Parker v. City of Pittsburg et al

Filing 24

Order by Magistrate Judge Laurel Beeler Granting 10 Motion to Dismiss. Plaintiff has 28 days from the date of this order to file an amended complaint. (lblc1S, COURT STAFF) (Filed on 7/13/2017)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division United States District Court Northern District of California 11 12 ALONZO PARKER, Case No. 17-cv-01563-LB Plaintiff, 13 ORDER GRANTING THE DEFENDANT’S MOTION TO DISMISS v. 14 15 Re: ECF No. 10 CITY OF PITTSBURG, et al., Defendants. 16 17 INTRODUCTION 18 This civil rights case involves the placement and removal of protest signs on private property.1 19 The plaintiff, Alonzo Parker, proceeding pro se, sued the City of Pittsburg and the Pittsburg Police 20 Department, under 42 U.S.C. § 1983.2 The city moves to dismiss the complaint under Rule 21 12(b)(6) for failure to state a claim.3 The court can decide the matter without oral argument, see 22 Civ. L.R. 7-1(b), and grants the motion, because the complaint does not provide adequate notice of 23 the legal theories supporting the claims. 24 25 26 1 See generally Compl. – ECF No. 1. Record citations refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents. 27 2 Id. ¶ 5k. 28 3 Mot. to Dismiss Pl.’s Compl. – ECF No. 10. ORDER – No. 17-cv-01563-LB  1 STATEMENT 2 Mr. Parker lives in the City of Pittsburg in Contra Costa County, California.4 He alleges that 3 from 2011 to 2014, he “was [a] victim of malicious and illegal prosecution . . . allowed by 4 attorneys and judges,” resulting in the “illegal seizure of [his] real property and financial 5 accounts.”5 A final judgment was issued in Mr. Parker’s favor in late 2014, though he did not 6 recover the cost of his defense.6 After “exhaust[ing] all avenues of complaints” for the “illegal 7 seizure of [his] property and money,” including the “bar association, new lawyers, etc.,” Mr. 8 Parker decided to “wage a protest any way he could.”7 In April 2016, Mr. Parker hung two signs on his property.8 The signs read: “FREEDOM 9 WITH NO RIGHTS EQUALS SLAVERY” and “YOU CAN HANG A NIGGER FROM A TREE 11 United States District Court Northern District of California 10 EQUAL RIGHTS HE’LL NEVER SEE.”9 Mr. Parker displayed the signs to protest against the 12 lawsuits brought against him in 2011.10 That day, the Pittsburg Police Department asked Mr. 13 Parker to cover the word “NIGGER.”11 Though Mr. Parker explained that the signs were “his right 14 under the first amendment to protest a wrong-doing by [the] justice system,” he acquiesced.12 But 15 he removed the covering one day later, upon “realizing that he considers himself a ‘NIGGER,’ and 16 “is proud of it.”13 He wanted the word uncovered to preserve “the meaning of the content” and 17 “his right to free speech and protest.”14 After two days, Mr. Parker received a citation ordering 18 19 20 4 22 23 24 25 26 Compl. ¶¶ 1(a), 3. 5 Id. ¶ 5a. 6 Id. 7 Id. ¶ 5b. 8 21 Id. ¶ 5c. 9 Id. 10 Id. 11 Id. 12 27 Id. 13 Id. ¶ 5d. 28 14 Id. ORDER – No. 17-cv-01563-LB 2  1 removal of the sign within 30 days or, otherwise, the imposition of a $100 fine.15 Mr. Parker 2 removed the signs.16 In the following months, Mr. Parker displayed signs in his front yard, and protested at the 3 4 courthouse, police station, downtown area, and Pittsburg High School.17 In August, he put up a 5 new sign: “BORN A SLAVE MY MASTER IS A JEW.”18 About a week later, he met with 6 Hector Rojas, a Senior Planner, regarding the signs.19 Mr. Rojas promised to “determine whether a 7 permit was needed for [Mr. Parker’s] signs.”20 Later, Mr. Parker learned “that he will ‘never’ be 8 given a permit for ANY signs.”21 In mid-August, Mr. Parker received a citation for “unpermitted sign.”22 The next day, Pittsburg 9 police officers presented a court order to Mr. Parker.23 Then, they “forcibly remove[d] signs from 11 United States District Court Northern District of California 10 the property after covering up cameras showing their actions.”24 The officers “damaged” his 12 property and took the signs “without compensation or reimbursement.”25 One month later, “unknown individuals” removed the “BORN A SLAVE MY MASTER IS A 13 14 JEW” sign.26 The city issued another “unpermitted sign” citation for $500.27 15 On March 23, 2017, Mr. Parker sued the city and its police department for violations of his 16 rights to free speech and protection from unreasonable seizure of property.28 The city moves to 17 18 15 Id. ¶ 5e. 19 16 Id. 17 Id. ¶ 5f. 18 Id. ¶ 5g. 21 19 Id. ¶ 5h. 22 20 Id. 21 Id. 22 Id. ¶ 5i. 24 23 Id. ¶ 5j. 25 24 Id. 25 Id. 26 Id. ¶ 5k. 27 27 Id. 28 28 Compl. – ECF No. 1. 20 23 26 ORDER – No. 17-cv-01563-LB 3  1 dismiss the complaint.29 Mr. Parker’s opposition was due June 14, 2017, but he did not file one.30 2 The court gave him a 9-day extension to file a response.31 Mr. Parker filed an opposition on June 3 23, 2017.32 4 GOVERNING LAW 5 6 Under Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed for “failure to 7 state a claim upon which relief can be granted.” A dismissal under Rule 12(b)(6) may be based on 8 the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a 9 cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 10 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A complaint must contain a “short and plain statement of the claim showing that the pleader is United States District Court Northern District of California 11 12 entitled to relief” to give the defendant “fair notice” of what the claims are and the grounds upon 13 which they rest. See Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 14 (2007). A complaint does not need detailed factual allegations, but “a plaintiff’s obligation to 15 provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a 16 formulaic recitation of the elements of a cause of action will not do. Factual allegations must be 17 enough to raise a claim for relief above the speculative level . . . .” Twombly, 550 U.S. at 555 18 (internal citations omitted). 19 To survive a motion to dismiss, a complaint must contain sufficient factual allegations, 20 accepted as true, “‘to state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 21 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when 22 the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 23 defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a 24 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 25 29 Mot. – ECF No. 10. 30 Order – ECF No. 15. 27 31 Id. 28 32 Opp’n to Mot. to Dismiss – ECF No. 17. 26 ORDER – No. 17-cv-01563-LB 4  1 unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are 2 ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and 3 plausibility of ‘entitlement to relief.’’” Id. (quoting Twombly, 550 U.S. at 557). 4 If a court dismisses a complaint, it should give leave to amend unless the “the pleading could 5 not possibly be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. Northern 6 California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990). 7 ANALYSIS 8 9 1. First Amendment Claim Mr. Parker asserts a “violation of civil rights” and later says that the defendants “violated his 10 United States District Court Northern District of California 11 right to free speech.”33 The city moves to dismiss the claim because it was only enforcing its 12 municipal code, which requires permits for certain signs, and Mr. Parker does not allege any facts 13 “to show that the city removed his signs for an improper or unlawful purpose.”34 The court is not convinced that the complaint is so devoid of improper-purpose allegations. 14 15 Contrary to the city’s assertions, Mr. Parker does allege facts supporting the conclusion that it 16 removed his signs for an improper purpose. He alleges that: (1) he was protesting at the time of the 17 incident, (2) police officers asked him to cover the word “NIGGER,” (3) he received a citation two 18 days after uncovering it, (4) a municipal employee told him that he would never receive a permit 19 for his signs, (5) police officers told him to take down the signs, and (6) when he continued to 20 display the signs, they were removed by police officers and “unknown persons.” These allegations 21 may support a theory of retaliation or censorship. See Ariz. Students Ass’n v. Ariz. Bd. of Regents, 22 824 F.3d 858, 867 (9th Cir. 2016); R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (noting that 23 content-based limits on expression are “presumptively invalid”). The Supreme Court has 24 emphasized that residential signs are a significant and affordable means of disseminating protected 25 26 27 33 Compl. ¶¶ 5k, 5m. 28 34 Mot. at 5 (emphasis omitted). ORDER – No. 17-cv-01563-LB 5  1 speech. See City of Ladue v. Gilleo, 512 U.S. 43, 54 (1994) (holding residential-sign ordinance 2 unconstitutional). The problem, however, is that Mr. Parker inadequately identifies the legal theory supporting 3 4 his claim. It is unclear, for example, if he is challenging (1) the city’s request to cover the word 5 “NIGGER,” (2) the citations, (3) the refusal to issue permits, (4) the removal of his signs, or 6 (5) the municipal permit requirement, generally — and if so, for its unequal or improper 7 application, any content-based impacts, or its financial burden. This is important because the 8 complaint must give adequate notice of the claim for the defendant to have a chance to respond. 9 Twombly, 550 U.S. at 555. In his opposition, Mr. Parker appears to clarify his theory, and adds supporting factual 10 United States District Court Northern District of California 11 allegations. For example, he says: (1) his signs should have been exempt under PMC 12 19.12.040(N), which exempts noncommercial signs; (2) Rojas informed him that a permit would 13 cost $900, an “exorbitant amount”; and (3) Chief Brian Addington and Captain Ron Raman 14 “clearly stated” that the court order was granted to remove his signs because “some of the 15 language and/or the message it contained was offensive.”35 These allegations suggest possible 16 challenges to the city’s enforcement of the permit requirement, or, potentially, to the permit 17 requirement itself (i.e. because it is overbroad and burdensome).36 See, e.g., Berger v. City of 18 Seattle, 569 F.3d 1029, 1037–40 (9th Cir. 2009) (holding municipal permit requirement 19 unconstitutional). But he cannot raise these new theories and facts in his opposition. See Nat’l Union of 20 21 Healthcare Workers v. Kaiser Foundation Health Plan, Inc., No. 10-CV-03686-WHA, 2013 WL 22 1616103, at *5 (N.D. Cal. Apr. 15, 2013) (“[T]he opposition is not the proper arena in which to 23 raise a critical new legal theory. [The plaintiff] should have addressed this proposition in the 24 complaint . . . .”); Patino v. Franklin Credit Mgmt. Corp., No. 16-CV-02695-LB, 2016 WL 25 35 26 Opp’n at 2. 36 27 28 The court grants the city’s request for judicial notice (ECF No. 11) of sections 19.08.010 through 19.08.050 of the Pittsburg Municipal Code. Its argument, on reply, that section 19.12.040 is irrelevant because it merely enforced the permitting requirement in section 19.08.010 is not persuasive. Section 19.08.010 explicitly excludes signs exempt under section 19.12.040 from the permit requirement. ORDER – No. 17-cv-01563-LB 6  1 4549001, at *7 (N.D. Cal. Aug. 29, 2016) (“The court . . . cannot consider material outside of the 2 complaint.”). He must include these in the complaint. 3 The court therefore dismisses Mr. Parker’s First Amendment claim but grants him leave to 4 amend, so that he can add these — and any additional — legal theories and factual allegations. 5 6 2. Fourth/Fourteenth Amendment Claim 7 Mr. Parker’s second claim reads: “Violation of Civil Rights (4th and 14th Amendments/42 8 U.S.C. § 1983).”37 The city argues that the complaint “fails to allege facts to establish how the 9 removal of [the] signs was unreasonable or otherwise forms a basis for an unlawful seizure claim.”38 Mr. Parker does not address and arguably concedes this point. See, e.g., Jibreel v. Hock 11 United States District Court Northern District of California 10 Seng Chin, No. 13-CV-03470 LB, 2014 WL 12600278, at *5 (N.D. Cal. Apr. 17, 2017) 12 (compiling cases). 13 In any event, Mr. Parker does not allege facts to support a plausible claim. He alleges that the 14 police officers took his signs pursuant to a court order, which he attaches to his complaint.39 That 15 court order — a warrant signed by a California Superior Court judge — authorized the “remov[al] 16 [of] the temporary obscene/vulgar sign, in accordance with Pittsburg Municipal Code Chapter 17 19.04.”40 In his opposition, Mr. Parker asserts he does not believe that his signs are obscene, 18 potentially casting doubt on the authority of the warrant for removal of “obscene” or “vulgar” 19 signs.41 Even so, he does not allege the warrant was improper or not supported by probable cause 20 in the complaint. 21 22 23 24 37 Compl. ¶ 5k. 38 Mot. at 6. 39 Compl. ¶ 5j; id. at 10. 27 40 Id. at 10 (emphasis omitted). 28 41 Opp’n at 3. 25 26 ORDER – No. 17-cv-01563-LB 7  1 Mr. Parker also alleges that the police harmed his property in the process of removing his 2 signs.42 The complaint, however, is silent as to any property beyond the removed signs. This 3 allegation does not provide notice as to the nature of Mr. Parker’s claim. The city also requests dismissal of a due process claim.43 Section 1983 “‘is not itself a source 4 5 of substantive rights,’ but merely provides “‘a method for vindicating federal rights elsewhere 6 conferred.’” Albright v. Oliver, 510 U.S. 266, 271 (1994). Here, Mr. Parker identifies his infringed 7 constitutional right as that protected by the Fourth Amendment, and the court reviews such, in lieu 8 of a general due process claim. Mr. Parker’s complaint fails to state a claim for a violation of the Fourth Amendment. The 9 10 court dismisses the Fourth Amendment claim without prejudice. United States District Court Northern District of California 11 12 3. Monell Claim The complaint alleges civil rights claims against the city and the Pittsburg Police 13 14 Department.44 The assignment of municipal liability can only be achieved using the framework 15 established in Monell v. Dep’t of Soc. Svcs., 436 U.S. 658 (1978). Therefore, the court considers 16 the sufficiency of the claims under the standard in Monell. The city argues that the complaint’s 17 allegations are insufficient in this regard. Mr. Parker does not address this issue. Liability against a government entity starts from the premise that there is no respondeat 18 19 superior liability under § 1983; i.e., no entity is liable simply because it employs a person who has 20 violated a plaintiff’s rights. See, e.g., Monell, 436 U.S. at 691; Taylor v. List, 880 F.2d 1040, 1045 21 (9th Cir. 1989). Local governments can be sued directly under § 1983 only if the public entity 22 maintains a policy or custom that results in a violation of the plaintiff’s constitutional rights. 23 Monell, 436 U.S. at 690–91. To impose Monell entity liability under § 1983 for a violation of 24 constitutional rights, a plaintiff must show that: (1) the plaintiff possessed a constitutional right of 25 26 42 Compl. ¶ 5j. 27 43 Mot. at 6–7. 28 44 Compl. ¶ 1. ORDER – No. 17-cv-01563-LB 8  1 which he or she was deprived; (2) the municipality had a policy; (3) this policy amounts to 2 deliberate indifference to the plaintiff’s constitutional rights; and (4) the policy is the moving force 3 behind the constitutional violation. See Plumeau v. School Dist. # 40 County of Yamhill, 130 F.3d 4 432, 438 (9th Cir. 1997). The Ninth Circuit has explained how a policy may be proved: 5 6 7 8 There are three ways to show a policy or custom of a municipality: (1) by showing “a longstanding practice or custom which constitutes the ‘standard operating procedure’ of the local government entity;” (2) “by showing that the decisionmaking official was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision;” or (3) “by showing that an official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate.” 9 Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (quoting Ulrich v. City and Cnty. of 10 San Francisco, 308 F.3d 968, 984-85 (9th Cir. 2002)). The practice or custom must consist of 11 United States District Court Northern District of California more than “random acts or isolated events” and instead, must be the result of a “permanent and 12 well-settled practice.” Thompson v. City of Los Angeles, 885 F.2d 1439, 1443–44 (9th Cir. 1988) 13 overruled on other grounds by Bull v. City and Cnty. of San Francisco, 595 F.3d 964 (9th Cir. 14 2010); see City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). Thus, “a single incident of 15 unconstitutional activity is not sufficient to impose liability under Monell unless” there is proof 16 that the incident “was caused by an existing, unconstitutional municipal policy . . . .” City of 17 Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985). 18 Here, as noted above, Mr. Parker’s legal theories are unclear. The court points out, however, 19 that whatever theory he intends — e.g. retaliation based on prior litigation, the removal of his 20 signs for content, or the permit requirement for signs — he has not adequately pled a custom or 21 policy to claim liability against the city. In any future amended complaint alleging Monell 22 liability, Mr. Parker must present factual allegations that establish the existence of a policy or 23 custom. 24 Mr. Parker’s complaint fails to state a Monell claim. The court dismisses his claims against the 25 city without prejudice. 26 27 28 ORDER – No. 17-cv-01563-LB 9  CONCL USION 1 2 Mr. Parker’s complaint fails to state any claims, and the court dismisse the complaint without t es 3 prejudice and with leave to amend. He must file an amended complaint w o ny within 28 day from the ys 4 date of this order. 5 IT IS SO ORDERED. . 6 Dated: July 13, 2017 __ __________ ___________ __________ ________ L AUREL BEELER United States Magistrate Ju udge 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER – No. 17-cv-01563-LB 10

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?