Vang et al v. Lopey, et al.,

Filing 77

ORDER signed by District Judge John A. Mendez on 9/1/2017 GRANTING 72 Motion to Dismiss with prejudice. The Court has DISMISSED with prejudice all Plaintiffs' claims against all defendants and therefore DIRECTS the Clerk of Court to close the case. CASE CLOSED (Washington, S)

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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 DEFENDANT SISKIYOU COUNTY’S MOTION TO DISMISS Defendants. 16 Defendant Siskiyou County (“the County”) moves to dismiss 17 18 Plaintiffs’ Third Amended Complaint (“TAC”). 19 ECF No. 72. 20 For the reasons set forth below, the Court GRANTS the County’s 21 motion to dismiss. 2 22 /// 23 /// Plaintiffs oppose the motion. Mot. to Dismiss, Opp’n, ECF No. 74. 1 24 1 25 26 27 28 Plaintiffs filed two briefs in opposition to the County’s motion to dismiss: ECF Nos. 73, 74. The two briefs appear to be the same, and Plaintiffs filed both on time. The Court considers ECF No. 74 the operative opposition brief. 2 This motion was determined suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for August 29, 2017. 1 1 I. 2 FACTS Plaintiffs—several Hmong individuals who own property in the 3 County—allege that after the Hmong population increased, the 4 County “launched an unlawful and discriminatory campaign” against 5 Plaintiffs. 6 ordinances restricting medical marijuana growth. 7 County allegedly disproportionately enforced these ordinances 8 against Asian American individuals. TAC ¶ 5. The Board of Supervisors passed two TAC ¶ 6. The TAC ¶ 11. 9 In early 2016, Plaintiffs “began registering to vote in 10 Siskiyou County, using the County-assigned parcel numbers of 11 their legally owned property as their residential address.” 12 ¶ 18. 13 for possible voter fraud. TAC The County Clerk flagged these voter registration forms TAC ¶ 19. 14 On two days in June 2016, County officers visited 15 Plaintiffs’ properties, and allegedly some officers carried 16 assault rifles. 17 out of voting in the June or November 2016 elections. 18 70, 82, 88, 108. 19 TAC ¶ 32. These visits scared some plaintiffs TAC ¶¶ 54, The restrictions on cultivating medical marijuana passed as 20 Measures T and U in the June election. 21 Plaintiffs allege the County has “deliberately policed 22 subdivisions where high concentrations of Asian American property 23 owners are known to reside.” 24 of nuisance violations have been issued overwhelmingly to Asian 25 property owners as opposed to white property owners, which 26 comprise the majority racial population in Siskiyou County.” 27 ¶ 36. 28 TAC ¶ 36. TAC ¶ 36. Since then, Additionally, “notices TAC In September 2016, the County “executed a series of search 2 1 warrants” on some of Plaintiffs’ properties. 2 searching officers “handcuffed and held at gunpoint” individuals 3 present during the searches and “ransacked” the properties of 4 those not present. 5 SAC ¶ 42. The SAC ¶ 43. Plaintiffs brought two claims in their TAC: (1) racial 6 discrimination in violation of the Equal Protection Clause of the 7 Fourteenth Amendment and (2) retaliation in violation of the 8 First Amendment. 9 Plaintiffs’ second claim because “Plaintiffs did not raise a TAC at 33, 38. The Court has already dismissed 10 First Amendment claim in any of their previous complaints, and 11 the Court gave Plaintiffs leave to amend only their second cause 12 of action for alleged violation of the Fourteenth Amendment.” 13 Minute Order, ECF No. 71. 14 15 II. OPINION 16 A. 17 Government actors violate the Fourteenth Amendment’s equal Legal Standard 18 protection clause when they “enforce a valid statute in a 19 discriminatory fashion.” 20 1148, 1151 (9th Cir. 1972). 21 laws does not violate the Constitution. 22 equal protection claim based on selective enforcement a 23 plaintiff must show the enforcement “(1) has a discriminatory 24 effect; and (2) is motivated by a discriminatory purpose.” 25 Cuviello v. City & Cty. of S.F., 940 F. Supp. 2d 1071, 1097 26 (N.D. Cal. 2013). 27 28 United States v. Steele, 461 F.2d But, mere selectivity in enforcing Id. To establish an In addition to showing discriminatory purpose and effect, plaintiffs alleging selective enforcement against a municipality 3 1 must demonstrate the misconduct comes from a “policy, plan, or a 2 pervasive pattern.” 3 1142, 1153 (9th Cir. 2007). Rosenbaum v. City & Cty. of S.F., 484 F.3d 4 B. 5 The County argues the Court should dismiss Plaintiffs’ 6 equal protection claim because they have not alleged intentional 7 discrimination or that the County had a policy or custom of such 8 discrimination. 9 County on both issues. 10 1. 11 Analysis Mot. at 11, 14. The Court agrees with the Intentional Discrimination Plaintiffs must allege facts to support discriminatory 12 effect and intent to proceed on a selective enforcement claim. 13 Steele, 461 F.2d at 1151. 14 a. Discriminatory Effect 15 To show discriminatory effect, a plaintiff must allege 16 facts showing “others similarly situated generally have not been 17 prosecuted for conduct similar to that for which he was 18 prosecuted.” 19 Cir. 1975). 20 class” against which the court can compare the plaintiff’s 21 class. 22 2017 WL 3131547, at *3 (S.D. Cal. Jul. 21, 2017). 23 United States v. Scott, 521 F.2d 1188, 1195 (9th The plaintiff must “identify a similarly situated Morrow v. City of San Diego, No. 11-CV-01497-BAS-KSC, Plaintiffs allege “[a]t least 33 of the 39 total nuisance 24 violation notices (or approximately 85%) issued under the new 25 2016 Ordinance[s] were issued to Asian American property 26 owners.” 27 American residents who received nuisance violation notices and 28 requested abatement hearings were provided hearings and were not TAC ¶ 39. Plaintiffs also contend the “[n]on-Asian 4 1 raided by the sheriff’s department.” 2 further state two criminal cases were filed following the 3 property searches before the ordinances were passed, and “[b]oth 4 of the criminal cases were filed against Asian Americans [and] 5 [n]ot one single case was filed against non-Asian residents.” 6 TAC ¶ 43. TAC ¶ 41. Plaintiffs 7 The County argues such allegations cannot withstand a 8 motion to dismiss because “Plaintiffs do not allege that there 9 were large populations of other ethnicities that were illegally 10 growing marijuana in Siskiyou County, but that were not affected 11 by issuance of nuisance violations.” 12 contends: “The conduct alleged in Plaintiffs’ pleading occurred 13 not because Plaintiffs were Asian-Americans, but because they 14 were illegally growing large quantities of marijuana on their 15 properties.” 16 actually show the County enforced the ordinance against non- 17 Asian individuals by issuing nuisance violations to six non- 18 Asian individuals. 19 identified people against whom the County did not enforce the 20 ordinance, Plaintiffs fail to indicate how or whether these 21 other individuals were “similarly situated” to Plaintiffs. 22 Reply at 5. Mot. at 5. The County Additionally, the above allegations Furthermore, even if Plaintiffs have Plaintiffs have not sufficiently alleged facts 23 demonstrating that the County failed to enforce the marijuana 24 ordinances against a similarly situated class of people, and 25 therefore have not shown discriminatory effect. 26 City of Tempe, No. CV09-00752-PHX-MHM, 2010 WL 94116, at *5 (D. 27 Ariz. Jan. 6, 2010)(“Plaintiff’s pleadings do not allege a 28 discriminatory effect, as he has not alleged facts demonstrating 5 See Wilkins v. 1 that Defendants failed to enforce similar laws against similarly 2 situated individuals.”). 3 b. Discriminatory Intent 4 To show discriminatory intent or purpose, plaintiffs must 5 allege facts showing the defendant enforced a law based “on an 6 impermissible ground, such as race, religion or control over the 7 exercise of their expression.” 8 F.2d 628, 634 (9th Cir. 1981). 9 United States v. Hooten, 662 The County argues Plaintiffs’ allegations do not show 10 intentional discrimination, but instead “simply establish the 11 enforcement of a lawfully enacted voter-approved ordinance.” 12 Mot. at 14. 13 fail to specifically allege any fact to support their claim that 14 any action was taken against any Plaintiff because they were 15 Asian.” Additionally, the County asserts that “Plaintiffs Reply at 5 (emphasis in original). 16 Plaintiffs respond that their TAC alleges: 17 Defendant intentionally enacted SCC 10-14.030, intentionally and exclusively enforced the local ordinance against a protected racial group (Asian Americans) in the county, intentionally launched a voter fraud investigation against Plaintiffs (because they are Asian American) because they registered to vote, and intentionally raided the homes of Plaintiffs prior to the general election in an effort to further intimidate, harass and otherwise prevent Plaintiffs from exercising their right to vote. 18 19 20 21 22 23 24 Opp’n at 10. But Plaintiffs’ argument relies on conclusory assertions of 25 intent without facts showing actual subjective intent. 26 Plaintiffs do not cite to any cases where merely alleging 27 discriminatory intent without supportive facts suffices to 28 establish an equal protection claim’s “intent” requirement. 6 1 Plaintiffs have not shown discriminatory effect or intent, and 2 their equal protection claim therefore fails. 3 2. County Policy or Custom 4 The County argues Plaintiffs fail to allege the County had 5 a policy or practice that violated the equal protection clause. 6 Mot. at 11. 7 had multiple opportunities to amend their complaint “it is still 8 not clear which municipal policy was used to deprive them of any 9 federal right based on race.” 10 The County asserts that even though Plaintiffs have Mot. at 2. Plaintiffs allege the County has had a practice or custom 11 of targeting Asian Americans “since 2015 after the County Board 12 of Supervisors enacted a local ordinance that was intended to 13 target Asian landowners in rural areas of the county.” 14 ¶ 134. 15 pattern and practice of Defendant targeting Asian Americans 16 disproportionately.” 17 allegations “are not mere suspicions of Defendants’ activity— 18 they actually occurred, and Defendant does not dispute [that].” 19 Id. at 10. 20 TAC Plaintiffs argue the facts in the complaint “show a Opp’n. at 8. Plaintiffs contend their The County responds that it does not dispute the 21 allegations because the Court must take the Plaintiffs’ alleged 22 facts as true in deciding this motion. 23 these facts are true, the County argues, it still does not show 24 the County had a policy or custom of intentional discrimination 25 against Asian-Americans. 26 Circuit case which articulated the requirement for a Monell 27 claim as follows: 28 Id. Reply at 2. Even if all The County cites to a Ninth Absent a formal governmental policy, [a plaintiff] 7 1 2 3 4 5 6 must show a “longstanding practice or custom which constitutes the standard operating procedure of the local government entity.” Gillette, 979 F.2d at 1346– 47. The custom must be so “persistent and widespread” that it constitutes a “permanent and well settled city policy.” Monell v. Dept. of Soc. Serv. of N.Y., 436 U.S. 658, 691 (1978). Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy. 7 8 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). The County 9 argues “the subject ordinances had not been in place for a 10 sufficient duration” to allow the development a custom of 11 discriminatory enforcement. Reply at 3. 12 Plaintiffs simply do not identify any “longstanding 13 practice or custom” of the County discriminatorily enforcing 14 medical marijuana ordinances and related laws against Asian 15 Americans. 16 unconstitutional policy or custom sufficient to proceed on a 17 § 1983 claim against the County. 18 19 The Court finds Plaintiffs have failed to allege an 3. Other Arguments Warranting Dismissal The County also makes other meritorious arguments in favor 20 of dismissing Plaintiffs’ TAC. 21 Plaintiffs have not provided sufficient notice of the claim the 22 County must defend against. 23 that “[a]lthough the sole cause of action is titled ‘racial 24 discrimination in violation of the equal protection clause of 25 the fourteenth amendment’” the terms “equal privileges and 26 immunities under the law” and “due process” also appear under 27 this claim. 28 that like Plaintiffs’ previous complaints, the TAC fails to Id. First, the County argues Mot. at 2. The County points out The Court agrees with the County, and finds 8 1 clarify their precise theory of liability. 2 simply throw legal terms against the wall to see what sticks. 3 Plaintiffs cannot The County also argues this case is not a class action, and 4 Plaintiffs must address how the County’s alleged 5 unconstitutional policy injured each individual plaintiff 6 specifically. 7 each individual, but does not explain how these facts show the 8 County denied each individual equal protection under the law. 9 Plaintiffs take the same approach in their opposition brief. Id. at 6. The TAC lays out facts specific to 10 They spend several pages listing facts alleged in the TAC, but 11 they do not apply the facts to the law, distinguish the cases 12 cited by the County, or analogize relevant cases to their facts. 13 For all the reasons discussed above, the Court dismisses 14 Plaintiffs’ equal protection claim with prejudice. Plaintiffs 15 have already amended their complaint multiple times, and the 16 Court finds giving Plaintiffs another chance to amend futile. 17 See Centeno v. Wilson, No. 1:08-CV-1435-FJM, 2010 WL 1980157, at 18 *1 (E.D. Cal. May 17, 2010) (“A motion for leave to amend may be 19 denied if it appears to be futile or legally insufficient.”) 20 C. Request for Sanctions 21 The County argues the Court should sanction Plaintiffs for 22 violating “court orders and court rules on multiple occasions.” 23 Mot. at 1 n.1. 24 trial court’s discretion. 25 Holdings, Inc., No. CV 08-5721CASMANX, 2009 WL 290249, at *1 26 (C.D. Cal. Feb. 3, 2009) (citing Fed. R. Civ. P. 11(c)). 27 Dismissing an action is a “severe sanction.” 28 846 F.2d 1236, 1238 (9th Cir. 1988). Whether to impose sanctions falls within the Ill. Tool Works, Inc. v. Phoenix Am. 9 Udom v. Fonseca, The Court does not dismiss 1 Plaintiffs’ TAC to sanction Plaintiffs. 2 dismissal with prejudice, the Court finds no need to impose 3 monetary sanctions on Plaintiffs’ counsel. 4 Lunes, No. 1:04CV06469-LJO-DLB, 2009 WL 1271864, at *2 (E.D. 5 Cal. Apr. 30, 2009) (“Given the severe nature of the sanction of 6 dismissal, the Court declines to recommend imposition of 7 monetary sanctions.”). But given this See Martinez v. 8 D. Attorneys’ Fees 9 The County seeks attorneys’ fees in its motion. 10 15. 11 required by Local Rule 293(b). 12 Mot. at request for attorneys’ fees. The County’s request does not provide the information The Court denies the County’s 13 14 III. 15 ORDER For the reasons set forth above, the Court GRANTS the 16 County’s motion to dismiss with prejudice. 17 dismissed with prejudice all Plaintiffs’ claims against all 18 defendants and therefore directs the Clerk of Court to close the 19 case. 20 21 IT IS SO ORDERED. Dated: September 1, 2017 22 23 24 25 26 27 28 10 The Court has

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