Ideafarm v. Mountain View Police Department et al

Filing 103

ORDER granting 94 , 95 Motions to Dismiss. The Clerk shall close this file. Signed by Judge Edward J. Davila on 1/12/2018. (ejdlc1S, COURT STAFF) (Filed on 1/12/2018)

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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 SAN JOSE DIVISION 4 5 WO OF IDEAFARM, Case No. 5:16-cv-06270-EJD Plaintiff, 6 ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS v. 7 8 COUNTY OF SANTA CLARA, et al., Re: Dkt. Nos. 94, 95 Defendants. 9 Plaintiff Wo of Ideafarm is a “street essayist” who alleges in this action that Defendants 10 United States District Court Northern District of California 11 City of Mountain View (the “City”) and the County of Santa Clara (the “County”) violated his 12 constitutional rights by exposing him to “police harassment” and “overwhelming frivolous 13 criminal prosecution.” They City and the County now move to dismiss Plaintiff’s Second 14 Amended Complaint (“SAC”). Dkt. Nos. 94, 95. Plaintiff opposes. Federal jurisdiction arises pursuant to 28 U.S.C. § 1331. These matters are suitable for 15 16 decision without oral argument. Civ. L.R. 7-1(b). Because the SAC does not state plausible 17 claims against either defendant, the motions to dismiss will be granted for the reasons explained 18 below. 19 I. 20 FACTUAL AND PROCEDURAL BACKGROUND According to Plaintiff, he began a “speech operation” in 2006 by mounting large signs on a 21 minivan displaying messages, such as “DON’T BE SELFISH - MAKE LIFE BETTER” and 22 “COME, EAT WITH US.” SAC, Dkt. No. 90, at p. 22. Plaintiff initially planned to travel 23 throughout the United States, but “police harassment” forced him to eventually limit the operation 24 to Mountain View. Id. Once there, Plaintiff began to use the “‘street essay’ general method of 25 spontaneous direct speech,” in which he would display once sentence per day of an entire essay or 26 speech. Id. at p. 23. To “engage” his audience, Plaintiff would “use humor and indecency, and 27 would alternate mild, pleasant themes with provocative and at times incendiary themes.” Id. 28 Case No.: 5:16-cv-06270-EJD ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS 1 Plaintiff alleges that police harassment was “manageable” until August, 2010, when “a 1 2 federal judge struck down California’s constitutional provision limiting marriage to a ‘man and a 3 woman.’” Id. In response, Plaintiff began to “speak against queer marriage.” Id. Plaintiff states 4 that both “private violence and police harassment quickly became overwhelming” once he did so, 5 and that the County, the City and the “Bench” attempted to end his operation. Id. He alleges the 6 “attacks” continued through 2016, and he recounts many in the SAC. Id. at pp. 30-41. Plaintiff further alleges that: 7 8 In Santa Clara County, a decisive majority faction exists that is both substantially and procedurally “political left”. This faction captured and perverted institutions of government to establish a renegade plutocratic local government that maintains a mere charade of constitutionality. (Whenever the Constitution conflicts with Money, Money prevails.) 9 10 United States District Court Northern District of California 11 12 SAC, at p. 7. 13 Plaintiff contends the “political left” majority has engaged in “speech rights discrimination 14 motivated by invidious animus against the political right,” and that the City, the County and the 15 “Bench” conspired “to use force and violence and threats of force or violence, including deadly 16 force,” to silence him. Id. at pp. 7, 19. For example, Plaintiff alleges the City deprived him of 17 various rights using police harassment and “frivolous criminal prosecution,” and that the County 18 violated his rights by providing “ineffective and treacherous defense counsel” and “causing 19 cancer” to appear and grow more aggressively. Id. at pp. 12-13. Plaintiff filed the original complaint directly in this court on October 31, 2016, and a First 20 21 Amended Complaint (“FAC”) on January 10, 2017. Dkt. No. 27. The court granted motions to 22 dismiss the FAC brought by the City and the County on September 25, 2017. Dkt. No. 85. 23 Plaintiff then filed the SAC, which asserts causes of action under 42 U.S.C. §§ 1983 and 1985(3). 24 The instant motions followed. 25 II. LEGAL STANDARD 26 A. 27 Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with sufficient 28 Federal Rule of Civil Procedure 12(b)(6) Case No.: 5:16-cv-06270-EJD ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS 2 1 specificity to “give the defendant fair notice of what the . . . claim is and the grounds upon which 2 it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). 3 The factual allegations in the complaint “must be enough to raise a right to relief above the 4 speculative level” such that the claim “is plausible on its face.” Id. at 556-57. A complaint that 5 falls short of the Rule 8(a) standard may be dismissed if it fails to state a claim upon which relief 6 can be granted. Fed. R. Civ. P. 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only 7 where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable 8 legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). When deciding whether to grant a motion to dismiss, the court must generally accept as 9 true all “well-pleaded factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). The court 11 United States District Court Northern District of California 10 must also construe the alleged facts in the light most favorable to the plaintiff (Retail Prop. Trust 12 v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014)), even those 13 facts that strike a “savvy judge” as improbably or unlikely to result in recovery. Twombly, 550 14 U.S. at 556. However, “courts are not bound to accept as true a legal conclusion couched as a 15 factual allegation.” Iqbal, 556 U.S. at 678. Also, the court usually does not consider any material beyond the pleadings for a Rule 16 17 12(b)(6) analysis. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 18 (9th Cir. 1990). Exceptions to this rule include material submitted as part of the complaint or 19 relied upon in the complaint, and material subject to judicial notice. See Lee v. City of Los 20 Angeles, 250 F.3d 668, 688-69 (9th Cir. 2001). 21 B. 22 Where, as here, the pleading at issue is filed by a plaintiff proceeding pro se, it must be Pro Se Pleadings 23 construed liberally. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). This is particularly true 24 when a pro se plaintiff asserts civil rights violations. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 25 2010). 26 However, the court “need not give a plaintiff the benefit of every conceivable doubt” but 27 “is required only to draw every reasonable or warranted factual inference in the plaintiff’s favor.” 28 Case No.: 5:16-cv-06270-EJD ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS 3 1 McKinney v. De Bord, 507 F.2d 501, 504 (9th Cir. 1974). Rather, the court “should use common 2 sense in interpreting the frequently diffuse pleadings of pro se complainants.” Id. But pro se 3 parties must still abide by the rules of the court in which they litigate. Carter v. Comm’r of 4 Internal Revenue, 784 F.2d 1006, 1008 (9th Cir. 1986). Moreover, the court may not “supply 5 essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of 6 Alaska, 673 F.2d 266, 268 (9th Cir. 1982). A pro se complaint should not be dismissed unless the court finds it “beyond doubt that the 7 8 plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 9 Haines v. Kerner, 404 U.S. 519, 521 (1972). 10 III. DISCUSSION United States District Court Northern District of California 11 As they did in response to the FAC, the City and the County argue the SAC does not 12 contain sufficient factual allegations to state plausible causes of action under §§ 1983 and 1985(3). 13 Re-engaging well-established pleading principles and applying them to the SAC, the court must 14 agree. 15 A. 16 The last dismissal order defined Rule 8’s pleading requirement. It is worth repeating and General Authority Governing Plausibility 17 refining here. “[T]he pleading standard Rule 8 announces does not require ‘detailed factual 18 allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me 19 accusation.” Iqbal, 556 U.S. at 678. Plausibility is achieved “when the plaintiff pleads factual 20 content that allows the court to draw the reasonable inference that the defendant is liable for the 21 misconduct alleged.” Iqbal, 556 U.S. at 678. The plaintiff must rely on “well-pleaded factual 22 allegations,” which the court can assume are true, and not on legal or factual conclusions, which 23 are not entitled to an assumption of truth. Id. at 679; accord Sprewell v. Golden State Warriors, 24 266 F.3d 979, 988 (9th Cir. 2001) (holding the court need not “accept as true allegations that are 25 merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”). 26 Recognizing this principal, the Ninth Circuit has established a procedure for determining 27 the plausibility of a complaint’s allegations: 28 Case No.: 5:16-cv-06270-EJD ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS 4 1 First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. 2 3 4 5 6 Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014). 7 “[W]here the well-pleaded facts do not permit the court to infer more than the mere 8 possibility of misconduct, the complaint has alleged - but it has not ‘show[n]’ - ‘that the pleader is 9 entitled to relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)). 10 It is also important to note that when “determining the propriety of a Rule 12(b)(6) United States District Court Northern District of California 11 dismissal, a court may not look beyond the complaint to a plaintiff’s moving papers, such as a 12 memorandum in opposition to a defendant’s motion to dismiss.” Schneider v. Cal. Dep’t of Corr., 13 151 F.3d 1194, 1197 n. 1 (9th Cir. 1998) 14 B. 15 The court now applies the plausibility standard defined above to the two types of claims 16 17 Application to the SAC asserted in the SAC. i. Cause of Action under § 1983 18 The court understands based on the amended allegations that Plaintiff alleges a conspiracy 19 under § 1983. SAC, at p. 19 (quoting Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 20 254 (3d Cir. 1999)). To establish a § 1983 conspiracy claim, Plaintiff must allege facts 21 demonstrating: “‘(1) the existence of an express or implied agreement among the defendant[s] [] 22 to deprive him of his constitutional rights, and (2) an actual deprivation of those rights resulting 23 from that agreement.’” Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010) (citing Ting v. United 24 States, 927 F.2d 1504, 1512 (9th Cir. 1991)). 25 Since Plaintiff names only municipalities as defendants, he must allege a policy, practice, 26 or custom that causes the constitutional violation within the conspiracy elements. See Monell v. 27 New York City Dep’t of Soc. Serv., 436 U.S. 658, 694 (1978); see also Trevino v. Gates, 99 F.3d 28 Case No.: 5:16-cv-06270-EJD ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS 5 1 911, 918 (9th Cir. 1996). Indeed, “[a] municipality may not be sued under § 1983 solely because 2 an injury was inflicted by its employees or agents.” Long v. Cty. of Los Angeles, 442 F.3d 1178, 3 1185 (9th Cir. 2006). 4 Plaintiff has not stated a plausible § 1983 claim against either the City or the County under 5 this framework. As to both defendants, Plaintiff concludes that a “pattern or practice or policy” 6 exists to deprive him of constitutional rights. See, e.g., SAC, at p. 4 (“Over the about nine year 7 period 2009-2017, the City of Mountain View (“City”) willfully, knowingly, and maliciously, as 8 pattern or practice or policy, attacked me with overwhelming police harassment and frivolous 9 criminal prosecution.”). But “it is not enough to state that there is a policy and the policy amounted to deliberate indifference to various constitutional rights . . . ; there must be facts 11 United States District Court Northern District of California 10 showing the plausibility of those statements.” Herrera v. City of Sacramento, No. 2:13-cv-00456 12 JAM-AC, 2013 WL 3992497, at *8 (E.D. Cal. Aug. 2, 2013). Conspicuously missing from the 13 SAC are any supporting allegations describing either a formally adopted policy of the City or the 14 County, or an allegation of a widespread pattern of other similar behavior on the part of the City 15 and the County. See Boyd v. Benton Cty., 374 F.3d 773, 784 (9th Cir. 2004) (“[A] municipality 16 may only be sued under section 1983 if the action that is alleged to be unconstitutional implement 17 [ed] or execute[d] a policy statement, ordinance, regulation, or decision officially adopted and 18 promulgated by that body’s officers, or the city made a deliberate or conscious choice to fail to 19 train its employees adequately.”); see also Pembaur v. City of Cincinnati, 475 U.S. 469, 483 20 (1986) (defining a formal municipal policy as “a deliberate choice to follow a course of action . . . 21 made from among various alternatives by the official or officials responsible for establishing final 22 policy with respect to the subject matter in question”); see also City of St. Louis v. Praprotnik, 485 23 U.S. 112, 127 (1988) (defining an informal municipal policy as “the existence of a widespread 24 practice that, although not authorized by written law or express municipal policy, is ‘so permanent 25 and well settled as to constitute a custom or usage with the force of law’”). 26 Instead, the alleged factual predicate for the § 1983 conspiracy claim is specific conduct 27 toward Plaintiff alone, along with an assumption that the conduct must arise from an official 28 Case No.: 5:16-cv-06270-EJD ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS 6 1 policy, practice or custom to deny him constitutional protections. To be sure, Plaintiff recounts a 2 long history of personal interactions with law enforcement and the state legal system. Even if 3 these factual allegations describing Plaintiff’s experiences are liberally construed and credited as 4 true, they raise only the possibility of misconduct prohibited by § 1983; they do not support a 5 plausible inference that the defendants violated Plaintiff’s rights based on an official policy, 6 formal or otherwise. See Eclectic Props., 751 F.3d at 996. 7 Plaintiff’s theory concerning the appointment of “ineffective and treacherous defense 8 counsel” illustrates the point. Plaintiff merely concludes that counsel appointed to represent him 9 in various criminal actions was inadequate, but does not identify, with supporting facts, any County policy or practice underlying the allegedly deficient appointments, or explain how the 11 United States District Court Northern District of California 10 actions of decision-makers were in accordance with that policy or constituted a policy. In that 12 way, the allegations of the SAC are distinguishable from those found sufficient in cases like 13 Miranda v. Clark County, Nevada, since they do not describe something akin to “a deliberate 14 pattern or policy of refusing to train lawyers for capital cases known to the county administrators 15 to exert unusual demands on attorneys.” 319 F.3d 465, 471 (9th Cir. 2003) (en banc). Plaintiff’s 16 opposing arguments on this topic, which rely on inference and opinion regarding the expense, 17 riskiness and dangerousness of the “joint attacks” as well as speculation about the role of “Big 18 Money,” does not alter the analysis. 19 Similarly, allegedly wrongful actions by employees of the City or the County do not satisfy 20 Monell when not accompanied by plausible allegations of official policy or custom. Monell itself 21 makes clear that “a municipality cannot be held liable under § 1983 on a respondeat superior 22 theory.” 436 U.S. at 691; accord Flores v. Cty. of Los Angeles, 758 F.3d 1154, 1158 (9th Cir. 23 2014) (“Neither state officials nor municipalities are vicariously liable for the deprivation of 24 constitutional rights by employees.”). “Instead, it is only when execution of a government’s 25 policy or custom inflicts the injury that the municipality as an entity is responsible.” Long, 442 26 F.3d at 1185. Thus, though the SAC apparently implicates the decisions of several individuals, 27 their conduct as alleged does not translate into policy or custom for the purpose of municipal 28 Case No.: 5:16-cv-06270-EJD ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS 7 1 2 liability. Furthermore, the court cannot find that the SAC is premised on the decisions of a “final 3 policymaker” of the County, even when liberally construed. See Webb v. Sloan, 330 F.3d 1158, 4 1164 (9th Cir. 2003) (“A municipality can be liable even for an isolated constitutional violation, 5 however, when the person causing the violation has final policymaking authority.”). There are no 6 plausible allegations supporting such a theory in the SAC; that is, the pleading is missing 7 allegations explaining that any named official is “responsible for establishing final government 8 policy respecting such activity.” Pembaur, 475 U.S. at 482. “The fact that a particular official - 9 even a policymaking official - has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion.” Id. at 481- 11 United States District Court Northern District of California 10 82. The purported “imputed participation” of certain officials, which Plaintiff argues implicates 12 the County in the alleged conspiracy, sounds much like a derivative of vicarious liability and is not 13 enough under Monell. 14 In any event, the County cannot be held liable as a matter of law for District Attorney Jeff 15 Rosen’s decision to prosecute Plaintiff “in all cases” since the Ninth Circuit has found it “clear 16 that the district attorney acts on behalf of the state when conducting prosecutions” in California. 17 Goldstein v. City of Long Beach, 715 F.3d 750, 759 (9th Cir. 2013). Plaintiff may disagree with 18 the Ninth Circuit, but this court is bound to follow its holding. See In re Zermeno-Gomez, 868 19 F.3d 1048, (9th Cir. 2017). Nor can the court consider the additional statements about other 20 County officials made in Plaintiff’s written opposition since they are not reflected by plausible 21 allegations in the SAC. See Schneider, 151 F.3d at 1197 n. 1. 22 23 24 For these reasons, the § 1983 claim against the City and the County will be dismissed. ii. Cause of Action under § 1985(3) The court now turns to allegations under § 1985(3), a statute prohibiting conspiracies to 25 deprive “any person or class of persons of the equal protection of the laws, or of equal privileges 26 and immunities under the laws.” The SAC’s version of the claim remains defective. 27 28 As before, any cause of action under § 1985(3) must be dismissed to the extent it shares Case No.: 5:16-cv-06270-EJD ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS 8 1 allegations with the one under § 1983 since the latter claim will again be dismissed. See Caldeira 2 v. Cty. of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989) (“[T]he absence of a section 1983 3 deprivation of rights precludes a section 1985 conspiracy claim predicated on the same 4 allegations.”). 5 Additionally, the SAC still does not establish Plaintiff’s ability to assert a claim under § 6 1985(3). In the order dismissing the FAC, the court advised Plaintiff he must include allegations 7 establishing his membership in a qualifying class in order to proceed. The court explained that 8 though the Supreme Court has held that § 1985(3) may apply to conspiracies motivated by a 9 “class-based, invidiously discriminatory animus” other than racial discrimination (Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)), the Ninth Circuit has extended it “beyond race only when 11 United States District Court Northern District of California 10 the class in question can show that there has been a governmental determination that its members 12 ‘require and warrant special federal assistance in protecting their civil rights.’” Schulz v. 13 Sundberg, 759 F.2d 714, 718 (9th Cir. 1985) (quoting DeSantis v. Pac. Telephone & Telegraph 14 Co., 608 F.2d 327, 333 (9th Cir. 1979)). More specifically, the Ninth Circuit requires “either that 15 the courts have designated the class in question a suspect or quasi-suspect classification requiring 16 more exacting scrutiny or that Congress has indicated through legislation that the class required 17 special protection.” Id. 18 Much like he did in the FAC, Plaintiff defines the § 1985(3) conspiracy as against “the 19 political-right minority faction” or the “procedural political-right faction,” a group he argues 20 warrants special protection. But Plaintiff has not cited a “governmental determination that such a 21 class merits special protection,” despite the court’s instruction that he do so. Id. Furthermore, it is 22 questionable whether § 1985(3) applies at all to “wholly political, non-racial conspiracies,” which 23 description seems to capture the conspiracy alleged in the SAC. Id. (citing United Bhd. of 24 Carpenters & Joiners v. Scott, 463 U.S. 825, 836-37 (1983)). 25 The § 1985(3) cause of action will also be dismissed. 26 C. 27 The court must now decide whether Plaintiff should be permitted leave to amend, which is 28 Leave to Amend Case No.: 5:16-cv-06270-EJD ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS 9 1 generally granted with liberality. Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave 2 when justice so requires.”); Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th 3 Cir. 1990). Leave need not be granted, however, where the amendment of the complaint would 4 cause the opposing party undue prejudice, is sought in bad faith, constitutes an exercise in futility, 5 or creates undue delay. Foman v. Davis, 371 U.S. 178, 182 (1962); Janicki Logging Co. v. 6 Mateer, 42 F.3d 561, 566 (9th Cir. 1994). Leave to amend may also be denied for “failure to cure 7 deficiencies by amendments previously allowed.” Leadsinger, Inc. v. BMG Music Publ’g, 512 8 F.3d 522, 532 (9th Cir. 2008). Here, Plaintiff was previously advised why his § 1983 cause of action failed under Monell. 9 He was also specifically instructed to include in any amended complaint allegations identifying a 11 United States District Court Northern District of California 10 class capable of seeking relief under § 1985(3). Plaintiff has failed to remedy these deficiencies 12 and the court is unaware of additional facts that could result in sufficiently-pled claims. As such, 13 the court finds that permitting further amendment would be futile at this point, and will dismiss all 14 causes of action without further leave to amend. 15 IV. 16 ORDER Based on the foregoing, the Motions to Dismiss (Dkt. Nos. 94, 95) are GRANTED. All 17 causes of action in the SAC are DISMISSED WITHOUT LEAVE TO AMEND. The hearing 18 scheduled for January 25, 2018, is VACATED. 19 20 Any additional matters are TERMINATED and VACATED. Judgment will be entered in favor of defendants, and the Clerk shall close this file. 21 22 23 24 25 IT IS SO ORDERED. Dated: January 12, 2018 ______________________________________ EDWARD J. DAVILA United States District Judge 26 27 28 Case No.: 5:16-cv-06270-EJD ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS 10

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