Opinion
No. 2:16-cv-2172-JAM-CMK
01-12-2017
JESSE VANG; WANG CHANG; JOUA CHAO MOUA; ALEXANDER VANG; DANG XIONG; DOLLARSAI YURGH; JOUA YENG VANG; MANISY MOUA; POUA VANG; RICHARD VANG; and DOES 1-200, Plaintiffs, v. SHERIFF JON LOPEY, individually and in his capacity as Sheriff for the COUNTY OF SISKIYOU; COLLEEN SETZER; individually and in her capacity as Clerk for the COUNTY OF SISKIYOU; ALEX NISHIMURA, individually and in his capacity as an agent of the CALIFORNIA SECRETARY OF STATE; the COUNTY OF SISKIYOU; CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION; Does 1-20, in their individual capacity; and DOES 1-20, inclusive, Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
Defendants Sheriff Jon Lopey ("Lopey"), County Clerk Colleen Setzer ("Setzer") and the County of Siskiyou (collectively "Defendants") move to dismiss Plaintiffs' complaint. ECF No. 15. Plaintiffs oppose the motion. ECF No. 31. For the reasons set forth below, the Court GRANTS Defendants' motion to dismiss.
This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for November 15, 2016.
I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
Plaintiffs, ten members of the Hmong community, allege that "[t]he local government in Siskiyou County is engaged in a systematic campaign to deprive Plaintiffs, and other members of the Hmong community, of their right to vote, and their right to the exclusive use and enjoyment of their private property." Compl. ¶ 1, ECF No. 1. Plaintiffs further allege that "[D]efendants conspired to disenfranchise Plaintiffs by challenging their status as California residents through racially discriminatory implementation and enforcement of County Ordinances, and as to some plaintiffs, threatened prosecution." Compl. ¶ 2.
In the June 2016 primary election, the voters of Siskiyou County approved two ordinances regarding the cultivation of marijuana. Compl. ¶ 4. Siskiyou County Code Section 10-14.030 prohibits outdoor cultivation of marijuana. See Defs.' Req. for Judicial Notice ("RJN") Ex. A, ECF 15-2. Section 10-14.090 empowers the Board of Supervisors or an enforcing officer to enforce Section 10-14.030 by issuing notices of abatement. Id.
Plaintiffs allege that Defendants have disproportionately targeted the Hmong community in enforcing the new ordinances. Compl. ¶ 4. The County has issued several nuisance violation notices and scheduled abatement hearings. Compl. ¶ 29. Plaintiffs also allege that Defendants executed search warrants on various properties and that during the searches "residents who were present were handcuffed and held at gunpoint while their properties were ransacked." Compl. ¶ 31. Defendants allegedly seized medical marijuana plants during the searches. Compl. ¶ 31. Plaintiffs also allege that individuals with guns came onto their properties to investigate voter fraud. Compl. at 12-21.
Plaintiffs bring eleven causes of action: (1) violation of the Fourth Amendment right against unreasonable search and seizure against all defendants, (2) violation of the Fourteenth Amendment against all defendants, (3) municipal liability against the County on a failure-to-train theory, (4) supervisory liability against Lopey, (5) employer liability against the County, (6) negligence against all defendants, (7) negligent hiring and supervision against all defendants, (8) violation of California Elections Code Section 14027 against all defendants, (9) violation of § 2 of the Voting Rights Act against all defendants, (10) negligent infliction of emotional distress against all defendants, and (11) ratification against the County. Compl. at 24-30. Plaintiffs bring their first through fifth and eleventh claims pursuant to § 1983. Id.
II. OPINION
A. Judicial Notice
Defendants ask the Court to take judicial notice of the two Siskiyou County municipal ordinances at issue in this litigation. RJN at 2. Since "[m]unicipal ordinances are proper subjects for judicial notice," Tollis, Inc. v. Cty. of San Diego, 505 F.3d 935, 938 n.1 (9th Cir. 2007), the Court takes judicial notice of Siskiyou County Code Sections 10-14.030 and 10-14.090.
B. Plaintiffs' § 1983 Claims
Before addressing each individual cause of action, the Court addresses three issues raised by Defendants that pertain to all of Plaintiffs' § 1983 claims: (1) claims against individual defendants in their official capacities, (2) qualified immunity, and (3) County liability.
1. Plaintiffs' Official Capacity Claims Against Lopey and Setzer
Plaintiffs sue Lopey and Setzer in their individual and official capacities. Compl. at 1. Defendants contend that § 1983 claims "cannot be maintained against the Sheriff and Clerk in their official capacities." Mot. to Dismiss at 4. Defendants are correct. "A claim against a state or municipal official in her official capacity is treated as a claim against the entity itself." Rose v. Cty. of Sacramento, 163 F. Supp. 3d 787, 793 n.1 (E.D. Cal. 2016) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)). When a plaintiff sues a local government entity and an officer in his official capacity, "the court may dismiss the officer as a redundant defendant." Ctr. for Bio-Ethical Reform, Inc. v. L.A. Cty. Sheriff Dep't, 533 F.3d 780, 799 (9th Cir. 2008). Claims against officers in their personal capacities, however, may remain. Fontana v. Alpine Cty., 750 F. Supp. 2d 1148, 1155 (E.D. Cal. 2010). The Court therefore dismisses Plaintiffs' § 1983 claims against Lopey and Setzer in their official capacities without leave to amend.
2. Qualified Immunity
Defendants argue that qualified immunity shields Setzer and Lopey from liability for Plaintiffs' § 1983 claims. Mot. to Dismiss at 4. Although § 1983 allows individuals to vindicate their federal rights, qualified immunity protects government officials from liability for damages in certain situations. A.C. v. Griego, 2016 WL 5930592, at *2 (E.D. Cal. Oct. 12, 2016). "Qualified immunity balances two important interests . . . the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231 (2009). "Qualified immunity is determined by a two-step inquiry: (1) Are the facts that a plaintiff has alleged or shown sufficient to demonstrate a violation of a constitutional right?; and (2) Was the right at issue 'clearly established' at the time of the defendant's alleged misconduct?" Abudiab v. Georgopoulos, 586 F. App'x 685, 686 (9th Cir. 2013).
As to Lopey, Defendants argue that he "was not present during the investigations that occurred at the various properties, and it is not unreasonable for a local law enforcement agency to assist an outside agency" in an investigation of possible voter fraud. Mot. to Dismiss 4-5. As to Setzer, Defendants assert that "the allegations simply establish that she had minimal involvement beyond simply performing her statutory duty to report the possibility of voter fraud." Id. at 5.
Plaintiffs respond that "Defendants actively participated in the investigations herewith and it is Plaintiffs['] belief that many of the Defendants were present and armed with military-style assault rifles . . . [t]herefore, sufficient facts are alleged to establish that a reasonable officer would believe the conduct in question is unlawful under clearly established law." Opp'n at 4.
Plaintiffs' conclusory and unsupported argument fails. While Plaintiffs assert that "many of the Defendants" investigated Plaintiffs while holding assault rifles, Plaintiffs do not point to any factual allegations showing that either Lopey or Setzer personally participated in such activity. Plaintiffs allege only that Setzer reported suspected voter fraud to Lopey and the California Secretary of State and notified individuals of incomplete voter registration cards. Compl. ¶¶ 18, 19. Setzer simply performed her job duties, and Plaintiffs do not provide any support for their contention that Setzer's actions deprived them of a constitution right. Additionally, some Plaintiffs voted in the June election, belying Plaintiffs' allegations that Setzer infringed upon each Plaintiff's right to vote. See Compl. ¶¶ 45, 64, 79. Qualified immunity shields Setzer from liability, and the Court dismisses all § 1983 claims brought against Setzer with prejudice.
As to Lopey, Plaintiffs allege only that he issued press releases and that some of his subordinates visited Plaintiffs' properties. Compl. at 8-9. Plaintiffs fail to allege that Lopey personally violated any of Plaintiffs' constitutional rights and he is also entitled to qualified immunity. All § 1983 claims brought against Lopey in his individual capacity are dismissed without leave to amend.
A court should freely grant leave to amend "when justice so requires." Fed. R. Civ. P. 15(a)(2). But a court may deny leave to amend when it finds that the plaintiff cannot possibly cure the complaint without contradicting allegations in his original complaint. Garmon v. Cty. of Los Angeles, 828 F.3d 837, 846 (9th Cir. 2016); see also Bolin v. Brown, 2012 WL 2933502, at *5 (E.D. Cal. Jul. 18, 2012). The Court finds that Plaintiffs cannot amend their claims against Setzer and Lopey without contradicting the operative complaint's allegations showing that Setzer and Lopey were not personally involved in the constitutional violations that Plaintiffs allege. --------
3. County Liability
A local government cannot be held liable pursuant to § 1983 under a theory of "respondeat superior." Christie v. Iopa, 176 F.3d 1231, 1234-35 (9th Cir. 1999). Instead, municipalities are liable only when action pursuant to official municipal policy causes a constitutional violation. Id. at 1235. The "official policy" requirement "distinguishe[s] acts of the municipality from acts of employees of the municipality," and thereby limits liability to actions for which the municipality is actually responsible. Id. (emphasis in original).
Plaintiffs allege an unconstitutional municipal policy or practice only in their third cause of action. Compare Compl. ¶¶ 110, 113 with Compl. ¶ 115. The Court therefore dismisses Plaintiffs' first and second causes of action as brought against the County with leave to amend. The Court also dismisses Plaintiffs' fifth cause of action for "Employer Liability Against County of Siskiyou" without leave to amend because municipalities cannot be held liable under § 1983 merely because they employ people who may have violated constitutional rights. See id.
4. Third Cause of Action: § 1983 Municipal Liability Against the County
Plaintiffs allege municipal liability against the County based on a failure-to-train theory. Compl. ¶ 115. Plaintiffs allege that the County's training policies "were not adequate to train its sheriff's deputies and police officers to handle voter fraud investigations and building safety code enforcement." Compl. ¶ 115.
A public entity's failure to adequately train its employees may create liability under § 1983 when the "failure to train amounts to deliberate indifference to the rights of persons with whom the [employees] come into contact." Myers v. City of Madera, 2011 WL 2361628, at *5 (E.D. Cal. Jun. 9, 2011) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)). "The issue is whether the training program is adequate and, if it is not, whether such inadequate training can justifiably be said to represent municipal policy." Long v. Cty. of L.A., 442 F.3d 1178, 1186 (9th Cir. 2006). A plaintiff alleging a failure-to-train claim must show: (1) he was deprived of a constitutional right, (2) the municipality had a training policy that amounted to deliberate indifference to the constitutional rights of the persons' with whom its police officers are likely to come into contact; and (3) his constitutional injury would have been avoided had the municipality properly trained those officers." Blankenhorn v. City of Orange, 485 F.3d 463, 485 (9th Cir. 2007).
Plaintiffs fail to "identify any specific training that was deficient, or how the policy amounted to deliberate indifference." See Molina v. City of Visalia, 2014 WL 1117005, at *4 (E.D. Cal. Mar. 14, 2014). Absent such allegations this claim cannot survive. The motion to dismiss Plaintiffs' third cause of action is granted with leave to amend.
5. Eleventh Cause of Action: Ratification Against the County
Plaintiffs allege that "Lopey ratified his subordinates' acts because he knew of and specifically approved of the pattern and practice of sheriff's deputies in Siskiyou County using excessive force while on duty and unlawfully entering onto private property without a search warrant." Compl. ¶ 146.
To impose municipal liability under a ratification theory, a plaintiff must show that the authorized policymakers approved a subordinate's decision and the basis for it. Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004). Mere failure to overrule a subordinate's actions, without more, cannot support a § 1983 claim. Id. Additionally, "the Ninth Circuit 'appears to require something more than a failure to reprimand to establish a municipal policy or ratification.'" Hill v. Fairfield Police Dep't, 2016 WL 2602411, at *3 (E.D. Cal. May 5, 2016) (quoting Kanae v. Hodson, 294 F. Supp. 2d 1179, 1189 (D. Haw. 2003)). Vague and conclusory allegations of official participation in § 1983 violations cannot withstand a motion to dismiss. Arres v. City of Fresno, 2011 WL 284971, at *17 (E.D. Cal. Jan. 26, 2011).
Plaintiffs' allegations merely recite the elements of a ratification claim. See Compl. ¶ 146. Plaintiffs provide no facts to support their allegations that Lopey knew of his subordinates' actions or that he approved of such actions. The Court therefore must dismiss Plaintiffs' eleventh claim but does so with leave to amend.
C. State Common Law Claims
Plaintiffs assert three California state common law claims: negligence (sixth cause of action), negligent hiring/supervision (seventh cause of action), and intentional infliction of emotional distress ("NIED") (tenth cause of action). Compl. at 27-29. "It is well-settled that there is no common law tort liability for public entities in California; instead, such liability must be based on statute." Cardinal v. Buchnoff, 2010 WL 3609489, at *2 (S.D. Cal. Sept. 14, 2010). Plaintiffs' sixth, seventh, and tenth causes of action are based on common law, not on statute, and thus are dismissed as brought against the County without leave to amend.
Defendants next argue that California Government Code section 821 shields both Setzer and Lopey from liability for their actions in investigating potential voter fraud. Mot. to Dismiss at 12. Section 821.6 provides:
"[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause."
California courts construe section 821.6 broadly. Gillan v. City of San Marino, 147 Cal. App. 4th 1033, 1048 (2007). "Section 821.6 is not limited to conduct occurring during formal proceedings. It also extends to actions taken in preparation for formal proceedings. Because investigation is 'an essential step' toward the institution of formal proceedings, it is also cloaked with immunity." Clark v. Cty. of Tulare, 2010 WL 5437195, at *2 (E.D. Cal. Dec. 27, 2010) (quoting Javor v. Taggart, 98 Cal.App.4th 795, 808 (2002)) (internal punctuation omitted).
Plaintiffs respond by arguing that "the immunities provided under Gov Code section 818.2 829, 820.6 and 845 do not render this Cause of Action non-actionable." Opp'n at 13. But Plaintiff's do not cite to any authority or provide any analysis to support this proposition. Plaintiffs' unsupported argument fails. The facts alleged indicate that Setzer and Lopey acted in furtherance of an investigation into potential voter fraud when they notified the California Secretary of State and provided officers to assist the Secretary of State's investigator. Plaintiffs have not provided any facts or arguments to rebut section 821.6's applicability to this case. The Court finds that Lopey and Setzer are immune from Plaintiffs' state law claims pursuant to section 821.6 and therefore dismisses these claims with prejudice as to these individual defendants.
D. Voting Causes of Action
Plaintiffs bring two voting claims: violation of California Elections Code section 14027 (eighth cause of action) and violation of § 2 of the Voting Rights Act (ninth cause of action). Compl. at 28-29. As explained below, neither of these causes of action can survive.
1. Eighth Cause of Action: Violation of California Elections Code Section 14027
Plaintiffs allege that Defendants used an "'at-large election' to pass Measures T and U in an intentional, unlawful, and selective way for the purpose of disenfranchising Plaintiffs specifically, and Hmong residents general[ly]" in violation of California Elections Code section 14027. Compl. ¶ 136.
Section 14027 of the Elections Code states:
An at-large method of election may not be imposed or applied in a manner that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election, as a result of the dilution or the abridgment of the rights of voters who are members of a protected class, as defined pursuant to Section 14026.Cal. Elec. Code § 14027. Section 14026 defines an "at-large election" as:
(1) One in which the voters of the entire jurisdiction elect the members to the governing body.Cal. Elec. Code § 14026.
(2) One in which the candidates are required to reside within given areas of the jurisdiction and the voters of the entire jurisdiction elect the members to the governing body.
(3) One which combines at-large elections with district-based elections.
Defendants contend that "Measures T and U were propositions submitted to popular vote, not an 'at-large' election, which has a specific statutory definition. . . . [T]here was simply no 'at-large election' regarding Measures T and U." Mot. to Dismiss at 8-9. Plaintiffs assert without authority that Measures T and U were passed through "at-large" methods. Opp'n at 8.
At least facially, California Elections Code sections 14026 and 14027 apply to elections of candidates. Plaintiffs do not cite any authority to support their contention that these sections apply to passage of measures or propositions. Absent such authority, this Court declines to interpret this state statute to apply beyond the statute's plain text and dismisses Plaintiffs' eighth cause of action without leave to amend.
2. Ninth Cause of Action: Voting Rights Act
Plaintiffs allege that Defendants "imposed voting qualifications and/or prerequisites to voting and/or standards, practices, or procedures in a manner resulting in a denial or abridgement of the right of Plaintiffs, citizens of the United States, to vote on account of race or color" in violation of § 2 of the Voting Rights Act. Compl. ¶ 139.
Section 2 of the Voting Rights Act states that:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . .52 U.S.C. § 10301.
(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
Plaintiffs' ninth claim fails for two reasons. First, § 2 expressly applies to elections of representatives. Plaintiffs again fail to supply this Court with any authority to apply § 2 to the passage of measures. Second, a plaintiff asserting a § 2 violation must establish three threshold conditions: "(1) the racial group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the racial group is politically cohesive; and (3) the majority votes sufficiently as a bloc to enable it usually to defeat the minority's preferred candidate." League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 425 (2006) (internal citations and punctuation omitted). "These are the so-called Gingles requirements." Id. "If all three Gingles requirements are established, the statutory text directs us to consider the 'totality of circumstances' to determine whether members of a racial group have less opportunity than do other members of the electorate." Id. at 425-26.
Plaintiffs do not plead any of the Gingles requirements necessary to state a § 2 violation. Additionally, the Gingles requirements expressly apply to the election of a "minority's preferred candidate." There is no indication in the statute that Congress intended § 2 to apply to the passage of measures, and Plaintiffs have not provided any case law showing that the statute has been interpreted this way by courts. Without any authority that § 2 applies to the passage of measures, this Court declines interpret § 2 so broadly. Plaintiffs' ninth cause of action is dismissed without leave to amend.
Because the Court has found that section 14027 of the California Elections Code and § 2 of the Voting Rights Act do not apply to this case, the Court need not address Defendants' arguments regarding Plaintiffs' standing to bring these voting claims.
E. Punitive Damages
Plaintiffs request "an award of punitive and exemplary damages against Defendants according to proof at trial." Compl. at 31, ¶ 6. California Government Code section 818 states that public entities are not liable for "damages imposed primarily for the sake of example and by way of punishing the defendant." "[A] municipality is [also] immune from punitive damages under 42 U.S.C. § 1983." City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). Because none of Plaintiffs' claims against Lopey and Setzer survive, only the County—which is immune from all punitive damages—remains as a defendant. Accordingly, the Court strikes Plaintiffs' request for punitive damages from the complaint.
F. Attorney's Fees
42 U.S.C. § 1988(b) provides that "[i]n any action or proceeding to enforce a provision" of 42 U.S.C. § 1983, "the court, in its discretion, may allow the prevailing party . . . reasonable attorney's fee as part of the costs." A court may award attorney's fees to "a prevailing defendant . . . under § 1983, only upon 'a finding that the plaintiff's action was frivolous, unreasonable, or without foundation.'" Gallardo v. Hanford Joint Union Sch. Dist., 2015 WL 4661636, at *1 (E.D. Cal. Aug. 5, 2015) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)). Defendants do not argue that Plaintiffs' § 1983 claims are "frivolous, unreasonable, or without foundation" and the Court refuses to make such a finding. Defendants' request for attorney's fees is denied.
II. ORDER
For the reasons set forth above, the Court GRANTS Defendants' Motion to Dismiss. The following claims are dismissed without leave to amend:
• All causes of action against Lopey and SetzerThe following claims are dismissed with leave to amend:
• The fifth cause of action as brought against the County
• The sixth, seventh and tenth causes of action as brought against the County
• The eighth and ninth causes of action as brought against the County
• The first, second, third, and eleventh causes of action as brought against the County
Setzer and Lopey are dismissed from this case with prejudice. Plaintiffs shall file their amended complaint within twenty days of the date of this Order. The County shall file its responsive pleading twenty days thereafter.
IT IS SO ORDERED. Dated: January 12, 2017
/s/ _________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE