTED. 20 2. Plaintiff’s claim under 42 U.S.C. § 1983 be DISMISSED WITH PREJUDICE. 21 3. Any remaining state law claims be DISMISSED WITHOUT PREJUDICE. 22 4. The Clerk of Court be directed to close this case. 23 In light of those recommendations, IT IS ALSO HEREBY ORDERED that all pleading, 24 discovery, and motion practice in this action are STAYED pending resolution of these findings 25 and recommendations. With the exception of objections to the findings and recommendations 26 and non-frivolous motions for emergency relief, the court will not entertain or respond to any 27 motions or filings until the findings and recommendations are resolved. 28 //// 6 1 These findings and recommendations are submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 3 days after being served with these findings and recommendations, any party may file written 4 objections with the court and serve a copy on all parties. Such a document should be captioned 5 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 6 shall be served on all parties and filed with the court within fourteen (14) days after service of the 7 objections. The parties are advised that failure to file objections within the specified time may 8 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 9 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 10 11 IT IS SO ORDERED AND RECOMMENDED. Dated: January 6, 2017 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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