Bates v. City of San Jose et al
Filing
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ORDER REQUIRING ADDITIONAL BRIEFING REGARDING PLAINTIFF'S DUE PROCESS CLAIM. Re: Dkt. Nos. 16 19 . Signed by Judge Nathanael Cousins on 5/23/2016. (lmh, COURT STAFF) (Filed on 5/23/2016)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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FREDERICK BATES,
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United States District Court
Northern District of California
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Plaintiff,
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v.
CITY OF SAN JOSE, et al.,
Defendants.
Case No. 15-cv-05729 NC
ORDER REQUIRING ADDITIONAL
BRIEFING REGARDING
PLAINTIFF’S DUE PROCESS
CLAIM
Re: Dkt. Nos. 16, 19
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In this constitutional case, plaintiff Bates has alleged a violation of his due process
rights. Two issues require additional briefing.
The first issue is whether Bates is bringing a substantive due process claim or a
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procedural due process claim, or both. He must state the constitutional right he has been
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deprived of by the Defendants’ failure to investigate his claims of misconduct in his 2006
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trial. He must submit a brief not to exceed three pages by May 31, 2016.
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Second, in their motion to dismiss the complaint, Defendants argue that Bates’ due
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process claim must fail because it alleges a violation of City ordinances, not federal law.
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Dkt. No. 16 at 16. Defendants state that Bates fails to allege facts supporting a federal
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civil rights action because the complaint “allege[s] violations of the policies, ordinances,
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and other provisions of the City of San Jose. . . . Instead of the laws of the United States.”
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Id. This argument needs further explanation. Liberty and property interests that qualify
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for protection under the Due Process Clause include real property, entitlements, and liberty
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interests, including rights of free movement, association, and speech. Vasquez v.
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Rackauckas, 734 F.3d 1025, 1042 (9th Cir. 2013). A state statute can provide a
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“protectable entitlement” and thereby provide an avenue for a substantive due process
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claim. Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 12 (1979);
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Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th Cir. 1986) (a protectable entitlement
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“may arise from either of two sources: the due process clause itself or state law”). If a
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state or city creates an entitlement but subsequently denies citizens access to that
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entitlement without due process of law, then it violates the Due Process clause. See e.g.,
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Wolff v. McDonnell, 418 U.S. 539 (1974) (holding that a Nebraska statute created a liberty
interest protected by due process guarantees). State law that can create an entitlement
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United States District Court
Northern District of California
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includes a city’s ordinances and policies. Wedges/Ledges of California, Inc. v. City of
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Phoenix, Ariz., 24 F.3d 56, 63 (9th Cir. 1994) (“the provisions of the Phoenix City Code
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create an articulable standard sufficient to give rise to a legitimate claim of entitlement”)
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(internal citations and quotations omitted). Defendants are ordered to file additional
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briefing addressing this issue. They must submit a brief not to exceed three pages by May
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31, 2016.
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IT IS SO ORDERED.
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Dated: May 23, 2016
_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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FREDERICK BATES,
Case No. 15-cv-05729-NC
Plaintiff,
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v.
CERTIFICATE OF SERVICE
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CITY OF SAN JOSE, et al.,
Defendants.
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United States District Court
Northern District of California
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
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That on May 24, 2016, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.
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Frederick Bates
1235 Muirkirk Ct.
Folsom, CA 95630
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Dated: May 24, 2016
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Susan Y. Soong
Clerk, United States District Court
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By:________________________
Lili Harrell, Deputy Clerk to the
Honorable NATHANAEL M. COUSINS
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