Vang et al v. Lopey, et al.,

Filing 51

ORDER signed by District Judge John A. Mendez on 1/12/2017 GRANTING 15 Defendants' Motion to Dismiss without leave to amend against Jon Lopey and Colleen Setzer; the first, second, third and eleventh causes of action as brought against the County are DISMISSED with leave to amend; Setzer and Lopey are DISMISSED with prejudice; plaintiffs amended complaint due within 20 days of the date of this Order; the County shall file its responsive pleading 20 days thereafter. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JESSE VANG; WANG CHANG; JOUA
CHAO MOUA; ALEXANDER VANG;
DANG XIONG; DOLLARSAI YURGH;
JOUA YENG VANG; MANISY MOUA;
POUA VANG; RICHARD VANG; and
DOES 1-200,

No.

2:16-cv-2172-JAM-CMK

ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS

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Plaintiffs,
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v.
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SHERIFF JON LOPEY,
individually and in his
capacity as Sheriff for the
COUNTY OF SISKIYOU; COLLEEN
SETZER; individually and in
her capacity as Clerk for the
COUNTY OF SISKIYOU; ALEX
NISHIMURA, individually and
in his capacity as an agent
of the CALIFORNIA SECRETARY
OF STATE; the COUNTY OF
SISKIYOU; CALIFORNIA
DEPARTMENT OF FORESTRY AND
FIRE PROTECTION; Does 1-20,
in their individual capacity;
and DOES 1-20, inclusive,
Defendants.

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Defendants Sheriff Jon Lopey (“Lopey”), County Clerk Colleen

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Setzer (“Setzer”) and the County of Siskiyou (collectively

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“Defendants”) move to dismiss Plaintiffs’ complaint.

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Plaintiffs oppose the motion.

ECF No. 31.
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ECF No. 15.

For the reasons set

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forth below, the Court GRANTS Defendants’ motion to dismiss. 1

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I.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Plaintiffs, ten members of the Hmong community, allege that

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“[t]he local government in Siskiyou County is engaged in a

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systematic campaign to deprive Plaintiffs, and other members of

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the Hmong community, of their right to vote, and their right to

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the exclusive use and enjoyment of their private property.”

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Compl. ¶ 1, ECF No. 1.

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“[D]efendants conspired to disenfranchise Plaintiffs by

Plaintiffs further allege that

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challenging their status as California residents through racially

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discriminatory implementation and enforcement of County

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Ordinances, and as to some plaintiffs, threatened prosecution.”

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Compl. ¶ 2.

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In the June 2016 primary election, the voters of Siskiyou

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County approved two ordinances regarding the cultivation of

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marijuana.

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prohibits outdoor cultivation of marijuana.

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Judicial Notice (“RJN”) Ex. A, ECF 15-2.

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empowers the Board of Supervisors or an enforcing officer to

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enforce Section 10-14.030 by issuing notices of abatement.

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Compl. ¶ 4.

Siskiyou County Code Section 10-14.030
See Defs.’ Req. for

Section 10-14.090

Id.

Plaintiffs allege that Defendants have disproportionately

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targeted the Hmong community in enforcing the new ordinances.

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Compl. ¶ 4.

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notices and scheduled abatement hearings.

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Plaintiffs also allege that Defendants executed search warrants

The County has issued several nuisance violation
Compl. ¶ 29.

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for November 15, 2016.
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on various properties and that during the searches “residents who

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were present were handcuffed and held at gunpoint while their

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properties were ransacked.”

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seized medical marijuana plants during the searches.

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¶ 31.

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onto their properties to investigate voter fraud.

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21.

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Compl. ¶ 31.

Defendants allegedly
Compl.

Plaintiffs also allege that individuals with guns came
Compl. at 12-

Plaintiffs bring eleven causes of action: (1) violation of
the Fourth Amendment right against unreasonable search and

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seizure against all defendants, (2) violation of the Fourteenth

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Amendment against all defendants, (3) municipal liability against

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the County on a failure-to-train theory, (4) supervisory

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liability against Lopey, (5) employer liability against the

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County, (6) negligence against all defendants, (7) negligent

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hiring and supervision against all defendants, (8) violation of

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California Elections Code Section 14027 against all defendants,

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(9) violation of § 2 of the Voting Rights Act against all

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defendants, (10) negligent infliction of emotional distress

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against all defendants, and (11) ratification against the County.

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Compl. at 24-30.

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eleventh claims pursuant to § 1983.

Plaintiffs bring their first through fifth and

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Id.

II. OPINION

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A.

Judicial Notice

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Defendants ask the Court to take judicial notice of the two

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Siskiyou County municipal ordinances at issue in this

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litigation.

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subjects for judicial notice,” Tollis, Inc. v. Cty. of San

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Diego, 505 F.3d 935, 938 n.1 (9th Cir. 2007), the Court takes

RJN at 2.

Since “[m]unicipal ordinances are proper

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judicial notice of Siskiyou County Code Sections 10-14.030 and

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10-14.090.

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B.

Plaintiffs’ § 1983 Claims

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Before addressing each individual cause of action, the

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Court addresses three issues raised by Defendants that pertain

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to all of Plaintiffs’ § 1983 claims: (1) claims against

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individual defendants in their official capacities,

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(2) qualified immunity, and (3) County liability.

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1.

Plaintiffs’ Official Capacity Claims Against
Lopey and Setzer

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Plaintiffs sue Lopey and Setzer in their individual and

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official capacities.

Compl. at 1.

Defendants contend that

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§ 1983 claims “cannot be maintained against the Sheriff and

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Clerk in their official capacities.”

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Defendants are correct.

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official in her official capacity is treated as a claim against

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the entity itself.”

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787, 793 n.1 (E.D. Cal. 2016) (citing Kentucky v. Graham, 473

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U.S. 159, 166 (1985)).

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entity and an officer in his official capacity, “the court may

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dismiss the officer as a redundant defendant.”

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Ethical Reform, Inc. v. L.A. Cty. Sheriff Dep't, 533 F.3d 780,

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799 (9th Cir. 2008).

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capacities, however, may remain.

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Supp. 2d 1148, 1155 (E.D. Cal. 2010).

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dismisses Plaintiffs’ § 1983 claims against Lopey and Setzer in

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their official capacities without leave to amend.

Mot. to Dismiss at 4.

“A claim against a state or municipal

Rose v. Cty. of Sacramento, 163 F. Supp. 3d

When a plaintiff sues a local government

Ctr. for Bio-

Claims against officers in their personal
Fontana v. Alpine Cty., 750 F.

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The Court therefore

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2.

Qualified Immunity

Defendants argue that qualified immunity shields Setzer and

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Lopey from liability for Plaintiffs’ § 1983 claims.

Mot. to

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Dismiss at 4.

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their federal rights, qualified immunity protects government

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officials from liability for damages in certain situations.

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v. Griego, 2016 WL 5930592, at *2 (E.D. Cal. Oct. 12, 2016).

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“Qualified immunity balances two important interests . . . the

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need to hold public officials accountable when they exercise

Although § 1983 allows individuals to vindicate

A.C.

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power irresponsibly and the need to shield officials from

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harassment, distraction, and liability when they perform their

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duties reasonably.”

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(2009).

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(1) Are the facts that a plaintiff has alleged or shown

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sufficient to demonstrate a violation of a constitutional right?;

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and (2) Was the right at issue ‘clearly established’ at the time

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of the defendant's alleged misconduct?”

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586 F. App’x 685, 686 (9th Cir. 2013).

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Pearson v. Callahan, 555 U.S. 223, 231

“Qualified immunity is determined by a two-step inquiry:

Abudiab v. Georgopoulos,

As to Lopey, Defendants argue that he “was not present

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during the investigations that occurred at the various

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properties, and it is not unreasonable for a local law

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enforcement agency to assist an outside agency” in an

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investigation of possible voter fraud.

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to Setzer, Defendants assert that “the allegations simply

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establish that she had minimal involvement beyond simply

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performing her statutory duty to report the possibility of voter

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fraud.”

Id. at 5.

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Mot. to Dismiss 4-5.

As

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Plaintiffs respond that “Defendants actively participated in

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the investigations herewith and it is Plaintiffs[’] belief that

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many of the Defendants were present and armed with military-style

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assault rifles . . . [t]herefore, sufficient facts are alleged to

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establish that a reasonable officer would believe the conduct in

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question is unlawful under clearly established law.”

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Opp’n at 4.

Plaintiffs’ conclusory and unsupported argument fails.

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While Plaintiffs assert that “many of the Defendants”

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investigated Plaintiffs while holding assault rifles, Plaintiffs

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do not point to any factual allegations showing that either Lopey

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or Setzer personally participated in such activity.

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allege only that Setzer reported suspected voter fraud to Lopey

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and the California Secretary of State and notified individuals of

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incomplete voter registration cards.

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simply performed her job duties, and Plaintiffs do not provide

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any support for their contention that Setzer’s actions deprived

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them of a constitution right.

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voted in the June election, belying Plaintiffs’ allegations that

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Setzer infringed upon each Plaintiff’s right to vote.

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¶¶ 45, 64, 79.

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and the Court dismisses all § 1983 claims brought against Setzer

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with prejudice.

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Plaintiffs

Compl. ¶¶ 18, 19.

Setzer

Additionally, some Plaintiffs

See Compl.

Qualified immunity shields Setzer from liability,

As to Lopey, Plaintiffs allege only that he issued press

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releases and that some of his subordinates visited Plaintiffs’

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properties.

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personally violated any of Plaintiffs’ constitutional rights and

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he is also entitled to qualified immunity.

Compl. at 8-9.

Plaintiffs fail to allege that Lopey

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All § 1983 claims

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brought against Lopey in his individual capacity are dismissed

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without leave to amend. 2

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3.

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County Liability

A local government cannot be held liable pursuant to § 1983

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under a theory of “respondeat superior.”

Christie v. Iopa, 176

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F.3d 1231, 1234-35 (9th Cir. 1999).

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liable only when action pursuant to official municipal policy

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causes a constitutional violation.

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policy” requirement “distinguishe[s] acts of the municipality

Instead, municipalities are

Id. at 1235.

The “official

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from acts of employees of the municipality,” and thereby limits

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liability to actions for which the municipality is actually

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responsible.

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Id. (emphasis in original).

Plaintiffs allege an unconstitutional municipal policy or

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practice only in their third cause of action.

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¶¶ 110, 113 with Compl. ¶ 115.

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Plaintiffs’ first and second causes of action as brought against

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the County with leave to amend.

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Plaintiffs’ fifth cause of action for “Employer Liability

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Against County of Siskiyou” without leave to amend because

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municipalities cannot be held liable under § 1983 merely because

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they employ people who may have violated constitutional rights.

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2

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Compare Compl.

The Court therefore dismisses

The Court also dismisses

A court should freely grant leave to amend “when justice so
requires.” Fed. R. Civ. P. 15(a)(2). But a court may deny leave
to amend when it finds that the plaintiff cannot possibly cure
the complaint without contradicting allegations in his original
complaint. Garmon v. Cty. of Los Angeles, 828 F.3d 837, 846 (9th
Cir. 2016); see also Bolin v. Brown, 2012 WL 2933502, at *5 (E.D.
Cal. Jul. 18, 2012). The Court finds that Plaintiffs cannot
amend their claims against Setzer and Lopey without contradicting
the operative complaint’s allegations showing that Setzer and
Lopey were not personally involved in the constitutional
violations that Plaintiffs allege.
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See id.
4.

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Third Cause of Action: § 1983 Municipal Liability
Against the County

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Plaintiffs allege municipal liability against the County
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based on a failure-to-train theory.

Compl. ¶ 115.

Plaintiffs

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allege that the County’s training policies “were not adequate to
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train its sheriff’s deputies and police officers to handle voter
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fraud investigations and building safety code enforcement.”
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Compl. ¶ 115.
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A public entity’s failure to adequately train its employees
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may create liability under § 1983 when the “failure to train
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amounts to deliberate indifference to the rights of persons with
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whom the [employees] come into contact.”

Myers v. City of

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Madera, 2011 WL 2361628, at *5 (E.D. Cal. Jun. 9, 2011) (quoting
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City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)).

“The

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issue is whether the training program is adequate and, if it is
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not, whether such inadequate training can justifiably be said to
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represent municipal policy.”

Long v. Cty. of L.A., 442 F.3d

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1178, 1186 (9th Cir. 2006).

A plaintiff alleging a failure-to-

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train claim must show: (1) he was deprived of a constitutional
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right, (2) the municipality had a training policy that amounted
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to deliberate indifference to the constitutional rights of the
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persons' with whom its police officers are likely to come into
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contact; and (3) his constitutional injury would have been
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avoided had the municipality properly trained those officers.”
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Blankenhorn v. City of Orange, 485 F.3d 463, 485 (9th Cir.
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2007).
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Plaintiffs fail to “identify any specific training that was
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deficient, or how the policy amounted to deliberate

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indifference.”

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at *4 (E.D. Cal. Mar. 14, 2014). Absent such allegations this

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claim cannot survive.

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cause of action is granted with leave to amend.

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5.

See Molina v. City of Visalia, 2014 WL 1117005,

The motion to dismiss Plaintiffs’ third

Eleventh Cause of Action: Ratification Against the
County

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8
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Plaintiffs allege that “Lopey ratified his subordinates’
acts because he knew of and specifically approved of the pattern

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and practice of sheriff’s deputies in Siskiyou County using

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excessive force while on duty and unlawfully entering onto

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private property without a search warrant.”

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Compl. ¶ 146.

To impose municipal liability under a ratification theory, a

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plaintiff must show that the authorized policymakers approved a

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subordinate's decision and the basis for it.

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F.3d 978, 987 (9th Cir. 2004).

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subordinate's actions, without more, cannot support a § 1983

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claim.

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something more than a failure to reprimand to establish a

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municipal policy or ratification.’”

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Dep't, 2016 WL 2602411, at *3 (E.D. Cal. May 5, 2016) (quoting

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Kanae v. Hodson, 294 F. Supp. 2d 1179, 1189 (D. Haw. 2003)).

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Vague and conclusory allegations of official participation in

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§ 1983 violations cannot withstand a motion to dismiss.

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City of Fresno, 2011 WL 284971, at *17 (E.D. Cal. Jan. 26, 2011).

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Plaintiffs’ allegations merely recite the elements of a

Id.

Lytle v. Carl, 382

Mere failure to overrule a

Additionally, “the Ninth Circuit ‘appears to require

Hill v. Fairfield Police

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ratification claim.

See Compl. ¶ 146.

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facts to support their allegations that Lopey knew of his

Arres v.

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Plaintiffs provide no

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subordinates’ actions or that he approved of such actions.

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Court therefore must dismiss Plaintiffs’ eleventh claim but does

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so with leave to amend.

The

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C.

State Common Law Claims

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Plaintiffs assert three California state common law claims:

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negligence (sixth cause of action), negligent hiring/supervision

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(seventh cause of action), and intentional infliction of

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emotional distress (“NIED”) (tenth cause of action).

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27-29.

Compl. at

“It is well-settled that there is no common law tort

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liability for public entities in California; instead, such

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liability must be based on statute.”

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WL 3609489, at *2 (S.D. Cal. Sept. 14, 2010).

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seventh, and tenth causes of action are based on common law, not

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on statute, and thus are dismissed as brought against the County

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without leave to amend.

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Cardinal v. Buchnoff, 2010
Plaintiffs’ sixth,

Defendants next argue that California Government Code

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section 821 shields both Setzer and Lopey from liability for

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their actions in investigating potential voter fraud.

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Dismiss at 12.

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Mot. to

Section 821.6 provides:

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“[a] public employee is not liable for injury caused
by his instituting or prosecuting any judicial or
administrative proceeding within the scope of his
employment, even if he acts maliciously and without
probable cause.”

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California courts construe section 821.6 broadly.

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Gillan v.

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City of San Marino, 147 Cal. App. 4th 1033, 1048 (2007). “Section

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821.6 is not limited to conduct occurring during formal

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proceedings.

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formal proceedings.

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toward the institution of formal proceedings, it is also cloaked

It also extends to actions taken in preparation for
Because investigation is ‘an essential step’

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with immunity.”

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(E.D. Cal. Dec. 27, 2010) (quoting Javor v. Taggart, 98

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Cal.App.4th 795, 808 (2002)) (internal punctuation omitted).

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Clark v. Cty. of Tulare, 2010 WL 5437195, at *2

Plaintiffs respond by arguing that “the immunities provided

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under Gov Code section 818.2 829, 820.6 and 845 do not render

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this Cause of Action non-actionable.”

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Plaintiff’s do not cite to any authority or provide any analysis

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to support this proposition.

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fails.

Opp’n at 13.

But

Plaintiffs’ unsupported argument

The facts alleged indicate that Setzer and Lopey acted in

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furtherance of an investigation into potential voter fraud when

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they notified the California Secretary of State and provided

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officers to assist the Secretary of State’s investigator.

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Plaintiffs have not provided any facts or arguments to rebut

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section 821.6’s applicability to this case.

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Lopey and Setzer are immune from Plaintiffs’ state law claims

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pursuant to section 821.6 and therefore dismisses these claims

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with prejudice as to these individual defendants.

The Court finds that

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D.

Voting Causes of Action

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Plaintiffs bring two voting claims: violation of California

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Elections Code section 14027 (eighth cause of action) and

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violation of § 2 of the Voting Rights Act (ninth cause of

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action).

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causes of action can survive.

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Compl. at 28-29. As explained below, neither of these

1.

Eighth Cause of Action: Violation of California
Elections Code Section 14027

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Plaintiffs allege that Defendants used an “‘at-large

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election’ to pass Measures T and U in an intentional, unlawful,

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and selective way for the purpose of disenfranchising Plaintiffs
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specifically, and Hmong residents general[ly]” in violation of

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California Elections Code section 14027.

Compl. ¶ 136.

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4

Section 14027 of the Elections Code states:

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An at-large method of election may not be imposed or
applied in a manner that impairs the ability of a
protected class to elect candidates of its choice or
its ability to influence the outcome of an election,
as a result of the dilution or the abridgment of the
rights of voters who are members of a protected class,
as defined pursuant to Section 14026.

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Cal. Elec. Code § 14027.

Section 14026 defines an “at-large

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election” as:

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(1)

One in which the voters of the entire
jurisdiction elect the members to the governing
body.

(2)

One in which the candidates are required to
reside within given areas of the jurisdiction and
the voters of the entire jurisdiction elect the
members to the governing body.

(3)

One which combines at-large elections with
district-based elections.

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Cal. Elec. Code § 14026.

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Defendants contend that “Measures T and U were propositions

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submitted to popular vote, not an ‘at-large’ election, which has

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a specific statutory definition.

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‘at-large election’ regarding Measures T and U.”

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at 8-9.

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U were passed through “at-large” methods.

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. . . [T]here was simply no
Mot. to Dismiss

Plaintiffs assert without authority that Measures T and
Opp’n at 8.

At least facially, California Elections Code sections 14026

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and 14027 apply to elections of candidates.

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cite any authority to support their contention that these

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sections apply to passage of measures or propositions. Absent

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such authority, this Court declines to interpret this state
12

Plaintiffs do not

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statute to apply beyond the statute’s plain text and dismisses

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Plaintiffs’ eighth cause of action without leave to amend.

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4

2.

Ninth Cause of Action: Voting Rights Act

Plaintiffs allege that Defendants “imposed voting

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qualifications and/or prerequisites to voting and/or standards,

6

practices, or procedures in a manner resulting in a denial or

7

abridgement of the right of Plaintiffs, citizens of the United

8

States, to vote on account of race or color” in violation of § 2

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of the Voting Rights Act.

Compl. ¶ 139.

10

Section 2 of the Voting Rights Act states that:

11

(a)

No voting qualification or prerequisite to voting
or standard, practice, or procedure shall be
imposed or applied by any State or political
subdivision in a manner which results in a denial
or abridgement of the right of any citizen of the
United States to vote on account of race or color
. . .

(b)

A violation of subsection (a) is established if,
based on the totality of circumstances, it is
shown that the political processes leading to
nomination or election in the State or political
subdivision are not equally open to participation
by members of a class of citizens protected by
subsection (a) in that its members have less
opportunity than other members of the electorate
to participate in the political process and to
elect representatives of their choice. The
extent to which members of a protected class have
been elected to office in the State or political
subdivision is one circumstance which may be
considered: Provided, that nothing in this
section establishes a right to have members of a
protected class elected in numbers equal to their
proportion in the population.

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13
14
15
16
17
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20
21
22
23
24
25

52 U.S.C. § 10301.
Plaintiffs’ ninth claim fails for two reasons.

First, § 2

26

expressly applies to elections of representatives.

Plaintiffs

27

again fail to supply this Court with any authority to apply § 2

28

to the passage of measures.

Second, a plaintiff asserting a § 2
13

1

violation must establish three threshold conditions: “(1) the

2

racial group is sufficiently large and geographically compact to

3

constitute a majority in a single-member district; (2) the racial

4

group is politically cohesive; and (3) the majority votes

5

sufficiently as a bloc to enable it usually to defeat the

6

minority’s preferred candidate.”

7

Citizens v. Perry, 548 U.S. 399, 425 (2006) (internal citations

8

and punctuation omitted).

9

requirements.”

Id.

League of United Latin Am.

“These are the so-called Gingles

“If all three Gingles requirements are

10

established, the statutory text directs us to consider the

11

‘totality of circumstances’ to determine whether members of a

12

racial group have less opportunity than do other members of the

13

electorate.”

14

Id. at 425-26.

Plaintiffs do not plead any of the Gingles requirements

15

necessary to state a § 2 violation.

16

requirements expressly apply to the election of a “minority’s

17

preferred candidate.”

18

Congress intended § 2 to apply to the passage of measures, and

19

Plaintiffs have not provided any case law showing that the

20

statute has been interpreted this way by courts.

21

authority that § 2 applies to the passage of measures, this Court

22

declines interpret § 2 so broadly.

23

action is dismissed without leave to amend.

24

Additionally, the Gingles

There is no indication in the statute that

Without any

Plaintiffs’ ninth cause of

Because the Court has found that section 14027 of the

25

California Elections Code and § 2 of the Voting Rights Act do not

26

apply to this case, the Court need not address Defendants’

27

arguments regarding Plaintiffs’ standing to bring these voting

28

claims.
14

1

E.

2

Plaintiffs request “an award of punitive and exemplary

Punitive Damages

3

damages against Defendants according to proof at trial.”

Compl.

4

at 31, ¶ 6.

5

public entities are not liable for “damages imposed primarily

6

for the sake of example and by way of punishing the defendant.”

7

“[A] municipality is [also] immune from punitive damages under

8

42 U.S.C. § 1983.”

9

U.S. 247, 271 (1981).

California Government Code section 818 states that

City of Newport v. Fact Concerts, Inc., 453
Because none of Plaintiffs’ claims

10

against Lopey and Setzer survive, only the County—which is

11

immune from all punitive damages—remains as a defendant.

12

Accordingly, the Court strikes Plaintiffs’ request for punitive

13

damages from the complaint.

14

F.

Attorney’s Fees

15

42 U.S.C. § 1988(b) provides that “[i]n any action or

16

proceeding to enforce a provision” of 42 U.S.C. § 1983, “the

17

court, in its discretion, may allow the prevailing party . . .

18

reasonable attorney’s fee as part of the costs.”

19

award attorney's fees to “a prevailing defendant . . . under

20

§ 1983, only upon ‘a finding that the plaintiff's action was

21

frivolous, unreasonable, or without foundation.’”

22

Hanford Joint Union Sch. Dist., 2015 WL 4661636, at *1 (E.D.

23

Cal. Aug. 5, 2015) (quoting Christiansburg Garment Co. v. EEOC,

24

434 U.S. 412, 421 (1978)).

25

Plaintiffs’ § 1983 claims are “frivolous, unreasonable, or

26

without foundation” and the Court refuses to make such a

27

finding.

A court may

Gallardo v.

Defendants do not argue that

Defendants’ request for attorney’s fees is denied.

28
15

1
2

II.

ORDER

For the reasons set forth above, the Court GRANTS

3

Defendants’ Motion to Dismiss.

4

dismissed without leave to amend:

6

•
•
•

7

•

5

The following claims are

All causes of action against Lopey and Setzer
The fifth cause of action as brought against the County
The sixth, seventh and tenth causes of action as
brought against the County
The eighth and ninth causes of action as brought
against the County

8
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The following claims are dismissed with leave to amend:
•

The first, second, third, and eleventh causes of action
as brought against the County

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Setzer and Lopey are dismissed from this case with

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prejudice.

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twenty days of the date of this Order.

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responsive pleading twenty days thereafter.

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Plaintiffs shall file their amended complaint within

IT IS SO ORDERED.
Dated: January 12, 2017

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The County shall file its