Gustard v. Harris et al

Filing 17

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/30/2017 GRANTING 15 Motion for Reconsideration, resulting in 10 Motion to Proceed IFP being GRANTED; GRANTING 11 Motion for Extension of Time; DENYING wit hout prejudice 7 Motion for Appointment of Counsel; DIRECTING Clerk of Court to assign a U.S. District Judge to this action; and RECOMMENDING defendant Harris be dismissed from the case with prejudice; the complaint be dismissed with leave to amend within 30 days; and the following claims be dismissed with prejudice: 4th Amendment claim, equal protection claim insofar as it is based on membership in a protected class, substantive due process claims, facial due process challenge to §§ 118 and 490 of the California Business and Professions Code, as-applied due process challenge to § 118 of the California Business and Professions Code, § 1985 conspiracy claims, and pendent state-law claim based on § 1094.6 of the Cal ifornia Code of Civil Procedure. Plaintiff to pay the statutory filing fee of $350. All payments to be collected in accordance with the notice to the Federal Bureau of Prisons filed concurrently herewith. Assigned and referred to Judge Garland E. Burrell, Jr. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 CHRISTOPHER IAN GUSTARD, 11 Plaintiff, 12 13 No. 2:17-cv-0012-EFB P v. ORDER AND FINDINGS AND RECOMMENDATIONS KAMALA HARRIS, et al., 14 Defendants. 15 Plaintiff is a federal prisoner proceeding without counsel in an action brought under 42 16 17 U.S.C. § 1983. He has filed a motion for reconsideration of the denial of his application for leave 18 to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (“IFP application”). 19 I. Request to Proceed In Forma Pauperis 20 A. Relevant Background 21 The court’s July 5, 2017, order denying plaintiff’s IFP application found that he “receives 22 deposits of approximately $1200 a month.” ECF No. 12 at 2. The court based this finding on the 23 certification included with plaintiff’s trust account statement, which stated that the “average 24 monthly deposit[]” to his account for the past six months was $1,198. ECF No. 10 at 2. 25 In its order, the court further suggested that plaintiff made over $800 in commissary 26 purchases between January 1, 2017 and February 24, 2017 even though he stated that he had only 27 $350 in his account as of December 2016. See ECF No. 12 at 2. Additionally, the court noted 28 that plaintiff had “$100,000 in individual retirement accounts [‘IRAs’]” that he asserted were 1 1 unavailable for withdrawal. Id. Although the court found that he could prepay the filing fee 2 without liquidating his IRAs, it still stated that he failed to explain why the IRAs were not 3 available for withdrawal. Id. 4 On August 9, 2017, plaintiff filed a motion for reconsideration. ECF No. 15. Therein, he 5 asserts that the certification mistakenly stated that he receives deposits of $1200 a month when, 6 during the past six months, the average monthly balance in his account was $200. Id. at 2. To 7 support this assertion, he includes documentation from the prison counselor who signed the 8 certification. Id. at 21. The counselor states that he “mis-read the application.” Id. Furthermore, 9 the counselor includes a “copy of [plaintiff’s] deposits for the last six months.” Id. at 15. This 10 document indicates that, for the past six months, plaintiff’s average monthly balance is 11 approximately $220. See id. 12 Furthermore, in his motion, plaintiff asserts that the court mistakenly suggested that he 13 made over $800 in commissary purchases from January 1, 2017 to February 24, 2017 when his 14 purchases for this period totaled only $318.21. Id. at 3. He asserts that the “the court made an 15 incorrect assumption that the [Federal Bureau of Prisons] fiscal year began on January 1, 2017” 16 when it actually began on October 1 like the U.S. Department of the Treasury. Id. at 2, 11. He 17 adds that, from October 4, 2016 to February 22, 2017, his average monthly purchases were only 18 $168.74. Id. at 3. 19 Additionally, he asserts that the funds in his IRAs are not available for withdrawal 20 because “the penalties involved and tax liabilities that he would be responsible for [without 21 having] any income from employment to pay [them].” Id. at 12. Further, he asserts that “[a] 22 power of attorney is in place with the institution managing his IRA,” and hence, “[a]ny 23 withdrawal would involve a rigorous process[] given his incarceration[] and would likely be a 24 lengthy process.” Id. 25 B. 26 Rule 54(b) provides that Courts may revise interlocutory orders “at any time before the Discussion—Motion for Reconsideration 27 entry of a judgment.” Fed. R. Civ. P. 54(b); see also Moses H. Cone Mem. Hosp. v. Mercury 28 Const. Corp., 460 U.S. 1, 12 (1983) (stating that “every order short of a final decree is subject to 2 1 reopening at the discretion of the district judge”). Consonantly, the Ninth Circuit has held that 2 “[a]s long as a district court has jurisdiction over the case, . . . it possesses the inherent procedural 3 power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be 4 sufficient.” City of L.A., Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 5 2001) (citing cases). Such cause may include “new or different facts or circumstances” that could 6 not be shown “at the time of the prior motion.” See E.D. Cal. R. 230(j). 7 Here, plaintiff has shown cause for the court to vacate its prior order and grant his IFP 8 application. The record reflects that he receives deposits of around $200 a month to his account, 9 not $1200 as the court found in its prior order based on the counselor’s inaccurate statement in the 10 certification. Furthermore, the record reflects that he had only about $350 in his account when he 11 filed this lawsuit. See ECF No. 10 at 6. Although the court noted in its prior order that plaintiff 12 made over $800 in commissary purchases between January and February 2017, plaintiff has 13 shown that these commissary purchases were tied to the fiscal year, which means that they 14 occurred over several months. Furthermore, plaintiff has now adequately explained why the 15 funds in his IRAs are not immediately available to prepay the filing fee in this action. 16 For all of these reasons, plaintiff’s motion for reconsideration of his IFP application 17 makes the showing required by 28 U.S.C. § 1915(a)(1) and (2) and the application is granted. 18 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 19 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 20 § 1915(b)(1) and (2). 21 II. Screening Requirement and Standards 22 Federal courts must engage in a preliminary screening of cases in which prisoners seek 23 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 24 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 25 of the complaint, if it “is frivolous, malicious, or fails to state a claim upon which relief may be 26 granted,” or if it “seeks monetary relief from a defendant who is immune from such relief.” Id. 27 § 1915A(b). 28 ///// 3 1 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 2 of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a complaint to include “a short and 3 plain statement of the claim showing that the pleader is entitled to relief[] in order to give the 4 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 5 Twombly, 550 U.S. 544, 555 (2007) (ellipsis and citation omitted). While the complaint must 6 comply with the “short and plaint statement” requirements of Rule 8, its allegations must also 7 include the specificity required by Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009). 8 Thus, to avoid dismissal for failure to state a claim, a complaint must contain more than 9 “naked assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause 10 of action.” Twombly, 550 U.S. at 555, 557. In other words, “[t]hreadbare recitals of the elements 11 of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 12 678. 13 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 14 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 15 content that allows the court to draw the reasonable inference that the defendant is liable for the 16 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 17 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 18 Pardus, 551 U.S. 89, 94 (2007), and construe the complaint in the light most favorable to the 19 plaintiff, see Twombly, 550 U.S. at 555–56; Friedman v. AARP, Inc., 855 F.3d 1047, 1051 (9th 20 Cir. 2017) (citation omitted). 21 III. Screening Order 22 A. 23 On December 17, 2003, plaintiff was awarded an occupational license to practice Factual Allegations 24 landscape architecture by the Landscape Architects Technical Committee of the California 25 Architects Board, Department of Consumer Affairs (“the Board”). ECF No. 1 at 13–14, 52. 26 On March 12, 2012, in the Southern District of California, plaintiff pleaded guilty to a 27 felony charge of distribution of images of children engaged in sexually explicit conduct. Id. at 28 14, 54. He was sentenced to 120 months in prison and required to register as a sex offender. Id. 4 1 On December 10, 2013, plaintiff sent the Board a letter regarding the status of his license. 2 Id. at 14, 63. Therein, he told the Board that he was incarcerated and asked it “to have the status 3 of [his] license reviewed prior to [his] opting to renew.” Id. at 63. Apparently, he was concerned 4 that he might have to pay the renewal fee only for the Board to revoke the license due to his 5 conviction. See id. at 14, 63. 6 Plaintiff suggests that this letter satisfied the requirements of § 5680 of the California 7 Business and Professions Code. See id. at 14. Section 5680 provides that, “[t]o renew an 8 unexpired license, the licenseholder shall, on or before the expiration date of the license, apply for 9 renewal on a form prescribed by the [B]oard, and pay the renewal fee prescribed by this chapter.” 10 Cal. Bus. & Prof. Code § 5680(b) (emphasis added). However, plaintiff concedes that “he did not 11 submit payment” with his purported application. ECF No. 1 at 14. The license expired on 12 December 31, 2013 and was not renewed. Id. at 14, 52. On March 5, 2014, plaintiff apparently 13 sent a letter to the Board that is similar in substance to his alleged December 10, 2013 letter. See 14 id. at 14, 63. 15 Plaintiff alleges that, on August 27, 2014, he received a letter from defendant Matthew 16 McKinney, who is an Enforcement Officer at the Board. Id. at 6, 15. The letter stated, inter alia, 17 that the Board had received notice of his conviction and that the fee now required to renew his 18 license was $600. Id. at 15. Yet plaintiff “abandoned his pursuit of the renewal of the license” 19 due to his alleged “inability to pay” and the Board’s “position claiming they did not receive [his] 20 notice prior to the license expiring[.]” Id. 21 Defendant McCauley is Executive Officer of the Board. On May 11, 2015, McCauley 22 brought before the Board an accusation alleging that plaintiff had been convicted of a felony and 23 requesting the Board hold a hearing with a view to “revoking or suspending” his license. Id. at 24 52–55. To support the accusation, McCauley cited several provisions of California law, including 25 §§ 118 and 490 of the California Business and Professions Code. Id. at 53–54. 26 ///// 27 ///// 28 ///// 5 1 Perinently, § 118 provides: 2 The . . . expiration . . . of a license issued by a board in the department . . . shall not, during any period in which it may be renewed, restored, reissued, or reinstated, deprive the board of its authority to institute or continue a disciplinary proceeding against the licensee upon any ground provided by law or to enter an order suspending or revoking the license . . . . 3 4 5 6 Cal. Bus. & Prof. Code § 118(b). For its part, § 490 provides: 7 8 9 10 11 [A] board may suspend or revoke a license on the ground that the licensee has been convicted of a crime[] if the crime is substantially related to the qualifications, functions, or duties of the business or profession for which the license was issued. Cal. Bus. & Prof. Code § 490(a). On or around June 11, 2015, plaintiff “learned of the [Board] having filed legal documents 12 against his . . . license that were sent to his former . . . address.” ECF No. 1 at 15. More 13 specifically, he alleges that McCauley and nondefendant Tuss served the accusation at his 14 parents’ house in Virginia rather than at FCI Big Spring in Texas, where he was then 15 incarcerated. Id. at 14–15. Plaintiff adds that both the Board and the California Office of the 16 Attorney General (“OAG”) knew that he resided at FCI Big Spring. Id. at 34. Furthermore, he 17 alleges that these legal documents were “incomplete” and required him to respond within ten 18 days. Id. at 15. By “incomplete,” he apparently means that the accusation “was missing pages.” 19 Id. at 29. 20 On or about June 22, 2015, plaintiff allegedly “filed legal papers” with the Board and 21 McCauley “requesting an order to correct service.” Id. at 16, 29. Thereafter, the Board notified 22 him that the hearing could be postponed for good cause. Id. at 16. The Board further notified 23 him that, if he had good cause, he had to send notice to the following address within ten days: 24 1515 Clay Street, Suite 206, Oakland, California 94612. Id. This is the address of the Office of 25 Administrative Hearings (“OAH”), Oakland Division. See id. at 16–17. 26 27 On June 24, 2015, the OAG attempted to correct service. Id. at 29. Plaintiff rejected service. Id. 28 6 1 On June 29, 2015, the OAH sent plaintiff a letter stating that that no case was pending 2 before the OAH with his information and that, therefore, the OAH was returning his information 3 Id. at 64. 4 In October 2015, plaintiff received noticed of a hearing. Id. at 16. He was awarded a 5 continuance based on having been granted a transfer from FCI Big Spring to FCI Fort Dix in New 6 Jersey. See id. The hearing was continued until March 24, 2016. Id. 7 In February 2016, plaintiff filed a motion to dismiss the administrative proceedings, 8 alleging that he had yet to receive a complete accusation. Id. The Board denied that motion and 9 plaintiff moved for reconsideration. Id. But, allegedly, his motion for reconsideration “was later 10 returned to him undeliverable with the OAH address blacked out.” Id. According to plaintiff, he 11 “would continue to experience a pattern of the obstruction of his mail on numerous occasions.” 12 Id. Plaintiff does not believe that the OAH properly addressed his contention that he did not 13 receive proper service of the accusation. Id. at 30. 14 Plaintiff alleges that, on March 23, 2016 he received documents containing, inter alia, a 15 complete accusation. Id. at 16. Thus, he alleges that he had “less than twenty four hours notice 16 of the [complete] [a]ccusation prior to the hearing.” Id. at 17; see also id. at 14. Additionally, he 17 alleges that the accusation was “sent from McCauley’s counsel, Def. [Kamala] Harris and the 18 [OAG].” Id. at 16. 19 Based on these allegations, plaintiff concludes that McCauley “intentionally” sent the 20 accusation to his parents’ house so that he would not have adequate time to respond. Id. at 15. 21 Further, plaintiff alleges that McCauley was “attempting to adversely [a]ffect his application for 22 licensure by comity in Virginia and . . . obstruct the administration of justice in his [] then active[] 23 case in Henrico County Circuit Court.” Id. at 15. Yet plaintiff acknowledges that a Virginia 24 regulatory agency gave him “a conditional license to practice landscape architecture in Virginia in 25 advance of his release from incarceration.” Id. at 16 n.11; see also id. at 17. 26 On March 24, 2016, a hearing was conducted before an administrative law judge (“ALJ”). 27 Id. at 17. McCauley was present and represented by a deputy attorney general. Id. Plaintiff 28 participated by telephone. Id. 7 1 Plaintiff argued that service was improper but the ALJ overruled his objections. Id. 2 Plaintiff offered to have his license suspended. Id. McCauley rejected this offer. Id. 3 Plaintiff felt that McCauley’s rejection of his offer “lacked rationality” because he recommended 4 the suspension of “an expired license that he had no intention of renewing.” Id. 5 6 7 Plaintiff “provided testimony outlining his substantial efforts towards rehabilitation.” Id. at 18. He also “filed a substantial set of supporting defense documents.” Id. On April 22, 2016, plaintiff filed a motion with the ALJ. Id. at 32. “It [allegedly] was 8 addressed to the proper OAH Oakland address.” Id. “[T]he same article of mail was returned to 9 [plaintiff] undelivered.” Id. at 32, 65. This evidence, in plaintiff’s assessment, shows that mail 10 he was sending to the OAH was being diverted to box # 264 at a UPS Store in El Cerrito, 11 California. Id. at 32; see also id. at 68–70. This box, according to plaintiff, belongs to defendant 12 Dianna Albini, who plaintiff contends works at OAH. Id. at 32. 13 Based on these alleged irregularities, plaintiff contends that “the OAH is dumping 14 undesired . . . mail and obstructing filings . . . from cases involving . . . prisoners.” Id. at 33. 15 Likewise, he alleges that “OAH Oakland . . . staff[] . . . conspired to interfere with the 16 administration of justice in [his] licensing case, . . . and that . . . [Defendant Zackery] Morazzini 17 . . . is responsible for answering to the allegations of criminal misconduct against his . . . staff and 18 why he failed to act . . . to notice given by [plaintiff] regarding such allegations.” Id. 19 On May 5, 2016, the ALJ issued her decision. Id. at 17. According to plaintiff, the 20 “decision devoted many references to factors other than the actual ‘commission of the crime’ and 21 recommended revocation of the license.” Id. He further alleges that “[s]uch contributing factors 22 cited as justification for the decision were [his] length of incarceration, conditions of release, and 23 the requirement that he register as a sex offender.” Id. Specifically, plaintiff alleges that the ALJ 24 found that, after his release from prison, he would “remain on supervised release as a registered 25 sex offender with stringent requirements that prohibit him from being outside near children.” Id. 26 Plaintiff contends that “[n]o such condition was imposed . . . in federal district court.” Id. at 19. 27 However, the judgment in plaintiff’s criminal case provides that he is “[n]ot to have unsupervised 28 contact with any child under the age of 18, unless in the presence of a supervising adult (who is 8 1 aware of [his] deviant sexual behavior and conviction), and with the prior approval of the 2 probation officer.” Id. at 50. Likewise, the judgment provides that plaintiff is not to “loiter 3 within 200 yards of . . . places frequented by persons under the age of 18[] without prior approval 4 of the probation officer.” Id. Additionally, the judgment provides that plaintiff may “[n]ot accept 5 or commence employment . . . without prior approval of the probation officer[.]” Id. 6 Nevertheless, in plaintiff’s estimation, § 493 of the California Business and Professions 7 Code “is clear in not providing authority to use such factors to ‘fix the degree of discipline.’” Id. 8 Section 493 provides: 9 10 11 12 “[I]n a proceeding conducted by a board . . . to . . . revoke a license . . . , . . . the record of conviction of the crime shall be conclusive evidence of the fact that the conviction occurred, but . . . the board may inquire into the circumstances surrounding the commission of the crime in order to fix the degree of discipline or to determine if the conviction is substantially related to the qualifications, functions, and duties of the licensee . . . . 13 14 Cal. Bus. & Prof. Code § 493. 15 The Board scheduled a closed-session meeting on the ALJ’s decision for June 6, 2016. 16 ECF No. 1 at 19. Plaintiff filed an objection letter that “was delivered by certified mail to the 17 [Board] and signed for” three days before this date. Id. In this letter, plaintiff argued that the 18 ALJ erroneously concluded that his conditions of release and requirement to register as a sex 19 offender are criminal, as opposed to civil, in nature. Id. (citing Smith v. Doe, 538 U.S. 84 20 (2003)). Thus, he suggests that the ALJ unlawfully failed to base her decision that his offense 21 was substantially related to landscape architecture on the conviction per se. See id. In other 22 words, he contends that “an offender’s requirement to register as a sex offender cannot be used in 23 a punitive manner in any type of civil disciplinary proceeding.” Id. Similarly, he contends that 24 “a criminal court’s imposition of [conditions of release] . . . cannot be used during a civil 25 licensing adjudication . . . considering the degree of discipline to fix against the licensee unless 26 the [conditions of release] specifically address the occupation.” Id. at 20. 27 The Board adopted the ALJ’s opinion in a decision and order (“D&O”) executed by 28 McCauley. Id. On June 13, 2016, defendant McKinney, “as Enforcement Officer, carried out the 9 1 D&O by seizing, through revocation, [plaintiff’s] . . . license.” Id. Plaintiff alleges that “Upon 2 this action, [McKinney] did not provide any notice to [plaintiff] about his right to appeal the 3 decision,” which plaintiff contends is a requirement under § 1094.6 of the California Code of 4 Civil Procedure. Id. Section 1094.6 provides that, “[i]n making a final decision [revoking a 5 license], the local agency shall provide notice to the party that the time within which judicial 6 review must be sought is governed by this section.” See Cal. Civ. Proc. Code § 1094.6(e)–(f). 7 Plaintiff alleges that McKinney’s failure to give him the notice that § 1094.6 requires 8 “might deprive [him] of his ability to appeal the [Board’s] decision.” ECF No. 1 at 37. 9 Therefore, he sought judicial review in the Sacramento County Superior Court. Id. He adds that 10 11 this case is pending. Id. Additionally, plaintiff alleges that his conditions of release will not expire until he is sixty- 12 five years old, i.e., his retirement age. Id. at 23–24. Thus, he contends that the Board’s reliance 13 on his conditions of release to revoke his license has effectively precluded him from practicing 14 landscape architecture in California. Id. at 24. 15 Plaintiff alleges that defendant Morazzini, as Director of the OAH, “is responsible for the 16 proper and lawful administration of legal proceedings conducted by the OAH.” Id. at 30. 17 Further, he alleges that the hearing “was not carried out in the manner required by state and 18 federal law.” Id. 19 20 21 22 23 The Board approved plaintiff’s request for a stay of its decision for thirty days. Id. at 37. As a result, plaintiff had to file any petition for reconsideration by August 8, 2016. Id. Plaintiff filed a petition for reconsideration with the Board. Id. He alleges that he delivered it on August 5, 2016. Id. at 24, 77. However, on August 12, 2016, McKinney sent plaintiff a letter stating that the Board did 24 not receive the petition until August 8, 2016, on which date the Board’s D&O revoking plaintiff’s 25 license took effect. Id. at 78. Therefore, McKinney concluded that the Board no longer had 26 jurisdiction to consider the petition. Id. As a result, plaintiff contends that McKinney’s actions 27 prevented him from exhausting administrative remedies which, in turn, may prevent him from 28 appealing the Board’s decision to revoke his license. See id. at 38. 10 1 2 On August 26, 2016, plaintiff filed a “motion to vacate” with McCauley. Id. at 39. McCauley did not respond. Id. 3 On September 6, 2016, plaintiff was contacted by the Virginia Board for Architects, 4 Professional Engineers, Land Surveyors, Interior Designers and Landscape Architects (“VA 5 Board”). Id. at 25. The VA Board informed him that it “could move against his Virginia license 6 that [it] had just issued to him in April 2016 as a result of the actions of the [Board].” Id. 7 However, the VA Board “indicated that no action would be taken” until plaintiff exhausted his 8 “appeals” of the Board’s decision. Id. 9 B. 10 11 Plaintiff’s Claims Plaintiff’s complaint contains the following counts. Unless otherwise noted, all of the claims set forth in the counts are against defendants in their official capacities. 12 • 13 Count 1 (against McCauley and McKinney): A Fourth Amendment claim alleging that the revocation of his license constituted an unlawful seizure. Id. at 8–9. 14 • Count 2 (Harris and McCauley): An equal protection claim under the Fourteenth 15 Amendment alleging that these defendants unlawfully used his conditions of 16 release in a punitive manner when revoking his license. Id. at 9. 17 • Count 3 (Harris and McCauley): Substantive due process and equal protection 18 claims under the Fourteenth Amendment for pursuing the revocation, rather than 19 the suspension, of his license. Id. 20 • Count 4 (Harris and McCauley): An as-applied procedural due process challenge 21 to § 118(b) of the Business and Professions Code for (1) pursuing the revocation, 22 rather than the suspension, of his license; (2) failing to give him adequate notice of 23 the hearing; and (3) using his conditions of release against him during the hearing. 24 Id. at 9–10. 25 • Count 5 (Harris and McCauley): A facial challenge to § 490(a) of the Business and 26 Professions Code because it is allegedly unclear, vague, and overbroad. See id. at 27 10. 28 ///// 11 1 • 2 3 Count 6 (Harris, McCauley, and Morazzini): Procedural due process claim for allegedly failing to give him proper notice of the hearing. Id. at 11. • Count 7 (Morazzini and Albini1): Procedural due process, equal protection, and § 4 1985 conspiracy claims for obstructing, and failing to stop the obstruction of, his 5 mail and pleadings. Id. 6 • 7 8 Count 8 (Harris and McCauley): A § 1985 conspiracy claim for knowingly sending the accusation to an address at which plaintiff did not reside. Id. at 11–12. • 9 Count 9 (McCauley): A § 1985 conspiracy claim alleging that McCauley and unnamed members of the Board conspired to violate his due process rights by: (1) 10 knowingly executing an accusation containing misrepresentations; (2) untimely 11 serving him with it; and (3) pursuing the revocation of his license with knowledge 12 that it could affect his application for licensure in Virginia due to comity. Id. at 13 12. 14 • Count 10 (McCauley and McKinney): Procedural due process and equal protection 15 claims for violating § 1094.6(e) of the Civil Procedure Code by failing to 16 notify him of the time within which he had to seek judicial review of the Board’s 17 decision to revoke his license. Id. at 12. 18 • Count 11 (McCauley and McKinney): A state-law claim for violating § 19 1094.6(e) of the Civil Procedure Code by failing to notify him of the time within 20 which he had to seek judicial review of the Board’s decision, thus preventing him 21 from challenging said decision under § 1094.5 of the Civil Procedure Code. 22 Id. at 12–13. 23 • Count 12 (McCauley and McKinney): A § 1985 conspiracy claim alleging that 24 they failed to notify him of the time within which he had to seek judicial review of 25 the Board’s decision to deprive him of his procedural due process rights to 26 challenge said decision under § 1094.5 of the Civil Procedure Code. 27 28 1 Plaintiff sued Albini in her official and individual capacities. 12 1 The court distills the allegations in the complaint, including in these counts, into the 2 following causes of action: (1) Fourth Amendment; (2) equal protection; (3) procedural due 3 process; (4) substantive due process; (5) facial and as-applied due process challenges to §§ 118 4 and 490(a) of the Civil Procedure Code; (6) § 1985 conspiracy; and (7) a pendent state-law claim 5 for violating § 1094.6(e) of the Civil Procedure Code. 6 C. 7 In his prayer, plaintiff seeks declaratory and injunctive relief. Regarding declaratory Prayer for Relief 8 relief, he seeks a declaration that his constitutional rights were violated for the reasons set forth in 9 the foregoing counts. See ECF No. 1 at 41–45. Regarding injunctive relief, he makes only two 10 requests. The first is for the court to stay the administrative proceeding until this case is resolved. 11 Id. at 41. The second is for an order requiring the Board to provide the notice required in 12 § 1094.6(e) to all persons whose licenses they seek to revoke. Id. at 43. Similarly, he seeks a 13 declaration that the alleged failure to provide him with such notice violated state law. See id. at 14 43–44. 15 16 D. Legal Analysis 1. Subject Matter Jurisdiction—Eleventh Amendment 17 “A federal court must examine each claim in a case to see if the court’s jurisdiction over 18 that claim is barred by the Eleventh Amendment.” Pennhurst State Sch. & Hosp. v. Halderman, 19 465 U.S. 89, 121 (1984). “The objection that a federal court lacks subject-matter jurisdiction . . . 20 may be raised by . . . a court on its own initiative[] at any stage in the litigation . . . .” Arbaugh v. 21 Y&H Corp., 546 U.S. 500, 506 (2006) (citation omitted). 22 “The Eleventh Amendment has been authoritatively construed to deprive federal courts of 23 jurisdiction over suits by private parties against unconsenting States.” Seven Up Pete Venture v. 24 Schweitzer, 523 F.3d 948, 952 (9th Cir. 2008) (citing Seminole Tribe v. Florida, 517 U.S. 44, 54 25 (1996)). “This jurisdictional bar remains effective . . . where state officials, instead of the State 26 itself, are the subjects of suit.” Id. “Generally speaking, ‘a suit [brought] against a state official 27 in his or her official capacity is not a suit against the official but rather is a suit against the 28 official’s office. As such, it is no different from a suit against the State itself.’” Id. (quoting Will 13 1 v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)). “If, however, the plaintiffs seek 2 prospective injunctive relief against the state official for a violation of federal law, the Eleventh 3 Amendment does not bar the action.” Id. at 953 (citing Edelman v. Jordan, 415 U.S. 651, 664 4 (1974); Ex parte Young, 209 U.S. 123 (1908)). This exception is narrow, however, and it “does 5 not permit judgments against state officers declaring that they violated federal law in the past[.]” 6 P.R. Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993) (citation 7 omitted). “The State of California has not waived its Eleventh Amendment immunity with 8 respect to claims brought under § 1983 in federal court, . . . and the Supreme Court has held that 9 § 1983 was not intended to abrogate a State’s Eleventh Amendment immunity[. . . .]” Dittman v. 10 California, 191 F.3d 1020, 1025–26 (9th Cir. 1999) (citing Atascadero State Hosp. v. Scanlon, 11 473 U.S. 234, 241 (1985); Kentucky v. Graham, 473 U.S. 159, 169 n.17 (1985)). 12 Furthermore, “a federal suit against state officials on the basis of state law contravenes the 13 Eleventh Amendment when . . . the relief sought and ordered has an impact directly on the State 14 itself.” Pennhurst, 465 U.S. at 117 (emphasis added). “[T]his principle applies . . . to state-law 15 claims brought into federal court under pendent jurisdiction.” Id. at 121. 16 Here, plaintiff has not adequately alleged that the court has jurisdiction over his federal 17 claims. In these claims, he sues defendants in their official capacities and seeks a judgment 18 declaring that wholly past conduct is unconstitutional, which the Eleventh Amendment bars. P.R. 19 Aqueduct, 506 U.S. at 146. Furthermore, the only allegedly prospective relief he seeks is to 20 enjoin the administrative proceeding. He does not, for instance, seek an injunction requiring the 21 Board to reissue his license or hold a new hearing. Nor does he seek an injunction blocking 22 enforcement of the California statutes whose constitutionality he challenges. Furthermore, while 23 he apparently seeks to stay the administrative proceedings before the Board, his allegations 24 compel the conclusion that such proceedings have concluded. Therefore, except as specified later 25 in this order, the court recommends dismissal of plaintiff’s federal claims without prejudice. 26 Likewise, plaintiff has failed to adequately allege that the court has jurisdiction over his 27 pendent state-law claim based on § 1094.6(e). Where, as here, the plaintiff asserts “a 28 supplemental state law claim for an injunction against a state officer acting in his official 14 1 capacity,” the Eleventh Amendment bars it. Ashker v. Cal. Dep’t of Corrs., 112 F.3d 392, 394 2 (9th Cir. 1997) (citing Pennhurst, 465 U.S. 89). 3 The court recommends dismissing the § 1094.6(e) claim with prejudice. As noted, 4 plaintiff seeks an order requiring the Board to provide the notice required in §1094.6(e) to all 5 persons whose licenses it seeks to revoke. Further, plaintiff suggests that this court could order a 6 California court to let him appeal the Board’s decision despite his failure to timely appeal it. See 7 ECF No. 1 at 37. But the Eleventh Amendment bars such relief. See Pennhurt, 465 U.S. at 106 8 (“[I]t is difficult to think of a greater intrusion on state sovereignty than when a federal court 9 instructs state officials on how to conform their conduct to state law.” (emphasis added)). 10 Furthermore, the Eleventh Amendment would bar such relief even if plaintiff asserted these 11 claims against defendants in their individual capacities; the relief would still have “an impact 12 directly on the State itself.” Pennhurst, 465 U.S. at 117. That is, no measure of amendment 13 could turn the § 1094.6(e) claim into one “‘seeking money damages against the individual officer 14 in tort.’” Ashker, 112 F.3d at 394 (quoting Pennhurst, 465 U.S. at 111 n.21). Accordingly, this 15 claim “could not be saved by any amendment.” See Polich v. Burlington N., Inc., 942 F.2d 1467, 16 1472 (9th Cir. 1991) (citation omitted).2 17 2. 18 Discussion—Facial Plausibility As noted, plaintiff’s federal claims are not cognizable because he sued defendants in their 19 official capacities and failed to request appropriate injunctive relief. Furthermore, as discussed 20 below, his federal claims would not have been cognizable even had he sued defendants in their 21 individual capacities. To state a claim under § 1983, plaintiff’s factual allegations must support a 22 plausible inference “that each Government-official defendant, through the official’s own 23 individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676, 678 (emphasis added). 24 Plaintiff has not met this standard. 25 ///// 26 ///// 27 28 2 The dismissal of plaintiff’s pendent state-law claim does not imply that he could not try to raise it in state court. 15 1 2 a. Fourth Amendment The Fourth Amendment provides that the “[t]he right of the people to be secure in their . . 3 . effects[] against unreasonable searches and seizures[] shall not be violated 4 . . . .” U.S. CONST. amend. IV. “The basic purpose of this Amendment . . . is to safeguard the 5 privacy and security of individuals against arbitrary invasions by governmental officials.” 6 Camara v. Mun. Ct., 387 U.S. 523, 528 (1967). 7 The threshold question is whether the government has conducted a “search” or “seizure” 8 under the Fourth Amendment. This question frequently “depends on whether the person invoking 9 its protection can claim a . . . a reasonable . . . expectation of privacy that has been invaded by 10 government action.” Smith v. Maryland, 442 U.S. 735, 740 (1979) (citing cases). Furthermore, 11 the Fourth Amendment has been “understood to embody a particular concern for government 12 trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates.” United States v. 13 Jones, 565 U.S. 400, 406 (2012); see also id. at 409 (“the [] reasonable-expectation-of-privacy 14 test has been added to, not substituted for, the common-law trespassory test”). Thus, the 15 government’s physical occupation of “private property for the purpose of obtaining information” 16 may constitute a search or seizure under the Fourth Amendment. See id. at 404. 17 Here, plaintiff has failed to state a facially plausible claim that the revocation of his 18 license was a search or seizure in violation of the Fourth Amendment. To begin with, assuming 19 the license is an “effect,” his allegations do not support a plausible inference that its revocation 20 constituted a “seizure” under the Fourth Amendment. Plaintiff has not adequately alleged that the 21 revocation constituted a “government trespass” or “physical intrusion of a protected area,” cf. 22 Jones, 565 U.S. at 406–07, partly because his allegations compel the conclusion that the license is 23 intangible in nature. Moreover, plaintiff has not adequately alleged that he had a reasonable 24 expectation of privacy in the license. 25 In short, plaintiff’s allegations are far removed from the basic purpose of the Fourth 26 Amendment, i.e., “to safeguard the privacy and security of individuals against arbitrary invasions 27 by governmental officials.” Cf. Camara, 387 U.S. at 528. Therefore, however liberally 28 construed, they fail to state a cognizable Fourth Amendment claim. 16 1 Therefore, this dismissal should be with prejudice. Plaintiff has simply piggybacked his 2 Fourth Amendment claim onto his due process claims. Arguably, it is conceivable that a plaintiff 3 could adequately allege that the state’s revocation of an occupational license constitutes a 4 “seizure” under the Fourth Amendment. This might occur if the state revoked a license based on 5 the licensee’s refusal to submit to a licensing requirement that invades certain privacy interests. 6 See West v. Bailey, No. 11cv1760–MMA (POR), 2012 WL 993301, at *1, 3 (S.D. Cal. Mar. 23, 7 2012) (revocation of nursing license based on licensee’s refusal to submit to a fingerprinting 8 requirement and criminal background check stated cognizable Fourth Amendment claim). 9 However, the allegations in this case are far afield of this factual scenario. Accordingly, this 10 claim “could not be saved by any amendment.” Polich, 942 F.2d at 1472. 11 12 b. Equal Protection “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 13 ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a 14 direction that all persons similarly situated should be treated alike.” Lee v. City of Los Angeles, 15 250 F.3d 668, 686 (9th Cir. 2001) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 16 432, 439 (1985)). 17 “To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of 18 the Fourteenth Amendment[,] a plaintiff [usually] must show that the defendants acted with an 19 intent or purpose to discriminate against the plaintiff based upon membership in a protected 20 class.” Id. (citation omitted). 21 Furthermore, “an equal protection claim can in some circumstances be sustained even if 22 the plaintiff has not alleged class-based discrimination, but instead claims that [he] has been 23 irrationally singled out as a so-called ‘class of one.’” Engquist v. Or. Dep’t of Agr., 553 U.S. 591, 24 601 (2008). To prevail on a “class of one” equal protection claim, plaintiff must establish that 25 defendants have “intentionally treated [him] differently from others similarly situated and that 26 there is no rational basis for the difference in treatment.” Id. (citation omitted). 27 28 Here, plaintiff has not stated a facially plausible equal protection claim. For one, “sex offenders do not comprise a suspect class” for equal protection purposes. Litmon v. Harris, 768 17 1 F.3d 1237, 1244 (9th Cir. 2014) (citations omitted). Furthermore, plaintiff has not adequately 2 alleged that defendants intentionally treated him differently from similarly situated persons. For 3 instance, he has not alleged that defendants did not revoke, or declined to pursue the revocation 4 of, the licenses of other sex offenders, or even other persons with criminal convictions. 5 Moreover, even assuming defendants treated plaintiff differently from similarly situated 6 persons, plaintiff has not adequately alleged that their conduct was intentional. For instance, he 7 has not alleged that the Board’s “ordinary practice . . . rarely, if ever, include[s] [revoking 8 licenses]” when a licensee is convicted of a crime. See Gerhart v. Lake County, Mont., 637 F.3d 9 1013, 1022 (9th Cir. 2011). Nor has he alleged that defendants had “past experiences” with him 10 that might have “influenced” their decision to revoke his license. See id. at 1023. Likewise, he 11 has not alleged a “continuous history of harassment” by defendants, see id., and the decision itself 12 to revoke the license does not constitute harassment because the Board “had the right under 13 [California] law to [do so]” based on a criminal conviction that substantially related to landscape 14 architecture, see Stogner v. Kentucky, 638 F. Supp. 1, 4 (W.D. Ky. 1985). In short, however 15 liberally construed, plaintiff’s allegations do not support a plausible inference that defendants 16 “had a reason to single [him] out.” See Gerhart, 637 F.3d at 1023. 17 Accordingly, the plaintiff’s equal protection claim should be dismissed. Any claim based 18 on membership in a protected class should be dismissed with prejudice. By contrast, any 19 potential “class of one” claim should be dismissed without prejudice. Plaintiff may, but is not 20 obligated to, amend his complaint to attempt to state a cognizable “class of one” equal protection 21 claim. 22 c. 23 Procedural Due Process The Fourteenth Amendment reads that no State shall “deprive any person of life, liberty, 24 or property, without due process of law.” U.S. CONST. amend. XIV. “An essential principle of 25 due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity 26 for hearing appropriate to the nature of the case.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 27 532, 542 (1985) (citation omitted). 28 ///// 18 1 Courts “examine procedural due process questions in two steps[.]” Id. “[T]he first asks 2 whether there exists a liberty or property interest which has been interfered with by the State[.]” 3 Id. (citation omitted). “[T]he second examines whether the procedures attendant upon that 4 deprivation were constitutionally sufficient[.]” Id. (citation omitted). 5 Here, plaintiff has adequately alleged that he had a liberty and/or property interest in his 6 professional license. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (“The requirement 7 for some kind of a hearing applies to . . . the revocation of licenses . . . .” (citation omitted)). 8 9 True, plaintiff’s license had expired and was not renewed before it was revoked, which may undermine the inference that he had a liberty/property interest in the license. Cf. Bd. of 10 Regents of State Colleges v. Roth, 408 U.S. 564, 578 (1972) (no property interest in 11 reemployment when employment term expired and did not renew automatically and 12 reemployment was not guaranteed under state law). But plaintiff seems to allege that, even 13 though the license was expired, he could have renewed it simply by paying a late fee (before, of 14 course, the Board revoked it). Read in the context of the complaint, this allegation supports a 15 plausible inference that California law guaranteed renewal of the expired license. Thus, plaintiff 16 has adequately alleged a liberty/property interest in the expired license. Accordingly, the court 17 proceeds to consider whether he has adequately alleged that the procedures attendant upon the 18 revocation of his license comported with due process. 19 “The essential requirements of [procedural] due process . . . are notice and an opportunity 20 to respond.” Loudermill, 470 U.S. at 546. Thus, “an individual [usually must] be given an 21 opportunity for a hearing before he is deprived of any significant property interest.” See id. at 22 542. “The hearing must be at a meaningful time and in a [meaningful] manner.” Goldberg v. 23 Kelly, 397 U.S. 254, 267 (1970) (citation omitted). 24 The exact procedures required will depend on, inter alia, the nature of the case, the 25 importance of the interests at stake, and the risk of an erroneous deprivation. See Mathews v. 26 Eldridge, 424 U.S. 319, 335 (1976); Kelly, 397 U.S. at 263. A full evidentiary or quasi-judicial 27 hearing generally constitutes a hearing held in a meaningful manner, see Mathews, 424 U.S. at 28 333, though one is not required in every case, see id. at 343. See also Cafeteria and Rest. 19 1 Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 894–95 (1961) (“[D]ue process 2 of law generally implies and includes . . . a [hearing] according to some settled course of judicial 3 proceedings[.] (citation omitted)). Procedural due process requires only one hearing where, as 4 here, the state does not deprive the plaintiff of his liberty/property interest until after a full 5 evidentiary or quasi-judicial hearing. Kelly, 397 U.S. at 267. 6 A full evidentiary or quasi-judicial hearing may include the following attributes: (1) 7 “timely and adequate notice detailing the reasons for a proposed termination,” id. at 267–68; (2) 8 “an effective opportunity to defend by confronting any adverse witnesses and by presenting [the 9 plaintiff’s] own arguments and evidence orally,” id. at 268; (3) “an impartial decision maker,” id. 10 at 271; (4) a decision that “rest[s] solely on the legal rules and evidence adduced at the hearing[,]” 11 id.; (5) “a complete record and a comprehensive opinion,” id. at 267; and (6) the plaintiff’s right 12 to have his own counsel represent him if he chooses, id. at 270. 13 Here, plaintiff has not stated a facially plausible procedural due process claim. He has not 14 sufficiently alleged that he failed to receive timely and adequate notice of the accusation and 15 hearing. Although he alleges that he did not receive the accusation until March 23, 2016 (i.e., a 16 day before the hearing), the accusation is dated May 11, 2015. See Steckman v. Hart Brewing, 17 Inc., 143 F.3d 1293, 1295–96 (9th Cir. 1998) (the court may disregard allegations contradicted by 18 the complaint’s attached exhibits). Because the hearing took place nearly a year after he received 19 the accusation, his allegations fail to support a plausible inference that he did not have adequate 20 time to prepare for the hearing. 21 Plaintiff alleges that the accusation was incomplete. However, his only supporting 22 allegation is that the accusation was “missing pages.” This vague and conclusory allegation does 23 not support a plausible inference that the accusation was incomplete. Furthermore, the accusation 24 dated May 11, 2015 states the “legal and factual bases” on which the Board decided to revoke the 25 license. Kelly, 397 U.S. at 268; see also ECF No. 1 at 52–55. Thus, even if the accusation was 26 missing pages, plaintiff has not adequately alleged that the incomplete accusation hindered his 27 ability to contest the Board’s revocation efforts. Consequently, plaintiff has not sufficiently 28 stated facts showing that his notice failed to adequately detail the allegations against him. 20 1 Nor has he adequately alleged that the other Kelly factors were absent in this case. 2 Regarding factor (2), he alleges that he orally participated in the hearing, including testifying 3 regarding his efforts to rehabilitate himself. His allegations also compel the inference that, during 4 the hearing, he was allowed to respond to the Board’s arguments. Likewise, he alleges that he 5 filed “a substantial set of supporting defense documents” upon the conclusion of the hearing. 6 ECF No. 1 at 18. Therefore, his allegations do not plausibly suggest that he was denied an 7 effective opportunity to present his case and confront any adverse witnesses. 8 The only other Kelly factor that his allegations conceivably implicate is (4), i.e., the 9 guideline that the decision should rest solely on the legal rules and evidence adduced at the 10 hearing. In this regard, plaintiff alleges that the ALJ rested her decision that the child 11 pornography offense substantially related to landscape architecture by relying on his conditions of 12 release. However, the conditions of release are incorporated into the judgment in plaintiff’s 13 criminal case, which was necessary and relevant evidence at the hearing. Furthermore, plaintiff’s 14 allegations indicate that the ALJ cited the relevant California authority in issuing her decision. In 15 point of fact, plaintiff challenges the reasoning of her decision, which, in the context of this case, 16 does not plausibly implicate his procedural due process rights. 17 Nor do plaintiff’s allegations that his mail was obstructed plausibly suggest that he was 18 deprived of a meaningful opportunity to respond to the accusation. He alleges that the Board 19 denied a motion to dismiss based on the allegedly incomplete accusation. Yet he alleges that he 20 argued this issue before the ALJ and that she denied the motion. Thus, his own allegations 21 indicate that he had a fair opportunity to address this issue. 22 He further alleges that, due to mailing irregularities, the ALJ did not rule on an 23 unspecified motion he submitted before she issued her decision and that the Board failed to 24 consider a timely filed motion for reconsideration. But he has not explained how these failures 25 deprived him of a meaningful opportunity to respond. Likewise, he fails to plausibly allege that 26 the outcome of his case would have been different had the ALJ and the Board considered these 27 documents. And, to reiterate, his allegations compel the conclusion that he received a full 28 evidentiary hearing. 21 1 In a similar vein, plaintiff alleges that McKinney did not give him notice of his right to 2 appeal the D&O as provided in § 1094.6(e)–(f) of the California Code of Civil Procedure. This 3 omission, he suggests, is responsible for his apparent failure to appeal the D&O within the time 4 that § 1094.6(b) prescribes. See Coachella Valley Mosquito and Vector Control Dist. v. Cal. Pub. 5 Emp’t Relations Bd., 112 P.3d 623, 633 (Cal. 2005) (The statute of limitations for filing an 6 administrative mandate petition is 90 days . . . .” (citing Cal. Civ. Proc. Code § 1094.6(b)). 7 However, procedural due process does not require “notice of state-law remedies which, like those 8 at issue here, are established by published, generally available state statutes and case law.” City 9 of West Covina v. Perkins, 525 U.S. 234, 241 (1999). Accordingly, this argument fails. 10 For these reasons, plaintiff has not stated a cognizable procedural due process claim. This 11 dismissal should be without prejudice. While the claim appears to be futile, it is conceivable that 12 plaintiff could plead facts supporting a plausible inference that he failed to receive a complete 13 accusation and that this failure deprived him of a fair opportunity to defend himself at the hearing. 14 Hence, plaintiff may, but is not obligated to, amend his complaint to attempt to state a cognizable 15 procedural due process claim. 16 17 d. Substantive Due Process Plaintiff has not clearly identified the factual basis of his substantive due process claim. 18 Therefore, below, the court considers all the potential bases of this claim. For the reasons 19 discussed below, the court cannot agree. 20 21 22 23 i. Rational Relationship to a Legitimate State Interest Reading his complaint broadly, plaintiff alleges that §§ 118(b) and 490(a) of the Civil Procedure Code lack a rational relationship to a legitimate state interest. The § 118(b) claim should be dismissed outright. This statute merely provides that the 24 expiration of a license does not preclude the Board from pursuing a disciplinary proceeding 25 against a licensee or the revocation of the license. See Cal. Bus. & Prof. Code § 118(b). Plaintiff 26 has not adequately alleged how § 118(b) lacks a rational relationship to a legitimate state interest 27 or otherwise violated his federal rights. Furthermore, § 118(b) is an ancillary statute that involves 28 a minor procedural issue that is not meaningfully related to plaintiff’s core allegations, i.e., that 22 1 the Board (1) erroneously concluded that his child pornography offense substantially related to 2 landscape architecture and (2) denied him procedural due process. Accordingly, because it is 3 plainly baseless, the plaintiff’s substantive due process challenge to § 118(b) should be dismissed 4 with prejudice. 5 The next issue is whether plaintiff has stated a facially plausible claim that § 490(a) lacks 6 a rational relationship to a legitimate state interest. Section 490(a) provides that the Board may 7 “revoke a license on the ground that the licensee has been convicted of a crime[] if the crime is 8 substantially related to the qualifications, functions, or duties of the business or profession for 9 which the license was issued.” Cal. Bus. & Prof. Code § 490(a). 10 “To withstand Fourteenth Amendment scrutiny, a statute is required to bear only a rational 11 relationship to a legitimate state interest, unless it makes a suspect classification or implicates a 12 fundamental right.” Nat’l Ass’n for Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 13 228 F.3d 1043, 1049 (9th Cir. 2000) (citations omitted). “[P]ersons convicted of crimes are not a 14 suspect class.” United States v. Whitlock, 639 F.3d 935, 941 (9th Cir. 2011) (citation omitted); 15 see also Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 540 (1942) (“[A] State is not 16 constrained . . . to ignore experience which marks a class of offenders or a family of offenses for 17 special treatment.”). Furthermore, while there is “some generalized due process right to choose 18 one’s field of private employment,” Connecticut v. Gabbert, 526 U.S. 286, 291–92 (1999), the 19 Supreme Court “has never held that the ‘right’ to pursue a profession is a fundamental right . . . 20 subject to strict scrutiny,” Dittman v. California, 191 F.3d 1020, 1031 n.5 (9th Cir. 1999). 21 Therefore, “[b]ecause . . . the licensing scheme neither utilizes a suspect classification nor 22 implicates a fundamental right, [the court] now examine[s] whether it is ‘rationally related to a 23 legitimate state interest.’” Nat’l Ass’n, 228 F.3d at 1050 (quoting City of New Orleans v. Dukes, 24 427 U.S. 297, 303 (1976)). “Governmental action is rationally related to a legitimate goal unless 25 the action is clearly arbitrary and unreasonable, having no substantial relation to the public health, 26 safety, morals, or general welfare.” Sylvia Landfield Trust v. City of Los Angeles, 729 F.3d 1189, 27 1193 (9th Cir. 2013) (citation omitted). 28 ///// 23 1 “In applying the rational basis test, [courts must] presume the constitutionality of the 2 classification.” Nat’l Ass’n, 228 F.3d at 1050. Thus, courts “do not require that the government’s 3 action actually advance its stated purposes, but merely look to see whether the government could 4 have had a legitimate reason for acting as it did.” Dittman, 191 F.3d at 1031 (citation omitted). 5 “In other words, [courts] need to determine only whether the legislation has a conceivable basis 6 on which it might survive constitutional scrutiny.” Id. (citation omitted). Plaintiff bears the 7 burden of showing that § 490(a) lacks a rational basis. FCC v. Beach Commc’ns, Inc., 508 U.S. 8 307, 315 (1993). 9 Here, plaintiff has not adequately alleged that § 490(a) lacks a rational relationship to a 10 legitimate state interest. Regarding legitimacy, the statute seeks to protect California consumers. 11 The California State Legislature (“Legislature”) has declared that “licensees who have been 12 convicted of crimes” pose a “potential harm to the consumers of California” and that, 13 consequently, it may be appropriate for the Board to “impose discipline upon a licensee[.]” See 14 Cal. Bus. & Prof. Code § 490(d). Likewise, the Legislature has declared that “[p]rotection of the 15 public shall be the highest priority for the [Board] in exercising its licensing, regulatory, and 16 disciplinary functions.” Cal. Bus. & Prof. Code § 5620.1. Thus, § 490(a) seeks to promote the 17 legitimate interest of “public . . . safety.” Sylvia Landfield, 729 F.3d at 1193; see also Barsky v. 18 Bd. of Regents of Univ. of N.Y., 347 U.S. 442, 452 (1954) (stating that states have a “legitimate 19 concern in professional standards”). 20 The question, then, is whether plaintiff has adequately alleged that § 490(a) lacks a 21 rational relationship to consumer and public safety. He has not. The statute provides that the 22 Board may revoke a license when the licensee has been convicted of a crime that is “substantially 23 related to the qualifications, functions, or duties of the business or profession for which the 24 license was issued.” Cal. Bus. & Prof. Code § 490(a). Far from “clearly arbitrary and 25 unreasonable,” Sylvia Landfield, 729 F.3d at 1193, this provision “bar[s] a person from practicing 26 a lawful profession only for reasons related to his fitness or competence to practice that 27 profession,” Arneson v. Fox, 621 P.2d 817, 821 (Cal. 1980). See also Schware v. Bd. of Bar 28 Exam. of State of N.M., 353 U.S. 232, 239 (1957) (a state may invoke standards of qualification to 24 1 revoke a professional license if the standard has “a rational connection with the applicant’s fitness 2 or capacity to practice law”); Dittman, 191 F.3d at 1030 (“[R]egulations on entry into a 3 profession . . . are constitutional if they have a rational connection with the applicant’s fitness or 4 capacity to practice the profession.” (brackets in original) (citation omitted)). Thus, it is 5 “conceivable” that § 490(a) is rationally related to the purposes of consumer and public safety. 6 See id. 1031. Several cases support this conclusion.3 7 ii. 8 9 10 11 Other Factual Bases As noted, plaintiff appears to base his substantive due process claim on more than one theory. Therefore, the court will consider the other conceivable grounds on which he bases this claim. Plaintiff also seems to base his substantive due process claim on the same allegations on 12 which he bases his procedural due process claim. To the extent he does, his claim must be treated 13 as a procedural due process claim. See Connecticut v. Gabbert, 526 U.S. 286, 293 (1999) 14 (“[W]here another provision of the Constitution ‘provides an explicit textual source of 15 constitutional protection,’ a court must assess a plaintiff’s claims under that explicit provision and 16 ‘not the more generalized notion of “substantive due process.”’” (quoting Graham v. Connor, 490 17 U.S. 386, 395 (1989))). 18 Additionally, construing his allegations liberally, plaintiff suggests that the Board’s 19 decision to revoke his license was so egregious that it violated substantive due process. This 20 claim, likewise, is not cognizable. 21 22 23 24 25 26 27 28 3 See, e.g., De Veau v. Braisted, 363 U.S. 144, 159 (1960) (plurality opinion) (“State [laws] disqualifying convicted felons from certain employments important to the public interest . . . have a long history.” (citation omitted)); Barsky, 347 U.S. at 452 (state procedure “making the conviction of any crime a violation of its professional . . . standards, and then leaving it to a qualified board . . . to determine . . . the measure of discipline to be applied to the offending [professional,]” satisfied substantive due process); Hawker v. New York, 170 U.S. 189, 190–91, 197, 200 (1898) (upholding statute that prohibited felons from practicing medicine, even if felony occurred before physician started practicing); Bhalerao v. Ill. Dep’t of Fin. and Prof’l Regs., 834 F. Supp. 2d 775, 784 (N.D. Ill. 2011) (“For more than a century, courts consistently have upheld statutes that withhold or revoke occupational licenses for failure to meet or comply with conditions imposed by the state for societal protection. Furthermore, courts have upheld statutes that require or allow revocation of professional licenses after a licensee has been convicted of a crime.” (collecting cases)). 25 1 “Under the Fourteenth Amendment’s substantive due process prong, [the Ninth Circuit 2 uses] the ‘shocks the conscience’ test [in appropriate cases].” See Fontana v. Haskin, 262 F.3d 3 871, 882 n.7 (9th Cir. 2001) (citing County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). 4 Under this test, “[t]he threshold question is ‘whether the behavior of the governmental officer is 5 so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’” 6 Id. (quoting Lewis, 523 U.S. at 848 n.8). 7 Here, plaintiff has not adequately alleged that defendants’ conduct in seeking to revoke 8 his license was so egregious as to shock the conscience. Plaintiff seems to base this conceivable 9 claim on the notion that defendants revoked his license based on an erroneous determination that 10 his child pornography offense substantially related to his profession. But the contention that the 11 state has “suspended [professional] privileges” based on “unproven allegations” does not suffice 12 to state a substantive due process claim. See Moore v. Williamsburg Reg’l Hosp., 560 F.3d 166, 13 180 (4th Cir. 2009). In short, however liberally read, plaintiff’s allegations do not support a 14 plausible inference that the Board’s decision was so outrageous as to shock the conscience. 15 For the foregoing reasons, plaintiff’s substantive due process claim should be dismissed 16 with prejudice. Courts have consistently held that statutes such as § 490(a) comport with 17 substantive due process. Furthermore, plaintiff merely piggybacks his substantive due process 18 claim onto his procedural due process claim. Additionally, his allegations that the Board 19 erroneously revoked his license do not support a substantive due process claim. Consequently, 20 any further amendment of this claim would be futile. See Polich, 942 F.2d at 1472. 21 e. Due Process—Facial Challenge 22 Plaintiff also alleges a facial due process challenge to §§ 118(b) and 490(a) on the ground 23 that these statutes are void for vagueness. This challenge fails. Plaintiff’s allegations compel the 24 inference that “First Amendment freedoms are not infringed by [these statutes].” Chapman v. 25 United States, 500 U.S. 453, 467 (1991). Thus, “the vagueness claim must be evaluated as the 26 statute is applied to the facts of this case.” Id. (emphasis added) (citation omitted).4 27 28 4 Accord Foti v. City of Menlo Park, 146 F.3d 629, 639 n.10 (9th Cir. 1998) (“A facial challenge is permissible when the statute in question clearly implicates free speech rights.” (citing 26 1 Furthermore, plaintiff’s facial due process challenge to these statutes would fail even if he 2 could assert it. “A facial challenge to a [statute] is . . . the most difficult challenge to mount 3 successfully[] since the challenger must establish that no set of circumstances exists under which 4 the Act would be valid.” United v. Salerno, 481 U.S. 739, 745 (1987). The challenger shoulders 5 this “heavy burden.” Id. The Ninth Circuit has consistently applied Salerno’s exacting standard 6 to facial challenges “outside the domain of the First Amendment.”5 7 Here, plaintiff has not adequately alleged that there is no set of circumstances under which 8 these statutes would be valid. As explained above, § 118(b) is an ancillary statute that involves a 9 minor procedural issue that is not meaningfully related to his core allegations. Likewise, the 10 notion that there is no set of circumstances under which § 490(a) would be valid is patently 11 unsound. This would mean that the applicability of § 490(a) would be unclear no matter the 12 severity of the crime and the closeness of its relationship with the “qualifications, functions, or 13 duties of the business or profession for which the license was issued.” Cal. Bus. & Prof. Code 14 § 490(a). Such reasoning, for instance, would preclude the Board from revoking the license of a 15 landscape architect convicted for criminal negligence in the faulty construction of buildings in a 16 public park, or for using his architecture business to launder money for a vast drug ring. In short, 17 18 19 20 21 22 cases)); United States v. Johnson, 130 F.3d 1352, 1354 (9th Cir. 1997) (“Unless First Amendment freedoms are implicated, a vagueness challenge . . . must show that the law is vague as applied to the facts of the case at hand.” (citations omitted)); United States v. Marquardt, 949 F.2d 283, 286 n.2 (9th Cir. 1991) (per curiam) (“Outside the first amendment context, a party may challenge a government measure only if it is vague as applied to the particular conduct at issue.” (citation omitted)); United States v. Fitzgerald, 882 F.2d 397, 398 (9th Cir. 1989) (“[B]ecause this action does not involve first amendment rights, this court need only examine the vagueness challenge under the facts of the particular case and decide whether, under a reasonable construction of the statute, the conduct in question is prohibited.” (citation omitted)). 23 5 24 25 26 27 28 Hotel & Motel Ass’n of Oakland v. City of Oakland, 344 F.3d 959, 972 (9th Cir. 2003) (citation omitted); accord Puente Ariz. v. Arpaio, 821 F.3d 1098, 1104 (9th Cir. 2016) (“Without more direction, we have chosen to continue applying Salerno.”) (citations omitted)); Sprint Telephony PCS, L.P. v. County of San Diego, 543 F.3d 571, 579 n.3 (9th Cir. 2008) (en banc); S.D. Myers, Inc. v. City and County of San Francisco, 253 F.3d 461, 467 (9th Cir. 2001) (“[W]e will not reject Salerno . . . until a majority of the Supreme Court clearly directs us to do so.”); El Rescate Legal Servs., Inc. v. Exec. Office of Immigration Review, 959 F.2d 742, 750–51 (9th Cir. 1991) (en banc). 27 1 there is no indication that § 490(a) is “unconstitutional in all of its applications.” Wash. State 2 Grange v. Wash. State Repub. Party, 552 U.S. 442, 449 (2008) (emphasis added) (citation 3 omitted). 4 Accordingly, plaintiff’s facial due process challenge to §§ 118(b) and 490(a) should be 5 dismissed. This dismissal should be with prejudice because the claim “could not be saved by any 6 amendment.” See Polich, 942 F.2d at 1472. 7 f. Due Process—As Applied6 8 The void-for-vagueness “doctrine is an aspect of due process and requires that the 9 meaning of a . . . statute be determinable.” Schwartzmiller v. Gardner, 752 F.2d 1341, 1345 (9th 10 Cir. 1984). “A statute is void for vagueness if it fails to give adequate notice to people of 11 ordinary intelligence concerning the conduct it proscribes, or if it invites arbitrary . . . 12 enforcement[.]” Id. (citing cases); see also Johnson v. United States, 135 S. Ct. 2551, 2556 13 (2015) (“[T]he Government violates [due process] by taking away someone’s . . . liberty[] or 14 property under a . . . law . . . so standardless that it invites arbitrary enforcement.” (citation 15 omitted)). The court focuses on the second question—whether § 490(a) invites arbitrary 16 enforcement—because § 490(a) does not proscribe conduct. See Cal. Bus. & Prof. Code 17 § 490(a); see also Smith v. Goguen, 415 U.S. 566, 574 (1974) (stating that the second question is 18 “the most meaningful aspect of the vagueness doctrine” in many cases). 19 Generally, a statute invites arbitrary enforcement if it fails to “establish minimal 20 guidelines to govern [its] enforcement.” See Gonzales v. Carhart, 550 U.S. 124, 150 (2007) 21 (citing Goguen, 415 U.S. at 574). In such a case, the statute may “vest[] virtually complete 22 discretion in the hands of [state officials] to determine whether the . . . statute [is satisfied].” See 23 Kolender v. Lawson, 461 U.S. 352, 358 (1983). “Such a standardless sweep allows [state 24 officials] to pursue their personal predilections.” Goguen, 415 U.S. at 575. However, a statute 25 ///// 26 27 28 6 Plaintiff asserts as-applied due process challenges to §§ 118(b) and 490(a). The asapplied due process challenge to § 118(b) should be dismissed outright. To reiterate, § 118(b) is an ancillary statute that involves a minor procedural issue that is not meaningfully related to his relevant allegations. 28 1 that contains standards “[that] narrow [its] scope . . . and limit [state officials’ discretion]” 2 generally fails to invite arbitrary enforcement. See Gonzales, 550 U.S. at 150. 3 The question whether a statute establishes minimal guidelines to govern its enforcement 4 begins with “the [text] of the [statute] itself[.]” Grayned v. City of Rockford, 408 U.S. 104, 110 5 (1972) (citation omitted). When interpreting statutory texts for vagueness, “courts use the 6 ordinary meaning of terms unless context requires a different result.” Gonzales, 550 U.S. at 152 7 (citation omitted). Thus, “otherwise imprecise terms may avoid vagueness problems when used 8 in combination with terms that provide sufficient clarity, and vagueness challenges will be 9 rejected when it is clear what the [statute] as a whole prohibits[.]” Human Life of Wash. Inc. v. 10 Brumsickle, 624 F.3d 990, 1021 (9th Cir. 2010) (citations omitted). Moreover, courts consider 11 any “narrowing definitions” when determining whether a statute is impermissibly vague. See 12 Holder v. Humanitarian Law Project, 561 U.S. 1, 21 (2010). When the plaintiff raises an as- 13 applied due process challenge, the court need decide only whether “a reasonable construction of 14 the statute” would authorize the challenged action. See Fitzgerald, 882 F.2d at 398 (emphasis 15 added); accord United States v. Agront, 773 F.3d 192, 195 (9th Cir. 2014). 16 “These standards should not . . . be mechanically applied.” Village of Hoffman Estates v. 17 Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982). “The degree of vagueness that the 18 Constitution tolerates . . . depends in part on the nature of the enactment.” Id. “The [Supreme] 19 Court has also expressed greater tolerance of enactments with civil rather than criminal penalties 20 because the consequences of imprecision are qualitatively less severe.” Id. at 498–99. 21 Under California law, the Board must “develop criteria to aid it, when considering the . . . 22 revocation of a license, to determine whether a crime or act is substantially related to the 23 qualifications, functions, or duties of the business or profession it regulates.” Cal. Bus. & Prof. 24 Code § 481; see also Fox, 621 P.2d at 822 (“[T]he [California] Legislature has recently required 25 administrative boards to develop written ‘criteria’ to assist in determining whether the requisite 26 special relationship exists to permit discipline.” (citing Cal. Bus. & Prof. Code §§ 481–82)). Title 27 16 of the California Code of Regulations provides that, “[f]or the purpose of . . . revocation of the 28 license of a landscape architect pursuant to [§ 490(a)], a crime . . . shall be considered 29 1 substantially related to the qualifications, functions, and duties of a landscape architect if to a 2 substantial degree it evidences present or potential unfitness of a landscape architect to perform 3 the functions authorized by his or her license in a manner consistent with the public health, safety, 4 or welfare.” Cal. Code. Regs. tit. 16, § 2655. These regulations further provide: 5 (b) When considering the suspension or revocation of the license of a landscape 6 architect on the grounds that the person licensed has been convicted of a crime, the 7 Board, in evaluating the rehabilitation of such person and his or her present 8 eligibility for a license will consider the following criteria: 9 (1) Nature and severity of the act(s) or offense(s). 10 (2) Total criminal record. 11 (3) The time that has elapsed since commission of the act(s) or 12 offense(s). 13 (4) Whether the licensee has complied with any terms of parole, 14 probation, restitution or any other sanctions lawfully imposed 15 against the licensee. 16 (5) If applicable, evidence of expungement proceedings . . . . 17 (6) Evidence, if any, of rehabilitation submitted by the licensee. 18 19 Id. § 2656(b). Here, plaintiff has not adequately alleged facts to demonstrate that § 490(a) is so 20 standardless that it gave the Board complete discretion to enforce it. As noted, this statute 21 provides that the Board may revoke a licensee’s license if he has a criminal conviction that is 22 substantially related to the qualifications, functions, or duties of the business or profession for 23 which the Board issued it. Liberally construing plaintiff’s complaint, he seems to allege that 24 § 490(a) gave the Board unfettered discretion to determine if his child pornography offense was 25 substantially related to his practice as a landscape architect. But California law does not support 26 such a vague reading of § 490(a). 27 28 Rather, California regulations further define § 490(a) to mean that a crime is “substantially related to the qualifications, functions, and duties of a landscape architect if to a 30 1 substantial degree it evidences present or potential unfitness of a landscape architect to perform 2 the functions authorized by his . . . license in a manner consistent with the public health, safety, or 3 welfare.” Cal. Code. Regs. tit. 16, § 2655. This “narrowing definition” is clearer than the 4 allegedly vague language of § 490(a). Cf. Holder, 561 U.S. at 21. And, consistent with the 5 California Supreme Court’s interpretation of § 490(a), this narrowing definition provides that the 6 Board can revoke a landscape architect’s license “only for reasons related to his fitness or 7 competence to practice that profession.” See Fox, 621 P.2d at 821; cf. Wainwright v. Stone, 414 8 U.S. 21, 22–23 (1973) (per curiam) (“For the purpose of determining whether a state statute is too 9 vague and indefinite to constitute valid legislation we must take the statute as though it read 10 precisely as the highest court of the State has interpreted it.” (citation omitted)). Moreover, the 11 regulations implementing § 490(a) set forth reasonably specific “criteria” for the Board to follow 12 “[w]hen considering the . . . revocation of the license of a landscape architect on the grounds that 13 the person licensed has been convicted of a crime[.]” Cal. Code. Regs. tit. 16, § 2656(b). These 14 “relatively clear guidelines” and “objective criteria” further limit the Board’s discretion in 15 interpreting § 490(a). See Gonzales, 550 U.S. at 149. In short, § 490(a) did not give the Board 16 unfettered discretion to enforce it. 17 Nor has plaintiff adequately alleged that the Board arbitrarily sought to revoke his license. 18 Plaintiff alleges that the ALJ improperly relied on various considerations in concluding that his 19 child pornography offense was substantially related to his landscape architecture practice. To wit, 20 he alleges that her “decision devoted many references to factors other than the actual 21 ‘commission of the crime.’” ECF No. 1 at 17. He further alleges that “factors cited as 22 justification for the decision were [his] length of incarceration, conditions of release, and the 23 requirement that he register as a sex offender.” Id. Additionally, he alleges that the ALJ found 24 that, after his release from prison, he would “remain on supervised release as a registered sex 25 offender with stringent requirements that prohibit him from being outside near children.” Id. Yet 26 he alleges that “[n]o such condition was imposed . . . in federal district court.” Id. at 19. 27 28 These allegations actually undermine the inference that the Board arbitrarily construed § 490(a) to apply to his case. Contrary to plaintiff’s somewhat unclear contention, California law 31 1 did not limit the Board to consider only “the commission of the crime” when determining whether 2 his child pornography offense substantially related to landscape architecture. Rather, under 3 California law, “the record of conviction of the crime is conclusive evidence of the fact that the 4 conviction occurred, but only of that fact, and the [B]oard may inquire into the circumstances 5 surrounding the commission of the crime . . . to determine if the conviction is substantially related 6 to the qualifications, functions, and duties of the licensee.” Cal. Bus. & Prof. Code § 493; see 7 also Cal. Code. Regs. tit. 16, § 2656(b) (setting forth criteria for the Board to consider when 8 applying § 490(a)). Thus, plaintiff’s allegation that the ALJ—whose decision the Board 9 adopted—considered his conditions of release and other factors actually supports the inference 10 that the Board followed the statutory and regulatory guidelines as opposed to any personal 11 predilections. Similarly, plaintiff alleges that the ALJ improperly considered his conditions of 12 release, including his requirement to register as a sex offender, because they are civil, not 13 criminal, in nature. But California law would seem to require the ALJ to consider such 14 “circumstances,” Cal. Bus. & Prof. Code § 493, because they may bear on the “present or 15 potential unfitness of a landscape architect to perform the functions authorized by his or her 16 license in a manner consistent with the public health, safety, or welfare,” Cal. Code. Regs. tit. 16, 17 § 2655. Moreover, it bears emphasis that the judgment in plaintiff’s criminal case incorporated 18 the conditions whose applicability he disputes.7 19 Plaintiff also takes umbrage with the ALJ’s alleged finding that, after his release from 20 prison, he would “remain on supervised release as a registered sex offender with stringent 21 requirements that prohibit him from being outside near children.” ECF No. 1 at 17. He alleges 22 that “[n]o such condition was imposed . . . in federal district court.” Id. at 19. However, as noted 23 earlier, the judgment in plaintiff’s criminal case provides that he is “[n]ot to have unsupervised 24 contact with any child under the age of 18, unless in the presence of a supervising adult . . . and 25 with the prior approval of the probation officer.” Id. at 50. Likewise, the judgment provides that 26 27 28 7 Plaintiff cites Doe, 538 U.S. 84, for the proposition that the requirement to register as a sex offender is civil, not criminal, in nature. But the issue in Doe was whether a sex offender registry with community notification violated the Ex Post Facto Clause. Id. at 89. Hence, Doe is inapposite. 32 1 he is not to “loiter within 200 yards of . . . places frequented by persons under the age of 18[] 2 without prior approval of the probation officer.” Id. Additionally, the judgment provides that 3 plaintiff may “[n]ot accept or commence employment . . . without prior approval of the probation 4 officer[.]” Id. Therefore, while the district court might not have precisely prohibited plaintiff 5 from being outside near children, his own supporting documents undercut the inference that the 6 ALJ arbitrarily so found. 7 In any event, the specific issue before the court is not whether the ALJ’s decision—or the 8 D&O adopting it—was correct. Rather, it is whether the Board reasonably construed § 490(a) to 9 authorize the revocation plaintiff’s license. See Fitzgerald, 882 F.2d at 398. In making this 10 determination, “[t]he fact that there may be plausible arguments [that plaintiff’s child 11 pornography offense did not substantially relate to landscape architecture] does not mean that 12 [§ 490(a)] is [impermissibly] vague.” Chapman, 500 U.S. at 467. Rather, the ultimate question is 13 whether § 490(a) is so standardless that it invites arbitrary enforcement. See Kolender, 461 U.S. 14 at 357. Judged against the standards set forth above, the alleged facts do not support a plausible 15 inference that the Board unreasonably or arbitrarily construed § 490(a) to apply to his case. 16 For these reasons, the court recommends dismissing plaintiff’s as-applied challenge to 17 § 490(a). However, while this claim appears to be futile, this dismissal should be without 18 prejudice. At this early stage, it is conceivable that plaintiff could allege additional facts 19 sufficient to state a potentially cognizable as-applied due process claim. 20 21 g. § 1985 Conspiracy Plaintiff asserts a § 1985 conspiracy claim against McCauley based on allegations that he 22 knowingly: (1) executed an accusation containing misrepresentations; (2) untimely served him 23 with it; and (3) pursued the revocation of his license with knowledge that it could affect his 24 application for licensure in Virginia due to comity. Further, he asserts a § 1985 conspiracy claim 25 against McCauley and McKinney based on the allegation that they knowingly: (1) sent the 26 accusation to an address at which he did not reside; and (2) failed to notify him of the time within 27 which he had to seek judicial review of the Board’s decision. Additionally, he asserts a § 1985 28 conspiracy claim against Morazzini and Albini for knowingly obstructing, and failing to stop the 33 1 obstruction of, his mail and pleadings. Plaintiff bases these conspiracy claims on the same 2 allegations on which he bases his other claims. 3 “A plaintiff alleging a conspiracy under § 1985(3) must establish: [1] the existence of a 4 conspiracy to deprive the plaintiff of the equal protection of the laws; [2] an act in furtherance of 5 the conspiracy; [3] and a resulting injury.” Scott v. Ross, 140 F.3d 1275, 1284 (9th Cir. 1998) 6 (citation omitted). Regarding the first element, the plaintiff must establish some racial or 7 otherwise class-based invidious discriminatory animus for the conspiracy. Bray v. Alexandria 8 Women’s Health Clinic, 506 U.S. 263, 267–69 (1993). Regarding the third element, “to state a 9 claim for conspiracy under § 1985, a plaintiff must first have a cognizable claim under § 1983.” 10 Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 930 (9th Cir. 2004) (citation omitted). Moreover, 11 “a mere allegation of conspiracy without factual specificity is insufficient” to state a claim under 12 § 1985. Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988). 13 Here, nowhere does plaintiff allege that racial or class-based invidious discriminatory 14 animus motivated defendants’ alleged conspiracy to deprive him of his constitutional rights. 15 Furthermore, he has not stated any cognizable § 1983 claims. Additionally, his conclusory 16 allegations of conspiracy lack the factual specificity necessary to support a § 1985 claim. 17 Accordingly, his § 1985 claims fail to state a claim. 18 Furthermore, his conspiracy claims would fail if the court treated them as § 1983 19 conspiracy claims. “To establish liability for a conspiracy in a § 1983 case, a plaintiff must 20 demonstrate the existence of an agreement or meeting of the minds to violate constitutional 21 rights.” Crowe v. County of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) (citation omitted). 22 Furthermore, “the plaintiff must state specific facts to support the existence of the claimed 23 conspiracy.” Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989) (citation omitted). 24 Additionally, the plaintiff must “show [that an] actual deprivation of his constitutional rights 25 resulted from the alleged conspiracy.” Woodrum v. Woodward County, Okl., 866 F.2d 1121, 26 1126 (9th Cir. 1989) (citation omitted). 27 28 Here, plaintiff’s conclusory allegations of conspiracy fail to support a plausible inference that defendants agreed to violate his constitutional rights. Likewise, his conclusory allegations 34 1 lack the factual specificity necessary to support a plausible inference of such a conspiracy. In 2 addition, because his § 1983 claims are not cognizable, he has not adequately alleged an actual 3 deprivation of his constitutional rights from the alleged conspiracy. Accordingly, his conspiracy 4 claims would fail even if brought under § 1983. 5 Plaintiff’s § 1985 conspiracy claims should be dismissed with prejudice. His complaint 6 “lacks any indication that [he] was discriminated against because he is a member of a particular 7 race or suspect class,” Burns, 883 F.2d at 821 (citation omitted), and the court already concluded 8 that any equal protection claim based on membership in a protected class should be dismissed 9 with prejudice, supra Part III(D)(2)(b). However, plaintiff may, but is not obligated to, attempt to 10 plead a § 1983 conspiracy claim in any amended complaint. 11 12 h. Defendant Harris Plaintiff’s allegations are, at most, tangentially related to Harris. For instance, while he 13 alleges that an attorney from the OAG represented McCauley at the hearing, it was not Harris. 14 Furthermore, he alleges that the accusation was sent to his parents’ house in Virginia when the 15 OAG knew that he resided at FCI Big Spring. But McCauley executed the accusation. 16 Therefore, plaintiff has not stated a cognizable claim against Harris. See Iqbal, 556 U.S. at 676, 17 678 (To state a claim under § 1983, plaintiff’s factual allegations must support a plausible 18 inference “that each Government-official defendant, through the official’s own individual actions, 19 has violated the Constitution.” (emphasis added)). Consequently, the claims against Harris 20 should be dismissed with prejudice. However, plaintiff should be given an opportunity to name a 21 proper defendant from the OAG, if any.8 22 23 i. Defendant Albini Plaintiff asserted procedural due process, equal protection, and § 1985 conspiracy claims 24 against Albini in her official and individual capacities for allegedly obstructing, and failing to 25 stop the obstruction of, his mail and pleadings. She is the only defendant against whom plaintiff 26 asserted individual-capacity claims. But, as shown above, plaintiff would not have stated any 27 28 8 Moreover, Harris must be dismissed because she is no longer the Attorney General of California. Fed. R. Civ. P. 25(d). 35 1 cognizable claims against any of the defendants even had he sued them in their individual 2 capacities. In short, plaintiff’s assertion of individual-capacity claims against Albini does not 3 impact the above analysis or the court’s disposition of his claims. 4 IV. 5 Motion for Extension of Time Plaintiff filed this action on January 3, 2017. On April 3, 2017, he moved for an extension 6 of time to serve defendants. ECF No. 11. Therein, he noted that the 90-day period for service 7 under Federal Rule of Civil Procedure 4(m) was set to expire even though the court had yet to 8 rule on his IFP application. Id. at 2. Further, he asserted that the IFP application, if granted, 9 would require the Marshal to effect service. Id. at 2. Therefore, he concluded that he had shown 10 good cause for an extension of time to serve defendants. Id. 11 Rule 4(m) generally provides that courts must dismiss an action without prejudice if the 12 defendants are “not served within 90 days after the complaint is filed.” However, “if the plaintiff 13 shows good cause for the failure, the court must extend the time for service for an appropriate 14 period.” Id. “District courts have broad discretion to extend time for service under Rule 4(m).” 15 Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007). 16 Here, although the court is granting plaintiff’s IFP application, he has yet to state any 17 cognizable claims such that the Marshal would be required to effect service. Furthermore, as 18 noted, plaintiff must be given leave to amend his complaint as to certain claims. Therefore, the 19 time for service must necessarily be extended and the court will therefore grant plaintiff’s motion 20 for an extension of time. If plaintiff files an amended complaint and the court finds that service 21 of the complaint is proper, the court will set a new deadline directing plaintiff to submit 22 documents necessary to effect service of process. 23 V. Motion for Appointment of Counsel 24 On January 27, 2017, plaintiff filed a motion for appointment of counsel. ECF No. 7. 25 Therein, he asserts that he is an inmate at FCI Fort Dix and that their electronic legal research 26 database does not allow him to access California state cases. Id. at 7. It is imperative, he says, 27 that he be able to access California cases because he is challenging the constitutionality of state 28 statutes. Id. 36 1 There is no constitutional right to appointed counsel for § 1983 claims. Storseth v. 2 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981) (citation omitted). Likewise, district courts lack 3 authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. U.S. Dist. 4 Ct., 490 U.S. 296, 298 (1989). 5 However, in exceptional circumstances, the court may request an attorney to voluntarily 6 represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); see also Terrell v. Brewer, 935 F.2d 1015, 7 1017 (9th Cir. 1991). When determining whether exceptional circumstances exist, the court must 8 consider the plaintiff’s likelihood of success on the merits as well as his ability to articulate his 9 claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 10 965, 970 (9th Cir. 2009) (citation omitted). 11 The burden of demonstrating exceptional circumstances is on the plaintiff. See id. 12 Circumstances common to most prisoners, such as lack of legal education and limited law library 13 access, usually do not constitute exceptional circumstances. See Wood v. Housewright, 900 F.2d 14 1332, 1335 (9th Cir. 1990). 15 Here, plaintiff has not shown exceptional circumstances warranting the appointment of 16 counsel. At this early stage in the proceedings, it appears that he can articulate and pursue his 17 claims adequately. For instance, he has successfully filed a motion for reconsideration of the 18 court’s denial of his IFP application. Furthermore, while he states that he lacks access to 19 California cases, all the claims that the court recommends dismissing without prejudice arise 20 under federal law. Hence, the court denies his motion for appointment of counsel without 21 prejudice. 22 VI. Summary of Order 23 Accordingly, IT IS HEREBY ORDERED that: 24 1. 25 26 Plaintiff’s motion for reconsideration (ECF No. 15) is granted, with the result that his request to proceed in forma pauperis (ECF No. 10) is granted. 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 27 in accordance with the notice to the Federal Bureau of Prisons filed concurrently 28 herewith. 37 1 3. Plaintiff’s motion for extension of time (ECF No. 11) is granted. 2 4. Plaintiff’s motion for appointment of counsel (ECF No. 7) is denied without 3 4 prejudice. 5. 5 The Clerk of the Court is directed to randomly assign a United States District Judge to this action. 6 Further, IT IS HEREBY RECOMMENDED that: 7 1. The following claims be dismissed with prejudice: 8 a. Plaintiff’s Fourth Amendment claim; 9 b. Plaintiff’s equal protection claim insofar as it is based on membership in a 10 protected class; 11 c. Plaintiff’s substantive due process claims; 12 d. Plaintiff’s facial due process challenge to §§ 118 and 490 of the California 13 Business and Professions Code; 14 e. 15 Plaintiff’s as-applied due process challenge to § 118 of the California Business and Professions Code; 16 f. Plaintiff’s § 1985 conspiracy claims; and 17 g. Plaintiff’s pendent state-law claim based on § 1094.6 of the California 18 Code of Civil Procedure. 19 2. Defendant Harris be dismissed from the case with prejudice. 20 3. The complaint be dismissed with leave to amend within 30 days.9 Any amended 21 complaint must include copies of the ALJ’s decision and the D&O adopting it. If 22 these documents are unavailable, plaintiff must explain why. Failure to comply 23 with this order may result in a recommendation that this action be dismissed for 24 failure to state a claim and/or failure to prosecute. 25 These findings and recommendations are submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 27 28 9 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 38 1 after being served with these findings and recommendations, any party may file written 2 objections with the court and serve a copy on all parties. Such a document should be captioned 3 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 4 within the specified time may waive the right to appeal the District Court’s order. Turner v. 5 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 DATED: November 30, 2017. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 39

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