Chaffee v. Chiu et al
Filing
71
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR LEAVE TO AMEND; AND DENYING AS MOOT DEFENDANTS' MOTION TO DISMISS SECOND AMENDED COMPLAINT by Judge Yvonne Gonzalez Rogers granting in part and denying in part 53 Motion for Leave to Amend; finding as moot 55 Motion to Dismiss. The Court VACATES the hearing set for September 25, 2012. (fs, COURT STAFF) (Filed on 9/20/2012)
1
2
3
UNITED STATES DISTRICT COURT
4
NORTHERN DISTRICT OF CALIFORNIA
5
6
7
8
JAMES CHAFFEE,
9
Plaintiff,
10
vs.
United States District Court
Northern District of California
11
12
Case No.: 4:11-CV-05118-YGR
ORDER GRANTING IN PART AND DENYING IN
PART PLAINTIFF’S MOTION FOR LEAVE TO
AMEND; AND DENYING AS MOOT
DEFENDANTS’ MOTION TO DISMISS SECOND
AMENDED COMPLAINT
DAVID CHIU, et al.,
Defendants.
13
14
15
Pending before the Court is Plaintiff James Chaffee’s Motion for Leave to Amend
16
Complaint. (Dkt. No. 53 (“Motion”).) Plaintiff has filed a [Proposed] Third Amended Complaint
17
for Damages (“P-3rd AC”) as part of his Motion. (Dkt. No. 53-1.) This Court previously issued an
18
Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss Amended Complaint
19
(Dkt. No. 32), which related to Plaintiff’s then-first amended Complaint. While that Order
20
dismissed certain claims without leave to amend, the Court permitted Plaintiff to file a motion for
21
leave to amend other claims and cited legal authority for why he should be permitted to amend the
22
claims he sought to add. (Dkt. No. 42.) Having read and considered the papers submitted by the
23
parties and the pleadings in this action, the Court hereby GRANTS IN PART AND DENIES IN PART
24
this Motion for Leave to Amend.1
25
1
26
27
28
Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court finds that this
motion, which has been noticed for hearing on September 25, 2012, is appropriate for decision without oral
argument. Accordingly, the Court VACATES the hearing set for September 25, 2012.
1
I.
FACTUA AND PROC
AL
CEDURAL BACKGROUND
A
D
2
Plaintiff action cen
f’s
nters on his arrest and re
a
emoval from a San Franc
cisco Board of
3
Supervisors mee
eting on Sep
ptember 13, 2011. (Dkt. No. 21 (“1s AC”) ¶¶ 14 18–21.) O
2
st
4,
On
4
Sept
tember 19, 2011, Plainti filed this action in the Superior C
2
iff
e
Court of Calif
fornia agains David
st
5
Chiu President of the Board of Supervisors (“Chiu” City and County of S Francisco Board of
u,
d
”);
San
o;
6
Supervisors (“B
Board”); and San Francisco Sheriff’s Department (collectivel “Defenda
t
ly,
ants”). (Dkt.
7
ion
moved to fede court on October 19 2011. (Id.) The opera
eral
n
9,
ative
No. 1.) The acti was rem
8
com
mplaint upon removal alle
eged claims of false arre false imp
est,
prisonment, violation of civil rights,
f
9
and retaliation for exercise of First Ame
f
o
endment righ (Id.) De
hts.
efendants m
moved to dism
miss. (Dkt.
Nos 4 & 19.) The Court gr
s.
T
ranted in par that motion to dismiss. (Dkt. No. 18 (“First Order”).)
rt
n
.
11
United States District Court
Northern District of California
10
Hav
ving interpret Plaintiff claim for “violation o or “interf
ted
f’s
of”
ference with” civil rights as a claim
”
s
12
for violation of the Equal Pr
v
t
rotection Cla
ause under 4 U.S.C. sec
42
ction 1983, t Court gra
the
anted the
13
mot
tion to dismiss with leave to amend that claim, a well as the claim for re
t
as
e
etaliation for exercising
r
14
First Amendmen rights. (F
nt
First Order at 3–6 & n.7.) The state l claims f false arre and false
t
)
law
for
est
15
imprisonment were not addr
w
ressed becau the feder claims pro
use
ral
ovided the b
basis for the Court’s
16
juris
sdiction. (Id at 3 & 6 n.
d.
.13.)
17
Plaintiff filed his firs amended Complaint (“ AC”) on December 29, 2011, a
f
st
C
“1st
n
r
alleging a
18
num
mber of new claims. (Dk No. 21.) Specifically, Plaintiff all
kt.
leged false a
arrest and fal
lse
19
imprisonment, battery, viola
b
ation of the First Amend
F
dment right o free speec unequal t
of
ch,
treatment in
20
violation of the Fourth and Fourteenth Amendments race discri
F
A
s,
imination un
nder 42 U.S.C. section
21
1981, interferen with the First Amend
nce
F
dment under 42 U.S.C. s
section 1983, unlawful se
eizure under
r
22
F
ual
n
rocess violat
tions under t Fourteen
the
nth
the Fourth Amendment, equ protection and due pr
23
Ame
endment, an defamatio and slande On Janua 19, 2012 Defendant filed a Mo
nd
on
er.
ary
2,
ts
otion to
24
Dism Amend Complain (Dkt. No 25.)
miss
ded
nt.
o.
25
On April 2, 2012, th Court issu its Order Granting in Part and De
he
ued
r
n
enying in Pa
art
26
Defe
fendants’ Mo
otion to Dism Amende Complain (“Second Order”). In the Second Order, the
miss
ed
nt
27
Cou denied the motion to dismiss the first claim fo false arres and false i
urt
e
d
f
or
st
imprisonmen the
nt,
28
seco claim for battery, the fourth claim for violati of the Fo
ond
e
m
ion
ourth Amend
dment, and t seventh
the
2
1
claim for interference with the Fourth Amendment. To the extent that the fourth claim alleged a
2
violation of the Fourteenth Amendment, the Court dismissed that claim without leave to amend.
3
The Court also dismissed without leave to amend Plaintiff’s third and sixth claims to the extent
4
they were based on retaliation in violation of the First Amendment, his third and sixth claims to the
5
extent they were based on a First Amendment violation relating to two-minute restrictions on
6
public comment at Board meetings, his fifth claim for racial discrimination, and his eighth claim for
7
interference with the Fourteenth Amendment. The Court dismissed with leave to amend Plaintiff’s
8
third and sixth First Amendment claims to the extent they were based on the removal of citizens
9
from Board meetings, his third and six claims to the extent that they were based on the Board
failing to provide an agenda item number to matters for public comment at Board meetings, his
11
United States District Court
Northern District of California
10
ninth claim for defamation and slander, and David Chiu as a defendant in this action.
12
Prior to when the amended complaint was due, Plaintiff filed a petition for writ of
13
mandamus requesting that the Ninth Circuit grant him additional leave to amend the complaint.
14
(See Dkt. No. 34.) The Ninth Circuit denied the writ on July 10, 2012. (Dkt. No. 48.) On July 23,
15
2012, Plaintiff filed his Second Amended Complaint (“2nd AC”) in accordance with the Court’s
16
instructions in the Second Order. (Dkt. No. 49.)2 On August 6, 2012, Plaintiff then filed the instant
17
motion based on the Court permitting him leave to file amended complaint. (Dkt. No. 42.)
18
Because the Second Amended Complaint was then operative, Plaintiff filed a Proposed Third
19
Amended Complaint.
In his P-3rd AC, Plaintiff seeks to amend his third claim for violation of the First
20
21
Amendment with facts regarding the removal of citizens from Board meetings (P-3rd AC ¶¶ 46, 47,
22
49–51 & 57) but added additional facts and incorporated claims from the 1st AC that were removed
23
from the 2nd AC. Specifically, Plaintiff added additional facts pertaining to: (1) Plaintiff’s long
24
history of submitting letters to the Clerk of the Board, publishing newsletters, and speaking before
25
2
26
27
28
In the 2nd AC, Plaintiff amended his third claim for violation of the First Amendment with facts regarding
the removal of citizens from Board meetings (2nd AC ¶¶ 46–50, 57) and removed from his complaint: (1)
his third claim for violation of the First Amendment to the extent the claim was based on retaliation and the
two minute restriction on public comments (1st AC ¶¶ 46, 48–49, 51–53); (2) his fourth claim alleging
unequal treatment under the Fourteenth Amendment; (3) his fifth claim alleging racial discrimination (1st
AC ¶¶ 60–62); and (4) his eighth claim for interference with the Fourteenth Amendment. (1st AC ¶¶ 75–
79.)
3
1
the Board of Sup
B
pervisors (P-3rd AC ¶¶ 54–56); (2) t San Fran
the
ncisco Admi
inistrative Code, as
2
relat to his thi claim for violation of the First Am
ted
ird
r
f
mendment t the extent the claim w based on
to
was
3
the two-minute restriction on public com
t
o
mments (P-3 AC ¶ 48) (3) Defend
3rd
);
dants’ neglig
gence and
4
cont
tempt in failing to train their officers and sheriff to protect civil rights i interferenc the
t
s
fs
in
ce
5
Fou Amendm (P-3rd AC ¶ 76); an (4) Defen
urth
ment
A
nd
ndants’ statem
ments regard
ding Plaintif
ff’s
6
disru
uption and consequent removal from the meetin being broa
c
m
ng
adcast on Sa Francisco
an
7
Gov
vernment Television. (P-3rd AC ¶ 81.) Plaintiff re-alleged h racial dis
f
his
scrimination claim with
n
8
no changes from the 1st AC
c
m
C.
On Augu 20, 2012, Defendants filed an Op
ust
s
pposition to Plaintiff’s M
Motion for Leave to
10
Ame
end. (Dkt. No. 57 (“Opp
N
position”).) In their Opp
position, Defendants’ pr
rimarily argu that
ued
11
United States District Court
Northern District of California
9
Plaintiff’s motio should be denied as an improper a “poorlyon
e
a
and
-disguised m
motion for
12
reco
onsideration” and that Pl
”
laintiff’s proposed amen
ndments are f
futile given t Court’s previous
this
13
orde regarding Plaintiff’s claims. (See id.) On Au
ers
g
e
ugust 27, 20
012, Plaintiff filed his Re
f
eply Brief in
14
Support of Moti for Leav to Amend, in which he rebutted D
ion
ve
,
e
Defendants’ p
procedural ar
rguments
15
and reasserted his right for leave to ame
h
l
end. (Dkt. N 64 (“Rep
No.
ply”).)
16
II.
DISCUSS
SION
17
A.
Legal Stand
L
dard on Mot
tion for Lea to Amen
ave
nd
18
Grant or denial of leave to amen rests in the sound disc
r
nd
e
cretion of the court. Swa
e
anson v. U.S
S.
19
Fore Serv., 87 F.3d 339, 343 (9th Cir. 1996). Lea to amend should be a
est
7
3
ave
d
allowed freely “unless
20
the court determ
c
mines that the allegation of other fact consistent with the cha
e
ts
t
allenged ple
eading could
21
not possibly cur the deficie
p
re
ency.” Schre
eiber Distrib Co. v. Serv
b.
v-Well Furn
niture Co., In 806 F.2d
nc.,
d
22
1393, 1401 (9th Cir. 1986). See Carrico v. City & C
h
o
County of Sa Francisco 656 F.3d 1
an
o,
1002 (9th
23
Cir. 2011) (hold
ding that leav to amend may be den
ve
nied if the pro
oposed amen
ndment is fu
utile or
24
wou be subjec to dismissal). A propo
uld
ct
osed amendm is futile only if no set of facts c be
ment
e
can
25
prov under th amendmen to the plea
ven
he
nt
adings that w
would consti
itute a valid and sufficien claim or
nt
26
defe
ense. Miller v. Rykoff-Se
exton, Inc., 845 F.2d 209 214 (9th C 1988) (p
8
9,
Cir.
proper test in
n
27
dete
ermining legal sufficienc of a propo
cy
osed amendm is ident
ment
tical to that u
used under R
Rule
28
12(b
b)(6)).
4
1
Under Rule 12(b)(6) “[f]actual allegations m be enou to raise a right to rel above
R
),
a
must
ugh
lief
2
the speculative level” such that the claim “is plausib on its fac
s
l
t
m
ble
ce.” Bell Atl
lantic Corp. v. Twombly,
3
550 U.S. 544, 555 & 570, 12 S. Ct. 195 (2007); J
27
55
Justo v. Char Capital Corp., No. 1
rter
11-cv-00670
0
4
EJD 2012 WL 359738, at *3 (N.D. Cal Feb. 2, 201 see Calh
D,
3
*
l.
12);
houn v. VA M San Dieg No. 08MC
go,
5
cv-2
2064 JM, 2009 WL 1227
7891, at *1 (S.D. Cal. M 5, 2009) (although le
(
May
eave to amen should be
nd
e
6
gran liberally to pro se plaintiffs, “co
nted
y
ourts should dismiss a co
omplaint for failure to st a claim
tate
7
whe the factua allegations are insuffic
en
al
s
cient ‘to raise a right to r
e
relief above t speculati level’”)
the
ive
8
(quo
oting Twomb
bly). In cons
sidering the sufficiency o a claim, th court must accept as true all of
of
he
9
the factual alleg
f
gations in the complaint, but it “is no required to accept as tr legal con
e
ot
o
rue
nclusions
cast in the form of factual al
t
llegations.” Justo, 2012 WL 359738 at *3 (“[r]
2
8,
]ecitals of th elements
he
11
United States District Court
Northern District of California
10
of a cause of act
tion and con
nclusory alleg
gations are i
insufficient” (citing Ash
”)
hcroft v. Iqba 556 U.S.
al,
12
662 (2009)).
13
B.
Plaintiff’s First, Second Fourth, an Seventh Claims
P
d,
nd
14
In the Se
econd Order, the Court denied Defen
d
ndant’s Moti to Dismi Amended Complaint
ion
iss
d
t
15
as to Plaintiff’s claims for fa arrest an imprisonm (first c
o
alse
nd
ment
claim), batter (second cl
ry
laim),
16
uneq treatme in violatio of the Fourth Amend
qual
ent
on
dment (fourth claim), and interferenc with the
h
d
ce
17
Fou Amendm (seventh claim). Be
urth
ment
h
ecause the C
Court previou found th
usly
hese claims w legally
were
y
18
suff
ficient, those claims are not at issue in this Motio for Leave to Amend.
e
n
i
on
e
19
C.
Plaintiff’s Third Claim for Violatio of First A
P
T
on
Amendmen
nt
20
In the Se
econd Order, this Court gave Plaintif leave to am
g
ff
mend his thi claim wit regard to
ird
th
21
the agenda item number issu and removal issue, bu denied lea to amend as to Plaint
a
m
ue
ut
ave
d
tiff’s
22
retal
liation and tw
wo-minute restriction issues.
r
23
As to the removal issue, Plaintif has alleged new facts i his P-3rd AC such tha he may
e
ff
d
in
at
24
state a plausible claim again the Board based on an alleged pra
e
e
nst
d
n
actice or cus
stom that res
sults in
25
dete
erring citizen from atten
ns
nding Board meetings. I particular, Plaintiff all
In
,
leged that a deputy
26
sher once prev
riff
vented him from enterin the chamb (and mad a verbal c
f
ng
ber
de
comment ind
dicating that
27
the Board meeti was spec
B
ing
cifically clos to him), t
sed
that Plaintiff once saw a member of the public
f
f
28
slam
mmed to the floor for atte
empting to speak to a su
s
upervisor, an that a num
nd
mber of indiv
viduals had
5
1
been removed fr
n
rom the cham
mber and we warned o “escalating repercussi
ere
of
ions” if they tried to
2
retu
urn. (P-3rd AC ¶¶ 46, 50 & 51.) Tak
A
0
king these ne allegation as true an drawing inferences in
ew
ns
nd
n
3
favo of Plaintif Plaintiff has stated a plausible cla based on the remova of citizens from Board
or
ff,
h
p
aim
n
al
d
4
mee
etings, includ
ding his own removal on other occas
n
n
sions.
5
Regardin the issue of retaliation Plaintiff h raised ad
ng
n,
has
dditional fact which—t
ts,
taking those
6
alleg
gations as tru
ue—may sta a plausible claim. In the P-3rd A Plaintiff provided ad
ate
n
AC,
dditional
7
facts regarding his long hist
h
tory of subm
mitting letters to the Clerk of the Boa publishin
s
k
ard,
ng
8
new
wsletters, and speaking be
d
efore the Bo
oard of Super
rvisors. (P-3 AC ¶ 54 Plaintiff a alleged
3rd
4.)
also
9
that his commen exposed Defendants’ diversion o public reso
nts
D
of
ources to pri
ivate interest which
ts,
may give rise to retaliation by the Defen
y
o
b
ndants. (P-3 AC ¶ 55.) Plaintiff c
3rd
contends that a
t
11
United States District Court
Northern District of California
10
reas
sonable infer
rence of retaliation may be drawn ba
b
ased on his h
history of inv
volvement an his
nd
12
criti
icisms of the Board, to th extent tha he was sin
e
he
at
ngled out and removed fr
d
from the Sept
tember 2011
1
13
mee
eting. (Motio at 6–7.) The Court agrees that fr
on
T
rom these ad
dditional fact a plausibl claim for
ts,
le
14
retal
liation has been stated.
b
15
As to Pla
aintiff’s two
o-minute rest
triction claim the Court believes tha Plaintiff’s claim still
m,
at
16
does not state pl
s
lausible claim based on the First Am
m
t
mendment. H
However, the Court also believes
e
17
that Plaintiff ma be able to state a claim with addit
ay
m
tional facts. The same is true of Plai
s
intiff’s
18
agen item clai which Plaintiff did not appear to amend at a between th 1st AC an P-3rd
nda
im,
n
o
all
he
nd
19
AC. Plaintiff ha this last op
.
as
pportunity to amend his claim based on the two-minute rest
o
d
triction and
20
agen items by providing factual alleg
nda
y
f
gations expla
aining how th alleged conduct is a v
he
violation of a
21
cons
stitutionally-protected ri
ight and the policy or pra
p
actice that re
esults in thes violations The Court
se
s.
t
22
does not find pe
s
ersuasive Pla
aintiff’s refer
rence to the San Francisco Administ
trative Code which is
e,
23
not substantively different from the Gov
fr
vernment Co sections referenced i the Secon Order.
ode
in
nd
24
25
For the foregoing rea
f
asons, Plaint
tiff’s Motion for Leave t Amend hi third claim for
n
to
is
m
violation of the First Amend
dment is GRANTED.
R
26
D.
27
In his Motion, Plaint contends that becaus “defendan did not ha grounds to effect a
M
tiff
s
se
nts
ave
28
Plaintiff’s Fifth Claim for Racial D
P
f
Discriminati
ion
lawf arrest the were eithe motived by retaliation for [Plainti
ful
ey
er
b
n
iff’s] First A
Amendment a
activities, or
6
1
they responded to hearsay comments fro the disru
y
om
uptive individ
duals and we maliciou
ere
usly
2
implementing th same racial animus.” (Motion at 12.) Plainti
hat
”
t
iff’s primary authority in support of
y
n
f
3
ve
M
ir.
here
nth
leav to amend is Evans v. McKay, 869 F.2d 1341, 1345 (9th Ci 1989), wh the Nin Circuit
4
note that overt acts coupled with racial remarks are sufficient t state a cla for race
ed
d
l
e
to
aim
5
disc
crimination. Evans is co
onsistent wit the Court’ prior dism
th
’s
missal of the race discrim
mination
6
claim without le
m
eave to amen In Evans the plainti raised ove acts and r
nd.
s,
iff
ert
racial slurs b the
by
7
defe
endants them
mselves. Her Plaintiff has not alleg any tang
re,
h
ged
gible indicia of intentiona
al
8
disc
crimination on account of race by Def
o
o
efendants. Id at 1344 (“
d.
“plaintiffs mu show int
ust
tentional
9
disc
crimination on account of race”). Jus as with hi s 1st AC, Pl
o
o
st
laintiff’s P-3rd AC’s race
disc
crimination claim is “dev
c
void of any factual allega
f
ations showi such inte or animu
ing
ent
us.” (Second
d
11
United States District Court
Northern District of California
10
Ord at 17.) Because Plain raised no new facts in the race d
der
ntiff
n
discriminatio section of his P-3rd
on
f
12
AC, Plaintiff’s Motion for Leave to Am
,
M
L
mend this cau of action is DENIED.
use
n
13
E.
Plaintiff’s Si
P
ixth Claim for Interfer
f
rence with F
First Amend
dment
14
Plaintiff sixth claim for interfe
f’s
m
erence with t First Am
the
mendment, 42 U.S.C. sect
2
tion 1983,
15
appe to be su
ears
ubstantively identical to the third clai for violat
i
t
im
tion of the F
First Amendm right to
ment
o
16
free speech. Ind
deed, there are no facts alleged with respect to th sixth claim Plaintiff Motion
a
a
he
m.
f’s
17
L
mend this cla is DENIE because th claim is d
aim
ED
he
duplicative. Plaintiff is i
instructed to
o
for Leave to Am
18
com
mbine his First Amendme claims in one claim in his amen
ent
nto
m
nded compla
aint.
19
F.
Plaintiff’s Eighth Claim for Defam
P
m
mation and S
Slander
20
As stated in the Cou
d
urt’s Second Order, the to of defam
ort
mation “invol
lves (a) a pub
blication
21
that is (b) false, (c) defamato and (d) unprivileged and that (e has a natu tendency to injure or
ory,
d,
e)
ural
y
22
cial
”
oftus, 40 Cal 4th 683, 72 (2007) (in
l.
20
nternal citati
ions
that causes spec damage.” Taus v. Lo
23
al.
e
o
cation, there must be som
me
omitted); see Ca Civ. Code §§ 45–46. For there to be a public
24
com
mmunication—
—whether oral or writte Cal. Civ. Code §§ 45
o
en.
.
5–46. The C
Court previou
usly
25
prov
vided explici instruction to Plaintif if he sough to amend this claim: “
it
ns
ff
ht
“[i]f Plaintiff re-alleges
ff
26
this claim, he must specify an actual sta
m
a
atement that was made b Defendant how the s
by
ts,
statement
27
was false, how it defamed him, how it was unprivile
i
h
w
eged, and ho it naturally tended to injure him
ow
28
or cause special damage.” (Second Ord at 18.)
(
der
7
In the P-3rd AC, Pla
aintiff amend his defam
ded
mation claim and added the followin
m
ng
1
2
alleg
gation: “The accusations of disruptio and statem
e
s
on
ments that th superviso were seek
he
ors
king to
3
rem
move him wer uttered in full view an hearing of the audienc in attenda
re
nd
f
ce
ance and wer broadcast
re
t
4
on San Francisc Governme Televisio (SFGTV) (P-3rd A ¶ 81.) Th amendme suggests
S
co
ent
on
).”
AC
his
ent
5
state
ements were made but does not cure Plaintiff’s d
e
d
e
defective cla
aim. Plaintif must speci the
ff
ify
6
actu statement made by Defendants. Without a sta
ual
t
W
atement, Pla
aintiff likewi has not e
ise
explained
7
how that statem was false or any othe required e
w
ment
er
element for d
defamation. See Taus, 4 Cal. 4th
40
8
at 72
20.
9
econd Order, the Court gave Plaintif leave to am
g
ff
mend on this claim. Wh
s
hile
In the Se
Plaintiff’s propo
osed claim is still insuffi
s
icient, he has provided a least one a
s
at
additional fac
ctual
11
United States District Court
Northern District of California
10
gation. In th Court’s vi
he
iew, Plaintif deficient claim could still be cured. To do so Plaintiff
ff’s
t
d
o,
alleg
12
mus allege exac what wa said and how it was fa
st
ctly
as
h
alse. Accord
dingly, Plain is GRAN
ntiff
NTED further
r
13
leav to amend this claim, in addition to the allegati
ve
t
n
o
ions in the P
P-3rd AC.
14
G.
David Chiu as a Defend
D
dant
15
In the Second Order this Court granted Plai
r,
intiff leave t amend to re-add Chiu as a
to
u
16
defe
endant only to the extent that: (1) Pla
t
t
aintiff can al
llege a claim against him based on a claim that
m
m
17
was not dismissed or for wh Plaintiff had leave to amend; an (2) Plainti sufficient alleges
hich
f
o
nd
iff
tly
18
Chiu actions were perform in his pe
u’s
w
med
ersonal (not o
official) cap
pacity. (Dkt. No. 32.) Pl
.
laintiff
19
cont
tends in his Motion and P-3rd AC th “[i]f the m
M
hat
municipality is not liable for the dep
y
e
privation of
20
civil rights unde the Monel doctrine, th David C
l
er
ll
hen
Chiu must be individually liable beca
e
y
ause it is
21
outs of his qu
side
ualified imm
munity.” (Mo
otion at 7–8. Plaintiff a alleges t Chiu “acted to
.)
also
that
22
supp
press free sp
peech and the right to pet
e
tition the gov
vernment in all circumst
n
tances” by
23
“sup
ppress[ing] public comm by allow
p
ment
wing only tw minutes fo public comment” and “ceas[ing]
wo
for
d
24
to give the agen item ‘Gen
nda
neral Public Comment’ an item num
mber.” (P-3r AC ¶¶ 44, 48 & 52.)
rd
,
25
Furt
ther, in his P-3rd AC, Plaintiff allege that “[a]t all times ma
P
es
aterial to this Complaint, these
s
,
26
defe
endants,” wh presuma
hich
ably includes Chiu, “acte toward pl
ed
laintiff unde color of th statutes,
er
he
27
ordi
inances, cust
toms and usa of the St of Califo
age
tate
ornia.” (P-3 AC ¶ 9.)
3rd
28
8
1
To estab
blish persona liability of a local offic in a sect
al
f
cial
tion 1983 ac
ction, “it is en
nough to
2
show that the of
w
fficial, acting under colo of state law caused th deprivation of a federa right.”
g
or
w,
he
n
al
3
Ken
ntucky v. Gra
aham, 473 U.S. 159, 166 (1985); see also Hafer v. Melo, 502 U.S. 21, 25 (1991)
U
6
e
2
5
4
(“Pe
ersonal-capa
acity suits, on the other hand, seek to impose ind
n
h
o
dividual liabi
ility upon a g
government
5
offic for action taken und color of state law.”) In light of th allegation above, Pla
cer
ns
der
s
he
ns
aintiff’s
6
Mot
tion is GRAN
NTED as to th amendme in this fo
his
ent
orm.
7
III.
8
9
10
United States District Court
Northern District of California
11
CONCLU
USION
For the foregoing rea
f
asons, Plaint
tiff’s Motion For Leave to Amend is GRANTED IN PART
n
s
AND DENIED IN PART.
D
To minimize con
m
nfusion, Plai
intiff shall c
caption his am
mended com
mplaint as the
e
“Fou Amended Complain and may amend that complaint a follows:
urth
nt”
as
1.
Plaintiff’s cla
P
aims for fals arrest and imprisonme (first clai
se
ent
im), battery (second
12
claim), unequ treatmen in violation of the Fou Amendm (fourth claim), and
c
ual
nt
n
urth
ment
13
in
nterference with the Fou Amendm
w
urth
ment (sevent claim) we previousl held to be
th
ere
ly
14
sufficient in the 1st AC. As such, Pl aintiff’s Fou Amende Complain may allege
s
t
urth
ed
nt
e
15
th
hese claims.
16
2.
Plaintiff’s Motion for Le
P
M
eave to Amen the third claim for vio
nd
olation of th First
he
17
Amendment is GRANTED. This leav is granted as to the ent
A
D
ve
tirety of the First
18
Amendment claim, inclu
A
uding allegat
tions relating to retaliatio two-minu
g
on,
ute
19
restriction, ag
r
genda items, and remova
,
al.
20
3.
The Fourth Amended Co
T
A
omplaint may not allege this claim.
y
21
22
The Motion for Leave to Amend the fifth claim f racial dis
T
f
for
scrimination is DENIED.
n
4.
The Motion for Leave to Amend the sixth claim for interfere
T
f
ence with the First
e
23
Amendment is DENIED to the extent that it is dup
A
plicative of P
Plaintiff’s th claim.
hird
24
Plaintiff shal allege only one First A
P
ll
y
Amendment c
claim in the Fourth Ame
ended
25
Complaint.
C
26
27
5.
Plaintiff is GRANTED fur
P
rther leave to amend his eighth claim for defama
o
m
ation and
slander.
s
28
9
1
6.
The Motion for Leave to Amend to add David Chiu as a defendant in his individual
2
capacity is GRANTED. David Chiu may be named as an individual defendant in the
3
Fourth Amended Complaint.
4
Because Plaintiff will file a Fourth Amended Complaint, the pending Motion to Dismiss the
5
Second Amended Complaint is DENIED AS MOOT. The Court terminates Dkt. No. 55 and vacates
6
the hearing on that motion scheduled for September 25, 2012.
7
Plaintiff’s Fourth Amended Compliant shall be filed within fourteen (14) days of the date of
8
this Order. Defendants shall file their response within fourteen (14) days thereafter. This Order
9
terminates Dkt. No. 53.
10
IT IS SO ORDERED.
United States District Court
Northern District of California
11
12
13
Dated: September 20, 2012
_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10
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