Vang et al v. Lopey, et al.,

Filing 68

ORDER signed by District Judge John A. Mendez on 5/3/2017 GRANTING 58 Motion to Dismiss. California Department of Forestry and Fire Protection and Alex Nishimura are DISMISSED as defendants in this case. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JESSE VANG, et al,

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2:16-cv-2172-JAM-CMK

Plaintiffs,

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No.

v.
SHERIFF JON LOPEY, et al,

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ORDER GRANTING DEFENDANTS ALEX
NISHIMURA AND CAL FIRE’S MOTION
TO DISMISS

Defendants.

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Plaintiffs, several Hmong individuals who own property in

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Siskiyou County (“the County”), allege Defendants California

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Department of Forestry and Fire Protection (“Cal Fire”) and Alex

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Nishimura (“Nishimura”), an investigator for the California

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Secretary of State, violated the Constitution and state and

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federal law in investigating allegations of voter fraud.

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Amended Complaint (“SAC”), ECF No. 56.

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(collectively “Defendants”) move to dismiss Plaintiffs’ SAC.

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No. 58.

Plaintiffs oppose the motion.

Second

Cal Fire and Nishimura
ECF

ECF No. 60. 1

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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 April 4, 2017.
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I.

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FACTS

The Court takes the facts alleged by Plaintiffs as true for
purposes of this motion.

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Many members of the Hmong community in the County attempted

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to register to vote before the June 2016 election.

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County clerk Colleen Setzer forwarded copies of several voter

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registration cards to the California Secretary of State Election

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Fraud Division for investigation.

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Plaintiffs received letters from Nishimura indicating the

SAC ¶ 19.

SAC ¶ 18.

Around May 2016,

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Secretary of State would begin conducting a voter fraud

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investigation.

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SAC ¶ 24.

On June 1, 2016, Cal Fire officer Monte Whipple and other

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individuals from Siskiyou County participated in voter fraud

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investigations.

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told Plaintiffs “they could not use their property to register to

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vote, and would be prosecuted if they attempted to vote.”

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¶ 31.

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government agency carrying an assault rifle.”

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SAC ¶ 27.

Members of these investigation teams

SAC

The investigation team included “at least one officer of a
Id.

On June 2, an investigation team visited Dang Xiong’s

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property.

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sheriff’s officer and the person in the CAL-FIRE truck pulled out

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two assault rifles.”

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interaction with the armed Cal Fire agent, but Xiong still voted on

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June 7 using a provisional ballot.

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SAC ¶ 73.

“As Mr. Xiong approached the vehicles, the

SAC ¶ 74.

Xiong feared voting after his

SAC ¶ 78.

Also on June 2, Nishimura visited Plaintiff Jesse Vang’s

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property and told Vang “he would go to jail if he voted on June

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7, 2016, because he did not register properly online.”

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¶¶ 47-50.

SAC

Vang did not vote in the June or November elections
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because he feared arrest if he voted.

SAC ¶ 54.

Plaintiffs do not make any other specific factual
allegations against Nishimura or Cal Fire in their SAC.
Plaintiffs bring nine claims in total.

Six of these claims

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are against Cal Fire and Nishimura: (1) unreasonable search and

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seizure under § 1983, (2) violation of the Fourteenth Amendment

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under § 1983, (3) negligence, (4) violation of California

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Elections Code § 14027, (5) violation of § 2 of the Voting Rights

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Act (“VRA”), and (6) negligent infliction of emotional distress

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(“NIED”).

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against only Cal Fire for negligent hiring and supervision.

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at 36.

SAC at 29-38.

Plaintiffs bring a seventh claim
SAC

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II. OPINION

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A.

Claims Against Cal Fire

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Cal Fire argues that other than the VRA claim, the Eleventh

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Amendment bars “all of Plaintiff’s claims against the state

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agency CAL FIRE.”

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1.

Mot. at 4.

§ 1983 Claims Against Cal Fire (First and Second
Causes of Action)

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The Eleventh Amendment bars a citizen from bringing a suit

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against the citizen’s own state in federal court.

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California Dep't of Forestry & Fire Prot., 2016 WL 4411816, at *5

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(N.D. Cal. Aug. 19, 2016).

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agencies and departments,” including Cal Fire.

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Clark v.

“This immunity also extends to state
Id.

Some exceptions exist to state sovereign immunity, such as if

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a state expressly waives its immunity and consents to suit in

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federal court or if Congress overrides that immunity.

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Moreno v.

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Thomas, 490 F. Supp. 2d 1055, 1059 (C.D. Cal. 2007).

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California has not waived its Eleventh Amendment immunity with

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respect to claims brought under § 1983 in federal court, and the

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Supreme Court has held that § 1983 was not intended to abrogate a

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State’s Eleventh Amendment immunity.”

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marks and citations omitted).

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not preclude a suit against state officers for prospective relief

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from an ongoing violation of federal law.”

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Health Ctr. v. Belshe, 188 F.3d 1090, 1095 (9th Cir. 1999).

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“The State of

Id. (internal quotation

But, the Eleventh Amendment “does

Children’s Hosp. &

Plaintiffs argue their first two claims should proceed against

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Cal Fire because they seek “prospective injunctive and declaratory

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relief.”

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pursuing injunctive relief applies only to “state officers,” not to

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state agencies.

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Court therefore finds Cal Fire is immune from liability for

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Plaintiffs’ § 1983 claims, and thus dismisses Plaintiffs’ first two

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claims against Cal Fire with prejudice.

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Opp’n at 6.

2.

But the Eleventh Amendment exception for

See Children’s Hosp., 188 F. 3d. at 1095.

The

State Common Law Claims Against Cal Fire (Fifth,
Sixth, and Ninth Causes of Action)

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Plaintiffs assert three California state common law claims

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against Cal Fire: negligence, negligent hiring/supervision, and

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NIED.

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Order, “[i]t 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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sixth, and ninth claims are based on common law, not statute, and

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thus are dismissed as brought against Cal Fire with prejudice.

SAC at 35-36, 40.

As stated in this Court’s previous

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Cardinal v. Buchnoff, 2010
Plaintiffs’ fifth,

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3.

California Elections Code § 14027 (Seventh Cause
of Action)

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Plaintiffs allege Cal Fire “use[d] an ‘at-large election’ to

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pass Measures T and U, in an intentional, unlawful and selective

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way for the purpose of disenfranchising Plaintiffs” in violation

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of California Elections Code § 14027.

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discussed § 14027 in its previous Order and stated that it

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“appl[ies] to elections of candidates.”

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No. 51.

SAC ¶ 155.

The Court

1/13/17 Order at 12, ECF

Plaintiffs have once again failed to “cite to any

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authority to support their contention that [§ 14027] appl[ies] to

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passage of measures or propositions.”

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dismisses Plaintiffs’ seventh claim for violation of California

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Election Code § 14027 as brought against Cal Fire and Nishimura

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with prejudice.

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4.

See id.

The Court

Violation of the Voting Rights Act (Eighth Cause
of Action)

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Plaintiffs allege Cal Fire violated 52 U.S.C. § 10303(f)(2)

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by “impos[ing] voting qualifications and/or prerequisites to

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voting and/or standards, practices, or procedures in a manner

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resulting in a denial or abridgement of the right of Plaintiffs

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. . . to vote on account of race or color.”

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10303(f)(2) states that “[n]o voting qualification or

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prerequisite to voting, or standard, practice, or procedure

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shall be imposed or applied by any State or political

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subdivision to deny or abridge the right of any citizen of the

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United States to vote because he is a member of a language

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minority group.”

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SAC ¶ 158.

Section

52 U.S.C. § 10303(f)(2).

Cal Fire argues the presence of one of its officers during
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an investigation into voter fraud “does not amount to an

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imposition of a prerequisite, or ‘standard, practice, or

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procedure’ in violation of the Voting Rights Act.”

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Plaintiffs respond that the “voter provisions, intimidation

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tactics and restrictions which targeted Plaintiffs [and

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interfered] with Plaintiffs[‘] right to vote, rose to a

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‘standard, practice, or procedure’ from which a court must find

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a violation of § 2 of the Voting Rights Act.”

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Plaintiffs do not cite to any legal authority to support this

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Mot. at 15.

Opp’n at 13.

claim.

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The only factual allegations against Cal Fire are that Cal

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Fire officials assisted with a voter fraud investigation on two

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days in June 2016 while carrying assault rifles.

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finds these allegations insufficient to allege Cal Fire’s

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conduct rose to the level of the imposition of a “standard,

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practice, or procedure” with the intent to deny Plaintiffs the

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right to vote.

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against Cal Fire with prejudice.

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The Court

The Court dismisses the VRA claim as brought

The Court also dismisses the VRA claim as brought against

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Nishimura with prejudice because Nishimura is not a “State or

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political subdivision” to which the VRA applies.

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B.

Remaining Claims Against Nishimura
1.

Search and Seizure § 1983 Claim (First Cause of
Action)

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Nishimura argues that Plaintiffs have not stated a § 1983

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unlawful search and seizure against him.

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Plaintiffs respond that “Nishimura authored an investigatory

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letter,” asked one plaintiff for his name and identification,
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Mot. at 8-9.

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and threatened the same plaintiff that he would go to jail if he

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voted in the June 2016 election.

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Opp’n at 7.

But state officials do not violate the right against search

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and seizure when they “ask questions of an individual [or] ask

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to examine the individual’s identification.”

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Gutierrez-Llamas, 24 F. App'x 787, 788 (9th Cir. 2001).

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the allegations that Nishimura “authored an investigatory

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letter” and told a plaintiff that he could go to jail,

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Plaintiffs do not provide any legal authority stating these

United States v.
As to

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actions constitute unlawful search and seizure.

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other allegations against Nishimura in their opposition brief—

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i.e. Nishimura engaged in some planning meetings with County

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officials—but none of these allegations appear in Plaintiffs’

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SAC.

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Plaintiffs make

There are no allegations that Nishimura personally searched

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or seized any of Plaintiffs’ persons or property.

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therefore dismisses Plaintiffs’ first claim as brought against

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Nishimura with prejudice.

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2.

The Court

Due Process Claim (Second Cause of Action)

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Plaintiffs allege Nishimura was “deliberately indifferent

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to the health and safety of Plaintiffs” or “acted with purpose

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to cause harm” in violation of the Fourteenth Amendment.

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¶ 130.

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i.

SAC

Deliberate Indifference

The Fourteenth Amendment’s Due Process Clause “does not

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confer any affirmative right to governmental aid and typically

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does not impose a duty on the state to protect individuals from

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third parties.”

A.D. v. California Highway Patrol, 712 F.3d
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446, 453 (9th Cir. 2013) (internal quotation marks omitted).

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There are two exceptions to this rule: (1) the “special

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relationship” exception—when a custodial relationship exists

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between the plaintiff and the State such that the State assumes

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some responsibility for the plaintiff's safety and well-being;

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and (2) the “state-created danger” exception—when the state

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affirmatively places the plaintiff in danger by acting with

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deliberate indifference to a known and obvious danger.

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Id.

Plaintiffs have not pled facts to support that either of

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the two exceptions apply.

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claim against Nishimura fails, and the Court dismisses it with

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prejudice.

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ii.

Plaintiffs’ “deliberate indifference”

Purpose to Harm

A law enforcement officer violates the Fourteenth Amendment

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when he acts with “a purpose to cause harm unrelated to the

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legitimate object of arrest.”

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Kosakoff v. City of San Diego, 460 F. App’x 652, 655 (9th Cir.

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2011).

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opposition how Nishimura acted with “purpose to cause harm”

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toward Plaintiffs.

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Estate of Kosakoff ex rel.

Plaintiffs do not indicate in their SAC or in their

The Court dismisses the first and second claims as brought

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against Nishimura with prejudice.

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stated § 1983 claims against Nishimura and because the Court

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dismisses those claims with prejudice, the Court need not

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address Nishimura’s assertions of Eleventh Amendment immunity

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and qualified immunity.

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3.

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Because Plaintiffs have not

State Law Claims (Fifth and Ninth Claims)

In addition to the California Elections Code § 14027 claim—
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which the Court dismissed above—Plaintiffs bring two other state

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claims against Nishimura: negligence and NIED.

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SAC at 35, 40.

Nishimura argues California Government Code § 821.6 shields

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him from liability from Plaintiffs’ state law claims.

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liable for injury caused by his instituting or prosecuting any

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judicial or administrative proceeding within the scope of his

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employment, even if he acts maliciously and without probable

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cause.”

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Mot. at

Section 821.6 states that “[a] public employee is not

Cal. Gov’t Code § 821.6.

California courts construe section 821.6 broadly.

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

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

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

Plaintiffs argue Nishimura’s “actions exceed the scope of

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immunity protection” offered by § 821.6.

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Plaintiffs do not provide any legal authority to support their

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contention that Nishimura’s actions in investigating potential

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voter fraud exceeded § 821.6 immunity.

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“Plaintiffs have only alleged that Nishimura sent letters

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requesting Plaintiffs fill out a questionnaire and visited and

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spoke with Plaintiffs in furtherance of his investigation . . .

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These actions are well within the [§ 821.6] immunity.”

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11.
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Opp’n at 12.

Nishimura argues

Mot. at

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The Court agrees with Nishimura.

The factual allegations

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against him arose in the context of his investigation of

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potential voter fraud and § 821.6 therefore shields him from

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liability for state law claims.

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and ninth causes of action as brought against Nishimura with

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prejudice.

The Court dismisses the fifth

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II.

ORDER

For the reasons set forth above, the Court GRANTS

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Defendants’ motion to dismiss with prejudice.

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Fire are dismissed as defendants in this case.

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IT IS SO ORDERED.
Dated: May 3, 2017

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Nishimura and Cal