Pan v. City of Sunnyvale

Filing 30

ORDER GRANTING 9 DEFENDANT'S MOTION TO DISMISS. Signed by Judge Edward J. Davila on 8/21/2017. The 8/31/2017 hearing is vacated. The Clerk shall close this file. (ejdlc2S, COURT STAFF) (Filed on 8/21/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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SAN JOSE DIVISION

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MARIA ALICE PAN,

Case No. 5:17-cv-01128-EJD

Plaintiff,
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ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS

v.
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CITY OF SUNNYVALE,

Re: Dkt. No. 9

Defendant.
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Plaintiff Maria Alice Pan brings claims under 42 U.S.C. § 1983 against the City of

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Sunnyvale for violations of her First and Fourth Amendment rights. Before the Court is the City’s

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motion to dismiss under Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915(e)(2)(b). The City’s

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motion will be GRANTED.

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I.

BACKGROUND

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At a City Council meeting on December 13, 2016, Pan alleges that she took the podium to

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speak. Compl. 4, Dkt. No. 1. While she was at the podium, the City “used a x-ray type device and

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saw into Plaintiff’s clothing.” Id. Images of her undergarments and thighs were projected onto

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two large screens at the meeting and were broadcasted on KSUN-15 (a television channel) and the

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Case No.: 5:17-cv-01128-EJD
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
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internet. Id.
Pan alleges that at another City Council meeting on January 10, 2017, “after [she] sat

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down, [she] could feel radiation over [her] body.” Id. The radiation caused “unbearable pain,” and

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“[o]ne of the councilmembers . . . grimaced as he could see into my body on his computer screen.”

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Id.

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Pan also alleges that the City “is framing [her] as a spy.” Id.

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Pan claims that she suffered constitutional violations and mental and emotional anguish.

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Id. Pan asks the Court to order the City to install “metal screening devices at the entrance to City

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Council chambers, to cease using electronic devices which surreptitiously search through
Plaintiff’s clothing, and to cease framing Plaintiff as a spy to deprive constitutional rights.” Id. Pan

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United States District Court
Northern District of California

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also seeks compensatory and punitive damages “not to be less than ten million dollars.” Id.

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II.

LEGAL STANDARD
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Rule 12(b)(6)

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A Rule 12(b)(6) motion tests the legal sufficiency of the claims alleged in the complaint.

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Parks Sch. Of Bus., Inc v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Dismissal “is proper

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only where there is no cognizable legal theory or an absence of sufficient facts alleged to support a

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cognizable legal theory.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The complaint

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“must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

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on its face.’” Ashcoft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 570 (2007)).

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Courts “should freely give leave [to amend] when justice requires.” Fed. R. Civ. P.

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15(a)(2); In re Korean Air Lines Co., Ltd., 642 F.3d 685, 701 (9th Cir. 2011). Absent a showing of

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prejudice, delay, bad faith, or futility, there is a strong presumption in favor of granting leave to

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amend. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

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B.

28 U.S.C. § 1915(e)(2)(b)
Under 28 U.S.C. § 1915, courts may dismiss claims “whose factual contentions are clearly

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baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989).

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Case No.: 5:17-cv-01128-EJD
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
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III.

DISCUSSION

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A.

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Pan argues that a First Amendment violation occurred because she was humiliated when

First Amendment

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her undergarments and thighs were displayed on screens and broadcasted to the public. Pl.’s

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Opp’n to Def.’s Mot. to Dismiss 4 (“Opp’n”), Dkt. No. 14. She was also humiliated when her

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body was painfully “scanned” and images were produced of her “innards.” Id.

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The City argues that it placed no viewpoint restrictions on Pan’s speech at City Council

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meetings. Def.’s Mot. to Dismiss 6–8, Dkt. No. 9. Pan has not alleged that her access to political

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speech was obstructed as compared to any other participant. In both meetings, Pan was allowed to
speak freely, and she admits that she “continued [her] speech despite the deterrence.” Opp’n 4.

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United States District Court
Northern District of California

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Pan concedes that she was not deterred from participation in the political process. Id.

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The Court finds that Pan’s allegations do not show that the City restricted her freedom of

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speech in violation of the First Amendment. Pan’s other claims —that the City used an “x-ray type

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device” to see inside her clothing, that it used radiation to see inside her body, and that it framed

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her as a spy—do not state plausible First Amendment violations.

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B.

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Pan alleges that the City used an “x-ray type device,” “saw into [her] clothing,” and

Fourth Amendment

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broadcasted images of her undergarments. Pan also alleges that the City exposed her to radiation

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and a councilmember saw “into [her] body on his computer screen.” The Court finds that Pan’s

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allegations do not raise Fourth Amendment concerns because they do not plausibly show that any

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Fourth Amendment violation occurred.

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C.

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A plaintiff may not recover punitive damages from a municipality on a federal claim

Punitive Damages

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brought under 42 U.S.C. § 1983. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271

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(1981). Additionally, the California Government Code bars punitive damage awards against public

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entities. Cal. Gov’t Code § 818.

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Case No.: 5:17-cv-01128-EJD
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
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III. CONCLUSION

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The City’s motion to dismiss is GRANTED without leave to amend. The Clerk shall close

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this file.

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IT IS SO ORDERED.
Dated: August 21, 2017
______________________________________
EDWARD J. DAVILA
United States District Judge

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United States District Court
Northern District of California

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Case No.: 5:17-cv-01128-EJD
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
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