Alvarez v. Sonoma County et al

Filing 52

ORDER by Judge Edward M. Chen Granting 45 Defendants' Motion to Dismiss. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 9/3/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAVIER AGUSTO ALVAREZ,

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Plaintiff,
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS

v.

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For the Northern District of California

United States District Court

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No. C-12-5606 EMC

SONOMA COUNTY, et al.,

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Defendants.
___________________________________/

(Docket No. 45)

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Previously, this Court granted in part and denied in part a motion to dismiss that had been

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filed by some (but not all) of the named defendants. For some of the claims that were dismissed,

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Plaintiff Javier Agusto Alvarez was given leave to amend. See Docket No. 37 (order). Mr. Alvarez

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has now filed a second amended complaint (“SAC”), see Docket No. 41 (SAC), and that complaint

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has now been challenged by the following defendants: County of Sonoma, Julie S. Paik, S. Sullivan,

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Laurie Lapidus, Anna New, and Veronica Ferguson (collectively, the “County Defendants”).

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Having considered the parties briefs’, as well as the oral argument of counsel and Mr.

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Alvarez, who is proceeding pro se, the Court hereby GRANTS the motion to dismiss.
I.

FACTUAL & PROCEDURAL BACKGROUND

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Mr. Alvarez initiated this lawsuit in November 2012. In his first amended complaint

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(“FAC”), he sued the County and some of its employees, primarily those who work for the Division

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of Child Support Services. See Docket No. 25 (FAC). Mr. Alvarez asserted that the defendants

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named in the FAC had discriminated against him on the basis of his race, including but not limited

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to when they suspended or helped suspend his driver’s license for an alleged failure to pay child

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support. The defendants, other than Ms. Ferguson, filed a motion to dismiss which the Court

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granted in part and denied in part. See Docket No. 37 (order). Basically, after that order, certain

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claims against the County and Ms. Paik, the Director of the Division of Child Support Services,

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were left in the case, as well as claims against Ms. Ferguson (who had not appeared in the case and

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thus never filed a motion to dismiss). Mr. Alvarez was given leave to amend his equal protection

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and due process claims.

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Mr. Alvarez thereafter filed a SAC. In his SAC, Mr. Alvarez dropped many of his

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substantive allegations against Ms. Paik and Ms. Ferguson. For example, unlike the FAC, the SAC

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does not allege that Ms. Paik and Ms. Ferguson made racially discriminatory remarks. Mr.
Alvarez’s untimely opposition suggests that he is changing the focus of his case so that is it is less a

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For the Northern District of California

United States District Court

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discrimination case and more about an alleged fraud by the defendants. See, e.g., Opp’n at 4, 6

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(arguing that he has shown “fraud on the account and these defendant’s [sic] caused this fraud and

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are now and have been benefitting from this fraud”). But see Opp’n at 3 (asserting that the County

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and Ms. Ferguson have “discriminate[d] against people of color”).

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In the SAC, Mr. Alvarez sues the following defendants:

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(1)

The County.

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(2)

Ms. Paik. As noted above, Mr. Alvarez alleges that Ms. Paik is the Director of the Division

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of Child Support Services. Mr. Alvarez also alleges that Ms. Paik is the final decisionmaker

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for the Division. See SAC ¶ 3.

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(3)

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the Division of Child Support Services. See SAC ¶ 6.
(4)

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Ms. Ferguson. Mr. Alvarez alleges that Ms. Ferguson is the County Administrator. See
SAC ¶ 7.

(5)

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Ms. New. Mr. Alvarez alleges that Ms. New is an Account Collections Technician 2 with

Laurie B. Lapidus. Mr. Alvarez alleges that Ms. Lapidus is the Assistant Administrator of
the Division of Child Support Services. See SAC ¶ 4.

(6)

S. Sullivan. Mr. Alvarez alleges that Ms. Sullivan is an Accountant for the Division of Child
Support Services. See SAC ¶ 5.

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(7)

Ms. Alvarez. It appears that Ms. Alvarez is the mother of one or more of Mr. Alvarez’s

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children to whom Mr. Alvarez has had to pay child support.

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In the SAC, Mr. Alvarez alleges that Ms. Alvarez engaged in wrongdoing because she

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submitted false documents with regard to his child support obligations. See SAC ¶ 2.

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As for the County Defendants, Mr. Alvarez alleges that they engaged in wrongdoing because

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they acted on the incorrect information provided by Ms. Alvarez, see SAC ¶ 38 – e.g., by

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suspending his driver’s license for a failure to pay child support allegedly owed, levying on his and

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his family’s bank accounts to secure payment of child support, imposing tax liens on him and his

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family to secure payment of child support, and garnishing his wages to secure payment of child
support. See SAC at 14. However, there are no allegations that any of these Defendants knew or

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For the Northern District of California

United States District Court

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should have known that Ms. Alvarez had submitted incorrect information.

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Mr. Alvarez also suggests that the above adverse actions were taken against him because of

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his race, but the only person who may have harbored a discriminatory intent – based on the

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allegations in the SAC – was Ms. Lapidus. See SAC ¶¶ 40-44 (alleging that Ms. Lapidus told him

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that it was his fault that he was out of work, that he should be able to get a job washing dishes or

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picking grapes, and that he should “‘know [his] place boy’”).

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Finally, Mr. Alvarez suggests that the County Defendants engaged in other adverse actions –

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e.g., not posting his child support payments in a timely manner, see SAC ¶ 31, and making other

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accounting errors in calculating what child support he had paid. See, e.g., Alvarez Decl. at 9

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(asserting that the Division of Child Support Services took possession of his tax refund money but

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failed to give him credit for all of that money).

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Based on, inter alia, the above allegations, Mr. Alvarez appears to be asserting the following

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claims for relief:

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(1)

Violation of 42 U.S.C. § 1983/equal protection.

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(2)

Violation of 42 U.S.C. § 1983/substantive due process.

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(3)

Violation of 18 U.S.C. § 1341 (mail fraud).

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II.
A.

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DISCUSSION

Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss based on the

dismiss based on Rule 12(b)(6) challenges the legal sufficiency of the claims alleged. See Parks

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Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). In considering such a motion, a court

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must take all allegations of material fact as true and construe them in the light most favorable to the

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nonmoving party, although “conclusory allegations of law and unwarranted inferences are

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insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.

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2009). While “a complaint need not contain detailed factual allegations . . . it must plead ‘enough

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failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). A motion to

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United States District Court

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facts to state a claim to relief that is plausible on its face.’” Id. “A claim has facial plausibility when

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the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); see

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also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). “The plausibility standard is not akin to

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a ‘probability requirement,’ but it asks for more than sheer possibility that a defendant acted

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unlawfully.” Iqbal, 129 S. Ct. at 1949.

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B.

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Equal Protection
Mr. Alvarez has asserted first a § 1983/equal protection claim against the County

Defendants. All of the County Defendants have moved for dismissal.

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1.

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The major problem for Mr. Alvarez is that, for the most part, there are insufficient

Individual Defendants

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allegations in the SAC that the individual defendants (including Ms. Ferguson) engaged in any

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wrongdoing because of his race. For the most part, Mr. Alvarez has simply made a conclusory

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allegation that the individual defendants discriminated against him because of his race or a

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speculative allegation of such. See SAC ¶ 10 (alleging that “[t]he scheme of the Defendant(s)

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discriminated against the Plaintiff because of his race/ethnicity, i.e., Hispanic” and that “[w]hereby it

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is a known fact that these types of scheme are perpetuated predominantly against Minority groups”).

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Such a conclusory allegation without any supporting factual allegations is insufficient to state an

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equal protection claim. See Ashcroft v. Iqbal, 129 S. Ct. at 1949 (noting that “[t]hreadbare recitals

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of the elements of a cause of action, supported by mere conclusory statements, do not suffice”).

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The one exception is Ms. Lapidus.1 In the SAC, Mr. Alvarez alleges, e.g., that Ms. Lapidus

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told him it was his fault that he was out of work, that he could get a job washing dishes or picking

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grapes, and that he should “‘know [his] place boy.’” SAC ¶¶ 40-44. But even though these factual

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allegations suggested that Ms. Lapidus may have harbored a racially discriminatory stereotypes, it is

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not clear from the SAC what specific wrongdoing she engaged in. For example, at times Mr.

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Alvarez lumps Ms. Lapidus in with other defendants. But there are no specific allegations

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supporting Mr. Alvarez’s attempt to lump Ms. Lapidus in with other defendants.
There are a few instances where Mr. Alvarez does appear to pinpoint Ms. Lapidus

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United States District Court

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specifically for having engaged in certain conduct. For example, in the SAC, Mr. Alvarez alleges

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that Ms. Lapidus demanded that he pay money to have his driving privileges reinstated and that Ms.

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Lapidus made threats to take action against him and his family (including suspending his license).

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See SAC ¶¶ 40-44. The problem here is that these allegations are predicated on the assumption that

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there was no basis to suspend his driver’s license – i.e., because Ms. Alvarez had given false

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information to the Division of Child Support Services. But Mr. Alvarez has not alleged that Ms.

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Lapidus either knew or should have known that Ms. Alvarez had given false information. (Nor has

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he even identified what information Ms. Alvarez gave that was false.) To the extent Mr. Alvarez

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suggests that there was a conspiracy between the County Defendants and Ms. Alvarez (such that Ms.

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Lapidus knew the information given by Ms. Alvarez was false), that conspiracy allegation is

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conclusory and/or speculative and fails to state a plausible claim. See Twombly, 550 U.S. at 556-57,

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570 (noting that a claim must be plausible, not simply conceivable; also noting that, in a conspiracy

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case, there must be allegations plausibly suggesting – and not merely consistent with – an agreement

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among the conspirators).

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As noted above, the FAC contained allegations that Ms. Paik and Ms. Ferguson made
racially discriminatory remarks, but those allegations are nowhere in the SAC.

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Accordingly, the Court dismisses the equal protection claim as to all County Defendants,

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including Ms. Lapidus. The dismissal is now with prejudice as the Court previously gave Mr.

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Alvarez an opportunity to amend to correct any deficiencies but he has failed to do so.

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2.

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There are no allegations to support County liability. Mr. Alvarez simply makes the

County

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conclusory allegation of County liability, see SAC at 13 (¶ 12) (alleging that the County is liable

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because of, e.g., a custom or policy, inadequate training, deliberate indifference, and ratification),

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that this Court previously rejected as inadequate.

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C.

Although not entirely clear, Mr. Alvarez also seems to be making a substantive due process

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For the Northern District of California

United States District Court

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Substantive Due Process

claim against all named defendants. As above, all of the County Defendants have moved for

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dismissal.

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To the extent Mr. Alvarez bases the substantive due process claim against the individual

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defendants on the fact that, e.g., his driver’s license was suspended or his and his family’s bank

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accounts were levied upon, there is a significant problem. These allegations of wrongdoing are

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predicated on the assumption that Mr. Alvarez never actually owed any money to Ms. Alvarez – i.e.,

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because Ms. Alvarez had given false information to the Division of Child Support Services. But Mr.

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Alvarez has failed to allege that any of the individual defendants knew or should have known that

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Ms. Alvarez had given false information to the Division of Child Support Services.2 Although Mr.

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Alvarez has alleged in the SAC that he informed Ms. New about errors made in a report given to

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him by the Division of Child Support Services (referred to in the SAC as the “Simple Report”), see

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SAC ¶ 7, none of those errors appear to have anything to do with the allegedly false information

Individual Defendants

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It is also worth noting that the Court, in its prior order, held that there was a proximate
cause problem with Mr. Alvarez’s attempt to attribute the suspension of his driver’s license to the
Division of Child Support Services. See Docket No. 37 (Order at 5) (stating that, even if Ms. Paik
had played a role in the suspension of the license, “there are insufficient allegations to establish that
her actions were a proximate cause of the suspension of his license”; noting that, “[a]t the hearing,
Mr. Alvarez explicitly stated that a late payment would not automatically result in a suspension of a
license [–] [r]ather, a hearing would be held by the [DMV] which would then make a determination
as to whether there should be a suspension”).

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given by Ms. Alvarez. See generally Alvarez Decl. (providing examples of errors in the Simple

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Report).

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The Court is therefore left with Mr. Alvarez’s claim that his due process rights were violated

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because accounting errors were made with respect to the child support he had paid.3 Mr. Alvarez

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alleges that he found the errors after he asked the Division of Child Support Services to provide him

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with an accounting/audit. See SAC ¶ 4. Ms. Sullivan (an Accountant for the Division) gave him a

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report – which Mr. Alvarez refers to as the “Simple Report” – and, after reviewing the report, Mr.

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Alvarez found the errors. See SAC ¶¶ 5-6. Mr. Alvarez claims that he contacted all named

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defendants and informed them of the errors, see SAC ¶ 7 (lumping together all defendants), and
spoke to Ms. New (an Account Collections Technician 2 with the Division of Child Support

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Services). See SAC ¶ 7. According to Mr. Alvarez, Ms. New admitted that the report could contain

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errors, see SAC ¶¶ 8-9, and stated that “sometimes there are variations in the amounts reported on

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the monthly statements and other documents used to obtain bank levies, tax liens[,] wage

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garnishments and on credit reports.” SAC ¶ 8. Mr. Alvarez alleges that none of the defendants,

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including Ms. New, ever took any steps to address the errors in the report. See SAC ¶ 9.

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As a preliminary matter, the SAC does not contain any explicit allegation that Mr. Alvarez

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ever discussed any specific errors with Ms. New, as opposed to making a general claim that the

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report contained errors. Accordingly, the claim of a substantive due process violation is too

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conclusory to be plausible under Twombly and Iqbal. But even if Mr. Alvarez did discuss specific

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errors with Ms. New, the Court still concludes that Mr. Alvarez has failed to adequately pled a

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substantive due process claim.

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“Substantive due process protects individuals from the arbitrary deprivation of their liberty
by government.” Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006); see also Nunez v. City of

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In his SAC, Mr. Alvarez does not identify what those errors were. In a declaration which
Mr. Alvarez submitted in conjunction with his opposition to the pending motion, Mr. Alvarez claims
that there at least two specific accounting errors: (1) not posting his child support payments in a
timely manner and (2) seizing his tax refund money and then not giving him full credit for the
money seized. See Alvarez Decl. at 8-9. The declaration, however, may not be considered because
the Court has before it a 12(b)(6) motion which restricts the Court, in essence, to a review of the
complaint only.

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Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998) (stating that substantive due process “forbids the

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government from depriving a person of life, liberty, or property in such a way that ‘shocks the

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conscience’ or ‘interferes with rights implicit in the concept of ordered liberty’”). A substantive due

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process claim requires proof of two elements. See Emmert Indus. Corp. v. City of Milwaukie, 450 F.

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Supp. 2d 1164, 1175 (D. Or. 2006) (stating that, “to make out a substantive due process claim,

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[plaintiff] must show two elements: a protectible interest and egregious official conduct”). First,

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“‘because there is no general liberty interest in being free from capricious government action,’” “a

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plaintiff must show a government deprivation of life, liberty, or property.” Brittain, 451 F.3d at 991.

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Second, because “‘[o]nly the most egregious official conduct can be said to be arbitrary in a
constitutional sense,’” a plaintiff must also show “conscience shocking behavior by the

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government,” e.g., “conduct intended to injure in some way unjustifiable by any governmental

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interest.” Id. (emphasis added). Regarding the second factor, the Supreme Court has noted that

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the constitutional concept of conscience-shocking duplicates no
traditional category of common-law fault, but rather points clearly
away from liability, or clearly toward it, only at the ends of the tort
law’s spectrum of culpability. Thus, we have made it clear that the
due process guarantee does not entail a body of constitutional law
imposing liability whenever someone cloaked with state authority
causes harm.

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County of Sacramento v. Lewis, 523, U.S. 833, 848 (1998). Thus, “the Constitution does not

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guarantee due care on the part of state officials; liability for negligently inflicted harm is

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categorically beneath the threshold of constitutional due process.” Id. at 849. But “[w]hether the

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point of the conscience-shocking is reached when injuries are produced with culpability falling

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within the middle range, following from something more than negligence but less than intentional

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conduct, such as recklessness or gross negligence, is a matter for closer calls.” Id. (internal

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quotation marks omitted).

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Here, the Court assumes that Mr. Alvarez has a protectible property interest in his wages, tax

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refunds, bank accounts, and/or not being overcharged for child support. See, e.g., Noel v. City of

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Oroville, No. 2:07-CV-00728 WBS EFB, 2007 U.S. Dist. LEXIS 80704 (E.D. Cal. Oct. 16, 2007)

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(where plaintiff asserted a protected property interest in his wages, deciding not to dismiss § 1983

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claim for deprivation of employment compensation); Peterson v. Peterson, No. CIV 03-0660

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JB/LAM, 2004 U.S. Dist. LEXIS 28280, at *18-19 (D.N.M. July 31, 2004) (where plaintiff sued

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state agency employees for violation of due process because agency garnished his wages after he

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stopped paying child support, assuming that plaintiff had a protected property interest in his wages);

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McClelland v. Massinga, 786 F.2d 1205, 1211 (4th Cir. 1986) (conceding that plaintiffs had a

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property interest in their tax refunds); Wagner v. Duffy, 700 F. Supp. 935, 942 (N.D. Ill. 1988)

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(where intercepted tax refunds were used for child support payments, stating that “[t]here can be

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little doubt that a citizen has a property interest in his or her tax refund, which is in reality withheld

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wages”); Marcello v. Regan, 574 F. Supp. 586, 595 (D.R.I. 1983) (where plaintiffs’ tax refunds had

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been used to satisfy spousal or child support, noting that “defendants apparently do not dispute that
the plaintiffs have a property interest in their tax refunds”); Childrens & Parents Rights Ass’n v.

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Sullivan, 787 F. Supp. 738, 740 (N.D. Ohio 1992) (stating that “[a]n interest in being assessed a fair

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amount for child support is sufficient to trigger the remaining requirements for due process”).

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But even assuming such, Mr. Alvarez must still adequately plead egregious official conduct

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in order to have a viable substantive due process claim. Here, Mr. Alvarez has not made any

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allegations suggesting anything more than mere negligence on the part of Ms. New that rises to the

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level of conduct which shocks the conscience, particularly in the absence of any express allegations

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that he pointed out specific errors to Ms. New which she then ignored.

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The Court therefore dismisses the substantive due process claim. As above, the dismissal is

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with prejudice because the Court previously gave Mr. Alvarez an opportunity to amend but, even

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with the amendment, he has still failed to allege a plausible claim for relief.

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2.

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As above, there is no basis for County liability. There are no allegations supporting

County

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municipal liability beyond the conclusory allegations that the Court previously rejected.

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D.

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Title 18 U.S.C. § 1341
Although the Court did not allow Mr. Alvarez to amend to add in any new claims for relief,

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Mr. Alvarez did so in his SAC. More specifically, he added a claim for fraud (more specifically,

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mail fraud) pursuant to 18 U.S.C. § 1341. This claim for relief is dismissed because (1) the

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amendment was not permitted by the Court and, in any event, (2) the claim lacks merit as there is no

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private right of action for mail fraud under § 1341. See Ross v. Orange County Bar Ass’n, 369 Fed.

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Appx. 868, 869 (9th Cir. 2010); Watkins v. Proulx, 235 Fed. Appx. 678, 678 (9th Cir. 2007); Wilcox

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v. First Interstate Bank, 815 F.2d 522, 533 n.1 (9th Cir. 1987).

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E.

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Exemplary Damages
In his complaint, Mr. Alvarez seeks punitive damages against “natural person defendants”

limitation. See Compl. at 17. In the pending motion, the County seeks a dismissal of the claim for

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exemplary damages against it. Because there are insufficient allegations of municipal liability to

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support the § 1983 claim, this issue is moot. However, on the merits, the County is correct that

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exemplary damages may not be issued against it. There is no real difference between exemplary

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For the Northern District of California

only, Compl. at 17, but then seems to seek exemplary damages against all defendants, without

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United States District Court

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damages and punitive damages. See, e.g., Black’s Law Dictionary 417 (8th ed. 2004) (defining

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exemplary damages as punitive damages). A municipal entity is immune from punitive damages

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under § 1983. See City of Newport v. Fact Concerts, 453, U.S. 247, 268-71 (1981).

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F.

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Injunctive Relief
Finally, the County Defendants seek dismissal of Mr. Alvarez’s claim for injunctive relief.

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Per the SAC, the sole injunctive relief sought by Mr. Alvarez is “[a]n injunction barring defendants

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from being employed in any form of public service.” Compl. at 17. The County Defendants argue

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that Mr. Alvarez lacks standing to seek this injunction, that Mr. Alvarez has adequate remedies at

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law, that the injunction implicates federalism concerns, and that the injunction is overbroad and

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unrelated to any real or immediate threat to Mr. Alvarez. See Mot. at 12-13. Even if Mr. Alvarez

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might have standing to seek injunctive relief, see de Jesus Ortega Melendres v. Arpaio, 695 F.3d

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900, 997 (9th Cir. 2012) (stating that, “[t]o have standing to assert a claim for prospective injunctive

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relief, a plaintiff must demonstrate ‘that he is realistically threatened by a repetition of [the

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violation]’”; adding that an injury is likely to recur if, e.g., the injury stems from a policy or is part

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of a pattern of officially sanctioned behavior), the other arguments made by the County are

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persuasive. Furthermore, because the SAC fails to state a viable legal claim, there is no basis for

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injunctive relief.

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III.

CONCLUSION

For the foregoing reasons, the Court grants the County Defendants’ motion to dismiss in its

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entirety, and the dismissal is with prejudice. This leaves as the sole defendant named in the SAC

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Ms. Alvarez. The problem here is that the Court previously dismissed Ms. Alvarez with prejudice –

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and pursuant to a request by Mr. Alvarez himself. See Docket No. 22 (motion filed by Mr. Alvarez,

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asking that Ms. Alvarez be dismissed with prejudice); Docket No. 24 (order granting dismissal with

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prejudice). In light of that dismissal, Ms. Alvarez is not properly named as a defendant in the SAC.

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Accordingly, all claims against all defendants in the case have been dismissed with

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prejudice. The Court thus instructs the Clerk of the Court to enter a final judgment in accordance

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with this opinion and close the file in this case.
This order disposes of Docket No. 45.

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IT IS SO ORDERED.

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Dated: September 3, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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