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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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 DEFENDANT
SISKIYOU COUNTY’S MOTION TO
DISMISS

Defendants.

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Defendant Siskiyou County (“the County”) moves to dismiss

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Plaintiffs’ Third Amended Complaint (“TAC”).

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ECF No. 72.

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For the reasons set forth below, the Court GRANTS the County’s

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motion to dismiss. 2

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///

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///

Plaintiffs oppose the motion.

Mot. to Dismiss,
Opp’n, ECF No. 74. 1

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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.
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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.
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I.

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FACTS

Plaintiffs—several Hmong individuals who own property in the

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County—allege that after the Hmong population increased, the

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County “launched an unlawful and discriminatory campaign” against

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Plaintiffs.

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ordinances restricting medical marijuana growth.

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County allegedly disproportionately enforced these ordinances

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against Asian American individuals.

TAC ¶ 5.

The Board of Supervisors passed two
TAC ¶ 6.

The

TAC ¶ 11.

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In early 2016, Plaintiffs “began registering to vote in

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Siskiyou County, using the County-assigned parcel numbers of

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their legally owned property as their residential address.”

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¶ 18.

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for possible voter fraud.

TAC

The County Clerk flagged these voter registration forms
TAC ¶ 19.

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On two days in June 2016, County officers visited

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Plaintiffs’ properties, and allegedly some officers carried

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assault rifles.

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out of voting in the June or November 2016 elections.

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70, 82, 88, 108.

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TAC ¶ 32.

These visits scared some plaintiffs
TAC ¶¶ 54,

The restrictions on cultivating medical marijuana passed as

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Measures T and U in the June election.

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Plaintiffs allege the County has “deliberately policed

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subdivisions where high concentrations of Asian American property

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owners are known to reside.”

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of nuisance violations have been issued overwhelmingly to Asian

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property owners as opposed to white property owners, which

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comprise the majority racial population in Siskiyou County.”

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¶ 36.

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TAC ¶ 36.

TAC ¶ 36.

Since then,

Additionally, “notices

TAC

In September 2016, the County “executed a series of search
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warrants” on some of Plaintiffs’ properties.

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searching officers “handcuffed and held at gunpoint” individuals

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present during the searches and “ransacked” the properties of

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those not present.

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SAC ¶ 42.

The

SAC ¶ 43.

Plaintiffs brought two claims in their TAC: (1) racial

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discrimination in violation of the Equal Protection Clause of the

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Fourteenth Amendment and (2) retaliation in violation of the

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First Amendment.

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Plaintiffs’ second claim because “Plaintiffs did not raise a

TAC at 33, 38.

The Court has already dismissed

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First Amendment claim in any of their previous complaints, and

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the Court gave Plaintiffs leave to amend only their second cause

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of action for alleged violation of the Fourteenth Amendment.”

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Minute Order, ECF No. 71.

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II.

OPINION

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A.

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Government actors violate the Fourteenth Amendment’s equal

Legal Standard

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protection clause when they “enforce a valid statute in a

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discriminatory fashion.”

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1148, 1151 (9th Cir. 1972).

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laws does not violate the Constitution.

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equal protection claim based on selective enforcement a

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plaintiff must show the enforcement “(1) has a discriminatory

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effect; and (2) is motivated by a discriminatory purpose.”

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Cuviello v. City & Cty. of S.F., 940 F. Supp. 2d 1071, 1097

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(N.D. Cal. 2013).

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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
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must demonstrate the misconduct comes from a “policy, plan, or a

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pervasive pattern.”

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1142, 1153 (9th Cir. 2007).

Rosenbaum v. City & Cty. of S.F., 484 F.3d

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B.

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The County argues the Court should dismiss Plaintiffs’

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equal protection claim because they have not alleged intentional

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discrimination or that the County had a policy or custom of such

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discrimination.

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County on both issues.

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1.

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Analysis

Mot. at 11, 14.

The Court agrees with the

Intentional Discrimination

Plaintiffs must allege facts to support discriminatory

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effect and intent to proceed on a selective enforcement claim.

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Steele, 461 F.2d at 1151.

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a.

Discriminatory Effect

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To show discriminatory effect, a plaintiff must allege

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facts showing “others similarly situated generally have not been

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prosecuted for conduct similar to that for which he was

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prosecuted.”

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Cir. 1975).

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class” against which the court can compare the plaintiff’s

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class.

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2017 WL 3131547, at *3 (S.D. Cal. Jul. 21, 2017).

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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

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violation notices (or approximately 85%) issued under the new

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2016 Ordinance[s] were issued to Asian American property

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owners.”

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American residents who received nuisance violation notices and

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requested abatement hearings were provided hearings and were not

TAC ¶ 39.

Plaintiffs also contend the “[n]on-Asian

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raided by the sheriff’s department.”

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further state two criminal cases were filed following the

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property searches before the ordinances were passed, and “[b]oth

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of the criminal cases were filed against Asian Americans [and]

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[n]ot one single case was filed against non-Asian residents.”

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TAC ¶ 43.

TAC ¶ 41.

Plaintiffs

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The County argues such allegations cannot withstand a

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motion to dismiss because “Plaintiffs do not allege that there

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were large populations of other ethnicities that were illegally

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growing marijuana in Siskiyou County, but that were not affected

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by issuance of nuisance violations.”

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contends: “The conduct alleged in Plaintiffs’ pleading occurred

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not because Plaintiffs were Asian-Americans, but because they

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were illegally growing large quantities of marijuana on their

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properties.”

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actually show the County enforced the ordinance against non-

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Asian individuals by issuing nuisance violations to six non-

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Asian individuals.

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identified people against whom the County did not enforce the

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ordinance, Plaintiffs fail to indicate how or whether these

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other individuals were “similarly situated” to Plaintiffs.

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Reply at 5.

Mot. at 5.

The County

Additionally, the above allegations

Furthermore, even if Plaintiffs have

Plaintiffs have not sufficiently alleged facts

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demonstrating that the County failed to enforce the marijuana

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ordinances against a similarly situated class of people, and

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therefore have not shown discriminatory effect.

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City of Tempe, No. CV09-00752-PHX-MHM, 2010 WL 94116, at *5 (D.

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Ariz. Jan. 6, 2010)(“Plaintiff’s pleadings do not allege a

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discriminatory effect, as he has not alleged facts demonstrating
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See Wilkins v.

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that Defendants failed to enforce similar laws against similarly

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situated individuals.”).

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b.

Discriminatory Intent

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To show discriminatory intent or purpose, plaintiffs must

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allege facts showing the defendant enforced a law based “on an

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impermissible ground, such as race, religion or control over the

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exercise of their expression.”

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F.2d 628, 634 (9th Cir. 1981).

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United States v. Hooten, 662

The County argues Plaintiffs’ allegations do not show

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intentional discrimination, but instead “simply establish the

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enforcement of a lawfully enacted voter-approved ordinance.”

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Mot. at 14.

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fail to specifically allege any fact to support their claim that

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any action was taken against any Plaintiff because they were

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Asian.”

Additionally, the County asserts that “Plaintiffs

Reply at 5 (emphasis in original).

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Plaintiffs respond that their TAC alleges:

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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.

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Opp’n at 10.
But Plaintiffs’ argument relies on conclusory assertions of

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intent without facts showing actual subjective intent.

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Plaintiffs do not cite to any cases where merely alleging

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discriminatory intent without supportive facts suffices to

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establish an equal protection claim’s “intent” requirement.
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Plaintiffs have not shown discriminatory effect or intent, and

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their equal protection claim therefore fails.

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2.

County Policy or Custom

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The County argues Plaintiffs fail to allege the County had

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a policy or practice that violated the equal protection clause.

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Mot. at 11.

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had multiple opportunities to amend their complaint “it is still

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not clear which municipal policy was used to deprive them of any

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federal right based on race.”

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The County asserts that even though Plaintiffs have

Mot. at 2.

Plaintiffs allege the County has had a practice or custom

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of targeting Asian Americans “since 2015 after the County Board

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of Supervisors enacted a local ordinance that was intended to

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target Asian landowners in rural areas of the county.”

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¶ 134.

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pattern and practice of Defendant targeting Asian Americans

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disproportionately.”

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allegations “are not mere suspicions of Defendants’ activity—

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they actually occurred, and Defendant does not dispute [that].”

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Id. at 10.

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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

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allegations because the Court must take the Plaintiffs’ alleged

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facts as true in deciding this motion.

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these facts are true, the County argues, it still does not show

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the County had a policy or custom of intentional discrimination

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against Asian-Americans.

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Circuit case which articulated the requirement for a Monell

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claim as follows:

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Id.

Reply at 2.

Even if all

The County cites to a Ninth

Absent a formal governmental policy, [a plaintiff]
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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.

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Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).

The County

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argues “the subject ordinances had not been in place for a

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sufficient duration” to allow the development a custom of

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discriminatory enforcement.

Reply at 3.

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Plaintiffs simply do not identify any “longstanding

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practice or custom” of the County discriminatorily enforcing

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medical marijuana ordinances and related laws against Asian

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Americans.

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unconstitutional policy or custom sufficient to proceed on a

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§ 1983 claim against the County.

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The Court finds Plaintiffs have failed to allege an

3.

Other Arguments Warranting Dismissal

The County also makes other meritorious arguments in favor

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of dismissing Plaintiffs’ TAC.

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Plaintiffs have not provided sufficient notice of the claim the

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County must defend against.

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that “[a]lthough the sole cause of action is titled ‘racial

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discrimination in violation of the equal protection clause of

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the fourteenth amendment’” the terms “equal privileges and

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immunities under the law” and “due process” also appear under

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this claim.

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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

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clarify their precise theory of liability.

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simply throw legal terms against the wall to see what sticks.

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Plaintiffs cannot

The County also argues this case is not a class action, and

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Plaintiffs must address how the County’s alleged

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unconstitutional policy injured each individual plaintiff

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specifically.

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each individual, but does not explain how these facts show the

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County denied each individual equal protection under the law.

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Plaintiffs take the same approach in their opposition brief.

Id. at 6.

The TAC lays out facts specific to

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They spend several pages listing facts alleged in the TAC, but

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they do not apply the facts to the law, distinguish the cases

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cited by the County, or analogize relevant cases to their facts.

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For all the reasons discussed above, the Court dismisses

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Plaintiffs’ equal protection claim with prejudice.

Plaintiffs

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have already amended their complaint multiple times, and the

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Court finds giving Plaintiffs another chance to amend futile.

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See Centeno v. Wilson, No. 1:08-CV-1435-FJM, 2010 WL 1980157, at

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*1 (E.D. Cal. May 17, 2010) (“A motion for leave to amend may be

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denied if it appears to be futile or legally insufficient.”)

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C.

Request for Sanctions

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The County argues the Court should sanction Plaintiffs for

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violating “court orders and court rules on multiple occasions.”

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Mot. at 1 n.1.

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trial court’s discretion.

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Holdings, Inc., No. CV 08-5721CASMANX, 2009 WL 290249, at *1

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(C.D. Cal. Feb. 3, 2009) (citing Fed. R. Civ. P. 11(c)).

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Dismissing an action is a “severe sanction.”

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846 F.2d 1236, 1238 (9th Cir. 1988).

Whether to impose sanctions falls within the
Ill. Tool Works, Inc. v. Phoenix Am.

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Udom v. Fonseca,

The Court does not dismiss

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Plaintiffs’ TAC to sanction Plaintiffs.

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dismissal with prejudice, the Court finds no need to impose

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monetary sanctions on Plaintiffs’ counsel.

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Lunes, No. 1:04CV06469-LJO-DLB, 2009 WL 1271864, at *2 (E.D.

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Cal. Apr. 30, 2009) (“Given the severe nature of the sanction of

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dismissal, the Court declines to recommend imposition of

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monetary sanctions.”).

But given this

See Martinez v.

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D.

Attorneys’ Fees

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The County seeks attorneys’ fees in its motion.

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15.

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required by Local Rule 293(b).

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Mot. at

request for attorneys’ fees.

The County’s request does not provide the information
The Court denies the County’s

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III.

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ORDER

For the reasons set forth above, the Court GRANTS the

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County’s motion to dismiss with prejudice.

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dismissed with prejudice all Plaintiffs’ claims against all

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defendants and therefore directs the Clerk of Court to close the

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case.

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IT IS SO ORDERED.
Dated: September 1, 2017

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The Court has