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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JESSE VANG, et al, 12 2:16-cv-2172-JAM-CMK Plaintiffs, 13 14 No. v. SHERIFF JON LOPEY, et al, 15 ORDER GRANTING DEFENDANTS ALEX NISHIMURA AND CAL FIRE’S MOTION TO DISMISS Defendants. 16 Plaintiffs, several Hmong individuals who own property in 17 18 Siskiyou County (“the County”), allege Defendants California 19 Department of Forestry and Fire Protection (“Cal Fire”) and Alex 20 Nishimura (“Nishimura”), an investigator for the California 21 Secretary of State, violated the Constitution and state and 22 federal law in investigating allegations of voter fraud. 23 Amended Complaint (“SAC”), ECF No. 56. 24 (collectively “Defendants”) move to dismiss Plaintiffs’ SAC. 25 No. 58. Plaintiffs oppose the motion. Second Cal Fire and Nishimura ECF ECF No. 60. 1 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 April 4, 2017. 1 1 I. 2 3 FACTS The Court takes the facts alleged by Plaintiffs as true for purposes of this motion. 4 Many members of the Hmong community in the County attempted 5 to register to vote before the June 2016 election. 6 County clerk Colleen Setzer forwarded copies of several voter 7 registration cards to the California Secretary of State Election 8 Fraud Division for investigation. 9 Plaintiffs received letters from Nishimura indicating the SAC ¶ 19. SAC ¶ 18. Around May 2016, 10 Secretary of State would begin conducting a voter fraud 11 investigation. 12 SAC ¶ 24. On June 1, 2016, Cal Fire officer Monte Whipple and other 13 individuals from Siskiyou County participated in voter fraud 14 investigations. 15 told Plaintiffs “they could not use their property to register to 16 vote, and would be prosecuted if they attempted to vote.” 17 ¶ 31. 18 government agency carrying an assault rifle.” 19 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 20 property. 21 sheriff’s officer and the person in the CAL-FIRE truck pulled out 22 two assault rifles.” 23 interaction with the armed Cal Fire agent, but Xiong still voted on 24 June 7 using a provisional ballot. 25 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 26 property and told Vang “he would go to jail if he voted on June 27 7, 2016, because he did not register properly online.” 28 ¶¶ 47-50. SAC Vang did not vote in the June or November elections 2 1 2 3 4 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 5 are against Cal Fire and Nishimura: (1) unreasonable search and 6 seizure under § 1983, (2) violation of the Fourteenth Amendment 7 under § 1983, (3) negligence, (4) violation of California 8 Elections Code § 14027, (5) violation of § 2 of the Voting Rights 9 Act (“VRA”), and (6) negligent infliction of emotional distress 10 (“NIED”). 11 against only Cal Fire for negligent hiring and supervision. 12 at 36. SAC at 29-38. Plaintiffs bring a seventh claim SAC 13 14 II. OPINION 15 A. Claims Against Cal Fire 16 Cal Fire argues that other than the VRA claim, the Eleventh 17 Amendment bars “all of Plaintiff’s claims against the state 18 agency CAL FIRE.” 19 1. Mot. at 4. § 1983 Claims Against Cal Fire (First and Second Causes of Action) 20 21 The Eleventh Amendment bars a citizen from bringing a suit 22 against the citizen’s own state in federal court. 23 California Dep't of Forestry & Fire Prot., 2016 WL 4411816, at *5 24 (N.D. Cal. Aug. 19, 2016). 25 agencies and departments,” including Cal Fire. 26 Clark v. “This immunity also extends to state Id. Some exceptions exist to state sovereign immunity, such as if 27 a state expressly waives its immunity and consents to suit in 28 federal court or if Congress overrides that immunity. 3 Moreno v. 1 Thomas, 490 F. Supp. 2d 1055, 1059 (C.D. Cal. 2007). 2 California has not waived its Eleventh Amendment immunity with 3 respect to claims brought under § 1983 in federal court, and the 4 Supreme Court has held that § 1983 was not intended to abrogate a 5 State’s Eleventh Amendment immunity.” 6 marks and citations omitted). 7 not preclude a suit against state officers for prospective relief 8 from an ongoing violation of federal law.” 9 Health Ctr. v. Belshe, 188 F.3d 1090, 1095 (9th Cir. 1999). 10 “The State of Id. (internal quotation But, the Eleventh Amendment “does Children’s Hosp. & Plaintiffs argue their first two claims should proceed against 11 Cal Fire because they seek “prospective injunctive and declaratory 12 relief.” 13 pursuing injunctive relief applies only to “state officers,” not to 14 state agencies. 15 Court therefore finds Cal Fire is immune from liability for 16 Plaintiffs’ § 1983 claims, and thus dismisses Plaintiffs’ first two 17 claims against Cal Fire with prejudice. 18 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) 19 20 Plaintiffs assert three California state common law claims 21 against Cal Fire: negligence, negligent hiring/supervision, and 22 NIED. 23 Order, “[i]t is well-settled that there is no common law tort 24 liability for public entities in California; instead, such 25 liability must be based on statute.” 26 WL 3609489, at *2 (S.D. Cal. Sept. 14, 2010). 27 sixth, and ninth claims are based on common law, not statute, and 28 thus are dismissed as brought against Cal Fire with prejudice. SAC at 35-36, 40. As stated in this Court’s previous 4 Cardinal v. Buchnoff, 2010 Plaintiffs’ fifth, 1 3. California Elections Code § 14027 (Seventh Cause of Action) 2 3 Plaintiffs allege Cal Fire “use[d] an ‘at-large election’ to 4 pass Measures T and U, in an intentional, unlawful and selective 5 way for the purpose of disenfranchising Plaintiffs” in violation 6 of California Elections Code § 14027. 7 discussed § 14027 in its previous Order and stated that it 8 “appl[ies] to elections of candidates.” 9 No. 51. SAC ¶ 155. The Court 1/13/17 Order at 12, ECF Plaintiffs have once again failed to “cite to any 10 authority to support their contention that [§ 14027] appl[ies] to 11 passage of measures or propositions.” 12 dismisses Plaintiffs’ seventh claim for violation of California 13 Election Code § 14027 as brought against Cal Fire and Nishimura 14 with prejudice. 15 4. See id. The Court Violation of the Voting Rights Act (Eighth Cause of Action) 16 17 Plaintiffs allege Cal Fire violated 52 U.S.C. § 10303(f)(2) 18 by “impos[ing] voting qualifications and/or prerequisites to 19 voting and/or standards, practices, or procedures in a manner 20 resulting in a denial or abridgement of the right of Plaintiffs 21 . . . to vote on account of race or color.” 22 10303(f)(2) states that “[n]o voting qualification or 23 prerequisite to voting, or standard, practice, or procedure 24 shall be imposed or applied by any State or political 25 subdivision to deny or abridge the right of any citizen of the 26 United States to vote because he is a member of a language 27 minority group.” 28 SAC ¶ 158. Section 52 U.S.C. § 10303(f)(2). Cal Fire argues the presence of one of its officers during 5 1 an investigation into voter fraud “does not amount to an 2 imposition of a prerequisite, or ‘standard, practice, or 3 procedure’ in violation of the Voting Rights Act.” 4 Plaintiffs respond that the “voter provisions, intimidation 5 tactics and restrictions which targeted Plaintiffs [and 6 interfered] with Plaintiffs[‘] right to vote, rose to a 7 ‘standard, practice, or procedure’ from which a court must find 8 a violation of § 2 of the Voting Rights Act.” 9 Plaintiffs do not cite to any legal authority to support this 10 Mot. at 15. Opp’n at 13. claim. 11 The only factual allegations against Cal Fire are that Cal 12 Fire officials assisted with a voter fraud investigation on two 13 days in June 2016 while carrying assault rifles. 14 finds these allegations insufficient to allege Cal Fire’s 15 conduct rose to the level of the imposition of a “standard, 16 practice, or procedure” with the intent to deny Plaintiffs the 17 right to vote. 18 against Cal Fire with prejudice. 19 The Court The Court dismisses the VRA claim as brought The Court also dismisses the VRA claim as brought against 20 Nishimura with prejudice because Nishimura is not a “State or 21 political subdivision” to which the VRA applies. 22 23 B. Remaining Claims Against Nishimura 1. Search and Seizure § 1983 Claim (First Cause of Action) 24 25 Nishimura argues that Plaintiffs have not stated a § 1983 26 unlawful search and seizure against him. 27 Plaintiffs respond that “Nishimura authored an investigatory 28 letter,” asked one plaintiff for his name and identification, 6 Mot. at 8-9. 1 and threatened the same plaintiff that he would go to jail if he 2 voted in the June 2016 election. 3 Opp’n at 7. But state officials do not violate the right against search 4 and seizure when they “ask questions of an individual [or] ask 5 to examine the individual’s identification.” 6 Gutierrez-Llamas, 24 F. App'x 787, 788 (9th Cir. 2001). 7 the allegations that Nishimura “authored an investigatory 8 letter” and told a plaintiff that he could go to jail, 9 Plaintiffs do not provide any legal authority stating these United States v. As to 10 actions constitute unlawful search and seizure. 11 other allegations against Nishimura in their opposition brief— 12 i.e. Nishimura engaged in some planning meetings with County 13 officials—but none of these allegations appear in Plaintiffs’ 14 SAC. 15 Plaintiffs make There are no allegations that Nishimura personally searched 16 or seized any of Plaintiffs’ persons or property. 17 therefore dismisses Plaintiffs’ first claim as brought against 18 Nishimura with prejudice. 19 2. The Court Due Process Claim (Second Cause of Action) 20 Plaintiffs allege Nishimura was “deliberately indifferent 21 to the health and safety of Plaintiffs” or “acted with purpose 22 to cause harm” in violation of the Fourteenth Amendment. 23 ¶ 130. 24 25 i. SAC Deliberate Indifference The Fourteenth Amendment’s Due Process Clause “does not 26 confer any affirmative right to governmental aid and typically 27 does not impose a duty on the state to protect individuals from 28 third parties.” A.D. v. California Highway Patrol, 712 F.3d 7 1 446, 453 (9th Cir. 2013) (internal quotation marks omitted). 2 There are two exceptions to this rule: (1) the “special 3 relationship” exception—when a custodial relationship exists 4 between the plaintiff and the State such that the State assumes 5 some responsibility for the plaintiff's safety and well-being; 6 and (2) the “state-created danger” exception—when the state 7 affirmatively places the plaintiff in danger by acting with 8 deliberate indifference to a known and obvious danger. 9 Id. Plaintiffs have not pled facts to support that either of 10 the two exceptions apply. 11 claim against Nishimura fails, and the Court dismisses it with 12 prejudice. 13 14 ii. Plaintiffs’ “deliberate indifference” Purpose to Harm A law enforcement officer violates the Fourteenth Amendment 15 when he acts with “a purpose to cause harm unrelated to the 16 legitimate object of arrest.” 17 Kosakoff v. City of San Diego, 460 F. App’x 652, 655 (9th Cir. 18 2011). 19 opposition how Nishimura acted with “purpose to cause harm” 20 toward Plaintiffs. 21 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 22 against Nishimura with prejudice. 23 stated § 1983 claims against Nishimura and because the Court 24 dismisses those claims with prejudice, the Court need not 25 address Nishimura’s assertions of Eleventh Amendment immunity 26 and qualified immunity. 27 3. 28 Because Plaintiffs have not State Law Claims (Fifth and Ninth Claims) In addition to the California Elections Code § 14027 claim— 8 1 which the Court dismissed above—Plaintiffs bring two other state 2 claims against Nishimura: negligence and NIED. 3 SAC at 35, 40. Nishimura argues California Government Code § 821.6 shields 4 him from liability from Plaintiffs’ state law claims. 5 11. 6 liable for injury caused by his instituting or prosecuting any 7 judicial or administrative proceeding within the scope of his 8 employment, even if he acts maliciously and without probable 9 cause.” 10 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. 11 City of San Marino, 147 Cal. App. 4th 1033, 1048 (2007). “Section 12 821.6 is not limited to conduct occurring during formal 13 proceedings. 14 formal proceedings. 15 toward the institution of formal proceedings, it is also cloaked 16 with immunity.” 17 (E.D. Cal. Dec. 27, 2010) (quoting Javor v. Taggart, 98 18 Cal.App.4th 795, 808 (2002)) (internal punctuation omitted). 19 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 20 immunity protection” offered by § 821.6. 21 Plaintiffs do not provide any legal authority to support their 22 contention that Nishimura’s actions in investigating potential 23 voter fraud exceeded § 821.6 immunity. 24 “Plaintiffs have only alleged that Nishimura sent letters 25 requesting Plaintiffs fill out a questionnaire and visited and 26 spoke with Plaintiffs in furtherance of his investigation . . . 27 These actions are well within the [§ 821.6] immunity.” 28 11. 9 Opp’n at 12. Nishimura argues Mot. at 1 The Court agrees with Nishimura. The factual allegations 2 against him arose in the context of his investigation of 3 potential voter fraud and § 821.6 therefore shields him from 4 liability for state law claims. 5 and ninth causes of action as brought against Nishimura with 6 prejudice. The Court dismisses the fifth 7 8 9 II. ORDER For the reasons set forth above, the Court GRANTS 10 Defendants’ motion to dismiss with prejudice. 11 Fire are dismissed as defendants in this case. 12 13 14 IT IS SO ORDERED. Dated: May 3, 2017 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Nishimura and Cal

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