Cortez et al v. County of Alameda et al

Filing 56

ORDER by Judge Yvonne Gonzalez Rogers granting without Leave to Amend 45 Motion to Dismiss; granting without Leave to Amend 46 Motion to Dismiss. This action as set forth in the Second Amended Complaint, Dkt. No. 43 is DISMISSED WITH PREJUDICE. (fs, COURT STAFF) (Filed on 7/20/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JESUS CORTEZ et al.,

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Plaintiffs,

Case No.: 11-CV-03199 YGR
ORDER GRANTING MOTIONS TO DISMISS
WITH PREJUDICE

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Northern District of California

United States District Court

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vs.
COUNTY OF ALAMEDA et al.,
Defendants.

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Plaintiffs Jesus Cortez, Enrique Gonzalez, Alfredo Esquivez, Luis Perez, Abelino Espinoza,

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Manuel Dunenas, Eduardo Lascano, Ramon Perez, Jose Garcia, Socorro Zendejas, and Pablo Duenas

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(“Plaintiffs”) bring this civil rights action against Defendants County of Alameda, Alameda County

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Sheriff’s Department, Sheriff Gregory J. Ahern (“Ahern”), Dean N. Stavert (“Stavert”), Hal Bancroft

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(“Bancroft”), Mike Bush (“Bush”), John Kriege (“Kriege”), Gary Parham (“Parham”), and Dale Silva

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(“Silva “) for selective enforcement of a zoning ordinance regulating the keeping of animals. In their

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Second Amended Complaint, Plaintiffs bring one claim for selective prosecution under the Equal

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Protection Clause of the Fourteenth Amendment.

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The Defendants have filed Motions to Dismiss the Complaint on the grounds that (1) the facts

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alleged do not plausibly suggest that any plaintiff has been prosecuted selectively; (2) eight of the

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eleven plaintiffs alleging selective prosecution have not actually been prosecuted; (3) the County of

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Alameda cannot be liable because Plaintiffs have not alleged that they were subjected to selective

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prosecution as result of County policy or custom; and (4) as private citizens, Defendants Bancroft,

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Bush, Kriege, Parham, and Silva, do not act under color of state law.

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Having carefully con
c
nsidered the papers subm
mitted and th pleadings in this actio for the
he
on,

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1
reas
sons set forth below, the Court hereb GRANTS b
h
by
both Motion to Dismiss WITH PRE
ns
s
EJUDICE.

I.

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BAC
CKGROUND
Plaintiff are Hispan homeown who live in the Fair
fs
nic
ners
e
rview Area o the Haywa Hills, in
of
ard

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5

unin
ncorporated Alameda Co
A
ounty, Califo
ornia. Dkt. N 43, Seco Amende Complain 2 (“SAC”) ¶¶
No.
ond
ed
nt,

6

1-2. When Plain
ntiffs moved into their homes in the early-1980’ the Alame County O
d
h
’s
eda
Ordinance

7

Cod permitted Plaintiffs to keep horses steers and/ cows on lots in exces of one-half acre with
de
o
s,
/or
ss

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5000 square feet of available space per animal. Id. ¶ 2. Plaintif relied upo the zonin ordinances
0
a
ffs
on
ng

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that were in effe at the tim they purch
ect
me
hased their h
homes becau they had animals. Id Plaintiffs do
use
d.

On January 11, 2011, the Co
J
ounty chang the zonin ordinance so that hors steers, a
ged
ng
e
ses,
and/or cows

12

Northern District of California

not allege that th have any animals su
hey
y
ubject to the Ordinance, t type or n
the
number of su animals.
uch

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United States District Court

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coul only be ke on lots la
ld
ept
arger than 40
0,000 square feet with 20
e
0,000 square feet of ava
e
ailable space

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per animal. Id. ¶¶ 4, 25. Sp
pecifically, it provides:
t
30
ermitted.
17.26.03 – Uses pe
The follo
owing uses in addition to those perm
i
o
mitted in the district with which it is
h
combine are access
ed
sory uses per
rmitted in an L district o a site of fo thousan
n
on
orty
nd
(40,000) square feet minimum si
)
ize:
A.
Fifty (50) fow (chicken, duck, goose turkey) or rabbits, gui
F
wl
e,
r
inea pigs, or other
similar small animals);
s
l
B.
Two sheep, or two goats or other sim
T
o
milar domest animals o one cow, o one
tic
or
or
horse, or othe similar do
h
er
omestic anim or any co
mal
ombination t
thereof, for e
each
tw
wenty thous
sand (20,000 square feet of lot area;
0)
t
;
C.
Grazing or pasturing of horses for rem
G
h
muneration, on minimum area requi
,
m
ired by
subsection B of this secti
s
ion.

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meowners may apply for a Condition Use Perm in order t keep addit
m
r
nal
mit
to
tional anima on their
als
Hom

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prop
perty.3 SAC ¶ 4. The ap
C
pplication pr
rocess for a C
Conditional Use Permit requires the applicant to
o

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Pur
rsuant to Fede Rule of Civil Procedu 78(b) and Civil Local R 7-1(b), th Court finds that this
eral
C
ure
Rule
he
moti is appropr
ion
riate for decis
sion without oral argument
o
t.
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Alt
though titled “First Amend Complain this is Pla
ded
nt,”
aintiffs’ Secon Amended Complaint.
nd

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17.
.26.040 – Con
nditional uses
s.
The follo
owing are con
nditional uses in an L distri and shall b permitted o
ict
be
only if
approved by the board of zoning ad
d
d
djustments as provided in S
Section 17.54
4.130:
A.
The keeping of a number of animals in e
T
o
excess of that permitted by
t
y
Section 17.26.030;
S
B.
Kennel;
K
C.
Boarding stables and riding academies;
B
g
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pay the costs necessary to process the application, and also agree to hold the County harmless from

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any liability the County may incur as a result of the County’s actions with respect to granting the

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application. Id.

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“Plaintiffs allege that they are being singled out . . . for selective enforcement of the law and

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for selective prosecution.” Id. ¶¶ 11, 30. Plaintiffs allege that the Defendants conspired to

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discriminate against and harass Plaintiffs, to interfere with Plaintiffs’ personal and property rights,

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and to force Plaintiffs out of their homes in the Fairview Area. See id. ¶¶ 8, 9, 11, 18, 19, 27, 30.

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Specifically, Plaintiffs allege that Defendants Bancroft, Kriege, Parham, and Bush, who are Officers

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and Directors of the Hayward Hills Homeowners’ Association (collectively “Homeowners’

County, the Alameda County Sheriff’s Department, Sheriff Ahern, and Stavert (collectively “County

12

Northern District of California

Association Defendants”), made frequent and unwarranted complaints to Defendants Alameda

11

United States District Court

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Defendants”), that Plaintiffs have violated the Ordinance. Id. ¶ 9. On March 6, 2011, in response to

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these complaints, and at the urging of the Homeowners’ Association Defendants, Sheriff Ahern and

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Stavert “issued threatening demands for compliance” with the Ordinance and “specifically cited for

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prosecution, plaintiffs: Manuel Duenas, Luis Silva Perez, Brenda Estrada, the daughter of plaintiff

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Alfredo Esquivez, and Jose Guadalupe Garcia.” Id. ¶¶ 10, 28.

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On the basis of these allegations, eleven Plaintiffs, only three of whom have been prosecuted,

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bring one claim for Selective Enforcement. They allege that “notwithstanding the presence of

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claimed violations,” no non-Hispanic homeowner has been cited or prosecuted for violating the

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Ordinance, yet Plaintiffs are being singled out for criminal prosecution when “no violations are

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known to exist, or there has been a failure of compliance.” Id. ¶¶ 8, 10, 27, 28.4 Plaintiffs allege that

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the Ordinance is being enforced “based on an unjustifiable standard such as minority status, race,

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religion or other arbitrary classification including sex, color religion, ancestry, national origin,

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D.

Sale of any products of any permitted use, including a stand for the sale
at retail of such items as regulated in Section 17.06.050D.
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“Plaintiffs are informed and believe and herein allege that the County and the County’s Sheriff’s Department
including Ahem and Stavert have issued no threatening demands for compliance with the said Ordinance Code
and the ‘Standards For The Keeping of Animals in the Residential Zones of the Fairview Area of Alameda
County’ or specifically cited for prosecution a non-Hispanic homeowner or Homeowners’ Association
Defendants notwithstanding the presence of claimed violations.” SAC ¶¶ 10, 28.

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disa
ability and medical condi
m
ition.” Id. ¶¶ 8, 9, 11, 17 27, 30. T claim is b
¶
7,
The
brought purs
suant to 42

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U.S.C. § 1983, for selective prosecution in violation of the Equa Protection Clause of t Fourteen
f
n
n
al
n
the
nth

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Ame
endment to the United States Consti
t
S
itution.
II.

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LEG
GAL STAND
DARD
A motion to dismiss under Rule 12(b)(6) tes the legal s
n
sts
sufficiency o the claims alleged in the
of
s
t

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cont
tents of the complaint, and exhibits attached ther
c
a
reto. See Ha Roach Stu
al
udios. Inc. v. Richard

8

Fein & Co., In 896 F.2d 1542, 1555 n.19 (9th C 1989). A allegations of materi fact are
ner
nc.,
d
5
Cir.
All
ial

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take as true. Erickson v. Pardus, 551 U.S. 89, 94 (
en
E
P
U
(2007). Alth
hough “detai factual a
iled
allegations”

10

are not required Plaintiffs’ obligation to provide the grounds of their entitle
n
d,
o
e
f
ement to reli “requires
ief

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mor than labels and conclu
re
s
usions, and a formulaic r
recitation of the elements of a cause of action wi
s
ill

12

Northern District of California

com
mplaint. Ileto v. Glock. In 349 F.3d 1191, 1199
o
nc.,
d
9-1200 (9th Cir. 2003). Review is li
imited to the
e

7

United States District Court

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not do.” Bell At
tlantic Corp. v. Twombly 550 U.S. 5
.
y,
544, 555 (20
007) (citation and quota
ns
ations

13

omitted).5 In co
onsidering a motion to di
ismiss, the c
court can star by identify
rt
fying the lega
ally

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conc
clusory state
ements; these are not ent
e
titled to the a
assumption o truth. See Ashcroft v. Iqbal, 556
of
e

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U.S. 662, 678-79 (2009). Then the cour should ass
T
rt
sume the ver
racity of the well-pleaded factual

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alleg
gations and “determine whether they plausibly g
“
w
y
give rise to a entitlemen to relief.” Id. at 679.
an
nt

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“[W
W]here the we
ell-pleaded facts do not permit the c ourt to infer more than t mere pos
f
p
r
the
ssibility of

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misc
conduct, the complaint has alleged – but it has n ‘show[n]’ – ‘that the pleader is en
h
not
ntitled to

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relie
ef.’” Id. (quoting Twomb 550 U.S at 558-59) Applying these princip to the S
bly,
S.
).
ples
SAC, the Cou
urt

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conc
cludes that th lawsuit must be dism
his
m
missed with p
prejudice.

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III.

DISC
CUSSION
The elem
ments for a Section 1983 cause of ac
S
3
ction are that (1) persons acting unde color of st
t
s
er
tate

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law (2) violated rights guara
d
anteed by the Constitutio See Buck v. City o Redding, 66 F.3d 188
e
on.
kley
of
8,

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190 (9th Cir. 19
995). The all
leged right is the Fourtee
enth Amend
dment’s equa protection clause based
al
n

25

upon a theory of selective pr
n
f
rosecution. To state an equal protec
ction claim b
based upon a theory of

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selective prosec
cution, Plaint
tiffs must all
lege that oth similarly situated ha not been prosecuted for
hers
y
ave

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28

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Pla
aintiffs recite the first claus of this sent
se
tence multiple times in the opposition as a justifica
e
eir
ation not to
prov factual al
vide
llegations. Alleging legal conclusions d
does not state an entitleme to relief.
e
ent

4

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the same conduc and that th prosecutio is based o an imperm
s
ct
he
on
on
missible motive. Freem v. City of
man
f

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Santa Ana, 68 F.3d 1180, 11 (9th Cir. 1995).
F
187

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11

Northern District of California

United States District Court

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A.

WHETHER THE ALLEGA
ATIONS ARE SUFFICIENT TO SUPPOR A CLAIM FOR
T
RT
M
SELECTIVE PROSECUTIO
ON

“The firs step in equ protectio analysis is to identify the [County classifica
st
ual
on
s
y’s]
ation of
grou . . .. Onc the plaintiff establishe governme
ups
ce
es
ental classifi
ication, it is necessary to identify a
o
‘sim
milarly situated’ class aga
ainst which the plaintiff’ class can b compared Id. at 1187. “A
t
’s
be
d.”
simi
ilarly situate offender is one outside the protect class wh has comm
ed
ted
ho
mitted roughly the same
crim under rou
me
ughly the sam circumsta
me
ances but aga
ainst whom the law has not been enf
forced.”
United States v. Lewis, 517 F.3d 20, 27 (1st Cir. 200 (citing U
08)
United States v. Armstron 517 U.S.
s
ng,
.
456, 465 (1996) “The goa of identify
)).
al
ying a similar situated c
rly
class . . . is t isolate the factor
to
e
alleg
gedly subjec to imperm
ct
missible discr
rimination. T similarly situated gr
The
y
roup is the control group
p.”
United States v. Aguilar, 883 F.2d 662, 706 (9th Cir 1989), cer denied, 49 U.S. 1046 (1991).
r.
rt.
98
6
1.
1

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15
16
17
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Contr Group
rol

As best the Court can dec
A
C
cipher, the c
control group is “non-Hi
p
ispanic home
eowners” wh
ho
have not been pr
e
rosecuted fo violating the Ordinanc “notwithstanding the p
or
t
ce
presence of claimed
violations.” However, Plain
ntiffs both al
llege that Pla
aintiffs are b
being prosecuted where “ violation
“no
ns
are known to ex
k
xist” and that they are being prosecut where th “has bee a failure o
t
ted
here
en
of
com
mpliance.” SAC ¶ 27.

19

2.
2

20

To the extent that Plainti allege th they are b
T
t
iffs
hat
being singled out for crim
d
minal

arly
d
Simila Situated

21

pros
secution for violating the Ordinance, Plaintiffs d not allege facts to sho that Plain
e
,
do
ow
ntiffs have

22

violated the Ord
dinance in th same man
he
nner as non-H
Hispanic Hom
meowners a
against whom the
m

23

Ord
dinance has not been enfo
n
orced. Unite States v. L
ed
Lewis, 517 F
F.3d 20, 27 ( Cir. 2008) (“A
(1st

24

simi
ilarly situate offender is one outside the protect class wh has comm
ed
ted
ho
mitted roughly the same

25

crim under rou
me
ughly the sam circumsta
me
ances but aga
ainst whom the law has not been enf
forced.”)

26

(citi United States v. Armstrong, 517 U.S. 456, 46 (1996)). Plaintiffs on allege tha there “has
ing
S
65
nly
s
at

27

been a failure of compliance on Plainti
n
f
e”
iffs’ part and have assert “claimed violations” by Nond
ted
d
”

28

Hisp
panic Homeo
owners. To the extent Plaintiffs con
P
ntend they ar being pros
re
secuted for n
non-existent

5

1

violations of the Ordinance, then the non-Hispanic H
e
,
Homeowner cannot be “similarly si
rs
ituated” to

2

se
Hispanic Hom
meowners al
llegedly hav violated th Ordinance
ve
he
e.
Plaintiffs becaus the non-H

3

Without identifying how Plaintif have faile to comply with the O
ffs
ed
y
Ordinance, or the “claime
r
ed

4

violations” by Non-Hispanic Homeown
N
ners, it is pur speculatio that the tw groups are similar wit
re
on
wo
th

5

pect
iolations com
mmitted. Th Ordinance regulates th number o horses, cow sheep,
he
e
he
of
ws,
resp to the vi

6

goat fowl, rabb and guin pigs that a homeown may keep on his or h land. Pla
ts,
bits
nea
t
ner
p
her
aintiffs do no
ot

7

iden
ntify the type of animal or number of animals the keep on th properti or that th None
o
f
ey
heir
ies
he

8

Hisp
panic Homeo
owners keep on theirs.6
p
3.
3

9

Additionally, Plaintiffs fail to allege sufficient fa to suppo a finding of
A
fa
acts
ort

10
11

Northern District of California

United States District Court

12
13
14
15
16
17
18
19

disc
criminatory enforcement because Pla
e
aintiffs do no allege that the County Defendants were aware
ot
t
y
s
e
that non-Hispan Homeown were vi
nic
ners
iolating the O
Ordinance. County Defs Mot. 6-7 (citing
fs.’
Trieste Rest. v. Village of Port Cheste 188 F.3d 65, 69 (2d C 1999)). That unrepo
f
er,
d
Cir.
orted
LaT
violations may go unabated does not pla
g
ausibly sugg that the C
gest
County Defe
endants are s
selectively
orcing the Or
rdinance. Se Rosenbau v. City an County of San Franci
ee
um
nd
f
isco, 484 F.3 1142, 115
3d
55
enfo
(9th Cir. 2007) (“[T]he polic may legit
h
(
ce
timately resp
pond to citizen complain
nts.”). Witho alleging
out
that the County Defendants knew that th
hese non-His
spanic Home
eowners wer violating the Ordinance
re
and notwithstan
nding this knowledge, the selected P
ey
Plaintiffs for prosecution but not any non-Hispan
r
n
y
nic
meowners, Plaintiffs do not state a cl
P
n
laim for sele
ective prosec
cution.
Hom
Based on the foregoi analysis, the Court G RANTS the Motions to D
n
ing
,
Dismiss WITHOUT LEAVE

20
21

Same Circumstan
e
nces

TO AMEND.

22
23
24
25
26
27
28

6

If, for example, one of the Pl
laintiffs has violated the sta
atute by keep
ping ten horse on his property and a nones
Hisp
panic homeow
wner has viola the Ordin
ated
nance by keep
ping forty-fiv rabbits, the is no way t compare th
ve
ere
to
he
enfo
orcement of th
hese different violations. The comparis on really has to be apples to apples and oranges to
T
d
oran
nges, or here, horses to horses and rabbits to rabbits.

6

B.

1

RIPENESS – WHETHER THE CLAIMS FOR SELEC
T
S
CTIVE PROSE
ECUTION AR “RIPE” AS
RE
S
TO THE EIGH PLAINTIF WHO HA
T
HT
FFS
AVE NOT BE
EEN PROSECUTED

Eleven Plaintiffs7 all
P
lege that they are being s
selectively p
prosecuted b
based on the prosecution of

2
3

three of them,8 and the prosecution of th daughter o a fourth.9 The Defendants argue that those
a
he
of

4

Plaintiffs who allege that they received only “deman for comp
a
nds
pliance” do not have a “
“ripe” claim for

5

selective prosec
cution – they have not be selected for prosecut
y
een
tion, let alon selectively prosecuted
ne
y
d.

6

The County Def
fendants also argue that Esquivez do not have standing to sue on beha of his
o
oes
alf

7

daug
ghter.
fs
te
d
ics,
City
do,
d
Plaintiff block-quot two cases (Diversified Numismati Inc. v. C of Orland 949 F.2d

8
9

382, 388-89 (11th Cir. 1991 J&B Soci Club, No. 1, Inc. v. C of Mobil 920 F. Su
1);
ial
.
City
le,
upp. 1241 (S.
.D.

ther
refore, this is not a pre-en
s
nforcement challenge. B
c
Based upon t quotation one poss
the
ns,
sible argument

12

Northern District of California

Ala. 1996)) and conclude th “at least 4” Plaintiffs have been s
.
hat
4
singled out fo prosecutio and
for
on,

11

United States District Court

10

that the Plaintiff could mak is that the have been harmed by “threatened enforcemen because
fs
ke
ey
n
nt”

13

they fear prosec
y
cution (Diver
rsified) and since the Co
s
ounty has enf
forced the st
tatute agains others (J&B
st

14

Soci Club), this is not a pr
ial
re-enforceme challeng e. However based upon Plaintiffs’ conclusion
ent
r,
n

15

that this is not a pre-enforce
ement challen they ap
nge,
ppear to argu instead tha Diversifie which the
ue
at
ed,
e

16

Cou
unty Defenda cite for the proposition that Plai
ants
intiffs canno bring a law
ot
wsuit for sele
ective

17

pros
secution if th are not being prosecu
hey
b
uted, is disti
inguishable b
because base on J&B S
ed
Social Clubs,

18

the County has enforced the Ordinance against som
C
e
e
meone.

19

As Coun Defendan note, the cases cited involved pre
nty
nts
e-enforceme challenge to the
ent
es

20

cons
stitutionality of a statute and not pre
y
e,
e-prosecutio n claims of selective pro
osecution. H
Here, the

21

Plaintiffs allege selective pr
rosecution, which necess
w
sitates that th have bee prosecute standing to
hey
en
ed;
t

22

chal
llenge the co
onstitutionali of a statu 10 is irrele
ity
ute
evant.

23
24

7

25

8

26

9

Pla
aintiffs Jesus Cortez, Enriq Gonzalez, Alfredo Esq
C
que
,
quivez, Luis P
Perez, Abelino Espinoza, M
o
Manuel Duena
as,
Edua
ardo Lascano Ramon Pere Jose Garci Socorro Z endejas, and Pablo Duenas.
o,
ez,
ia,
Pla
aintiffs Luis Silva Perez, Manuel Duena Jose Guad
S
M
as,
dalupe Garcia.
.

Pla
aintiff Alfredo Esquivez.
o
Pl
laintiffs were provided one last opportun to plead a cause of act
e
nity
tion for selective prosecuti
ion; they
prev
viously attemp to challen the const
pted
nge
titutionality o f the Ordinan but failed to allege fact to support
nce
ts
such a cause of ac
h
ction. Their complaint doe not attemp to challenge the constitut
c
es
pt
e
tionality of th Ordinance
he
and it would have been improp had they attempted to d so, given t Court’s ex
e
per
a
do
the
xplicit instruc
ctions.
10

27
28

7

Based on the foregoi analysis, the Court c
n
ing
,
concludes tha the eight P
at
Plaintiffs wh do not
ho

1
2

alleg that they have been prosecuted fa to state a claim for sel
ge
p
ail
lective prose
ecution.

MONELL LIA
ABILITY – WHETHER AL
LAMEDA CO
OUNTY CAN BE HELD LI
IABLE UNDER

3

C.

4

Under Monell v. Dep of Soc. Se
M
pt.
ervs., 436 U.S. 658, 690
0-94 (1978), local govern
ning bodies,

SECTION 198
83

5

such as Alamed County, may be sued under Sectio 1983 only when the u
h
da
m
u
on
y
unconstitutional act

6

implements an official polic or custom The Coun argues th Plaintiffs do not alleg any facts
o
cy
m.
nty
hat
ge

7

that suggest Plai
intiffs were subject to se
elective pros
secution base upon a Co
ed
ounty policy or custom.
y

8

Plaintiffs do not address this issue in the brief. Af a review of the SAC it is clear th Plaintiff
t
s
eir
fter
w
C,
hat
fs

9

do not allege tha their civil rights were violated as a result of an policy or custom.
n
at
ny

10
11

Based on the foregoi analysis, the Court G RANTS the Motion to D
n
ing
,
Dismiss the c
claim against
the County on th basis as well.
C
his
w

Northern District of California

United States District Court

12

D.

UNDER COLO OF STATE LAW
OR

13

The seco element for a Section 1983 caus e of action i that the de
ond
is
efendants wh acting
here

14

unde color of st law. A person acts “under color of law” wh the perso acts or pu
er
tate
r
hen
on
urports to act
t

15

in th performan of official duties und any state county, or municipal la ordinanc or
he
nce
der
e,
aw,
ce,

16

regu
ulation.

17

The issu here is wh
ue
hether the Ho
omeowners’ Association Defendants were acting under colo
n
s
g
or

18

of st law, as required to state a Sectio 1983 claim 11 The Ho
tate
r
s
on
m.
omeowners’ Association Defendants
n
s

19

argu that they did not act “under color of state law” because al of the acts that deprive Plaintiffs of
ue
d
”
ll
ed

20

cons
stitutional rights were pe
erformed by the County Defendants. Plaintiffs c
counter that private parti
ies

21

can act under co of state law and argu that Plain
olor
l
ue
ntiffs have m their plea
met
ading burden because
n

22

“‘[D
D]etailed fact allegatio are not required.” P
tual
ons’
Pls.’ Opp’n to Homeow
wners 8-9 (qu
uoting

23

Two
ombly, 550 U.S. at 555) (alteration an emphasis in brief).
U
(
nd
s
Generall private pa
ly
arties do not act under co of state l
olor
law. See Pr v. Hawa 939 F.2d
rice
aii,

24
25

702, 707-08 (9th Cir. 1991); see also Sim
h
mmons v. Sa
acramento C
County Super Court, 3 F.3d 115
rior
318
56,

26

1161 (9th Cir. 2003) (explai
2
ining that a lawyer in pri
l
ivate practic does not a under col of state
ce
act
lor

27
28

11

No dispute exis that Sherif Ahern and Stavert acted under color o state law w
o
sts
ff
of
when they per
rformed their
dutie as police officers and th do not arg the contra
es
hey
gue
ary.

8

1

law). “Action taken by private individuals may be under color of state law where there is significant

2

state involvement in the action.” Johnson v. Knowles, 113 F.3d 1114, 1118 (9th Cir. 1997) (internal

3

quotations omitted). “The Supreme Court has articulated four distinct tests for determining when the

4

actions of a private individual amount to state action: (1) the public function test; (2) the joint action

5

test; (3) the state compulsion test; and (4) the governmental nexus test.” Id. Plaintiffs do not specify

6

which of these four tests they believe applies, and instead argue theoretically that private actors may

7

act under color of state law. Pls.’ Opp’n to Homeowners 8 (“the Homeowners’ Association

8

Defendants as a private party [sic] may be found to have acted under color of state law.”). Based

9

upon the cases cited by Plaintiffs, it appears they rely on the joint action test.12
Complaining to the police invokes the aid of state officials, but it cannot be said that the

10

Northern District of California

actions of the Homeowners Association Defendants are fairly attributable to the state.13 Joint

12

United States District Court

11

participation requires something more than “[a] single request for the police to perform their peace-

13

keeping functions.” Howerton v. Gabica, 708 F.2d 380, 385 (9th Cir. 1983).
However, where a private party conspires with state officials to deprive others of

14
15

constitutional rights, the private party is acting under color of state law. See Tower v. Glover, 467

16

U.S. 914, 920 (1984); Dennis v. Sparks, 449 U.S. 24, 27-28 (1980); Crowe v. County of San Diego,

17

608 F.3d 406, 440 (9th Cir. 2010). To state a cause of action for a conspiracy between private parties

18

and the government under Section 1983, Plaintiffs must allege “an agreement or ‘meeting of the

19

minds’ to violate constitutional rights.” Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983) (citing

20

Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970)). “[E]ach must at least share the common

21
12

22
23
24
25

Without any analysis or argument, Plaintiffs quote from two cases that involved joint action. They provide a
block-quote from Dennis v. Sparks, 449 U.S. 24, 27-28 (1980) (private parties are considered state actors when
they are “jointly engaged with state officials in the challenged action”) (private parties that bribed judge to
issue injunction acted under color of state law because they were “willful participant[s] in joint action with the
State or its agents”), and a quote from Tulsa Prof. Collection Servs. v. Pope, 485 U.S. 478, 486 (1988) (“State
action may be found when ‘private parties make use of state procedures with the overt, significant assistance of
state officials’”) (probate proceedings).

13

26
27
28

The consequence of acting under color of state law is not simply that a private citizen can be held liable for
violating another citizen’s constitutional rights, but that the State can be held liable for the acts of a private
citizen. See NCAA v. Tarkanian, 488 U.S. 179, 191 (1988) (“‘Careful adherence to the state action
requirement preserves an area of individual freedom by limiting the reach of federal law’ and avoids the
imposition of responsibility on a State for conduct it could not control”) (quoting Lugar, supra, 457 U.S. at
936-37).

9

1

objective of the conspiracy.” United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539,

2

1540-41 (9th Cir. 1989) (en banc) (citations and internal quotations omitted); see also Mendocino

3

Envt’l Ctr. v. Mendocino County, 192 F.3d 1283, 1301-02 (9th Cir. 1999); Gilbrook v. City of

4

Westminster, 177 F.3d 839, 856-57 (9th Cir. 1999); Taylor v. List, 880 F.2d 1040, 1048 (9th Cir.

5

1989). Sweeping, conclusory allegations are insufficient to state a claim of conspiracy; rather,

6

Plaintiffs must set forth each Defendant’s causal role in the alleged constitutional deprivation. See

7

Simmons, supra, 318 F.3d at 1161; Radcliffe v. Rainbow Constr. Co., 254 F.3d 772, 783-84 (9th Cir.

8

2001).
Here, Plaintiffs allege the legal conclusion that the parties conspired with discriminatory

9

to the County Defendants that the Plaintiffs were violating the Ordinance, and at the Homeowners’

12

Northern District of California

animus. The facts alleged are that the Homeowners’ Association Defendants frequently complained

11

United States District Court

10

Association Defendants’ “urging,” the County Defendants cited and prosecuted Plaintiffs for possibly

13

non-existent violations of the Ordinances. SAC ¶¶ 10, 18, 28, 30. Neither making complaints to the

14

County Defendants nor “urging” the County Defendants plausibly suggests “an agreement or

15

‘meeting of the minds’” to form a conspiracy; simply alleging that every Defendant acted with

16

discriminatory intent does not establish a meeting of the minds on a common objective. It also is not

17

clear what that common objective might be: to discriminate against Plaintiffs because they are

18

Hispanic (id. ¶¶ 8, 9, 11, 27, 30); to force and/or eliminate Plaintiffs from their homes (id. ¶ 18); or to

19

deprive Plaintiffs of property rights (id. ¶ 19).14

20

Section 1983 excludes from its reach purely private conduct, no matter how discriminatory or

21

wrongful. Plaintiffs’ remedy against the Homeowners’ Association Defendants, if any, lies in private

22

suits (in state court) for damages. However, Plaintiffs have failed to state a Section 1983 cause of

23

action against the Homeowners’ Association Defendants.
Based on the foregoing analysis, the Court GRANTS the Motion to Dismiss the lawsuit against

24
25

the Homeowners’ Association Defendants because they did not act under color of law.

26
27
28

14

In their opposition to the motion, the Plaintiffs argue that the conspiracy was “to force and eliminate
Plaintiffs from residence in the Fairview area of the Hayward Hills.” Pls’ Opp’n to Homeowners 6.

10

1
2
3
4
5

IV.

CON
NCLUSION
N
As set fo above, Defendants’ Motions to D
orth
D
Dismiss are GRANTED WITHOUT LE
EAVE TO

AME .
END
ion
rth
ded
aint, Dkt. No. 43, is DISM
MISSED WITH
H
This acti as set for in the Second Amend Compla
PRE
EJUDICE.

6

This Ord Terminat Docket Numbers 45 & 46.
der
tes
N

7

IT IS SO ORDERED.

8
9
10

Date:July 20, 2012
2

__
__________
___________
__________
__________
YVON GONZAL ROGERS
NNE
LEZ
UNITED ST
TATES DISTR
RICT COURT JUDGE
T

11

Northern District of California

United States District Court

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15
16
17
18
19
20
21
22
23
24
25
26
27
28

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