Kamath v. United States Department of Homeland Security et al

Filing 73

ORDER by Judge Jacqueline Scott Corley granting 71 Motion to Dismiss. (ahm, COURT STAFF) (Filed on 6/3/2024)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RESHMA KAMATH,

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Plaintiff,

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v.

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United States District Court
Northern District of California

Case No. 3:23-cv-03531-JSC

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UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, et al.,

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Defendants.

ORDER RE: THE CITY AND COUNTY
OF SAN FRANCISCO’S MOTION TO
DISMISS FIRST AMENDED
COMPLAINT
Re: Dkt. No. 71

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Plaintiff brings claims against the San Francisco Police Department, Federal Protective

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Services, the Department of Homeland Security, Steve Glumas, and two unnamed security guards

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arising out of the ticketing and towing of her vehicle. Defendant the City and County of San

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Francisco moves to dismiss the claims pled against the San Francisco Police Department. The

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Court previously granted the City’s motion to dismiss and granted Plaintiff leave to amend two of

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her three claims. Plaintiff has since filed a First Amended Complaint repleading the same three

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claims and adding the three individual defendants. (Dkt. No. 67.1) The City’s motion to dismiss

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is now pending before the Court. (Dkt. No. 71.) Plaintiff has not filed an opposition to the motion

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and the time to do so has run. See N.D. Cal. Civ. L.R. 7-3(a). Having reviewed the motion and

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the relevant legal authority, the Court concludes that oral argument is unnecessary, see Civ. L.R.

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7-1(b), VACATES the June 20, 2024 hearing, and GRANTS the motion to dismiss.

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PLEADING STANDARD

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

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

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Record Citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the
ECF-generated page numbers at the top of the document.
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662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Though

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allegations of fact are taken as true and construed in the light most favorable to plaintiff, the court

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is not “required to accept as true allegations that are merely conclusory, unwarranted deductions of

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fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988, amended

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on denial of reh'g en banc, 275 F.3d 1187 (9th Cir. 2001).
DISCUSSION

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under 42 U.S.C. § 1983; (2) conversion; and (3) civil assault. (Dkt. No. 67.) Because Plaintiff has

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not cured the pleading defects identified in the prior Order, these claims against the City must be

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United States District Court
Northern District of California

Plaintiff’s First Amended Complaint repleads her claims for (1) deprivation of rights

dismissed.
First, to state a Section 1983 claim against a municipality, a plaintiff must allege: (1) the

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plaintiff was deprived of a constitutional right; “(2) that the municipality had a policy; (3) that this

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policy amounts to deliberate indifference to the plaintiff’s constitutional right; and (4) that the

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policy is the moving force behind the constitutional violation.” Plumeau v. Sch. Dist. No. 40 Cty.

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of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997) (cleaned up). The Court previously dismissed this

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claim because Plaintiff had not alleged facts which raised a plausible right to relief—she had not

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alleged a policy, practice or custom which would give rise to municipal liability, nor had she

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alleged which of the multiple entity defendants committed the alleged constitutional violation, or

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sufficient facts to support an inference she was targeted based on her race, ethnicity, and/or

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gender. (Dkt. No. 54 at 5.)

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The First Amended Complaint still does not allege a policy, custom, or practice which

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would give rise to municipal liability. And while Plaintiff’s First Amended Complaint is replete

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with vitriol and conclusory allegations, none state a plausible claim for municipal liability under

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Section 1983. (See, e.g, Dkt. No. 67 at ¶ 37 (“this idiotic court thinks that the car was illegally

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parked, but then thinks all the other cars parked in the same place are legally parked”); ¶ 39

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(“From naked eye observation, the other similarly-situated car parkers were White or Latin-

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Americans. Some had no one sitting in the car and the cars were parked for hours. There was no

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towing.”); ¶ 88 (“When there is no race-neutral and gender-neutral explanation for ticketing and
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towing only of plaintiff’s car versus no other cars– which means Defendants acted in racist and

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gender-based discrimination.”).) Plaintiff’s Section 1983 claim is dismissed for failure to state a

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claim and cure the previously identified pleading defects.

United States District Court
Northern District of California

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Second, the Court previously dismissed Plaintiff’s conversion claim because Plaintiff did

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not allege she had administratively exhausted her claim as required by California law. See Cal.

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Veh. Code §§ 40200 et seq.; see also Smith v. City of Los Angeles Dep’t of Transp., 59 Cal. App.

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4th Supp. 7, 10 (1997) (“we conclude that the procedure for review set forth in section 40200 et

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seq. is the only procedure available to contest a parking citation.”). Plaintiff’s Amended

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Complaint still fails to allege exhaustion. The Court thus lacks jurisdiction to consider the claim,

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so it must be dismissed. See Yamaha Motor Corp. v. Superior Ct., 185 Cal. App. 3d 1232, 1240

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(1986) (“where an administrative remedy is provided by statute, relief must be sought from the

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administrative body and this remedy exhausted before the courts will act. This is a jurisdictional

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prerequisite, not a matter of judicial discretion.”) (cleaned up).

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Finally, the Court previously dismissed Plaintiff’s civil assault claim without leave to

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amend because she did not oppose dismissal of that claim and in fact indicated she was not

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pursuing a claim under the California Tort Claims Act. (Dkt. No. 54 at 6.) Accordingly,

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Plaintiff’s civil assault claim is again dismissed.

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CONCLUSION

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For the reasons stated above, the City’s motion to dismiss is GRANTED. As the Court

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previously provided Plaintiff the opportunity to cure the pleading defects and she did not do so,

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nor has she opposed the motion to dismiss and the time to do so has passed, further leave to amend

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would be futile. See Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009)

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(“[W]here the Plaintiff has previously been granted leave to amend and has subsequently failed to

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add the requisite particularity to its claims, [t]he district court’s discretion to deny leave to amend

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is particularly broad.” (quotation omitted)).

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As the Court previously noted, it does not appear Plaintiff served the First Amended

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Complaint on the remaining Defendants. (Dkt. No. 70.) To the extent the proof of service attached

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the First Amended Complaint reflects emailing of the First Amended Complaint, email is not an
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accepted means of service under Federal Rules of Civil Procedure 4(e), (i). (Dkt. No. 67 at 20.)

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The Court previously ordered Plaintiff to serve the remaining Defendants with the First Amended

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Complaint by May 23, 2024 and file proof of service of the same by May 30, 2024. (Dkt. No. 70.)

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Plaintiff has neither filed proof of service nor otherwise responded to the Court’s Order.

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Accordingly, Plaintiff is ORDERED TO SHOW CAUSE in writing by June 10, 2024 as why the

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claims against the remaining defendants in this action should not be dismissed without prejudice

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for failure to serve.

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IT IS SO ORDERED.
Dated: June 3, 2024

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JACQUELINE SCOTT CORLEY
United States District Judge

United States District Court
Northern District of California

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