Washington v. Keegan

Filing 28

ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND granting 20 Motion to Dismiss. (Illston, Susan) (Filed on 1/19/2023)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

Case 3:22-cv-03028-SI Document 28 Filed 01/19/23 Page 1 of 7

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JASON LEVETTE WASHINGTON,

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Plaintiff,

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United States District Court
Northern District of California

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Case No. 22-cv-03028-SI
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.
M. KEEGAN, et al.,

Re: Dkt. No. 20

Defendants.

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Before the Court is defendants Keegan and Abrams’ motion to dismiss the complaint. Dkt.

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No. 20. Plaintiff has not opposed the motion. See Dkt. No. 26. For the reasons set forth below, the

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motion to dismiss is GRANTED. Further, pursuant to 28 U.S.C. § 1915, the Complaint is

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DISMISSED against all defendants, with leave to amend on or before February 20, 2023.

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BACKGROUND

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Plaintiff Jason Levette Washington filed the instant lawsuit pro se on May 23, 2022. Dkt.

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No. 1. The complaint names as defendants M. Keegan and K. Abrams (hereafter the “Deputies”),

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who are deputies in the Alameda County Sheriff’s Department; the Alameda County Superior Court;

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several Doe defendants, who are alleged to be employees of the Sheriff’s Department; Qing C. Li,

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who appears to be plaintiff’s former landlord; and Yassa Goba Washington, a Mr. Olsen, and a Mr.

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Hewison, none of whom are described in the Complaint. Dkt. No. 1; see Dkt. No. 20 (identifying

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Keegan and Abrams as deputies); Dkt. No. 20-1 at 11 (identifying Qing Cheng Li as landlord in

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unlawful eviction case).

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Plaintiff alleges employees of the Alameda County Sheriff’s Department unlawfully

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removed from him from 5609 Foothill Boulevard in Oakland, California, where he operated a youth

United States District Court
Northern District of California

Case 3:22-cv-03028-SI Document 28 Filed 01/19/23 Page 2 of 7

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ministry. Id. ¶¶ 1–11. Plaintiff alleges the defendants “forcefully opened the door” and held it open,

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refused to show him paperwork, grabbed him “with force,” placed him under arrest, “forcefully

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placed [him] in the rear of a vehicle,” and held him in custody for 34 hours before releasing him.

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Dkt. No. 1 ¶¶ 8–18. Plaintiff alleges Qing C. Li changed the locks while plaintiff was restrained.

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Id. ¶ 19.

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The complaint does not allege specific actions by any of the defendants except for the

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Deputies and Defendant Li, although it makes vague allegations that plaintiff has been “harassed,

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oppressed, and assaulted” by government entities and that “multiple civil entities” are engaged in a

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“coordinated predisposition” against plaintiff. Dkt. No. 1 ¶¶ 21–22. Plaintiff incorporated a link to

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a YouTube video in his complaint; however, at the time of writing that video was no longer

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available. See id. ¶ 8.

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Plaintiff brings claims against all defendants for “Deprivation of Civil Rights” under 42

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U.S.C. § 1983, for neglect under 42 U.S.C. § 1986, for “deprivation of rights under color” under 18

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U.S.C. § 242, for “conspiracy against rights” under 18 U.S.C. § 241, for aggravated kidnapping, and

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for false arrest. Id. at 9. He also brings claims for assault against the Deputies and the Doe

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defendants. Id.

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The case was initially assigned to a magistrate judge, who granted plaintiff’s motion to

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appear in forma pauperis and ordered that the U.S. Marshals Service serve the defendants. Dkt. No.

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6. Only the Deputies and the Alameda County Superior Court have been served; it is not clear

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whether plaintiff has responded to a letter requesting address information for the other defendants.

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Dkt. No. 7 (service); Dkt. No. 8 (letter to plaintiff).

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The Deputies moved to dismiss on December 1. Dkt. No. 20. Plaintiff has not responded
to their motion. See Dkt. No. 26.

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The Deputies argue that plaintiff’s complaint is an attempt to relitigate his lawful eviction

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through the Alameda County Superior Court. Dkt. No. 20 at 11. The Court takes judicial notice of

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public records showing that Qing Chen Li brought a complaint for unlawful detainer in the Alameda

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County Superior Court for the premises located at 5609 Foothill Boulevard in Oakland, California,

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Case 3:22-cv-03028-SI Document 28 Filed 01/19/23 Page 3 of 7

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and obtained a default judgment on December 8, 2022.1 Dkt. No. 20-1 at 11–12; Li v. New

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Beginnings Int’l Ministry et al., No. RG21113099 (Super. Ct. Alameda Cnty., Nov. 11, 2021); see

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Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir.1988) (“In addition to the complaint, it

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is proper for the district court to ‘take judicial notice of matters of public record outside the

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pleadings’ and consider them for purposes of the motion to dismiss.”). Mr. Washington was not

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named in the complaint, but the judgment applied “to all occupants of the premises.” Id. A writ of

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possession was issued on December 9. Id. at 14. On January 20, 2022, the same day plaintiff alleges

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he was unlawfully removed, the Alameda County Sheriff’s Office certified that it returned

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possession of the premises to Li. Dkt. No. 1 ¶¶ 1–12 (alleging removal from residence); Dkt. No.

United States District Court
Northern District of California

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20-1 at 18 (return on writ of possession).

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The Deputies argue that plaintiff failed to adequately plead facts establishing a cause of

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action, that the Complaint should be dismissed as unintelligible, that plaintiff’s admission he refused

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to comply with the writ of possession precludes his false arrest claims, that the Deputies were

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justified in their use of force, that the Deputies are entitled to qualified immunity, that the lawsuit is

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an de facto appeal of the unlawful detainer case through which plaintiff was evicted, and that

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plaintiff is improperly splitting his claims. Dkt. No. 20.

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LEGAL STANDARD

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To survive a motion to dismiss, a complaint must contain “sufficient factual matter, accepted

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as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009) (quoting Bell Atlantic Corp v. Twombly, 550 U.S. 544, 570 (2007). The Court must accept

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the factual allegations in the complaint as true. Id. However, the facts pleaded in the complaint

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must be more than “merely consistent with” liability, and “threadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not suffice.” Id. Because plaintiff

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The Deputies also ask the Court to take judicial notice of a separate complaint pending in
state court in which plaintiff alleges Yassa Goba Washington attempted to evict him unlawfully;
however, the complaint in that case was filed in May 2020 and appears to involve different events.
See Dkt. No. 20-1 at 23; see also Complaint, Washington v. Washington, No. RG20060872
(Super. Ct. Alameda Cnty., May 11, 2020).
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United States District Court
Northern District of California

Case 3:22-cv-03028-SI Document 28 Filed 01/19/23 Page 4 of 7

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appears pro se, “the court must construe the pleadings liberally and must afford plaintiff the benefit

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of any doubt.” Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988).

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The Court may “take judicial notice of matters of public record outside the pleadings” for

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purposes of a motion to dismiss. Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988)

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(quoting MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986)).

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Under 28 U.S.C. § 1915, a district court shall dismiss a case brought in forma pauperis “at

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any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state

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a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is

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immune from such relief.”

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Dismissal without leave to amend is proper only if the Court “determines that the pleading

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could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127

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(9th Cir. 2000) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). Further, “a pro se

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litigant bringing a civil rights suit must have an opportunity to amend the complaint to overcome

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deficiencies unless it is clear that they cannot be overcome by amendment.” Eldridge v. Block, 832

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F.2d 1132, 1135–36 (9th Cir. 1987).

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DISCUSSION

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Although the current motion to dismiss is brought only by the Deputies, a district court shall

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dismiss a case brought in forma pauperis “at any time if the court determines that . . . the action . . .

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(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915. A

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complaint fails to state a claim upon which relief can be granted where it does not contain “sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp v. Twombly, 550 U.S. 544, 570 (2007).

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Plaintiff names several defendants about whom he makes no specific allegations: the

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Alameda County Superior Court, “Mr. Olsen,” “Mr. Hewison,” Yassa Goba Washington, and Does

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1–10. Because plaintiff makes no specific allegations about these defendants, his complaint does

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not contain sufficient allegations to state a claim upon which relief can be granted against them.
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United States District Court
Northern District of California

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Plaintiff’s claims against these defendants are therefore dismissed. In addition, plaintiff is advised

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that the Rooker-Feldman doctrine prohibits federal courts from reviewing state court judgments.

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Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 858 (9th Cir. 2008). Further claims attempting to

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appeal or undermine the Alameda Superior Court’s orders in the unlawful detainer case will be

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dismissed. See id. (noting claims will be dismissed if they constitute a “de facto” appeal of a state

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court decision).

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Plaintiff’s only allegation against Mr. Li is that he violated California Civil Code 789.3 by

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“chang[ing] locks, dispossessing Plaintiff of all his property, and access to the church services being

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terminated due to such act.” Dkt. No. 1 ¶ 17. But plaintiff does not make a claim under California

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Civil Code 789.3. Id. at 9. Further, the Court notes that the statute 789.3 explicitly does not “prevent

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the lawful eviction of a tenant by appropriate legal authorities.” Cal. Civ. Code 789.3(b)(3). To the

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extent plaintiff seeks to appeal the writ of possession issued by the Alameda Superior Court,

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plaintiff’s claim is barred by the Rooker-Feldman doctrine as discussed above. Reusser, 525 F.3d

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at 858 (9th Cir. 2008). Plaintiff’s claims against Mr. Li are therefore dismissed.

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That leaves plaintiff’s claims against the Deputies and Doe defendants. Plaintiff’s first claim

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is made under 42 U.S.C. § 1983 but does not “identify the specific constitutional right allegedly

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infringed.” Albright v. Oliver, 510 U.S. 266, 271 (1994). Because 42 U.S.C. § 1983 “is not itself a

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source of substantive rights,” but rather provides “a method for vindicating federal rights elsewhere

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conferred,” plaintiff’s first claim fails.

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Plaintiff’s second claim is made under 42 U.S.C. § 1986 but plaintiff does not plead a claim

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under 42 U.S.C. § 1985. 42 U.S.C. § 1986 creates a cause of action for neglect to prevent harms

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caused by a conspiracy under 42 U.S.C. § 1985. The Ninth Circuit has held that a cause of action

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under 42 U.S.C. § 1986 cannot be brought absent a valid claim under 42 U.S.C. § 1985. Trerice v.

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Pedersen, 769 F.2d 1398, 1403 (9th Cir. 1985); see O’Neal v. Albertson, No. 20-16892, 2022 WL

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861030, at *1 (9th Cir. Mar. 23, 2022) (applying this principle to claims brought pro se).

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Plaintiff’s third and fourth causes of action are brought under 18 U.S.C. §§ 241 and 242,

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which are criminal statutes that “provide no basis for civil liability.” Aldabe v. Aldabe, 616 F.2d

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1089, 1092 (9th Cir. 1980) (rejecting civil claims under 18 U.S.C. §§ 241 and 242). Plaintiff’s third
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Case 3:22-cv-03028-SI Document 28 Filed 01/19/23 Page 6 of 7

United States District Court
Northern District of California

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and fourth claims are dismissed.

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Plaintiff’s fifth and sixth causes of action are for assault. Dkt. No. 1 at 9. To establish civil

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assault, plaintiff would have to show that “(1) the officers threatened to touch him in a harmful or

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offensive manner; (2) it reasonably appeared to him that they were about to carry out the threat; (3)

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he did not consent to the conduct; (4) he was harmed; and (5) the officers’ conduct was a substantial

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factor in causing the harm.” Tekle v. United States, 511 F.3d 839, 855 (9th Cir. 2007). Further,

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“[b]ecause police officers are permitted to use reasonable force to effectuate an arrest, liability for

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civil assault may only arise if the assault resulted from a police officer's use of unreasonable force.”

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Worthy v. City of Berkeley, 573 F. Supp. 3d 1398, 1415 (N.D. Cal. 2021), order clarified, No. 20-

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CV-05558-EMC, 2021 WL 5758887 (N.D. Cal. Dec. 3, 2021). The only facts plaintiff pleads to

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support his assault claims are that police officers “grabbed” plaintiff, “falsely arrest[ed] him,” and

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“forcefully” “placed [him] in the rear of a vehicle.” Plaintiff alleges no facts supporting that the

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officers’ use of force was unreasonable, that he was harmed, or that the officers’ conduct was a

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substantial factor in causing the harm. See Tekle, 511 F.3d at 855 (9th Cir. 2007) (listing elements).

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Plaintiff’s fifth and sixth causes of action are therefore dismissed.

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Plaintiff’s seventh cause of action is for “aggravated kidnapping tort,” while his eighth cause

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of action is for false arrest. Dkt. No. 1 at 9. The Court liberally construes plaintiff’s seventh cause

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of action as one for false imprisonment and false arrest.

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214CV04959JLSSP, 2021 WL 4848469, at *5 (C.D. Cal. June 30, 2021) report and

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recommendation adopted, No. 214CV04959JLSSP, 2021 WL 4845786 (C.D. Cal. Oct. 14, 2021)

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(construing kidnapping claim against police as overlapping with false arrest and imprisonment

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claims); Chipman v. Nelson, No. 2:11-CV-2770-GEB-EFB, 2013 WL 1007285, at *5 (E.D. Cal.

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Mar. 13, 2013), report and recommendation adopted, No. 2:11-CV-2770-GEB, 2013 WL 1284330

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(E.D. Cal. Mar. 28, 2013) (construing kidnapping claim as tort claim for false imprisonment); see

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Nieves v. Bartlett, , 139 S. Ct. 1715, 1726 n. 2 (2019) (describing false imprisonment and false arrest

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as “virtually synonymous”). The Court liberally construes plaintiff’s claim for false arrest as one

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made under 42 U.S.C. § 1983.

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Pellecer v. Gutierrez, No.

The facts alleged, taken with the matters of public record judicially noticed by the Court, are
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Case 3:22-cv-03028-SI Document 28 Filed 01/19/23 Page 7 of 7

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not sufficient to support an action for false arrest or false imprisonment. To prevail on a claim for

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false arrest and imprisonment, a plaintiff must “demonstrate that there was no probable cause to

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arrest him.” 159 F.3d 374, 380 (9th Cir. 1998). Court records from the Alameda Superior Court

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case show that officers went to plaintiff’s residence on January 20, 2022 pursuant to a writ of

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possession issued by the court on December 9, 2021.

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Beginnings Int’l Ministry et al., No. RG21113099 (Super. Ct. Alameda Cnty., Mar. 10, 2022); see

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Dkt. No. 20-1 at 18. Plaintiff has not pleaded any facts showing that the officers lacked probable

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cause to arrest him in light of the writ of possession. See Dkt. No. 1.

Return on Writ of Possession, Li v. New

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CONCLUSION

United States District Court
Northern District of California

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Plaintiff’s complaint is DISMISSED with leave to amend. Plaintiff shall file an amended

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complaint on or before February 20, 2023. Failure to do so will result in dismissal of the

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complaint WITH prejudice and without leave to amend.

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IT IS SO ORDERED.
Dated: January 19, 2023
______________________________________
SUSAN ILLSTON
United States District Judge

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