Sullivan et al v. Bay Area Rapid Transit

Filing 83

ORDER RE 62 67 MOTIONS TO DISMISS by Judge Alsup. (whalc1, COURT STAFF) (Filed on 1/19/2018)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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CLARK SULLIVAN, JAMES BLAIR, TOAN
NGUYEN, ARIKA MILES, and ADAM
BREDENBERG,

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No. C 17-06051 WHA

Plaintiffs,
v.

ORDER RE
MOTIONS TO DISMISS

CITY OF BERKELEY, and SAN FRANCISCO
BAY AREA RAPID TRANSIT DISTRICT,
Defendants.
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INTRODUCTION
In this action for violation of statutory and constitutional rights, defendants BART and

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the City of Berkeley move to dismiss pursuant to FRCP 12(b)(1) and 12(b)(6). For the reasons

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herein, BART’s motion is GRANTED and Berkeley’s motion is GRANTED IN PART.

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STATEMENT

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Plaintiffs are members of an “intentional community of homeless Berkeley residents”

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that refer to themselves as “First They Came for the Homeless” or FTCftH. Since forming in

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2015, the group has been removed from several locations in Berkeley, including from twelve

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locations between October 2016 and January 2017 alone. These removals were carried out in

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the early morning by Berkeley police, who seized and threw away property that the group could

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not carry or otherwise left behind. Plaintiffs allege that during these removals, the disabilities

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of the group’s members were not evaluated or accommodated. They also generally allege that

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members of the group “have been cited, arrested, or jailed for sleeping in public” (Amd. Compl.

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¶¶ 13–17, 49, 54–62).

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As of October 2017, the group had lived on land west of the BART tracks on the

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Berkeley/Oakland border for approximately ten months. The parcel of land occupied by the

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encampment — known as the “Here/There” encampment due to its proximity to an art

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installation with signs reading “HERE” and “THERE” — belonged to defendant San Francisco

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Bay Area Rapid Transit District (“BART”) (Amd. Compl. ¶¶ 19–21).

an eviction in seventy-two hours. BART police also posted a second notice at the encampment

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For the Northern District of California

On October 21, BART police served a trespass notice which stated that it would enforce

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United States District Court

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informing residents that they were violating California Penal Code Section 647(e), and

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commanding them to leave immediately (Amd. Compl. ¶¶ 71–73).

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On October 23, three pro se plaintiffs, Clark Sullivan, James Blair, and Toan Nguyen

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filed this lawsuit and moved for a temporary restraining order to enjoin their removal from the

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Here/There encampment. A hearing on the TRO was set for October 24. At the hearing,

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attorneys Dan Siegel and EmilyRose Johns appeared on behalf of plaintiffs. With the

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acquiescence of BART, an order temporarily enjoined the removal of the encampment in order

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to give counsel for both parties an opportunity to brief the issues, and set a new hearing for

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October 31 (Dkt. Nos. 1–2, 11, 13).

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On October 25, BART police, with the assistance of Berkeley police, removed a

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different, nearby encampment whose members had no part in this suit. Afterward, BART and

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Berkeley workers removed all property remaining at that camp and discarded it into dumpsters

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(Amd. Compl. ¶¶ 78–79).

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On October 26, plaintiffs, through counsel, filed an amended complaint, also against

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defendants BART and the City of Berkeley. It alleged violations of the Americans with

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Disabilities Act, as well as violations of the First, Fourth, Eighth, and Fourteenth Amendments.

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The amended complaint — now the operative pleading — sought relief on behalf of a putative

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class of present and future residents of the FTCftH encampment. Also on October 26, plaintiffs
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filed a motion for preliminary relief based upon the alleged constitutional violations. An order

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dated October 31 denied plaintiffs’ request, finding that they had not shown a likelihood of

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success on the merits of their Eighth, Fourth or Fourteenth Amendment claims, or even raised

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serious questions going to the merits (Dkt. Nos. 22–23, 55).

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Defendants Berkeley and BART have now filed separate motions to dismiss under

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FRCP 12(b)(1) and 12(b)(6) (Dkt. Nos. 62, 67). Plaintiffs oppose. This order follows full

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briefing and oral argument.

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1.

FRCP 12(b)(1).

On a motion to dismiss, “general factual allegations of injury resulting from the

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For the Northern District of California

United States District Court

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ANALYSIS

defendant’s conduct may suffice.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

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When standing is challenged under FRCP 12(b)(1), the inquiry is much like a FRCP 12(b)(6)

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analysis, with the caveat that “[w]here jurisdiction is intertwined with the merits, we must

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assume the truth of the well-pled allegations in a complaint unless controverted by undisputed

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facts in the record”; unlike a FRCP 12(b)(6) analysis, it is appropriate to refer to extrinsic facts

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for the FRCP 12(b)(1) analysis. Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139

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(9th Cir. 2003) (internal quotations omitted).

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In general, a case becomes moot “when the issues presented are no longer live or the

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parties lack a legally cognizable interest in the outcome.” Public Utilities Comm’n of State of

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California v. FERC, 100 F.3d 1451, 1458 (9th Cir. 1996) (internal quotes and citations

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omitted). “In determining whether a request for declaratory relief ha[s] become moot . . .

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basically, the question in each case is whether the facts alleged, under all the circumstances,

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show that there is a substantial controversy, between parties having adverse legal interests, of

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sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Ibid.

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Defendants both argue that this action lacks a present case or controversy.

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A.

BART.

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The uncontested declaration of Lance Haight, a Police Officer with BART, establishes

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that plaintiffs vacated the land adjacent to the BART tracks (Dkt. No. 63 at 2). Plaintiffs also
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acknowledge they are no longer living on BART-owned property (Dkt. No. 72 at 8).

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Plaintiffs contend, however, that their claims against BART may proceed because plaintiffs

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are likely to remain homeless and to camp on BART-owned property in the future. But even

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assuming that plaintiffs have sufficiently alleged that they are likely to remain homeless and

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reside on public (or seemingly-public) land, the allegations in the amended complaint do not

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plausibly suggest that such land would be owned by BART. The former location of the

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Here/There encampment has since been fenced off, and the amended complaint fails to identify

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other BART-owned property in Berkeley where plaintiffs may reside in the future. Nor do

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plaintiffs even allege a desire to camp on BART-owned property.
Because the record fails to show that plaintiffs are likely to have another encounter with

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For the Northern District of California

United States District Court

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BART such that BART will again attempt to remove plaintiffs from its property, this case lacks

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an actual controversy as to BART. See City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983).

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This case is distinguishable from Evers v. Dwyer, 358 U.S. 202 (1958). There, the Supreme

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Court held there was an actual controversy where the “the resident of a municipality [could not]

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use transportation facilities therein without being subjected” to the challenged statute. Id. at

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204. Here, plaintiffs fail to demonstrate to a similar certainty that they will be subjected to

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BART’s challenged policies and practices in the future. Accordingly, BART’s motion to

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dismiss pursuant to FRCP 12(b)(1) is GRANTED.1

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B.

City of Berkeley.

Berkeley similarly contends that the amended complaint fails to demonstrate an actual

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case or controversy. Not so. Plaintiffs allege that they are homeless residents of Berkeley and

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that Berkeley does not have sufficient resources to house its homeless residents. Indeed, they

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allege that of the nearly two thousand people screened for services between January 2016 and

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January 2017, Berkeley housed only forty-six individuals and placed fifty-nine others into

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Because this order finds that plaintiffs’ claims are moot as to BART, it does not reach BART’s
alternative arguments that plaintiffs have failed to allege injury-in-fact and have failed to state a claim under
FRCP 12(b)(6). It bears mentioning, however, that plaintiffs concede that as currently pleaded, the amended
complaint fails to state a claim against BART (Dkt. No. 72 at 9). BART’s motion to dismiss under
FRCP 12(b)(6) and its request for judicial notice are accordingly DENIED AS MOOT.

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shelters and transitional housing. These allegations plausibly suggest that plaintiffs will remain

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homeless and unsheltered in Berkeley for the foreseeable future.

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Moreover, the amended complaint alleges that FTCftH has been targeted for removal

encampment it has established, and that the group was removed from twelve locations between

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October 2016 and January 2017 alone. The amended complaint further alleges that when

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Berkeley performs such removals, it does so without sufficient notice or adequate procedures to

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protect residents’ property (Amd. Compl. ¶¶ 49–58). This is sufficient at the pleading stage to

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demonstrate a likelihood that plaintiffs will have future encounters with Berkeley police and

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city workers, and that such encounters will cause them injury. Berkeley’s motion to dismiss

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For the Northern District of California

from public spaces in Berkeley since 2015, that the group has been removed from each

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United States District Court

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pursuant to FRCP 12(b)(1) is therefore DENIED.

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2.

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A complaint must plead “enough facts to state a claim to relief that is plausible on its

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face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has facial plausibility

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when its factual allegations, rather than mere conclusory statements, create the reasonable

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inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009).

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FRCP 12(b)(6).

A.

Americans with Disabilities Act Claim.

Title II provides that “no qualified individual with a disability shall, by reason of such

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disability, be excluded from participation in or be denied the benefits of the services, programs,

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or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C.

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§ 12132. In order to state a claim under Title II, a plaintiff must therefore allege four elements:

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(1) he is an individual with a disability; (2) he “is otherwise qualified to participate in or receive

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the benefit of some public entity’s services, programs, or activities”; (3) he was either excluded

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from participation in or denied the benefits of a public entity’s services, programs, or activities,

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or was otherwise discriminated against by the public entity; and (4) such exclusion, denial

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of benefits, or discrimination was by reason of his disability. McGary v. City of Portland,

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386 F.3d 1259, 1265 (9th Cir. 2004) (internal quotes and citations omitted).
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The parties agree that only one named plaintiff, Clark Sullivan, is alleged to be a

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qualified individual with a disability. Berkeley contends, however, that the amended complaint

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fails to allege facts indicating that Berkeley has acted “by reason of” Sullivan’s disability.

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Even if the City had a facially neutral policy prohibiting people from blocking a sidewalk,

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Berkeley argues, enforcement of that policy would not show an intent to discriminate “even if

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persons with disabilities would need more time to move off of the sidewalk” (Dkt. No. 79 at 3).

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This argument is foreclosed by McGary, where our court of appeals held that a plaintiff

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sufficiently alleged that he was discriminated against “by reason of” his disability where a

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facially neutral policy burdened him in a manner “different from and greater than it burdened
non-disabled residents.” McGary, 386 F.3d at 1265. In so holding, McGary explained that our

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court of appeals has “repeatedly recognized that facially neutral policies may violate the ADA

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when such policies unduly burden disabled persons, even when such policies are consistently

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enforced.” Ibid.

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The amended complaint fails, however, to adequately allege that Sullivan requested

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assistance from Berkeley or, relatedly, that Sullivan was “denied the benefits of a public entity’s

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services, programs, or activities.” To be sure, ADA claims may arise in the context of a public

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entity’s failure to provide a reasonable accommodation despite knowledge that an individual

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needed it in order to enjoy meaningful access to a benefit. See, e.g., Mark H. v. Hamamoto,

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620 F.3d 1090, 1097 (9th Cir. 2010). But while the amended complaint alleges that Sullivan is

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in a wheelchair and was never offered assistance in moving his property or getting his property

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back, it fails to allege whether Berkeley knew that Sullivan needed these particular

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accommodations in connection with any eviction (Amd. Compl. ¶¶ 55–56).

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Although the amended complaint contains allegations regarding a former group

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member’s request for accommodations, no such allegations are found with respect to Sullivan.

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Moreover, plaintiffs’ general allegation that “disabilities are not evaluated or accommodated,

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despite some residents having known or visible disabilities,” is insufficient to show how

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Sullivan was “excluded from participation in or denied the benefits of a public entity’s services,

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programs, or activities, or was otherwise discriminated against by the public entity.” Berkeley’s

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motion to dismiss plaintiffs’ ADA claim is therefore GRANTED.

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B.

Fourth and Fourteenth Amendment Claims.

Under the Fourteenth Amendment, homeless individuals are entitled to meaningful

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notice and an opportunity to be heard before their unabandoned property is seized and

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destroyed. Lavan v. City of Los Angeles, 693 F.3d 1022, 1032 (9th Cir. 2012). Plaintiffs’

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property is also entitled to Fourth Amendment protections. Id. at 1030–31. A “seizure” of

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property under the Fourth Amendment occurs when there is “some meaningful interference with

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an individual’s possessory interests in that property.” Id. at 1027.
Berkeley argues that plaintiffs’ claims under the Fourth and Fourteenth Amendments are

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foreclosed by allegations in the amended complaint that plaintiffs received notice prior to the

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City’s removal of their encampments. To the contrary, although plaintiffs allege that the City

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provided notice in advance of some evictions, they also allege that in other instances no notice

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was provided at all. Plaintiffs also allege that during each eviction, the City disposed of

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property that could not be carried from the encampment, including unattended tents and

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clothing. Moreover, plaintiffs allege that when the City collects property after an eviction, it

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makes no effort to give residents receipts for what is taken, inventory what is collected, or store

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property in a manner that protects it from the elements (Amd. Compl. ¶¶ 16–17, 50, 53, 58,

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60–62). By alleging that the City collects and stores property without notice, and in a way that

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does not allow plaintiffs to retrieve it in a usable condition (or at all), the amended complaint

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plausibly suggests that Berkeley unreasonably seized property in violation of the Fourth

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Amendment and failed to comport with due process.

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The amended complaint, however, only alleges that plaintiffs Sullivan and Bredenberg

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have been subjected to Berkeley’s conduct. In particular, while the amended complaint

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describes twelve evictions between October 2016 and January 2017, plaintiffs Blair, Nguyen

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and Miles did not join FTCftH until after these evictions took place. And notably, only

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Sullivan and Bredenberg allege that they lost property as a result of Berkeley’s conduct (Amd.

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Compl. ¶¶ 35–37, 49, 61). Accordingly, only Sullivan and Bredenberg adequately allege claims
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under the Fourth and Fourteenth Amendments. Berkeley’s motion to dismiss those claims is

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DENIED. Berkeley’s motion to dismiss plaintiffs Miles, Blair, and Nguyen’s Fourth and

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Fourteenth Amendment claims, however, is GRANTED.

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C.

First Amendment Claim.

Plaintiffs Sullivan and Bredenberg also allege facts sufficient to survive a motion to

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dismiss their First Amendment retaliation claim. To bring such a claim, a plaintiff must allege:

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(1) that he engaged in constitutionally protected activity; (2) that the defendants’ actions would

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“chill a person of ordinary firmness” from continuing to engage in the protected activity; and

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(3) that the protected activity was a substantial or motivating factor in the defendant’s conduct.

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O’Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016).
Berkeley does not dispute that FTCftH has engaged in constitutionally protected activity

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since its creation in 2015. Nor does Berkeley contest that its alleged conduct in repeatedly

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removing the encampment from various locations in the City would “chill a person of ordinary

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firmness” from continuing to engage in political speech. Rather, Berkeley contends that the

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amended complaint fails to adequately allege causation, and that the City’s desire to chill free

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speech must be the “but-for cause” of its conduct.

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In support of its argument, Berkeley cites Dietrich v. John Ascuaga’s Nugget, 548 F.3d

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892, 900–01 (9th Cir. 2008), in which the plaintiff claimed that her publication of a newspaper

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article led to police officers issuing her a traffic citation. Our court of appeals held that in order

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to demonstrate retaliation in violation of the First Amendment, the plaintiff had to “ultimately

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prove that [Defendants’] desire to cause the chilling effect was a but-for cause of [Defendants’]

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action.” Ibid. In support of this standard, Dietrich cited to Skoog v. Cty. of Clackamas,

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469 F.3d 1221, 1231–32 (9th Cir. 2006), which in turn relied on Mendocino Environmental

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Center v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999). In Mendocino, however,

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our court of appeals stated that the desire to chill a plaintiff’s speech need only be “a substantial

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or motivating factor” in the defendant’s conduct. Ibid. In any event, whether plaintiffs are

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ultimately required to prove a “but-for cause” or a “substantial or motivating factor,” Sullivan

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and Bredenberg have met their burden at this stage of the proceedings.
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The amended complaint adequately alleges that Berkeley targeted FTCftH for evictions

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in harsh winter months based on the content of the group’s speech and its political engagement.

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In particular, plaintiffs allege that the group publicly opposed Berkeley’s response to the City’s

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homelessness crisis, including by establishing themselves in prominent places near

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administrative buildings, writing op-eds, and attending City Council meetings. In response to

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the group’s criticisms, Berkeley allegedly began an aggressive campaign of evictions that

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included removing the group from twelve locations between October 2016 and January 2017

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alone (Amd. Compl. ¶¶ 41–43, 48–49).

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That Sullivan and Bredenberg later remained at the Here/There encampment (on BART
property) for upwards of ten months without being removed by the City does not negate the

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reasonable inference that the City intended to chill the group’s political speech, at least not at

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the pleading stage. Berkeley’s motion to dismiss Sullivan and Bredenberg’s retaliation claims

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is therefore DENIED.

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By contrast, because plaintiffs Miles, Blair and Nguyen did not join the encampment

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until 2017, the amended complaint fails to demonstrate how they engaged in the protected

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activity or were subjected to the City’s allegedly retaliatory conduct. Berkeley’s motion to

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dismiss plaintiffs Miles, Blair, and Nguyen’s First Amendment claims is accordingly

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GRANTED.

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D.

Eighth Amendment Claim.

Finally, plaintiffs challenge Berkeley’s enforcement of California Penal Code

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Section 647(e) under the Eighth Amendment. Section 647(e) makes it a misdemeanor to

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“lodge[] in any building, structure, vehicle, or place, whether public or private, without the

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permission of the owner or person entitled to the possession or in control of it.”

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The Eighth Amendment prohibits the imposition of cruel and unusual punishment.

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While generally applied to conditions of post-conviction incarceration, the Eighth Amendment

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also “imposes substantive limits on what can be made criminal and punished as such,” though

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this application should be employed “sparingly.” Ingraham v. Wright, 430 U.S. 651, 667

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(1977). Laws subjecting individuals to punishment, not for a particular action, but for their
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condition of being, are unacceptable under the Eighth Amendment. Robinson v. California,

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370 U.S. 660, 678 (1962).

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In a non-binding decision, our court of appeals recognized that an ordinance prohibiting

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sitting, lying or sleeping “in or upon any street, sidewalk or other public way” in Los Angeles

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was unconstitutional as applied to the homeless. Jones v. City of Los Angeles, 444 F.3d 1118,

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1138 (9th Cir. 2006), vacated by settlement, 505 F.3d 1006 (9th Cir. 2007). There, the record

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established that at the time the defendants cited or arrested the homeless, they had no choice

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other than to be on the streets. Id. at 1137. The appellate court stressed that it was not

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confronted with a facial challenge to the statute. Id. at 1138.
Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1992) (Judge Carl Atkins), is

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also instructive. There, the District Court for the Southern District of Florida determined that

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because of the unavailability of low-income housing or alternative shelter, the plaintiffs had no

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choice but to conduct involuntary, life-sustaining activities in public places. Id. at 1564. It

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therefore found that the conduct the plaintiffs were arrested for was “inseparable from their

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involuntary condition of being homeless,” and that so long as the plaintiffs “[did] not have a

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single place where they [could] lawfully be, the challenged ordinances, as applied to them,

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effectively punish[ed] them for something for which they may not be convicted under the eighth

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amendment — sleeping, eating and other innocent conduct.” Id. at 1564–65.

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Here, as in Jones and Pottinger, the amended complaint plausibly suggests that plaintiffs

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have no choice but to sleep, eat, and otherwise live in Berkeley’s public spaces. It fails,

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however, to demonstrate that Berkeley has, in effect, criminalized the status of being homeless

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through the enforcement of Section 647(e). Notably, plaintiffs fail to allege that Section 647(e)

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has been enforced as to any plaintiff. Although plaintiffs argue in their opposition that “they

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are subject to the criminal process through enforced evictions, citations, and arrest at the hands

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of Berkeley police,” factual allegations to that effect are not found in the amended complaint.

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At most, plaintiffs allege that other members of their group have been arrested for

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violations of Section 647(e), and that members of the group risk arrest due to the “vague

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language of the statute” (Amd. Compl. ¶ 74). While they further allege that Berkeley has
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sought to “criminalize the condition of being homeless,” nothing connects these allegations to

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the City’s enforcement of Section 647(e) (Amd. Compl. ¶¶ 8, 14). The amended complaint fails

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to allege, for example, that in removing plaintiffs from previous encampments, Berkeley

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(as opposed to BART) did so under threat of arrest or citation under that statute. And although

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not binding on this Court, Cobine v. City of Eureka, 250 F. Supp. 3d 423 (N.D. Cal. 2017) is

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distinguishable. There, the plaintiffs were explicitly told that if they failed to vacate their

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encampment, they would be prosecuted under the challenged ordinance. Id. at 428.

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GRANTED.
E.

Monell Liability.

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Berkeley’s motion to dismiss plaintiffs’ Eighth Amendment claim is accordingly

Berkeley contends that, for each of their constitutional claims, plaintiffs fail to allege

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that the violations resulted from policies or customs as required by Monell v. New York City

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Dep’t of Soc. Servs., 436 U.S. 658 (1978). Under Monell, a municipality may be liable when a

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municipal policy causes an employee to violate another’s constitutional right. Id. at 690–91.

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A plaintiff can establish a Monell claim by, among other things, “showing a longstanding

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practice or custom which constitutes the standard procedure of the local governmental entity.”

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Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005). The practice or custom must

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consist of more than “isolated or sporadic incidents” and instead “must be founded upon

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practices of sufficient duration, frequency and consistency that the conduct has become a

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traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).

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Here, the only constitutional claims that remain are Sullivan and Bredenberg’s claims

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under the First, Fourth and Fourteenth Amendments. The amended complaint describes at least

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twelve instances in which Berkeley removed Sullivan and Bredenberg from their encampment

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and either (1) disposed of or improperly stored their property, including tents, sleeping bags,

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and winter coats, without sufficient due process, or (2) targeted them because of their political

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engagement. Construed in the light most favorable to plaintiffs, these allegations raise a

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plausible inference that Berkeley has a practice or custom of such conduct.

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Berkeley again contends that because plaintiffs lived at the Here/There encampment for

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at least ten months without removal by the City, Berkeley necessarily lacks a policy of

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removing unsheltered homeless residents from public spaces. This argument ignores, however,

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that the Here/There encampment was on BART property, not City property. Nor does the

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failure to allege that Berkeley specifically denied Sullivan and Bredenberg shelter prevent them

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from pleading Monell liability. Again, the amended complaint alleges that of the nearly two

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thousand individuals who sought shelter through the City’s program, less than one hundred

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individuals received it. Moreover, the practices at issue in the amended complaint relate to

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Berkeley’s removal of homeless residents in violation of the Constitution, not to the denial of
services. The amended complaint therefore sufficiently alleges that there is a policy or practice

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of evicting homeless residents in violation of Fourth, Fourteenth and First Amendments.

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CONCLUSION
For the foregoing reasons, BART’s motion to dismiss pursuant to FRCP 12(b)(1) is

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GRANTED. Berkeley’s motion to dismiss pursuant to FRCP 12(b)(1) is DENIED and its motion

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to dismiss pursuant to FRCP 12(b)(6) is GRANTED IN PART AND DENIED IN PART. Plaintiffs

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may seek leave to amend and will have 21 CALENDAR DAYS from the date of this order to file a

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motion, noticed on the normal 35-day track, for leave to file an amended complaint. A

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proposed amended complaint must be appended to the motion and plaintiffs must plead their

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best case. Not only as to the shortfalls expressly addressed in this order but also as to all other

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arguments raised in BART and Berkeley’s motions. Any such motion should clearly explain

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how the amendments to the complaint cure the deficiencies identified herein.

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IT IS SO ORDERED.

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Dated: January 19, 2018.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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