Mann et al v. City of Sacramento et al

Filing 70

ORDER signed by Senior Judge William B. Shubb on 3/12/19 GRANTING 61 Motion to Dismiss and DISMISSING the First Amended Complaint and this action. CASE CLOSED. (Coll, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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ROBERT MANN SR., et al.,

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2:17-cv-01201 WBS DB

Plaintiffs,

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No.

v.

MEMORANDUM AND ORDER RE:
MOTION TO DISMISS

CITY OF SACRAMENTO, et al.,
Defendants.

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Following the Ninth Circuit’s remand of this matter

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(Mann v. City of Sacramento, 748 F. App’x 112 (9th Cir. 2018)),

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this court gave plaintiffs leave to amend their complaint.

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Docket No. 57.)

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that adult, non-cohabitating siblings do not enjoy a

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constitutional right to intimate association, plaintiffs have now

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amended their complaint to set forth the facts in support of

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their contention that they were “cohabitating” with decedent.

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(Docket No. 59)

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(See

In order to overcome the Ninth Circuit’s holding

The First Amended Complaint makes several allegations
about decedent’s housing situation in the months preceding his
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death.

First, it alleges that decedent’s California

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identification card, valid until 2019, listed decedent’s

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residence as plaintiff Robert Mann Sr.’s home address (FAC ¶ 31).

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Second, it alleges that in the period “right up until” decedent’s

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death, the plaintiffs provided decedent housing “either with

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plaintiffs Robert Mann Sr. or with plaintiffs Vern Murphy-Mann or

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Deborah Mann.”

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“kept his clothes and personal belongings at Plaintiffs Robert

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Mann Sr., Vern Murphy-Mann, and Deborah Mann’s homes and received

(Id. ¶ 33.)

Third, it alleges that decedent

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mail and listed their residences as his own addresses.”

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34.)

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decedent’s life, decedent would “stay out, at times for several

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days,” and that plaintiffs would “search for him at places he

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habitually frequented, and would bring him back home to bathe,

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rest, and eat.”

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decedent’s absences, the plaintiffs were “in constant contact

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with [him] and made sure that he knew he was welcome in their

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homes.”

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counsel clarified that in the period immediately preceding his

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death, decedent was spending “the majority” of his time staying

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at the home of one or another of the three plaintiffs, without

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further detail.

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(Id. ¶

Fourth, it alleges that during the last six months of

(Id.)

(Id. 35.)

Finally, it alleges that despite

At the hearing on March 11, 2019, plaintiff’s

Defendants have moved to dismiss the First Amended

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Complaint under Rule 12(b)(6) of the Federal Rules of Civil

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Procedure, arguing that these allegations are insufficient to

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establish cohabitation and that plaintiffs thus may not bring

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this action for deprivation of their right of intimate

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association with the decedent.
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As plaintiffs correctly note, “there is no controlling

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definition of ‘cohabitation’ in the context of the constitutional

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claims at issue in this case.” (Pls.’ Mem. in Opp. to Defs.’ Mot.

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to Dismiss at 5 (Docket No. 66).)

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court’s effort to define “cohabitation” is the fact that many

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treatments of the term are concerned with “cohabitation” as a

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term of art referring, specifically, to cohabitation “like a

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spouse.”

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Me. 2000), aff’d, 18 F. App’x 2 (1st Cir. 2001) (observing that

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in light of the dictionary definition of “cohabit” as “to live

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together in a sexual relationship when not legally married,” the

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term “cohabit as a spouse” is somewhat redundant and then

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proceeding to discuss the meaning and definition of “cohabit as a

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spouse.”).

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considering whether parties are cohabitating siblings.

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Further complicating the

See e.g., United States v. Costigan, 2000 WL 898455 (D.

Those authorities are of no assistance when

Accordingly, in the absence of controlling case law

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defining “cohabitation,” in the context of this case, the court

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will turn to the popular definition of the word, which the

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California Supreme Court correctly noted is “living with or

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together, from the Latin ‘co-’ (co[- ]signifies in general with,

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together, in conjunction, jointly) and habitare, to dwell, to

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have possession of (a place).”

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603, 611–12 (1960) (citations and quotations omitted).

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evaluating whether decedent cohabitated with plaintiffs in the

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period immediately preceding his death, the court assumes it

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should consider such factors as (1) whether decedent spent all or

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most of his time residing in the same dwelling as any given

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plaintiff; (2) whether he shared living expenses associated with

See Kusior v. Silver, 54 Cal. 2d

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In

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a plaintiff’s dwelling; (3) whether he had keys to a dwelling and

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could come and go as he pleased; and (4) whether he kept clothes

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and personal affairs in the dwelling.1

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The allegations of the First Amended Complaint do not

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establish any of the first three factors.

Rather, the First

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Amended Complaint paints decedent not as a cohabitant but more a

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transient who was a frequent, and welcome, invitee in plaintiffs’

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respective homes.

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days” and then plaintiffs would “search for him at places he

Decedent would “stay out, at times for several

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habitually frequented and would bring him back home to bathe,

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rest, and eat.”

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(FAC ¶ 35.)

The only other relevant factual allegation is that

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decedent “kept his clothes and personal belongings at

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[p]laintiffs Robert Mann Sr., Vern Murphy-Mann, and Deborah

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Mann’s homes and received mail and listed their residences as his

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own addresses.” (Id. ¶ 34.)

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Joseph Mann spent all or most of his time residing in one or more

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of plaintiffs’ homes, had a key and independent access to one or

If accompanied by allegations that

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These factors are informed by case law applying or
interpreting the term “cohabitation.” See, e.g., Marcum v.
McWhorter, 308 F.3d 635, 637 (6th Cir. 2002) (describing,
offhandedly, cohabitation as beginning on the date when two
parties “rented a townhouse and began living together” with each
party “paying their share of the costs”); United States v.
Ladouceur, 578 F. App’x 430, 434 (5th Cir. 2014) (considering the
definition of “cohabitation” in the context of a federal statute
that proscribed the possession of a firearm by those subject to a
domestic violence protective order, and finding “cohabitation”
where “over the span of several months, [defendant] stayed over
at [applicant’]s apartment most or often all days out of the
week; he kept clothing and personal effects there to go directly
to work in the mornings; he had a key to her apartment and was
able to come and go as he pleased; and he rarely visited an
apartment leased under his own name”).
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more of plaintiffs’ homes, contributed to the maintenance of one

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or more of plaintiffs’ homes, and rarely slept outside one or

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more of plaintiffs’ homes, this allegation might support a

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plausible inference that decedent cohabitated with one or more of

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the plaintiffs.

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however, the mere facts that decedent stored belongings in

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plaintiffs’ homes, used their addresses for mail, and

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periodically bathed and rested in their homes, do not make him

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plaintiffs’ “cohabitant.”

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Absent that type of accompanying allegation,

The court assumes that plaintiffs have set forth all

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the available facts to support their claim of cohabitation, and

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that granting further leave to amend would be futile.

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IT IS THEREFORE ORDERED that the individual defendants’

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Motion to Dismiss (Docket No. 59) be, and the same hereby is,

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GRANTED.

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DISMISSED.

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Dated:

The First Amend Complaint and action herein are hereby

March 12, 2019

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