(PS) Gifford v. Kampa et al

Filing 71

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 3/25/21 RECOMMENDING that #24 Defendant Winston's motion to dismiss be granted as to Plaintiff's federal claims and Defendant Winston be dismissed with prejudice. The HCSD Defendants' #26 amended motion to dismiss be granted as to Plaintiff's federal claims. Defendants' motions to dismiss be denied as to Plaintiff's state law claims, without prejudice to renewal upon the filing of a further amended complaint. Defendant Winston's #25 motion to strike Plaintiff's state law claims and #39 motion to revoke Plaintiff's in forma pauperis status, declare Plaintiff a vexatious litigant, and require Plaintiff to post security also be denied without prejudice to renewal upon the filing of a further amended complaint. Plaintiff's #65 , #66 motions for default judgment be denied because Plaintiff has not demonstrated an entitlement to relief on any of his federal claims and the Court has not decided whether to exercise supplemental jurisdiction over Plaintiff's state law claims. Matter REFERRED to District Judge Troy L. Nunley. Within 14 days after being served with these findings and recommendations, any party may file written objections with the court.(Kastilahn, A)

Case 2:17-cv-02421-TLN-DMC Document 71 Filed 03/25/21 Page 1 of 30
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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROGER GIFFORD,

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Plaintiff,

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No. 2:17-CV-2421-TLN-DMC

v.

FINDINGS AND RECOMMENDATIONS

PETER KAMPA, et al.,

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Defendants.

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Plaintiff, who is proceeding pro se, brings this civil action. Pending before the

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court are the following motions:

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ECF No. 24

Defendant Winston’s motion to dismiss.

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ECF No. 25

Defendant Winston’s motion to strike.

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ECF No. 26

Hornbrook Community Services District (HCSD) Defendants’
amended motion to dismiss.

ECF No. 39

Defendant Winston’s motion to revoke Plaintiff’s in forma
pauperis status, declare Plaintiff a vexatious litigant, require
Plaintiff to post security.

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The HCSD Defendants’ motion is brought on behalf of: The HCSD, Peter Kampa, Robert

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Puckett, Sr., Melissa Tulledo, Julie Bowles, Clint Dingman, and Ernest Goff. See ECF No. 26,

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pg. 1. Plaintiff filed various responses on July 12, 2019. See ECF Nos. 42-47.

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///
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Case 2:17-cv-02421-TLN-DMC Document 71 Filed 03/25/21 Page 2 of 30
I. PLAINTIFF’S ALLEGATIONS

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This action proceeds on plaintiff’s first amended complaint. See ECF No. 17.

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Plaintiff alleges his claims arise under the First, Fourth, and Fourteenth Amendments to the

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United States Constitution, as well as various federal statutes, including the Clean Water Act

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and the Safe Drinking Water Act. See id. at 1. Plaintiff also alleges various state law claims.

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See id.

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The following are named as defendants:

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Peter Kampa

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Robert Puckett, Sr.

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Patricia Slote1

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Melissa Tulledo

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Robert Winston

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Julie Bowles

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Clint Dingman

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Ernest Goff

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Kevin Dixon2

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The Hornbrook Community Services District (HCSD)

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The Hornbrook Community Bible Church (HCBC) 3

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Steven Crittenden4

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Duke Martin5

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James Soares6

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See id.

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///

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///

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1
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Default entered on May 23, 2019.
Default entered on May 23, 2019.
Default entered on May 23, 2019.
Default entered on May 23, 2019.
Default entered on May 23, 2019.
Default entered on May 23, 2019.

See ECF No. 30.
See ECF No. 29.
See ECF No. 33.
See ECF No. 31.
See ECF No. 32.
See ECF No. 34.
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Plaintiff collectively refers to Defendants Puckett, Tulledo, and Slote, who are

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alleged to be former members of the board of directors of Defendant HCSD, as the “Board

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Defendants.” Id. at 3. Plaintiff collectively refers to Defendants Bowles, Dingman, Winston,

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Goff, Kampa, and Dixon, who are alleged to be employees and/or contractors of Defendant

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HCSD, as the “employee and contractor Defendants.” ECF No. 17, pg. 3. According to

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Plaintiff: “The ‘Board Defendants’ took wrongful actions in their official capacities as public

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officials and officers, and/or under color of law of their positions, and also failed to properly

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supervise, train, and/or control, the HCSD employee and contractor Defendants. . . .” Id.

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A.

Allegations as to Each Defendant
Plaintiff does not outline any specific allegations as against defendant Tulledo,

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who is alleged to be among the “Board Defendants.” Defaults have been entered as to

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Defendants Dixon, Slote, Crittenden, Martin, Soares, and the Hornbrook Community Bible

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Church. See ECF Nos. 29-34; but see ECF No. 62 (return of process as to defendant Soares,

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filed on February 3, 2020). Plaintiff has filed motions for default judgments. See ECF Nos.

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65 and 66. Plaintiff’s allegations as to these defendants are not before the Court and are not

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summarized here.

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Defendant Robert Puckett, Sr.

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Plaintiff alleges Defendant Puckett was the president of the HCSD board and

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initiated the “common plan” which was ratified by Defendants Tulledo, Winston, Kampa,

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Dingman, Goff, and Dixon. ECF No. 17, pg. 6. According to Plaintiff, this “common plan”

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was adopted to allow for operation of the HCSD in an “unsafe manner which failed to comply

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with Federal, State, and Local laws; and to create, institute, and enforce policies, customs, and

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practices, all in violation of Federal, State, and local laws. . . .” Id.

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Plaintiff claims Defendant Puckett’s conduct resulted in undercharging and

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waiving fees and charges for certain customers, failing to impose and collect the “standby fee”

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as to each parcel, and failing to comply with provisions of the California Water Code. Id.

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Plaintiff also claims Defendant Puckett conspired with Defendant Winston to “approve

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Winston’s intervention in several HCSD administrative matters, and/or Siskiyou County
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Superior Court matters being prosecuted by Plaintiff and other persons, as well as matters in

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the Third District Court of Appeals, without any BOD [board of directors] approval prior to

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Winston’s appearing therein.” Id. at 6-7. Plaintiff alleges these appearances violated

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provisions of the California Business and Professions Code. See id. at 7.

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Finally, Plaintiff outlines a number of allegations of further wrongdoing on the

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part of Defendant Puckett, including: an unpermitted and improperly altered septic system;

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derelict vehicles leaking toxic oils and fluids onto the ground and public streets, rivers, and

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creeks; decrepit sheds, lean-tos, outbuildings, trailers, fifth wheels, “and the like in a manner

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harboring rodents and vermin”; improperly stored pesticides, rodenticides, and fungicides in

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trailers in which Defendant Puckett permits people to live; maintaining a fire hazard in the

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form of an improperly modified residential electrical system; and maintaining large amounts of

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debris. Id. at 7-8.

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Defendant Hornbrook Community Services District

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Plaintiff assigns liability to the HCSD based on the conduct of its officers and

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directors. See id. at 11-12. Plaintiff contends Defendant HCSD “had inadequate facilities that

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violate the federal Clean Water Act and Safe Drinking Water Act. See id. According to

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Plaintiff, defendant HCSD is also liable for improperly waiving or reducing water fees for

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friends. See id. Plaintiff also alleges violations of California’s Brown Act. See id. at 13-15.

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Defendant Julie Bowles

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Plaintiff claims Defendant Bowles was an officer and employee of Defendant

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HCSD, serving as its treasurer. See id. at 15. According to Plaintiff: “No agreement exists to

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indemnify Bowles pursuant to Govt. Code § 995 (or otherwise) in her contract with the HCSD.”

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Id. Plaintiff alleges Defendant Bowles collaborated with other defendants in the “improper

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conduct of illegally non- and/or improperly agendized, and/or non-public meetings by

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improperly meeting with them individually and serially, as a group (or portions thereof) via

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personal contact. . . . for the purpose of discussing official HCSD-related ‘public business,’

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including how HCSD funds would be (improperly) diverted to Winston, Bowles, and Dingman;

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which HCSD customers should get (wrongfully) reduced and/or waived fees and charges and
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how to alter the billing to affect and conceal those reductions and waivers; and, how to submit

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time sheets and ‘pay stubs’ for Dingman that were in excess of his contracted rate of pay and

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hours, and/or which contained false claims for hours and/or jobs worked (and how to prevent all

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those documents, and the associated timesheets, from being revealed to Plaintiff, and the

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public).” Id. Plaintiff further claims Defendant Bowles improperly diverted public funds to

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friends and acquaintances. See id.

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Plaintiff alleges:

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These accts by Bowles in the operation of the HCSD was part of the
conspiracy with the Board Defendants to cause disruption and upset of the
operation of the HCSD, and of Plaintiff’s position and duties as a Director
and Secretary, and was undertaken in part as retaliation for Plaintiff’s
complaints to the HCSD Board and government agencies about violation of
law concerning the HCSD’s operations, and Bowles’ lack of competence.

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ECF No. 17, pgs. 15-16.
Finally, Plaintiff alleges Defendant Bowles submitted $2,250.00 worth of false
claims for payment for services for HCSD she did not perform. See id. at 16.

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Defendant Clint Dingman

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Plaintiff alleges Defendant Dingman was the “Systems Trainee” and “Shift

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Operator” for defendant HCSD’s water production and treatment facilities. See id. According

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to Plaintiff, Defendant Dingman lacked the certifications for this position required under state

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law. See id. Plaintiff claims the Board Defendants, Kampa, Goff, and Dixon “conspired,

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agreed, and acted to wrongfully provide compensation, benefits, indemnification, and/or other

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pecuniary and/or non-pecuniary benefits to Dingman which were not contractually specified,

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and/or which were granted outside of an agendized, public meeting of the Board of the

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HCSD. . . .” Id. In particular, Plaintiff complains that other defendants allowed Defendant

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Dingman “to reside, with his dog, at the HCSD water plant, while also utilizing that facility for

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his personal purposes (including as a dog run – permitting the animal to defecate all over the

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property without Dingman cleaning it up), to store belongings, etc – all without any payment

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by Dingman for those uses.” Id. Plaintiff further contends Defendant Dingman and other

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defendants conspired to arrange for Defendant Dingman to receive payments for services he
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Case 2:17-cv-02421-TLN-DMC Document 71 Filed 03/25/21 Page 6 of 30
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did not actually perform. See id. at 16-17.

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Finally, Plaintiff alleges Defendant Dingman conspired with other defendants to

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carry out the “common plan.” Id. at 17. Under the heading “V. Defendant Robert Puckett,

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Sr.,” Plaintiff adds that the “Board Defendants, Kampa, Dingman, Goff, Dixon, and Winston”

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acted to allow defendant Dingman to “work on, and operate (including by the addition of

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chemicals to the water supply) the HCSD water production, treatment, and distribution

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facilities without any certification, or license to do so,” in violation of provisions

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of the California Health and Safety Code. Id. at 7. Plaintiff adds:

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. . .These same Defendants agreed, conspired, and acted to allow
Dingman to occupy and utilize for his personal purposes, the water
production, treatment facilities, and real property of the HCSD free of
charge, and without compensation for the costs incurred to the HCSD and
the public by his doing so.”

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Id.

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Plaintiff further claims the Board Defendants conspired with Defendant Winston to

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“wrongfully and corruptly have the HCSD divert public funds to Winston for former Board

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member Michelle Hanson’s private legal fees in Siskiyou County Superior Court cases. . . .”

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Id.

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Defendant Ernest Goff

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According to Plaintiff, Defendants Goff and Dixon “represented themselves as

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independent contractors, as the Chief Systems Operator(s) for the HCSD, as agents of the

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HCSD and Board Defendants, and supervisors of Dingman.” Id. at 18. Plaintiff claims that, in

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these capacities, Defendant Goff and Dixon “had a duty to regularly inspect, oversee,

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supervise, perform, and directly control the daily operations of the water treatment plant and

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distribution system as provided by Federal and Sate law. . . .” Id. (emphasis in original).

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Plaintiff alleges Defendants Goff and Dixon are liable to him for failing to do so. See ECF

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No. 17, pg. 18.

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Case 2:17-cv-02421-TLN-DMC Document 71 Filed 03/25/21 Page 7 of 30
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Plaintiff further claims:

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During the times material to this complaint, Goff and Dixon acted
in concert with the Board Defendants, Bowles, and Dingman to extract
improper payments from the HCSD, to create and distribute false public
documents and reports to state enforcement agencies concerning the
operation of the HCSD, to operate the HCSD in a manner contrary to law
and thus causing a nuisance per se to Plaintiff and the public, and to
wrongfully prevent inspections and oversight of the HCSD facilities.
Goff and Dixon, despite their insistence as being classified “contractors”
to the HCSD, also wrongfully obtained indemnification, defense, and
other expenses of public money from the HCSD to which they were not
entitles, and which were thus improper gifts of public funds.

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Id. at 18-19.

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6

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Plaintiff alleges that the actions of Defendants Goff and Dixon were ratified by Slote, Puckett,

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Kampa, and the HCSD. See id. at 19.

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Defendant Peter Kampa

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Plaintiff alleges Defendant Kampa was the General Manager of the HCSD and,

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as such, was the direct supervisor of Dingman, Goff, and Dixon. See id. at 20. According to

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Plaintiff, Defendant Kampa is liable because he “agreed, assisted, aided, and abetted Slote,

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Puckett, Goff, Dixon, Dingman, and the HCSD in the common plan to create, file with the

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State Water Board, and distribute, false public records, consisting of documents, logs, and

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reports concerning the operation of the HCSD and its facilities.” Id. Plaintiff additionally

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claims: “At no time has Kampa actually performed any of his General Manager duties within

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the boundaries of the HCSD, instead simply ignoring those duties in favor of using the phone

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to make calls to the HCSD Board meetings as well as ex parte communications via phone and

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email to the individual Board members, Goff, Dixon, Dingman, and/or Winston in violation of

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the Brown Act, and to plan and/or facilitate such violations by the other Defendants.” Id. at

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20-21.

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Defendant Robert Winston

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Plaintiff alleges that Defendant Winston is a private attorney who conspired

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with other defendants, specifically the Board Defendants, to violate HCSD bylaws, the Brown

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Act, as well as other provisions of California law. See id. at 23. Plaintiff further claims that

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Winston engaged in unprofessional conduct, in violation of provisions of the California
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Case 2:17-cv-02421-TLN-DMC Document 71 Filed 03/25/21 Page 8 of 30
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Business and Professions Code. See id. It appears that Plaintiff’s claims against Winston stem

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from Winston’s work as counsel for the HCSD board of directors. See id. at 23-25. Plaintiff

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adds:

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Plaintiff only seeks monetary damages of any sort against Winston
for his Federal and Constitutional claims. Plaintiff seeks no personal
damages or benefit from this action as to Winston for any pendent State
law or tort-based claims.

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ECF No. 17, pgs. 27-28 (emphasis in original).

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B.

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Claims for Relief
Plaintiff alleges the facts set forth in the amended complaint give rise to 14

federal claims and 25 state law claims. See id. at 31-44.

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1.

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Plaintiff asserts the following claims for relief (referred to as “Counts”) under

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Federal Claims

federal law:
Count I

First Amendment – Violations of right to freedom of
speech and petition (against the Board Defendants, HCSD,
Winston, Kampa, and Dingman).

Count II

42 U.S.C. § 1985 – Deprivation of right to vote (against the
Board Defendants, HCSD, and Kampa).

Count III

33 U.S.C. § 1251, et seq., and 42 U.S.C. § 300f, et seq. –
Violations of the Clean Water Act and Safe Drinking
Water Act (against the Board Defendants, HCSD, Goff,
Dixon, and Kampa).

Count IV

Fifth and Fourteenth Amendments – Deprivation of due
process and equal protection (against the Board Defendants,
HCSD, and Kampa).

Count V

Fifth and Fourteenth Amendments – Deprivation of due
process and equal protection (against the Board Defendants,
Winston, Dixon, Goff, Kampa, and Dingman).

Count VI

Fifth and Fourteenth Amendments – Deprivation of due
Process, equal protection, and right to vote (against the Board
Defendants, Bowles, Kampa, and Dingman).

Count VII

Fifth and Fourteenth Amendments – Deprivation of due
process and equal protection (against HCBC and Crittenden).

Count VIII

Fifth and Fourteenth Amendments – Deprivation of due
process and equal protection (against Dingman).
8

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25
26
27
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Case 2:17-cv-02421-TLN-DMC Document 71 Filed 03/25/21 Page 9 of 30
Count IX

33 U.S.C. § 1251, et seq. – Violation of Clean Water Act
(against Puckett).

Count X

42 U.S.C. § 300f, et seq. – Violation of Safe Drinking Water
Act (against Puckett).

Count XI

7 U.S.C. § 136, et seq. – Violation of the Insecticide,
Fungicide, and Rodenticide Act (against Puckett).

Count XII

18 U.S.C. § 1513(e) – Retaliation (against the Board
Defendants and HCSD).

Count XIII

42 U.S.C. § 1985 – Conspiracy (against the Board
Defendants, HCSD, Bowles, Winston, and Dingman).

Count XIV

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First, Fifth, and Fourteenth Amendments – Retaliation and
violation of due process and equal protection.

2
3
4
5
6
7
8
9
10

See ECF No. 17, pgs. 31-37.

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2.

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Plaintiff asserts the following claims for relief (again, referred to ac “Counts”)

State Law Claims

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under California law:7

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Count I

Violations of HCSD bylaws (against the Board Defendants,
Bowles, Dingman, Kampa, Dixon, Goff, and Winston).

Count II

Willful negligence (against all defendants).

Count III

Nuisance (against Puckett).

Count IV

California Gov’t Code § 1090 – self dealing (against the
Board Defendants, Winston, Bowles, Dingman, Goff, and
Dixon).

Count V

Retaliation (against the Board Defendants, HCSD, and Kampa).

Count VI

Gifts of public funds (against HCBC and Crittenden).

Count VIII8

Gifts of public funds, false claims, and fraud (against Dingman).

Count IX

Gifts of public funds (against Bowles and Goff).

Count X

Gifts of public funds (against Doe defendants).

Count XI

Article 1, section 2, California Constitution – violation of
right to free speech (against the Board Defendants, Winston,
Bowles, and Dingman).

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16
17
18
19
20
21
22
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24
25
26
27
28

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Though plaintiff states that he is not seeking relief against Winston based on any
state law claims, plaintiff nonetheless asserts state law claims as against Winston.
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The amended complaint contains no state law Count VII.
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Case 2:17-cv-02421-TLN-DMC Document 71 Filed 03/25/21 Page 10 of 30
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Count XII

Unfair business practices (against the Board Defendants and
Bowles).

Count XIII

Unfair business practices (against the Board Defendants,
Dixon, and Goff).

4

Count XIV

False claims (against Winston).

5

Count XV

Negligence (against the Board Defendants, Kampa, Goff, Dixon,
Bowles, Dingman, and Winston).

Count XVI

Unfair business practices (against the Board Defendants,
Kampa, Dingman, Bowles, Crittenden, and HCBC).

Count XVII

Civil conspiracy (against the Board Defendants, Winston,
Dingman, Goff, and Bowles).

2
3

6
7
8
9
Count XVIII Willful and/or negligence infliction of emotional distress
(against the Board Defendants, Goff, Winston, Bowles,
Kampa, and Dingman).

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11

Count XIX

California Public Records Act (against the Board Defendants,
HCSD, and Kampa).

Count XX

Nuisance (against the Board Defendants, Dingman, Goff,
Dixon, and Kampa).

Count XXI

Breach of covenant of good faith and fair dealing against the
Board Defendants, HCSD, and Kampa).

16

Count XXII

Void official acts (against the Board Defendants).

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Count XXIII Gifts of public funds (against the Board Defendants, Kampa,
Dingman, and Bowles).

12
13
14
15

18
19

Count XXIV Gifts of public funds (against the Board Defendants, Martin,
Bowles, and Soares).

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Count XXV

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Count XXVI Punitive damages (against all defendants).

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See ECF No. 17, pgs. 37-44.

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24

///

25

///

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27

///

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Waste of public funds (against the Board Defendants and HCSD).

///
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Case 2:17-cv-02421-TLN-DMC Document 71 Filed 03/25/21 Page 11 of 30
II. SUMMARY OF DEFENDANTS’ ARGUMENTS

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A.

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Defendant Winston
In his motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),

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Defendant Winston argues: (1) Plaintiff’s federal claims against him must all be dismissed

5

because Plaintiff admits defendant Winston is a private actor; (2) Plaintiff’s federal claims are

6

barred by the Noerr-Pennington doctrine; (3) Plaintiff’s due process and equal protection

7

claims must be dismissed; (4) Plaintiff fails to allege sufficient facts to sustain a First

8

Amendment claim; (5) California’s litigation privilege bars Plaintiff’s state law claims; and

9

(6) Plaintiff’s state law conspiracy claims are barred by California Civil Code § 1714.10. See

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ECF No. 24-1 (points and authorities in support of Defendant Winston’s motion to dismiss).
Defendant Winston separately moves to strike Plaintiff’s state law claims under

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12

California Code of Civil Procedure § 425.16, California’s statute barring strategic litigation

13

against public participation (anti-SLAPP statute). See ECF No. 25-1 (points and authorities in

14

support of Defendant Winston’s motion to strike). Defendant Winston also separately moves

15

to revoke Plaintiff’s in forma pauperis status pursuant to 28 U.S.C. § 1915(e)(2) and enter a

16

vexatious litigant order against Plaintiff pursuant to 28 U.S.C. § 1651(a). See ECF No. 39-1

17

(points and authorities in support of Defendant Winston’s motion to revoke).

18

B.

The HCSD Defendants

19

In their amended motion to dismiss under Federal Rule of Civil Procedure

20

12(b)(6), the HCSD Defendants argue: (1) Plaintiff cannot bring an action directly under

21

the Constitution; (2) Plaintiff cannot state a claim for violation of the First Amendment;

22

(3) Plaintiff cannot establish a claim for violation of procedural due process; (4) Plaintiff

23

cannot establish an equal protection violation; (5) Plaintiff’s claims based on gifts of public

24

funds fail as a matter of law because Plaintiff alleges no facts to establish the disbursements

25

were not rationally related to a public purpose; (6) Plaintiff has alleged no facts to establish a

26

violation of his right to vote; and (7) Plaintiff’s federal statutory claims fail because he has not

27

alleged that he suffered an injury in fact. See ECF No. 26.

28

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Case 2:17-cv-02421-TLN-DMC Document 71 Filed 03/25/21 Page 12 of 30
The HCSD Defendants also argue Plaintiff’s state law claims are deficient

1
2

because: (1) Plaintiff’s state law claims fail because the HCSD Defendants are immune;

3

(2) Plaintiff has not alleged defendants were negligent; (3) Plaintiff has failed to plead

4

sufficient facts to show a nuisance; (4) Plaintiff has alleged no facts showing impermissible

5

self-dealing; (5) Plaintiff cannot establish retaliation because he was not an employee;

6

(6) Plaintiff’s claim based on alleged gifts fail as a matter of law; and (7) Plaintiff’s claims for

7

intentional and negligent infliction of emotional distress fail as a matter of law. See ECF No.

8

26.

9
10

III. STANDARDS FOR MOTION TO DISMISS

11

In considering a motion to dismiss under Rule 12(b)(6), the Court must accept all

12

allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94

13

(2007). The Court must also construe the alleged facts in the light most favorable to the plaintiff.

14

See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp.

15

Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per

16

curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v.

17

McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by

18

actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50

19

(2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by

20

lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).

21

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement

22

of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair

23

notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly,

24

550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order

25

to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain

26

more than “a formulaic recitation of the elements of a cause of action;” it must contain factual

27

allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The

28

complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at
12

Case 2:17-cv-02421-TLN-DMC Document 71 Filed 03/25/21 Page 13 of 30
1

570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the

2

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

3

Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but

4

it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting

5

Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a

6

defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement

7

to relief.” Id. (quoting Twombly, 550 U.S. at 557).

8
9

In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials
outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998);

10

Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The Court may, however, consider: (1)

11

documents whose contents are alleged in or attached to the complaint and whose authenticity no

12

party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question,

13

and upon which the complaint necessarily relies, but which are not attached to the complaint, see

14

Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials

15

of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.

16

1994).
Finally, leave to amend must be granted “[u]nless it is absolutely clear that no

17
18

amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per

19

curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).

20
21

IV. DISCUSSION

22

In this case, Plaintiff purports to raise a constellation of both federal and state

23

law claims. Collectively, Defendants argue Plaintiff’s federal claims must be dismissed under

24

Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be

25

granted. Defendants also collectively argue Plaintiff’s various state law claims fail. Finally,

26

Defendant Winston seeks an order revoking Plaintiff’s in forma pauperis status in this case,

27

declaring him a vexatious litigant, and requiring Plaintiff to post security before proceeding.

28

///
13

Case 2:17-cv-02421-TLN-DMC Document 71 Filed 03/25/21 Page 14 of 30
1

A.

Federal Claims
As to Plaintiff’s federal claims against him, Defendant Winston raises the

2
3

following contentions: (1) Plaintiff’s federal claims must be all dismissed because Plaintiff

4

admits Defendant Winston is a private actor; (2) Plaintiff’s federal claims are barred by the

5

Noerr-Pennington doctrine; (3) Plaintiff’s due process and equal protection claims must be

6

dismissed; and (4) Plaintiff fails to allege sufficient facts to sustain a First Amendment claim. 9
The HCSD Defendants separately argue Plaintiff’s federal claims fail for the

7
8

following reasons: (1) Plaintiff cannot bring an action directly under the Constitution;

9

(2) Plaintiff cannot state a claim for violation of the First Amendment; (3) Plaintiff cannot

10

establish a claim for violation of procedural due process; (4) Plaintiff cannot establish an equal

11

protection violation; (5) Plaintiff’s claims based on gifts of public funds fail as a matter of law

12

because Plaintiff alleges no facts to establish the disbursements were not rationally related to a

13

public purpose; (6) Plaintiff has alleged no facts to establish a violation of his right to vote;

14

and (7) Plaintiff’s federal statutory claims fail because he has not alleged that he suffered an

15

injury in fact.

16

1.

Liability of Private Actors

17

“Traditionally, the requirements for relief under [§] 1983 have been articulated

18

as: (1) a violation of rights protected by the Constitution or created by federal statute, (2)

19

proximately caused (3) by conduct of a ‘person’ (4) acting under color of state law.” Crumpton

20

v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Or, more simply, courts have required plaintiffs

21

to “plead that (1) the defendants acting under color of state law (2) deprived plaintiffs of rights

22

secured by the Constitution or federal statutes.” Gibson v. United States, 781 F.2d 1334, 1338

23

(9th Cir. 1986); see also Pistor v. Garcia, 791 F. 3d 1104, 1114 (9th Cir. 2015); Long v. Cty. of

24

Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); WMX Techs., Inc. v. Miller, 197 F.3d 367,

25

372 (9th Cir. 1999) (en banc); Ortez v. Wash. Cty., Or.., 88 F.3d 804, 810 (9th Cir. 1996).

26

///

27
28

Defendant Winston also contends Plaintiff’s current action is barred by the
doctrine against claim splitting.
14
9

Case 2:17-cv-02421-TLN-DMC Document 71 Filed 03/25/21 Page 15 of 30
1

The question of whether a person who has allegedly caused a constitutional injury

2

was acting under color of state law is a factual determination. See Brunette v. Humane Soc’y of

3

Ventura Cty., 294 F.3d 1205, 1209 (9th Cir. 2002); Gritchen v. Collier, 254 F.3d 807, 813 (9th

4

Cir. 2001); Lopez v. Dep’t of Health Servs., 939 F.2d 881, 883 (9th Cir. 1991) (per curiam);

5

Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir. 1983).
A defendant has acted under color of state law where he or she has “exercised

6
7

power ‘possessed by virtue of state law and made possible only because the wrongdoer is

8

clothed with the authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United

9

States v. Classic, 313 U.S. 299, 326 (1941)); see also Polk Cty. v. Dodson, 454 U.S. 312, 317-18

10

(1981); Anderson v. Warner, 451 F.3d 1063, 1068 (9th Cir. 2006); McDade v. West, 223 F.3d

11

1135, 1139-40 (9th Cir. 2000); Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir. 1997); Vang

12

v. Xiong, 944 F.2d 476, 479 (9th Cir. 1991). Generally, private parties are not acting under

13

color of state law. See Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991); see also Simmons

14

v. Sacramento Cty. Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (explaining that a

15

lawyer in private practice does not act under color of state law).

16

Defendant Winston argues Plaintiff cannot maintain an action against him under

17

§ 1983 because Plaintiff admits Defendant Winston is a private actor. According to Defendant

18

Winston:

19

21

Plaintiff admits that Winston is a private actor. See IAC, ¶¶ 70, 71.
He cannot amend to allege Winston was a state actor without contradicting
his earlier-filed pleadings. Moreover, Winston's conduct does not rise to
the level of state action under any of the four tests to determine state
action by a private actor.

22

ECF No. 24-1, pg. 15.

20

23

Winston concludes that Plaintiff’s claim against him fails because he cannot be considered a

24

state actor. See id. at 15-17.

25

Generally, private parties are not acting under color of state law. See Price, 939

26

F.2d at 707-08; Simmons, 318 F.3d at 1161. A private actor may, however, be liable for conduct

27

that is fairly attributable to the government. See Sutton v. Providence St Joseph Med. Ctr., 192

28

F.3d 826, 835 (9th Cir. 1999). In Gonzalez v. Spencer, the Ninth Circuit explained that a private
15

Case 2:17-cv-02421-TLN-DMC Document 71 Filed 03/25/21 Page 16 of 30
1

attorney who is retained to represent state entities and their employees in litigation acts under

2

color of state law because his or her role is “analogous to that of a state prosecutor rather than a

3

public defender” 336 F.3d 832, 834 (9th Cir. 2003) (per curiam).

4

Additionally, where a private party conspires with state officials to deprive others

5

of constitutional rights, the private party is acting under color of state law. See Tower v. Glover,

6

467 U.S. 914, 920 (1984); Dennis v. Sparks, 449 U.S. 24, 27-28 (1980); Crowe v. Cty. of San

7

Diego, 608 F.3d 406, 440 (9th Cir. 2010); Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002);

8

DeGrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir. 2000); George v. Pacific-CSC Work

9

Furlough, 91 F.3d 1227, 1231 (9th Cir. 1996) (per curiam); Kimes v. Stone, 84 F.3d 1121, 1126

10

(9th Cir. 1996). “To prove a conspiracy between the state and private parties under [§] 1983, the

11

[plaintiff] must show an agreement or meeting of the minds to violate constitutional rights. To be

12

liable, each participant in the conspiracy need not know the exact details of the plan, but each

13

must at least share the common objective of the conspiracy.” United Steelworkers of Am. v.

14

Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir. 1989) (en banc) (citations and internal

15

quotation marks omitted); see also Crowe, 608 F.3d at 440; Franklin, 312 F.3d at 441).

16

Conclusory allegations are insufficient to state a claim of conspiracy. See Simmons, 318 F.3d at

17

1161.

18

Defendant Winston contends:

19

Though Winston is an attorney licensed by the State of California,
he is being sued in his capacity as private counsel representing the HCSD
and Board Defendants. See, e.g., 1AC, ¶¶ 70-74. Winston gave advice. Id.,
¶¶ 70-74. Winston filed papers in at least one legal action. Id., fn.60.
Winston appeared in numerous legal proceedings on behalf of the HCSD
and/or the Board Defendants. Id. Thus, Winston has been sued because of
the legal advice and/or services provided to the HCSD and Board
Defendants both in relation to Board meetings and in litigation.

20
21
22
23
24
25

ECF No. 24-1, pg. 16.
Defendant Winston’s argument is not entirely persuasive. A private attorney who

26

is retained to provide advice to state entities may be acting under color of law. See Gonzalez,

27

336 F.3d at 834. Here, Defendant Winston was hired by the Hornbrook Community Services

28

District, which is akin to a state entity in that it is a public services district, to provide legal
16

Case 2:17-cv-02421-TLN-DMC Document 71 Filed 03/25/21 Page 17 of 30
1

advice. This situation is similar to Gonzalez. Because Defendant Winston was a private

2

attorney hired to represent a public entity, as in Gonzalez, Winston may be considered a state

3

actor.

4

2.

Noerr-Pennington Doctrine

5

Defendant Winston contends that, even if he can be considered a state actor, he

6

is immune from liability under the Noerr-Pennington doctrine. The Noerr-Pennington doctrine

7

holds that "[t]hose who petition government for redress are generally immune from antitrust

8

liability." Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S.

9

49, 56 (1993). While originally arising in antitrust law, the Noerr-Pennington doctrine now

10

includes all fields of law. In California Transport v. Trucking Unlimited, the Supreme Court

11

stated:

12

The same philosophy governs the approach of citizens or groups of them
to administrative agencies (which are both creatures of the legislature, and
arms of the executive) and to courts, the third branch of Government.
Certainly, the right to petition extends to all departments of the
Government. The right of access to the courts is indeed but one aspect of
the right of petition.

13
14
15

404 U.S. 508, 512 (1972).

16
17

Under the Noerr-Pennington doctrine, those who petition the government for

18

redress are immune from liability for their petitioning conduct. See Empress LLC v. City &

19

County of San Francisco, 419 F.3d 1052, 1056 (9th Cir. 2005). Like the California anti-SLAPP

20

statute (California Code of Civil Procedure § 425.16), the Noerr-Pennington doctrine not only

21

protects petitioning activity, but also "activity incidental to and in anticipation of petitioning

22

activity." Theme Prods., Inc. v. News Am. Mktg. FSI, 546 F.3d 991, 1007 (9th Cir. 2008).

23

Communications related to litigation are sufficiently within the protection of the Petition Clause

24

to trigger the Noerr-Pennington doctrine to bar claims against a private attorney as to such

25

communications. See Freeman v. Lasky, Haas & Cohler, 410 F.3d 1180, 1185 (9th Cir. 2005)

26

(applying the Noerr-Pennington and finding that plaintiffs' claims against attorneys predicated on

27

discovery misconduct, subornation of perjury, and witness intimidation were barred).

28

///
17

Case 2:17-cv-02421-TLN-DMC Document 71 Filed 03/25/21 Page 18 of 30
1
2

As to application of the Noerr-Pennington doctrine in this case, Defendant
Winston contends:

3

13

Here, Gifford's claims are based exclusively on Winston's legal
representation of his clients, HCSD and its Board members, and related
communicative conduct. The Complaint alleges that: Winston is an
attorney who was employed by the Board Defendants and/or HCSD at all
times material and was their/its agent and Winston acted "towards
Plaintiff, or with third parties, at times purportedly on behalf of the HCSD,
or one or more of its Directors, employees or agents." lAC, ¶¶ 71, 74 and
fn 60. Winston was the "attorney of record" for the HCSD, its employees,
and Board defendants, and represented them in legal actions. Id. Winston
authored documents, letters, emails, public records, and contracts
involving these clients. Id., ¶¶ 71-73, fn 54. Winston presented documents
to government agencies and courts. Id., ¶¶ 48, 74, fn 60. Winston provided
advice to the Board defendants, HCSD, and its employees. Id., ¶¶ 70, 73.
The Board instructed Winston to appear in legal matters. Id., ¶¶ 18, 23.
And Winston presented himself as counsel for the District. Id., ¶¶ 70, 74,
fn. 60. There can be no dispute that Winston is being sued for conduct
arising out of his representation of the HCSD and its Board members.
Thus, Gifford's claims arising from Winston's representative conduct
constitutes protected petitioning activity under Noerr-Pennington. Thus,
as a matter of law, the Noerr-Pennington doctrine immunizes Winston and
mandates dismissal of Gifford's federal claims against him.

14

ECF No. 24-1, pg. 19.

15

The Court agrees. A review of the first amended complaint reflects that

4
5
6
7
8
9
10
11
12

16

Plaintiff’s allegations against Defendant Winston stem from Winston’s actions as counsel for

17

the HCSD. Absent the protection of the Petition Clause, attorneys like Defendant Winston

18

would not be willing to represent public entities, which would ultimately thwart the ability of

19

such entities to serve their communities.10 While Plaintiff may be able to establish that

20

Defendant Winston is a state actor subject to liability under §1983, Defendant Winston is

21

immune from such liability.11

22

///

23

///

24

///

25

///

26
27
28

10

Whether the HCSD has done so in this case consistent with applicable state laws is
properly the subject of Plaintiff’s various state law claim, including his claim that the HCSD
violated California’s Brown Act.
11
Because Defendant Winston cannot be held liable under §1983, the Court does not
consider his substantive arguments regarding Plaintiff’s various federal claims.
18

Case 2:17-cv-02421-TLN-DMC Document 71 Filed 03/25/21 Page 19 of 30
1

3.

2

Plaintiff’s first amended complaint references due process in various claims, as

3

Due Process

summarized below:
Count IV

Plaintiff alleges “Deprivation of Rights to Due Process;
Equal Protection.” ECF No. 17, pg. 33. Plaintiff alleges at
paragraph 96 that the Board Defendants and Kampa failed to
“respond in any way to Plaintiff’s multiple requests to them
for statutorily-mandated access to the books, papers, ad
records of the HCSD. . . .” Id. Plaintiff also states that he
was denied access “without any notice or hearing to Plaintiff,
depriving Plaintiff off his right to due process. . . .” Id.

Count V

According to Plaintiff, Defendants Winston, Dixon, Goff,
Kampa, and Dingman conspired to refuse to follow federal
and state water laws. See id. Specifically referencing due
process, Plaintiff stats at paragraph 98 the Board Defendants,
Dixon, Goff, Winston, Bowles, and Dingman denied him
“notice, opportunity to be heard, or other due legal process.”
Id. at 34.

Count VI

Plaintiff references due process and alleges the Board
Defendants, Bowles, Kampa, and Dingman failed to read
meters and altered HCSD fees to the benefit of their friends.
See id. at 34. Plaintiff states he was denied due process
“insofar as he, as an elector of the District, was denied the
right and opportunity to be served safe water. . . .” Id.

Count VII

Plaintiff contends Defendants HCBC and Crittendon denied
him due process by not providing notice that they were
concealing their improper conduct from the public. See id.
at 35.

Count VIII

4

Plaintiff alleges at paragraphs 101 and 102 that Defendant
Dingman conspired with the Board Defendants, Kampa, and
Bowles to receive gifts of public funds and provided no
“opportunity to utilize the due processes of law. . . .” Id.
Plaintiff adds:

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

26

102 By so doing, these Defendants acted in
violation of Plaintiff’s due process rights to attend
their meetings and protest or take legal action
concerning the illegal gifting of public funds and, to
thereby deliberately deprive Plaintiff of his right to
due process, free speech, and petitioning rights to
protest and act against corrupt and unlawful activity;. .
. and, his right to due process sin regards to execution
of these acts as provided by statute and the HCSD
Bylaws.”

27

Id.

22
23
24
25

28

///
19

Case 2:17-cv-02421-TLN-DMC Document 71 Filed 03/25/21 Page 20 of 30
1

Count XIV

2

In his final federal claim, Plaintiff contends the Board
Defendants and Kampa violated his due process rights by
refusing to comply with the “Uniform Construction Costs
Accounting Act.” Id. at 37.

3
4

The Due Process Clause protects from being deprived of life, liberty, or property

5

without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a

6

claim of deprivation of due process, a plaintiff must allege the existence of a liberty interest for

7

which the protection is sought. See Ingraham v. Wright, 430 U.S. 651, 672 (1977); Bd. of

8

Regents v. Roth, 408 U.S. 564, 569 (1972). Liberty interests can arise both from the Constitution

9

and from state law. See Hewitt v. Helms, 459 U.S. 460, 466 (1983); Meachum v. Fano, 427 U.S.

10

215, 224-27 (1976); Smith v. Sumner, 994 F.2d 1401, 1405 (9th Cir. 1993). In determining

11

whether state law confers a liberty interest, the Supreme Court has adopted an approach in which

12

the existence of a liberty interest is determined by focusing on the nature of the deprivation. See

13

Sandin v. Connor, 515 U.S. 472, 481-84 (1995).

14

In their amended motion to dismiss, the HCSD Defendants argue: (1) Plaintiff

15

cannot state a claim for violation of procedural due process because he does not allege he was

16

denied any liberty or property interest; and (2) Plaintiff’s claims based on gifts of public funds

17

fail as a matter of law because plaintiff alleges no facts to establish the disbursements were not

18

rationally related to a public purpose. See ECF No. 26, pgs. 6-7.

19

According to the HCSD Defendants:

20

24

. . . The protected interest(s) apparently alleged by Plaintiff are an
ambiguous interest in flawless operation of a drinking water facility and
perfectly even implementation of legal duties by public officers. Plaintiff
alleges a right to “the proper and timely creation and retention of records,”
of which he was deprived, along with the right to have public officers
“monitor and supervise the operations of the HCSD facilities and
employees.” (Complaint, p. 21-23.) None of these amount to the type of
vested, specific . . . interest required to state a claim for relief for violation
of procedural due process rights.

25

ECF No. 26, pg. 6.

21
22
23

26

///

27

///

28

///
20

Case 2:17-cv-02421-TLN-DMC Document 71 Filed 03/25/21 Page 21 of 30
1
2

As to Plaintiff’s allegations relating to gifts of public funds, the HCSD Defendants argue:

7

Disbursements of public funds are assumed to be legitimate so
long as they are made with a public purpose, and “[d]etermination of
public purpose is primarily a matter for the Legislature and will not be
disturbed as long as it has a reasonable basis.” County of Alameda v.
Janssen, 16 Cal.2d 276, 281 (1940). Plaintiff has alleged no facts
demonstrating that the payments lacked a public purpose, other than
conclusory allegations of corruption. The essence of the facts of these
allegations are that HCSD paid its employees and may have been flexible
with its water rate charges. As a public agency with fewer than 200
constituents, some rate flexibility may contribute to the overall well-being
of the community, and thus be rationally related to a public purpose.

8

ECF No. 26, pgs. 6-7.

9

The gravamen of Plaintiff’s due process claims is that his constitutional rights

10

were violated because the defendants concealed their allegedly wrongful conduct. The Court

11

agrees with the HCSD Defendants that Plaintiff’s various due process claims fail because

12

Plaintiff has not alleged the existence of a recognized liberty or property interest flowing to

13

Plaintiff as to which he was due any particular process.

3
4
5
6

14

4.

Equal Protection

15

Plaintiff references equal protection in various claims. In “Count IV,” Plaintiff

16

alleges “Deprivation of Rights to Due Process; Equal Protection.” ECF No. 17, pg. 33.

17

According to Plaintiff, while others were allowed to circumvent the rules to obtain benefits

18

from the HCSD, Plaintiff was not. See id. Presumably, Plaintiff believes this constitutes a

19

violation of the constitutional guarantee that he be treated the same as others who are similarly

20

situated. Plaintiff also references equal protection in “Count V” under the same theory. See

21

id. at 34. In “Count VI,” Plaintiff again references equal protection under a similar theory –

22

the allegedly nefarious conduct of various defendants resulted in some people receiving clean

23

water while he and other citizens did not. See id. Plaintiff references equal protection in

24

“Count VII.” See id. at 34-35. According to Plaintiff, Defendants HCBC and Crittendon

25

conspired with the HCSD, the Board Defendants, and Bowles to receive gifts and benefits to

26

which Plaintiff and the general public were not privy. See id. at 35. In “Count VIII,” Plaintiff

27

again references equal protection under a very similar theory. See id. Plaintiff adds that a

28

fraudulent billing practice contributed to some receiving benefits others did not. See id.
21

Case 2:17-cv-02421-TLN-DMC Document 71 Filed 03/25/21 Page 22 of 30
1

Finally, Plaintiff references equal protection in “Count XIV.” See id. at 37.

2

Equal protection claims arise when a charge is made that similarly situated

3

individuals are treated differently without a rational relationship to a legitimate state purpose.

4

See San Antonio School District v. Rodriguez, 411 U.S. 1 (1972). Equal protection claims are

5

not necessarily limited to racial and religious discrimination. See Lee v. City of Los Angeles,

6

250 F.3d 668, 686-67 (9th Cir. 2001) (applying minimal scrutiny to equal protection claim by a

7

disabled plaintiff because the disabled do not constitute a suspect class) see also Tatum v. Pliler,

8

2007 WL 1720165 (E.D. Cal. 2007) (applying minimal scrutiny to a prisoner’s equal protection

9

claim based on denial of in-cell meals where no allegation of race-based discrimination was

10

made); Hightower v. Schwarzenegger, 2007 WL 732555 (E.D. Cal. March 19, 2008).12

11

In order to state a § 1983 claim based on a violation of the Equal Protection

12

Clause of the Fourteenth Amendment, a plaintiff must allege that the defendants acted with

13

intentional discrimination against the plaintiff, or against a class of inmates which included the

14

plaintiff, and that such conduct did not relate to a legitimate government purpose. See Village of

15

Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (holding that equal protection claims may be

16

brought by a “class of one”); Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir.

17

2000); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); Federal Deposit Ins. Corp. v.

18

Henderson, 940 F.2d 465, 471 (9th Cir. 1991); Lowe v. City of Monrovia, 775 F.2d 998, 1010

19

(9th Cir. 1985).

20

In their amended motion to dismiss, the HCSD Defendants argue Plaintiff

21

cannot sustain an equal protection claim because he does not allege he is a member of a

22

protected class. See ECF No. 26, pg. 6. According to the HCSD Defendants:

23

Plaintiff has not alleged being a member of a protected class—
indeed, the Equal Protection allegation is almost thrown in as an
afterthought. There is no allegation that any law was applied differently to
him than to others—the equal protection claim is entirely inapplicable to

24
25
26
27
28

12

Error! Main Document Only.Strict scrutiny applies to equal protection claims
alleging race-based or religious discrimination (i.e., where the plaintiff is member of a “protected
class”); minimal scrutiny applies to all other equal protection claims. See Lee v. City of Los
Angeles, 250 F.3d 668, 686-67 (9th Cir. 2001).
22

Case 2:17-cv-02421-TLN-DMC Document 71 Filed 03/25/21 Page 23 of 30
1

the facts alleged.

2

ECF No. 26, pg. 6.

3

The Court agrees. Plaintiff’s first amended complaint is devoid of any allegations

4

that he is a member of a protected class or that any defendant acted with an intent to discriminate

5

based on membership in a protected class. To the extent Plaintiff’s equal protection claim is

6

based on his allegation that people within the jurisdiction of the HCSD are not receiving the

7

same services as others outside the district, Plaintiff’s claim fails because, necessarily, he is

8

being treated the same as all those similarly situated, namely those within the jurisdiction of the

9

district. In other words, Plaintiff is not being treated any differently than other members of the

10

public subject to the alleged wrongdoing of the HCSD Defendants.

11

5.

First Amendment

12

In his first amended complaint, Plaintiff alleges at paragraph 92 that the Board

13

Defendants, Winston, Kampa, and Dingman, acted in retaliation for Plaintiff’s “exercise of

14

statutory and constitutional rights to speak freely, petition the government, and courts, for

15

redress of grievances. . . .” ECF No. 17, pg. 32. According to Plaintiff, Defendants’ alleged

16

conduct chilled his speech. See id.

17

In order to state a claim under 42 U.S.C. § 1983 for retaliation, the plaintiff must

18

establish that he was retaliated against for exercising a constitutional right, and that the retaliatory

19

action was not related to a legitimate government purpose. See Barnett v. Centoni, 31 F.3d 813,

20

815-16 (9th Cir. 1994) (per curiam). In meeting this standard, the plaintiff must demonstrate a

21

specific link between the alleged retaliation and the exercise of a constitutional right. See Pratt v.

22

Rowland, 65 F.3d 802, 807 (9th Cir. 1995); Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39

23

(9th Cir. 1989). The plaintiff must also show that the exercise of First Amendment rights was

24

chilled, though not necessarily silenced, by the alleged retaliatory conduct. See Resnick v. Hayes,

25

213 F.3d 443, 449 (9th Cir. 2000), see also Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir.

26

2005). Thus, the plaintiff must establish the following in order to state a claim for retaliation:

27

(1) the defendant took adverse action; (2) the adverse action was taken because the plaintiff

28

engaged in protected conduct; (3) the adverse action chilled the plaintiff’s First Amendment
23

Case 2:17-cv-02421-TLN-DMC Document 71 Filed 03/25/21 Page 24 of 30
1

rights; and (4) the adverse action did not serve a legitimate purpose. See Rhodes, 408 F.3d at

2

568.

3

In their amended motion to dismiss, the HCSD Defendants argue Plaintiff cannot

4

state a First Amendment retaliation claim because he suffered no adverse action after engaging

5

in protected activity. See ECF No. 26, pgs. 5-6. According to the HCSD Defendants:

6

12

. . . Here, Plaintiff has failed to plead facts that show any sort of
causal relationship between the vaguely referenced exercise of his right
to speak, to speak freely, and to petition at the public meetings of the
board of the HCSD. (Complaint p. 20, ln. 4-13.) Plaintiff has alleged no
specific facts suggesting that any adverse action was taken as a result of
his speech or petition, or that he was somehow barred from speaking or
petitioning. (citation omitted). To the extent that Plaintiff claims he has
been unable to seek redress from the Courts, such a claim is patently
ridiculous given the multiplicity of his litigation.
As for the alleged infringement on Plaintiff’s right to petition, it is
unclear how this was in any way violated. Indeed, in articulating his cause
of action, Plaintiff enumerates the many times he exercised his right to
petition.

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ECF No. 26, pgs. 5-6.

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The Court agrees. As to the chilling effect of the defendants’ alleged conduct,

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Plaintiff has pleaded facts contrary to this element. Specifically, despite the alleged retaliation,
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Plaintiff has states that he has repeatedly petitioned both the HCSD and the federal courts for
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relief. Further, Plaintiff has not identified the alleged adverse action taken against him, or the
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protected activity Plaintiff engaged in which purportedly was the impetus for such adverse
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action.
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6.

Action Directly Under the Constitution

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The HCSD Defendant argue that, as a matter of law, Plaintiff cannot seek
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redress directly under the Constitution. See ECF No. 26, pg. 5. According to the HCSD
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Defendants:
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To the extent that Plaintiff seeks redress directly under the
constitution for violation of his First, Fourth, and Fourteenth Amendment
rights, those claims fail because no direct cause of action exists under the
constitution against state defendants where such defendants are amenable
to suit under Section 1983. Arpin v. Santa Clara Valley Transp. Agency,
261 F.3d 912, 925 (9th Cir. 2001) (“[A] litigant complaining of a violation
of a constitutional right does not have a direct cause of action under the
United States Constitution but must utilize 42 U.S.C. 1983.”); see also
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Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981).

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Id.

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This largely “housekeeping” argument is axiomatic. As the court noted in
Arpin, § 1983 is the only vehicle available for asserting a violation of a constitutional right.
See 261 F.3d at 925. To the extent Plaintiff attempts to assert a claim directly under any
particular provision of the Constitution instead of through §1983, he cannot successfully do so.

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7.

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Right to Vote

At paragraph 93 of the first amended complaint, Plaintiff alleges the Board
Defendants and Kampa violated his right to vote. See ECF No. 17, pgs. 32-33. Plaintiff
claims this was accomplished by Defendants’ failure to abide by HCSD bylaws. See id. at 32.
More specifically, Plaintiff alleges an “agreement” to “evade the voting requirements thereof
relating to District fees and charges.” Id. Plaintiff also alleges violation of his right to vote at
paragraph 99 of the first amended complaint. See id. at 34. Plaintiff alleges this was
accomplished by “improperly and wrongfully failing to read meters, waiving various fees and
charges, altering rates and fees of the HCSD to benefit their friends without voter approval.” Id.
Plaintiff alleged HCSD bylaws were “contradicted” and relevant water safety laws were not
followed. Id. Plaintiff claims that he was denied his right, “as a [sic] elector of the District,” to
be served with safe water. Id.

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According to the HCSD Defendants:

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Gifford’s complaint also alleges a violation of Plaintiff’s right to
vote. This violation is apparently based on unspecified violations of
HCSD bylaws. The gravamen of the cause of action are alleged secret
meetings at which unspecified actions were taken that had an unspecified
effect on unspecified persons. There are no factual allegations from which
to discern the actual conduct Plaintiff complains of. This cause of action
lacks facts sufficient to put Defendants on notice of what they are meant to
have done wrong, and therefore falls short of the pleadings standards.

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ECF No. 26, pg. 7.

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Case 2:17-cv-02421-TLN-DMC Document 71 Filed 03/25/21 Page 26 of 30
The Court agrees with the HCSD Defendants that Plaintiff’s claims related to

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the alleged denial of the right to vote are too nebulous and vague to proceed. See Iqbal, 129 S.

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Ct. at 1949. Plaintiff has not specifically alleged how the defendants’ conduct affected his right

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to vote. Moreover, under the Voting Rights Act of 1965, a plaintiff must allege invidious

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discrimination. See Mobile v. Bolden, 446 U.S. 55 (1980). Plaintiff has failed to do so here.

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Finally, to the extent the alleged denial of the right to vote stems from HCSD and its board

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taking illegal or improper actions, Plaintiff has alleged no facts to indicate that he has been

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unable to vote in any election to replace HCSD board members.

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8.

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Federal Statutory Claims

At paragraphs 94 and 95 of the first amended complaint, Plaintiff alleges

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violations of the Clean Water Act and Safe Drinking Water Act. See ECF No. 17, pg. 33. At

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paragraphs 103 and 104, Plaintiff specifically claims violations of these federal laws by

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Defendant Puckett. See id. at 35-36. At paragraph 105, Plaintiff alleges violation of the

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Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). See id. at 36. At paragraphs

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106 and 107, Plaintiff claims Defendant HCSD retaliated in violation of 18 U.S.C. § 1513(e).

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See id.

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According to the HCSD Defendants:

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In order to bring a private claim under the Clean Water Act (and
the other analog statutes under which Gifford brings claims), a private
individual must have suffered an injury in fact. See, e.g., Whitmore v.
Arkansas, 495 U.S. 149, 155 (1990). Gifford has made no such allegation
here. As such, he has no standing to bring claims under these statutes, and
those causes of action must fail as a matter of law.

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ECF No. 26, pg. 7.
The Court agrees with the HCSD Defendants as to the Clean Water Act and

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Safe Drinking Water Act – Plaintiff cannot sustain a claim under these statutes because he has

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not alleged an injury in fact which he suffered. See Whitmore, 495 U.S. at 155. As to

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Plaintiff’s reference to FIFRA, Plaintiff’s claim fails because enforcement is accomplished by

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either the Environmental Protection Agency or the states. See 7 U.S.C. § 136, et seq. Plaintiff

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has cited no authority for private enforcement of FIFRA. Similarly, enforcement of 18 U.S.C.
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§ 1513(e) – relating to retaliation against an informant – is accomplished by a criminal

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prosecution. See 18 U.S.C. § 1513(g). There is no private right of action under § 1513. See

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Shahin v Darling, 606 F. Supp. 2d 525 (D. Del. 2009).

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B.

State Law Claims
In his motion to dismiss, Defendant Winston argues Plaintiff’s state law claims

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fail for the following reasons: (1) Plaintiff’s claim are barred by California’s litigation

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privilege; and (2) Plaintiff’s conspiracy claims are barred by California Civil Code § 1714.10.

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See ECF No. 24-1, pgs. 21-26. By separate motion, Defendant Winston argues the Court

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should strike Plaintiff’s state law claims under California’s anti-SLAPP statute. See ECF No.

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25. In their amended motion to dismiss, the HCSD Defendants argue: (1) the HCSD and its

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employees are immune for discretionary acts under California Government Code §§ 820.2; and

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818.2; (2) Plaintiff has not alleged any facts to show negligence; (3) Plaintiff has not alleged

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facts to support his nuisance claims; (4) Plaintiff has not alleged facts to support his claims

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under California Government Code §§ 1090 and 87100; (5) Plaintiff cannot state a claim for

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retaliation in employment; (6) Plaintiff cannot state a claim based on gifts of public funds; and

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(7) Plaintiff’s claims for negligent and intentional infliction of emotional distress fail as a

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matter of law. See ECF No. 26, pgs. 7-10.

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Because, for the various reasons discussed above, the Court finds that Plaintiff

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has failed to plead cognizable federal claims, the Court declines to rule on the viability of

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Plaintiff’s state law claims at this time. Defendants may renew their argument relating to state

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law claims upon a finding by the Court that Plaintiff has stated cognizable federal claims

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which should be answered. In the event Plaintiff is unable to state cognizable federal claims,

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the Court will consider whether to decline supplemental jurisdiction pursuant 28 U.S.C. §

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1367(c)(3), in which case Plaintiff may pursue his state law claims in the appropriate state

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court of general jurisdiction.

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C.

2

Revocation of In Forma Pauperis Status
By way of a third motion, Defendant Winston seeks an order revoking

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Plaintiff’s in forma pauperis status, declaring Plaintiff a vexatious litigant, and requiring

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Plaintiff to post security. See ECF No. 39. According to Defendant Winston, 28 U.S.C.

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§ 1915(e)(2) – part of the federal in forma pauperis statute – authorizes the Court to dismiss

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the entire action because it is frivolous, malicious, and fails to state a claim. See id. at 15-24.

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Defendant Winston also contends the Court should declare Plaintiff a vexatious litigant under

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the All Writs Act and order Plaintiff to post bond before proceeding further with this action.

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See id. at 24-25.

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At the outset, the Court notes that § 1915(e)(2) does not provide for revocation

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of Plaintiff’s in forma pauperis status. In certain instances, a prisoner’s in forma pauperis

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status may be revoked under relevant provisions of the Prison Litigation Reform Act (PLRA).

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The PLRA does not apply here, however, because Plaintiff is not a prisoner. The provision

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cited by Defendant Winston does permit the Court to dismiss actions filed by litigants

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proceeding pro se if the Court finds the action is malicious, frivolous, or fails to state a claim.

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While the Court finds that Plaintiff fails to state any federal claims, the Court declines to rule

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on Plaintiff’s state law claims, leaving that task for another day if Plaintiff can state cognizable

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federal claims. The procedural relief requested by Defendant Winston in his third motion

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should, therefore, be denied at this time without prejudice. Defendant Winston may renew his

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request to declare Plaintiff a vexatious litigant and require him to post security should the case

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proceed in federal court past the pleadings stage.

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V. CONCLUSION

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Based on the foregoing, the undersigned recommends that:

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1.

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Plaintiff’s federal claims and Defendant Winston be dismissed with prejudice;

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Defendant Winston’s motion to dismiss, ECF No. 24, be granted as to

2.

The HCSD Defendants’ amended motion to dismiss, ECF No. 26, be

granted as to Plaintiff’s federal claims;

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3.

Plaintiff’s federal claims be dismissed as follows;

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a.

Plaintiff’s due process claims be dismissed with leave to amend;

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b.

Plaintiff’s equal protection claims be dismissed with leave to
amend;

c.

Plaintiff’s retaliation claim be dismissed with leave to amend;

d.

Plaintiff’s claims relating to the denial of the right to vote be
dismissed with leave to amend;

e.

Plaintiff’s federal statutory claims be dismissed with prejudice;

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4.

Defendants’ motions to dismiss be denied as to Plaintiff’s state law claims,

without prejudice to renewal upon the filing of a further amended complaint; and

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5.

Defendant Winston’s motion to strike Plaintiff’s state law claims, ECF No.

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25, and motion to revoke Plaintiff’s in forma pauperis status, declare Plaintiff a vexatious

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litigant, and require Plaintiff to post security, ECF No. 39, also be denied without prejudice to

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renewal upon the filing of a further amended complaint; and

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6.

Plaintiff’s motions for default judgment, ECF Nos. 65 and 66, be denied

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because Plaintiff has not demonstrated an entitlement to relief on any of his federal claims and

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the Court has not decided whether to exercise supplemental jurisdiction over Plaintiff’s state

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law claims.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written objections

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with the court. Responses to objections shall be filed within 14 days after service of objections.

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Case 2:17-cv-02421-TLN-DMC Document 71 Filed 03/25/21 Page 30 of 30
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Failure to file objections within the specified time may waive the right to appeal. See Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: March 25, 2021
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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