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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 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 12 Plaintiffs, 13 v. 14 15 16 17 18 19 20 21 22 23 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. 24 25 Defendants Sheriff Jon Lopey (“Lopey”), County Clerk Colleen 26 Setzer (“Setzer”) and the County of Siskiyou (collectively 27 “Defendants”) move to dismiss Plaintiffs’ complaint. 28 Plaintiffs oppose the motion. ECF No. 31. 1 ECF No. 15. For the reasons set 1 forth below, the Court GRANTS Defendants’ motion to dismiss. 1 2 I. 3 FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND Plaintiffs, ten members of the Hmong community, allege that 4 “[t]he local government in Siskiyou County is engaged in a 5 systematic campaign to deprive Plaintiffs, and other members of 6 the Hmong community, of their right to vote, and their right to 7 the exclusive use and enjoyment of their private property.” 8 Compl. ¶ 1, ECF No. 1. 9 “[D]efendants conspired to disenfranchise Plaintiffs by Plaintiffs further allege that 10 challenging their status as California residents through racially 11 discriminatory implementation and enforcement of County 12 Ordinances, and as to some plaintiffs, threatened prosecution.” 13 Compl. ¶ 2. 14 In the June 2016 primary election, the voters of Siskiyou 15 County approved two ordinances regarding the cultivation of 16 marijuana. 17 prohibits outdoor cultivation of marijuana. 18 Judicial Notice (“RJN”) Ex. A, ECF 15-2. 19 empowers the Board of Supervisors or an enforcing officer to 20 enforce Section 10-14.030 by issuing notices of abatement. 21 Compl. ¶ 4. Siskiyou County Code Section 10-14.030 See Defs.’ Req. for Section 10-14.090 Id. Plaintiffs allege that Defendants have disproportionately 22 targeted the Hmong community in enforcing the new ordinances. 23 Compl. ¶ 4. 24 notices and scheduled abatement hearings. 25 Plaintiffs also allege that Defendants executed search warrants The County has issued several nuisance violation Compl. ¶ 29. 26 27 28 1 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. 2 1 on various properties and that during the searches “residents who 2 were present were handcuffed and held at gunpoint while their 3 properties were ransacked.” 4 seized medical marijuana plants during the searches. 5 ¶ 31. 6 onto their properties to investigate voter fraud. 7 21. 8 9 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 10 seizure against all defendants, (2) violation of the Fourteenth 11 Amendment against all defendants, (3) municipal liability against 12 the County on a failure-to-train theory, (4) supervisory 13 liability against Lopey, (5) employer liability against the 14 County, (6) negligence against all defendants, (7) negligent 15 hiring and supervision against all defendants, (8) violation of 16 California Elections Code Section 14027 against all defendants, 17 (9) violation of § 2 of the Voting Rights Act against all 18 defendants, (10) negligent infliction of emotional distress 19 against all defendants, and (11) ratification against the County. 20 Compl. at 24-30. 21 eleventh claims pursuant to § 1983. Plaintiffs bring their first through fifth and 22 Id. II. OPINION 23 A. Judicial Notice 24 Defendants ask the Court to take judicial notice of the two 25 Siskiyou County municipal ordinances at issue in this 26 litigation. 27 subjects for judicial notice,” Tollis, Inc. v. Cty. of San 28 Diego, 505 F.3d 935, 938 n.1 (9th Cir. 2007), the Court takes RJN at 2. Since “[m]unicipal ordinances are proper 3 1 judicial notice of Siskiyou County Code Sections 10-14.030 and 2 10-14.090. 3 B. Plaintiffs’ § 1983 Claims 4 Before addressing each individual cause of action, the 5 Court addresses three issues raised by Defendants that pertain 6 to all of Plaintiffs’ § 1983 claims: (1) claims against 7 individual defendants in their official capacities, 8 (2) qualified immunity, and (3) County liability. 9 1. Plaintiffs’ Official Capacity Claims Against Lopey and Setzer 10 11 Plaintiffs sue Lopey and Setzer in their individual and 12 official capacities. Compl. at 1. Defendants contend that 13 § 1983 claims “cannot be maintained against the Sheriff and 14 Clerk in their official capacities.” 15 Defendants are correct. 16 official in her official capacity is treated as a claim against 17 the entity itself.” 18 787, 793 n.1 (E.D. Cal. 2016) (citing Kentucky v. Graham, 473 19 U.S. 159, 166 (1985)). 20 entity and an officer in his official capacity, “the court may 21 dismiss the officer as a redundant defendant.” 22 Ethical Reform, Inc. v. L.A. Cty. Sheriff Dep't, 533 F.3d 780, 23 799 (9th Cir. 2008). 24 capacities, however, may remain. 25 Supp. 2d 1148, 1155 (E.D. Cal. 2010). 26 dismisses Plaintiffs’ § 1983 claims against Lopey and Setzer in 27 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. 28 4 The Court therefore 1 2 2. Qualified Immunity Defendants argue that qualified immunity shields Setzer and 3 Lopey from liability for Plaintiffs’ § 1983 claims. Mot. to 4 Dismiss at 4. 5 their federal rights, qualified immunity protects government 6 officials from liability for damages in certain situations. 7 v. Griego, 2016 WL 5930592, at *2 (E.D. Cal. Oct. 12, 2016). 8 “Qualified immunity balances two important interests . . . the 9 need to hold public officials accountable when they exercise Although § 1983 allows individuals to vindicate A.C. 10 power irresponsibly and the need to shield officials from 11 harassment, distraction, and liability when they perform their 12 duties reasonably.” 13 (2009). 14 (1) Are the facts that a plaintiff has alleged or shown 15 sufficient to demonstrate a violation of a constitutional right?; 16 and (2) Was the right at issue ‘clearly established’ at the time 17 of the defendant's alleged misconduct?” 18 586 F. App’x 685, 686 (9th Cir. 2013). 19 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 20 during the investigations that occurred at the various 21 properties, and it is not unreasonable for a local law 22 enforcement agency to assist an outside agency” in an 23 investigation of possible voter fraud. 24 to Setzer, Defendants assert that “the allegations simply 25 establish that she had minimal involvement beyond simply 26 performing her statutory duty to report the possibility of voter 27 fraud.” Id. at 5. 28 5 Mot. to Dismiss 4-5. As 1 Plaintiffs respond that “Defendants actively participated in 2 the investigations herewith and it is Plaintiffs[’] belief that 3 many of the Defendants were present and armed with military-style 4 assault rifles . . . [t]herefore, sufficient facts are alleged to 5 establish that a reasonable officer would believe the conduct in 6 question is unlawful under clearly established law.” 7 Opp’n at 4. Plaintiffs’ conclusory and unsupported argument fails. 8 While Plaintiffs assert that “many of the Defendants” 9 investigated Plaintiffs while holding assault rifles, Plaintiffs 10 do not point to any factual allegations showing that either Lopey 11 or Setzer personally participated in such activity. 12 allege only that Setzer reported suspected voter fraud to Lopey 13 and the California Secretary of State and notified individuals of 14 incomplete voter registration cards. 15 simply performed her job duties, and Plaintiffs do not provide 16 any support for their contention that Setzer’s actions deprived 17 them of a constitution right. 18 voted in the June election, belying Plaintiffs’ allegations that 19 Setzer infringed upon each Plaintiff’s right to vote. 20 ¶¶ 45, 64, 79. 21 and the Court dismisses all § 1983 claims brought against Setzer 22 with prejudice. 23 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 24 releases and that some of his subordinates visited Plaintiffs’ 25 properties. 26 personally violated any of Plaintiffs’ constitutional rights and 27 he is also entitled to qualified immunity. Compl. at 8-9. Plaintiffs fail to allege that Lopey 28 6 All § 1983 claims 1 brought against Lopey in his individual capacity are dismissed 2 without leave to amend. 2 3 3. 4 County Liability A local government cannot be held liable pursuant to § 1983 5 under a theory of “respondeat superior.” Christie v. Iopa, 176 6 F.3d 1231, 1234-35 (9th Cir. 1999). 7 liable only when action pursuant to official municipal policy 8 causes a constitutional violation. 9 policy” requirement “distinguishe[s] acts of the municipality Instead, municipalities are Id. at 1235. The “official 10 from acts of employees of the municipality,” and thereby limits 11 liability to actions for which the municipality is actually 12 responsible. 13 Id. (emphasis in original). Plaintiffs allege an unconstitutional municipal policy or 14 practice only in their third cause of action. 15 ¶¶ 110, 113 with Compl. ¶ 115. 16 Plaintiffs’ first and second causes of action as brought against 17 the County with leave to amend. 18 Plaintiffs’ fifth cause of action for “Employer Liability 19 Against County of Siskiyou” without leave to amend because 20 municipalities cannot be held liable under § 1983 merely because 21 they employ people who may have violated constitutional rights. 22 2 23 24 25 26 27 28 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. 7 1 See id. 4. 2 Third Cause of Action: § 1983 Municipal Liability Against the County 3 Plaintiffs allege municipal liability against the County 4 based on a failure-to-train theory. Compl. ¶ 115. Plaintiffs 5 allege that the County’s training policies “were not adequate to 6 train its sheriff’s deputies and police officers to handle voter 7 fraud investigations and building safety code enforcement.” 8 Compl. ¶ 115. 9 A public entity’s failure to adequately train its employees 10 may create liability under § 1983 when the “failure to train 11 amounts to deliberate indifference to the rights of persons with 12 whom the [employees] come into contact.” Myers v. City of 13 Madera, 2011 WL 2361628, at *5 (E.D. Cal. Jun. 9, 2011) (quoting 14 City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)). “The 15 issue is whether the training program is adequate and, if it is 16 not, whether such inadequate training can justifiably be said to 17 represent municipal policy.” Long v. Cty. of L.A., 442 F.3d 18 1178, 1186 (9th Cir. 2006). A plaintiff alleging a failure-to- 19 train claim must show: (1) he was deprived of a constitutional 20 right, (2) the municipality had a training policy that amounted 21 to deliberate indifference to the constitutional rights of the 22 persons' with whom its police officers are likely to come into 23 contact; and (3) his constitutional injury would have been 24 avoided had the municipality properly trained those officers.” 25 Blankenhorn v. City of Orange, 485 F.3d 463, 485 (9th Cir. 26 2007). 27 Plaintiffs fail to “identify any specific training that was 28 8 1 deficient, or how the policy amounted to deliberate 2 indifference.” 3 at *4 (E.D. Cal. Mar. 14, 2014). Absent such allegations this 4 claim cannot survive. 5 cause of action is granted with leave to amend. 6 5. See Molina v. City of Visalia, 2014 WL 1117005, The motion to dismiss Plaintiffs’ third Eleventh Cause of Action: Ratification Against the County 7 8 9 Plaintiffs allege that “Lopey ratified his subordinates’ acts because he knew of and specifically approved of the pattern 10 and practice of sheriff’s deputies in Siskiyou County using 11 excessive force while on duty and unlawfully entering onto 12 private property without a search warrant.” 13 Compl. ¶ 146. To impose municipal liability under a ratification theory, a 14 plaintiff must show that the authorized policymakers approved a 15 subordinate's decision and the basis for it. 16 F.3d 978, 987 (9th Cir. 2004). 17 subordinate's actions, without more, cannot support a § 1983 18 claim. 19 something more than a failure to reprimand to establish a 20 municipal policy or ratification.’” 21 Dep't, 2016 WL 2602411, at *3 (E.D. Cal. May 5, 2016) (quoting 22 Kanae v. Hodson, 294 F. Supp. 2d 1179, 1189 (D. Haw. 2003)). 23 Vague and conclusory allegations of official participation in 24 § 1983 violations cannot withstand a motion to dismiss. 25 City of Fresno, 2011 WL 284971, at *17 (E.D. Cal. Jan. 26, 2011). 26 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 27 ratification claim. See Compl. ¶ 146. 28 facts to support their allegations that Lopey knew of his Arres v. 9 Plaintiffs provide no 1 subordinates’ actions or that he approved of such actions. 2 Court therefore must dismiss Plaintiffs’ eleventh claim but does 3 so with leave to amend. The 4 C. State Common Law Claims 5 Plaintiffs assert three California state common law claims: 6 negligence (sixth cause of action), negligent hiring/supervision 7 (seventh cause of action), and intentional infliction of 8 emotional distress (“NIED”) (tenth cause of action). 9 27-29. Compl. at “It is well-settled that there is no common law tort 10 liability for public entities in California; instead, such 11 liability must be based on statute.” 12 WL 3609489, at *2 (S.D. Cal. Sept. 14, 2010). 13 seventh, and tenth causes of action are based on common law, not 14 on statute, and thus are dismissed as brought against the County 15 without leave to amend. 16 Cardinal v. Buchnoff, 2010 Plaintiffs’ sixth, Defendants next argue that California Government Code 17 section 821 shields both Setzer and Lopey from liability for 18 their actions in investigating potential voter fraud. 19 Dismiss at 12. 20 Mot. to Section 821.6 provides: 22 “[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.” 23 California courts construe section 821.6 broadly. 21 Gillan v. 24 City of San Marino, 147 Cal. App. 4th 1033, 1048 (2007). “Section 25 821.6 is not limited to conduct occurring during formal 26 proceedings. 27 formal proceedings. 28 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’ 10 1 with immunity.” 2 (E.D. Cal. Dec. 27, 2010) (quoting Javor v. Taggart, 98 3 Cal.App.4th 795, 808 (2002)) (internal punctuation omitted). 4 Clark v. Cty. of Tulare, 2010 WL 5437195, at *2 Plaintiffs respond by arguing that “the immunities provided 5 under Gov Code section 818.2 829, 820.6 and 845 do not render 6 this Cause of Action non-actionable.” 7 Plaintiff’s do not cite to any authority or provide any analysis 8 to support this proposition. 9 fails. Opp’n at 13. But Plaintiffs’ unsupported argument The facts alleged indicate that Setzer and Lopey acted in 10 furtherance of an investigation into potential voter fraud when 11 they notified the California Secretary of State and provided 12 officers to assist the Secretary of State’s investigator. 13 Plaintiffs have not provided any facts or arguments to rebut 14 section 821.6’s applicability to this case. 15 Lopey and Setzer are immune from Plaintiffs’ state law claims 16 pursuant to section 821.6 and therefore dismisses these claims 17 with prejudice as to these individual defendants. The Court finds that 18 D. Voting Causes of Action 19 Plaintiffs bring two voting claims: violation of California 20 Elections Code section 14027 (eighth cause of action) and 21 violation of § 2 of the Voting Rights Act (ninth cause of 22 action). 23 causes of action can survive. 24 Compl. at 28-29. As explained below, neither of these 1. Eighth Cause of Action: Violation of California Elections Code Section 14027 25 26 Plaintiffs allege that Defendants used an “‘at-large 27 election’ to pass Measures T and U in an intentional, unlawful, 28 and selective way for the purpose of disenfranchising Plaintiffs 11 1 specifically, and Hmong residents general[ly]” in violation of 2 California Elections Code section 14027. Compl. ¶ 136. 3 4 Section 14027 of the Elections Code states: 5 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. 6 7 8 9 Cal. Elec. Code § 14027. Section 14026 defines an “at-large 10 election” as: 11 (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. 12 13 14 15 16 17 Cal. Elec. Code § 14026. 18 Defendants contend that “Measures T and U were propositions 19 submitted to popular vote, not an ‘at-large’ election, which has 20 a specific statutory definition. 21 ‘at-large election’ regarding Measures T and U.” 22 at 8-9. 23 U were passed through “at-large” methods. 24 . . . [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 25 and 14027 apply to elections of candidates. 26 cite any authority to support their contention that these 27 sections apply to passage of measures or propositions. Absent 28 such authority, this Court declines to interpret this state 12 Plaintiffs do not 1 statute to apply beyond the statute’s plain text and dismisses 2 Plaintiffs’ eighth cause of action without leave to amend. 3 4 2. Ninth Cause of Action: Voting Rights Act Plaintiffs allege that Defendants “imposed voting 5 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 9 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. 12 13 14 15 16 17 18 19 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 9 10 The following claims are dismissed with leave to amend: • The first, second, third, and eleventh causes of action as brought against the County 11 12 Setzer and Lopey are dismissed from this case with 13 prejudice. 14 twenty days of the date of this Order. 15 responsive pleading twenty days thereafter. 16 17 Plaintiffs shall file their amended complaint within IT IS SO ORDERED. Dated: January 12, 2017 18 19 20 21 22 23 24 25 26 27 28 16 The County shall file its

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