Opinion
2:21-CV-1482-KJM-DMC
08-30-2022
KIMBERLY OLSON, Plaintiff, v. ROBERT PUCKETT, SR., et al., Defendants.
FINDINGS AND RECOMMENDATIONS
DENNIS M. COTA, UNITED STATES MAGISTRATE JUDGE
Plaintiff, who is proceeding pro se, brings this civil action. Pending before the Court are the following motions and associated filings:
Defendants' Motion
ECF No. 47 Defendants' motion to dismiss.
ECF No. 54 Request for judicial notice in support of motion to dismiss.
ECF No. 56 Plaintiff's opposition.
ECF No. 58 Plaintiff's memorandum in support of opposition.
ECF No. 62 Defendants' reply.
ECF No. 63 Plaintiff's opposition to Defendants' request for judicial notice.
Plaintiff's Motion
ECF No. 67 Plaintiff's motion for civil contempt and injunctive relief.
ECF No. 69 Defendants' opposition.
ECF No. 73 Plaintiff's reply.
ECF No. 74 Plaintiff's objections to Defendants' opposition.
Both motions have been submitted on the record without oral argument.
Plaintiff's third motion for injunctive relief, ECF No. 72, which is not directly related to either the prior motion or pending motion, will be addressed separately.
I. BACKGROUND
A. Procedural History
Plaintiff initiated this action with a pro se complaint filed on August 18, 2021. See ECF No. 1. With her complaint, Plaintiff filed a motion for a temporary restraining order and declaration in support thereof. See ECF No. 3 and 4. On August 20, 2021, the District Judge issued a minute order referring Plaintiff's motion for a temporary restraining order to the undersigned. See ECF No. 5.
On August 23, 2021, the undersigned issued orders granting Plaintiff's application for leave to proceed in forma pauperis and directing Plaintiff to effect service of her motion for a temporary restraining order on the named defendants. See ECF Nos. 6 and 7. The Court also issued an order directing that the original complaint be served on the named defendants by the United States Marshal. See ECF No. 8.
Following compliance with the Court's order directing service of Plaintiff's motion for a temporary restraining order, the Court issued an order directing Defendants to show cause why Plaintiff's motion should not be granted. See ECF No. 12. A briefing schedule was established, and the matter was set for hearing before the undersigned in Redding, California on September 14, 2021. See id. On September 8, 2021, the Court denied Defendants' request for additional time and confirmed that the hearing remained on calendar for September 14 as originally scheduled. See ECF No. 18.
Following the September 14 hearing, Plaintiff's motion for a temporary restraining order was taken under submission. See ECF No. 24 (hearing minutes).
On September 17, 2021, the undersigned issued findings and recommendations that Plaintiff's motion for a temporary restraining order be construed as a motion for preliminary injunctive relief and, so construed, be granted. See ECF No. 29. Specifically, the undersigned recommended as follows:
1. Plaintiff's motion for injunctive relief be granted to the extent Defendant Hornbrook Community Services District (HCSD) must provide Olson with water in compliance with internal rules and all other applicable state and local laws.
2. HCSD be ordered to return Olson's water meter and attach a flow restrictor to it, limiting Olson to 200 gallons of water per day, or whatever generally applicable use restrictions HCSD enacts in order to conserve water.
3. HCSD provide all required time periods between any notice of violation and any adverse action not covered by the order granting injunctive relief.
4. HCSD be permitted to take regular readings of Olson's water meter and undertake any routine or emergency maintenance necessary.
5. Olson be ordered not to tamper with or obstruct her water meter or the attached flow regulator, except to the extent an emergency situation requires maintenance of the meter. Olson should further be ordered to comply with all lawful directives from law enforcement, including orders to remove illegal obstructions to her water meter. Olson should further be ordered not to interfere with HCSD officials undertaking lawful, routine duties concerning her water meter.
6. Olson be ordered to comply with all HCSD restrictions, including usage limits and restrictions on outdoor watering via the HCSD water system.
7. That the order last during the pendency of this case.Id. 19-20.
Despite the claimed exigence of the water issue and urgent need for injunctive relief, and despite the Court's findings and recommendations in her favor, on September 29, 2021, Plaintiff filed objections to the Court's findings and recommendations. See ECF No. 40. This triggered a further 14-day period within which Defendants could respond to Plaintiff's objections, which Defendants did on October 14, 2021. See ECF No. 45. On October 21, 2021, Plaintiff filed a reply to Defendants' response to Plaintiff's objections. See ECF No. 49. On December 6, 2021, the District Judge adopted the September 17, 2021, findings and recommendations in full. See ECF No. 52.
During the time Plaintiff's motion for injunctive relief was being litigated and decided, Plaintiff filed a first amended complaint on October 6, 2021. See ECF No. 44. Defendants filed their motion to dismiss Plaintiff's first amended complaint on October 20, 2021. See ECF No. 47. Plaintiff filed her motion for civil contempt, sanctions, and renewed request for injunctive relief on February 4, 2022. See ECF No. 67. Both motions are fully briefed and have been submitted for decision without oral argument.
B. Plaintiff's Allegations
1. Parties
The action currently proceeds on Plaintiff's first amended complaint. See ECF No. 44. As with the original complaint, Plaintiff names the following defendants: (1) Clint Dingman, (2) Robert Puckett, Sr., (3) Michele Hanson, (4) Melissa Tulledo, and (5) the Hornbrook Community Services District (HCSD). See id. at 1. Defendants Puckett, Dingman, Hanson, and Tulledo are “the Directors and employees of Defendant Hornbrook Community Services District.” Id. at 2. Specifically, Defendants Puckett, Hanson, and Tulledo are respectively President, Secretary, and Director of the HCSD board, and are sometimes referred to as the “Board Defendants.” Id. at 3. Defendant Dingman is “the HCSD's Systems Operator, shift operator, . . . and/or water plant operator.” Id. at 3, n.8. The HCSD is “a public entity providing domestic water to the community of Hornbrook.” Id. at 2. Plaintiff alleges that she is a “water customer of the HCSD, which supplies the only source of potable water” to her home. Id. She also states that she is disabled, suffering from “mobility and other disabilities as a result of spinal damage.” Id.
2. Factual Allegations
Plaintiff alleges that between July 19-23, 2021, there was no “usable water” in the distribution system on her block, and “no water flowing from the taps” in her home. Id. at 5. She states that during this time, Defendants trespassed onto her land, and cut her home off from the HCSD water system. Id. According to Plaintiff, they also plugged and locked off a “residence side” supply pipe, which was Plaintiff's personal property, in order to prevent her from accessing any alternative water supply. Id. at 5-6. She claims that in the process of shutting off her water supply, officials took her “water meter, a utility van belonging to a plumbing contractor . . . and a 2001 Honda CR-V belonging to [her] Personal Caregiver.” Id. at 5 n.11. “Defendants also destroyed some of Plaintiff's landscaping and bushes.” Id. At the time of the alleged seizure of property, HCSD and Defendant Puckett told Plaintiff that no one could use certain portions of her driveway, and that any vehicles parked in those sections would be seized. Id. at 6.
This van is likely that of Roger Gifford, Plaintiff in case no. 2:21-CV-1726-KJM-DMC. His complaint rests on many of the same factual allegations as this one.
Plaintiff wrote to the HSCD on August 4, 2021, asking for explanation, the return of any seized property, and the restoration of her water service. See id. She did not receive a response. See id. Her billing statement from HCSD after the “discontinuation of water service [did] not show any fines,” or other reason for the shut-off. Id. at 7.
As a result of the water shut-off, Plaintiff claims that she “has had to borrow and expend substantial sums in constructing a system of temporary pumps, . . . and storage for potable water.” Id. She has also spent money to “have potable water delivered by truck.” Id. Plaintiff also states that this system only currently works because temperatures remain above freezing. Id. at 7, n.16.
On September 17, 2021, this Court issued findings and recommendations granting Plaintiff's motion for preliminary injunction and ordering that her water service be restored. See id. at 29. As outlined above, the findings and recommendations provided that HCSD return Plaintiff's water meter and limit her water usage in accordance with whatever “generally applicable” use restrictions would apply. See id. at 19. It was further recommended that Plaintiff be ordered not to tamper with or obstruct her water meter, and “not to interfere with HCSD officials undertaking lawful, routine duties concerning her water meter.” Id.
Plaintiff addresses the Court's recommendations in her first amended complaint, which was filed before the findings and recommendations were adopted in full by the District Judge. According to Plaintiff, the HCSD did not restore service for several days. See ECF No. 44, pg. 7. When Defendants did return water service to Plaintiff, they installed a flow restrictor, which limited her to the use of “~1/6 of a gallon each minute, and about 4 gallons per day.” Id. “Plaintiff notified the HCSD, and its President, Robert Puckett,” of the alleged issues with the water supply. Id. at 8. The only change was that the flow of water was increased to “1/2 gallon each minute.” Id.
She alleges that all of this activity was in retaliation for numerous lawsuits she has commenced “against the HCSD and its officers for violations of the Brown Act” and for allowing a water leak to continue, leaking 25,000 gallons of water per day. Id. at 8, n.17.
Plaintiff also alleges ongoing actions by Defendants. Plaintiff claims that following this, “HCSD, Puckett, and Dingman . . . fabricate[d], and submit[ted], false evidence” to this Court. Id. at 9. She also states the “HCSD Board Defendants” used their official positions to “gain access to Plaintiff's personal information as contained in her water account” and to provide that information to third parties to engender ill-will towards Plaintiff, though she does not provide additional factual specificity. Id. Furthermore, Plaintiff claims that HCSD and Board Defendants held improperly noticed Board meetings to coordinate creation and application of rules against Plaintiff, and to falsify records. Id. at 10.
Plaintiff also states that the HCSD, Board Defendants, and Dingman deliberately mis-operated water facilities and did not repair them. Id. at 11. This was “to create the false perception of an ‘emergency' so as to wrongfully acquire public funds” while also retaliating against Plaintiff. Id.
3. Legal Theories
Plaintiff alleges various federal and state law claims as follows:
Federal Claims
Count I Fourth and Fifth Amendment violations by unreasonable seizure, and deprivation of property without due process by shutting off Plaintiff's water, and restricting driveway use by the HCSD, Board Defendants, Dingman, and Doe defendants. Id. at 18
Count II Violation of 42 U.S.C. 1983 by conspiring to violate Plaintiff's rights, and retaliate for protected speech by the HCSD, Board Defendants, Dingman, and Doe Defendants. Id. at 18-19. This also includes generation of false evidence that was submitted to this Court. Id. at 19.
Count III Violation of Due Process and Equal Protection by not giving Plaintiff a way to re-establish the right to use her driveway, or to get water service turned back on by the HCSD, Dingman, and Board Defendants. Id.
Count IV Deprivation of Equal Protection and Due Process by terminating Plaintiff's water service by the HCSD, Board Defendants, Dingman, Doe defendants, and Bruce's Towing. Id. at 19-20.
Count V Retaliation against Plaintiff for administrative and legal actions against the HCSD by the HCSD, Board Defendants, and Dingman. Id. at 20.
Count VI Violations of the ADA and Title II of the Civil Rights Act by failing to accommodate her disability in terms of notice of water shut-off, or access to HCSD facilities. Id. at 2021. This count is alleged against the HCSD and Board Defendants. Id.
Count VII Violations of 42 U.S.C. 1985 by making a plan to prevent Plaintiff from continuing to pursue administrative and legal action by the HCSD, Board Defendants, and other public officer defendants. Id. at 21.
Count VIII Violations of 42 U.S.C. 1986 for the same acts as described in Count VII, but alleged against the HCSD, Board Defendants, and Dingman. Id. at 21-22.
State Law Claims
Count I Violations of HCSD bylaws and regulations in denying Plaintiff access to HCSD facilities and water supply by the HCSD, Board Defendants, and Dingman. Id. at 22.
Count II Negligence in failing to consider potential harm to the Plaintiff, or in failing to conform with California law against the HCSD, Board Defendants, Dingman, and Bruce's Towing. Id. at 22-23.
Count III Trespassing and nuisance for coming onto Plaintiff's property by Puckett, the HCSD, Dingman, and Bruce's Towing. Id. at 23.
Count IV Waste or gifts of public funds by giving Dingman extra hours and pay, alleged against Dingman, Puckett, Hanson. Id. 23-24.
Count V Violations of Plaintiff's rights under California Constitution Article I Sections 1, 7, 26, 3(a)-(b)(1), 13, 17, and 19(a). Id. at 24.
Count VI Willful or negligent infliction of emotional distress by damaging Plaintiff's property by the HCSD, Board Defendants, Dingman, and Bruce's Towing. Id.
Count VII Violation of California Government Code sections 61045, 61050, and 61051 by virtue of the HCSD failing to appoint a general manager against Hanson, Puckett, the HCSD and Board Defendants. Id. at 24-25.
Count VIII Conversion of Plaintiff property by the HCSD, Board Defendants, and Dingman. Id. at 25.
Count IX Violation of Plaintiff s right to privacy under the California
Constitution Article I, Section 1. Id. This is alleged against the Board Defendants for taking Plaintiff's personal information contained in her water account and providing it to third parties to “engender ridicule.” Id.
Count X Violation of the California Public Records Act and California Civil Code section 1798.34 and 1798.77 by not allowing Plaintiff to access records by the HCSD, Dingman, and Board Defendants. Id.
II. APPLICABLE LEGAL STANDARDS
A. Motion to Dismiss
In considering a motion to dismiss, the Court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The Court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief' in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain more than “a formulaic recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility for entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 557).
In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The Court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).
Finally, leave to amend must be granted “[u]nless it is absolutely clear that no amendment can cure the defects.” Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).
B. Preliminary Injunctive Relief
The primary purpose of a preliminary injunction is preservation of the status quo. See, e.g., Ramos v. Wolf, 975 F.3d 872, 887 (9th Cir. 2020). More specifically, the purpose of a preliminary injunction is preservation of the Court's power to render a meaningful decision after a trial on the merits. See, e.g., Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981); Barth v. Montejo, No. 2:19-cv-1874-DB-P, 2021 WL 1291962, at *1 (E.D. Cal. Apr. 7, 2021). It is meant to maintain the relative positions of the parties and prevent irreparable loss of rights before a trial and final judgment. See, e.g., Camenisch, 451 U.S. at 395; Ramos, 975 F.3d at 887; Doe #1 v. Trump, 957 F.3d 1050, 1068 (9th Cir. 2020). A preliminary injunction may assume two forms. Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878 (9th Cir. 2009). Prohibitory injunctions prevent a party from acting, thus maintaining the status quo. Id. A mandatory injunction directs some responsible party to act. Id. at 879.
The legal principles applicable to requests for injunctive relief, such as a temporary restraining order or preliminary injunction, are well established. To prevail, the moving party must show that irreparable injury is likely in the absence of an injunction. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20-22 (2008)); see also All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). To the extent that prior Ninth Circuit cases suggest a lesser standard by focusing solely on the possibility of irreparable harm, such cases are “no longer controlling, or even viable.” Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009); see Cottrell, 632 F.3d at 1132; Stormans, 586 F.3d at 1127. Instead, a party must demonstrate: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is in the public interest. E.g., Winter, 555 U.S. at 20; Cottrell, 632 F.3d at 1131; Stormans, 586 F.3d at 1127.
The Ninth Circuit evaluates the above factors under a sliding scale. Cottrell, 632 F.3d at 1131-35. A stronger showing on one factor may offset a weaker showing on another. Id. at 1132. But a plaintiff must make some showing on all four factors. Id. at 1135. Under the scale, if the balance of hardships tips sharply towards the plaintiff, the plaintiff need only show “serious questions going to the merits” provided that the plaintiff also satisfies the other two factors. Id. at 1131-35. Thus, when there are serious questions going to the merits and a balance of hardships tips sharply towards the plaintiff, a preliminary injunction may issue if the plaintiff also shows that there is a likelihood of irreparable injury, and that the injunction is in the public interest. Id.
A preliminary injunction is an extraordinary remedy that is not awarded as of right. Winter, 555 U.S. at 24; Cottrell, 632 F.3d at 1131. The burden to achieve injunctive relief is particularly high when a party seeks a mandatory injunction. See Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015). Mandatory injunctions go beyond an injunction preventing a party from acting, and thus beyond mere maintenance of the status quo. See id. They require a party to act. Id. District courts must deny requests for mandatory injunctions unless the law and facts clearly favor a moving party. Id. The Court will not grant such requests in doubtful cases. Id.
III. DISCUSSION
Before the Court are two motions - Defendants' motion to dismiss, ECF No. 47, and Plaintiff's motions for civil contempt and injunctive relief, ECF No. 67.
A. Motion to Dismiss
In their motion to dismiss, Defendants argue that the first amended complaint should be dismissed because: (1) it is foreclosed under the doctrine of res judicata; (2) the first amended complaint does not comply with Federal Rule of Civil Procedure 8; and (3) the first amended complaint fails to state any federal claims upon which relief can be granted. See ECF No. 47, pg. 7.
1. Res Judicata
In support of their argument that the current action is foreclosed by the doctrine of res judicata, Defendants offer a summary of prior similar actions filed by Plaintiff Kimberly Olson as well as Peter Harrell and Roger Gifford. See id. at 4-6. According to Defendants:
. . .Olson, Harrell, and Gifford have been waging a private war against HSCD by filing numerous lawsuits naming the District, its board members, employees, contractors, consultants and even its former legal counsel Robert Winston. (See C.A.E.D. Dkts. 2-14-cv-01595-KJM-GGH, 2:15-cv-1274-MCE-AC-PS, 2:16-cv-0955 KJM-GGH, 2:19-cv-00031-KJM-AC).
In Harrell v. Hornbrook Community Services District, 2:14-cv-01595 KJM-GGH (Harrell I), Plaintiff alleged that HCSD was in violation of constitutional law, was not operating “within the bounds of the laws”, and HCSD's water plant had numerous safety hazards in violation of Cal OHSA regulations and the Water Code. (Harrell I, ECF No. 1, p. 5) Additionally, Plaintiff alleged that HCSD interfered with “the Duties of Kimberly Olson (“Olson”) as Secretary of the HCSD, as mandated by the
HCSD Bylaws” and amongst wrongful actions, acted illegally to “revoke HCSD rates and charges and policies”. (Harrell I, ECF No. 1, p. lns. 1-13) (See Decl. of J. Chiao, ¶11).
In his Findings and Recommendations on August 14, 2017, Hon. Gregory G. Hollows, U.S. Magistrate Judge of the Eastern District of California, stated that while “the action began in part as a suit alleging that he was terminated from his employment in retaliation for his exercise of his First Amendment rights, [it] has since morphed into a muddied and muddled conglomeration of claims, both federally and state based, challenging the manner in which [HCSD] is run in general, its hiring practices, its failure to adhere to the State's opening meeting law, and its claim to operate as a water company in violation of nearly every law and regulation applicable to such an enterprise.” (Harrell I, ECF No. 157, p. 2) The Court further noted that “[t]he instant case is an example of a purposeful overloading of the court with pleadings which take up more than warranted judicial attention, but which simultaneously demonstrate a desire to wage a war of attrition on the opposing parties. There seems to be no desire on plaintiff's part to ever reach the merits of a viable claim; rather, there seems to be much desire to use the litigation process per se as an end in itself.” (Harrell I, No. 157, pp. 1-2) Based on the “contumacious behavior of plaintiff', the Court recommended that Plaintiff's Second Amended complaint be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b) for failure to obey a court order, or in the alternative pursuant to Rule 12(b)(6) for failure to state a claim.” (Harrell I, ECF No. 157, p. 15) (See Decl. of J. Chiao, ¶12).
Peter T. Harrell and Roger J. Gifford appealed the Eastern District's adverse rulings against them, including the decision in Harrell I. The Ninth Circuit concluded that Peter Harrell's appeal No. 17-17191 was frivolous and therefore revoked Harrell's in forma pauperis status for appeal No. 17-17191 and dismissed the appeal as frivolous. The Ninth Circuit also dismissed cross-appeals No. 17-17209 and 17-17313 as frivolous and denied Roger Gifford's motion to proceed in forma pauperis. (See Harrell v. Hornbrook Community Services District, 2018 WL 6039097, Decl. of J. Chiao, ¶15)
In Harrell v. Dingman, 2:19-cv-00031-KJM-AC (HarrellII), Plaintiff again sought relief against HCSD for constitutional violations, including deprivation of due process, equal protection, and unlawful seizure, violations of the Clean Water Act, deprivations of right to due process and equal protection regarding gifts of public funds, and pendent state claims, including violations of HCSD bylaws, self-dealing, gifts of public funds, improperly unbilled fees and charges, and waste of public funds. (Harrell II, ECF No. 1 and 17) (See Decl. of J. Chiao, ¶13) In her Findings and Recommendations on May 29, 2019, Hon. Allison Claire noted that the Court had rejected prior iterations of Plaintiff's complaint on the basis of res judicata and failure to comply with Rule 8, and that the underlying dispute appears to involve the quality and quantity of water provided by the District to plaintiff's property in Siskiyou county. (Harrell II, ECF No. 19, pp.1 and 3) The Court found that the majority of Plaintiff's Second Amended Complaint was identical to the First Amended Complaint and initial complaint, and stated that “[t]he sheer quantity of factual allegations and legal assertions in plaintiff's complaint makes it impossible for the court, and therefore for defendants, to determine whether any cognizable claim is presented, what legal wrong may have been done to plaintiff, by whom and when, or how any alleged harm is connected to the relief plaintiff seeks. (Harrell II, ECF No. 19, p.4)
Accordingly, Magistrate Judge Claire recommended that Plaintiff's Second Amended Complaint be dismissed with prejudice. (See Dec. J. Chiao, ¶14).
This case filed by Plaintiff Olson on August 18, 2021, is simply a continuation of prior litigation efforts against HCSD. Like Harrell I and Harrell II, Plaintiff' First Amended Complaint alleges that HCSD is willfully, negligently, recklessly, and dangerously “failing to undertake diagnostics needed to competently operate the water facilities, and to make needed and necessary repairs to the HCSD water production, storage, and distribution systems- in part to create the false perception of an “emergency” so as to wrongfully acquire public funds in the form of grants from California and USDA...” (ECF No. 44, p. 11, ¶24) Plaintiff filed a Motion for Temporary Restraining Order on August 18, 2021 (ECF No. 3) A hearing was held with Magistrate Judge Dennis Cota on Plaintiff's Motion on September 14, 2021, and Judge Cota issued Findings and Recommendations on September 17, 2021. (ECF No. 29) Predictably, Plaintiff filed Objections to Judge Cota's Findings and Recommendations. (ECF No. 40) Defendants filed a Response to Plaintiff's Objections accordingly. (ECF No. 45).ECF No. 47, pgs. 4-6.
Based on this background, Defendants conclude:
As demonstrated above, Plaintiff brings several claims that have already been litigated in the closed cases Harrell v. Hornbrook Community Services District, 2:14-cv-01595 KJM-GGH (E.D. Cal.) (Harrell I) and Harrell v. Dingman, 2:19-cv-00031-KJM-AC (E.D.Cal.) (Harrell II). Both Harrell I and Harrell II, were dismissed in its entirety, with prejudice, and the dismissals were affirmed by the Ninth Circuit. (HarrelI at ECF NO. 157, 159, 207) (Harrel II at ECF No. 19, 29) Large portions of the current action overlap with the issues presented and adjudicated in Harrell I and II, and are therefore barred by res judicata.ECF No. 47, pg. 7.
Two related doctrines of preclusion are grouped under the term “res judicata.” See Taylor v. Sturgell, 553 U.S. 880, 128 S.Ct. 2161, 2171 (2008). One of these doctrines - claim preclusion - forecloses “successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.” Id. Stated another way, “[c]laim preclusion. . . bars any subsequent suit on claims that were raised or could have been raised in a prior action.” Cell Therapeutics, Inc. v. Lash Group, Inc., 586 F.3d 1204, 1212 (9th Cir. 2009). “Newly articulated claims based on the same nucleus of facts are also subject to a res judicata finding if the claims could have been brought in the earlier action.” Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002). Thus, claim preclusion prevents a plaintiff from later presenting any legal theories arising from the “same transactional nucleus of facts.” Hells Canyon Preservation Council v. U.S. Forest Service, 403 F.3d 683, 686 n.2 (9th Cir. 2005).
The party seeking to apply claim preclusion bears the burden of establishing the following: (1) an identity of claims; (2) the existence of a final judgment on the merits; and (3) identity or privity of the parties. See Cell Therapeutics, 586 F.3d at 1212; see also Headwaters, Inc. v. U.S. Forest Service, 399 F.3d 1047, 1052 (9th Cir. 2005). Determining whether there is an identity of claims involves consideration of four factors: (1) whether the two suits arise out of the same transactional nucleus of facts; (2) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (3) whether the two suits involve infringement of the same right; and (4) whether substantially the same evidence is presented in the two actions. See ProShipLine, Inc. v. Aspen Infrastructure Ltd., 609 F.3d 960, 968 (9th Cir. 2010). Reliance on the first factor is especially appropriate because the factor is “outcome determinative.” Id. (quoting Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005)). As to privity of the parties, “privity . . . [arises] from a limited number of legal relationships in which two parties have identical or transferred rights with respect to a particular legal interest.” Headwaters, Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1053 (9th Cir. 2005).
“Issue preclusion . . . bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, even if the issue recurs in the context of a different claim.” Taylor, 128 S.Ct. at 2171 (internal citation, quotation omitted).
Defendants begin their analysis by comparing the allegations in Harrell I and Harrell II and then state: “. . .While the allegations in each respective complaint (and amended complaint) are difficult to parse, it is clear that Plaintiff's present complaint is at least partially barred. (See also Harrell II, ECF No. 8, p. 5).” ECF No. 47, pg. 8. Defendants devote the remainder of the res judicata argument to explaining why Olson and Harrell should be found to be in privity. See id. at 8-9.
The Court finds Defendants' res judicata argument unpersuasive. Specifically, though Defendants urge that the current amended complaint is “at least partially barred,” Defendants do not specify which part are barred and which are not. Defendants have thus failed to adequately establish an identify of claims between the current action and prior actions. Nor does the Court find an identity of claims when comparing Harrell I or Harrell II to the present action. The current case does not arise out of the same transactional nucleus of facts. While the Court generally agrees with Defendants' characterization of the Harrell I and Harrell II cases, the Court does not agree that the current case is similar to either of the prior actions filed by Mr. Harrell. Specifically, unlike Harrell I or Harrell II, the current action concerns allegations that Defendants failed to adhere to their own policies when Plaintiff's water supply was disconnected in July 2021. Neither of the prior actions filed by Mr. Harrell involved the allegedly improper disconnection of water supply in July 2021, nor could they because they were both filed prior to that date. For this same reason, the prior Harrell actions and the current Olson action cannot involve the same evidence.
2. Rule 8
Defendants next argue that the amended complaint fails to satisfy the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. They contend:
Here, Plaintiff's twenty-nine (29) page First Amended Complaint alleges numerous constitutional violations of the 1st Amendment, 4th/5th Amendment Search and Seizure, Conspiracy under 42 USC §1983, violations of Due Process and Equal Protection, Unlawful Retaliation, as well as violations of the ADA. Plaintiff's fact allegations are general and conclusory, however, and Plaintiff does not provide specific supporting facts for each of these federal causes of action. For example, Plaintiff's First Amended Complaint alleges that Defendants participated in a scheme to retaliate against Plaintiff, and falsely apply for and wrongfully profit from government grants. (ECF No. 44, p. 3 ¶5-6) No facts are alleged in support of this purported scheme. Instead, despite the length of Plaintiff's First Amended Complaint, the exact nature of what happened to Plaintiff is obscured by several vague and disconnected events and allegations. Each of the Defendants cannot discern what legal wrong was done to Plaintiff, by whom and when, or how any alleged harm is connected to the relief Plaintiff seeks.ECF No. 47, pg. 10.
Defendants' point is well-taken. Rule 8's pleading requirements are not met by a “complaint that contains conclusion or surmise and requires a court to decide whether events not pleaded could be imagined in a plaintiff's favor.” Levin v. Miller, 763 F.3d 667, 671 (7th Cir. 2014). Rather, in order to establish plausibility, allegations in a complaint “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.” Eclectic Props. E., LLC v. Marcus and Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014) (internal quotation and citation omitted). “. . .[T]he 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.” Id. While pleadings of pro se litigants are held to less rigid standards than those drafted by attorneys, see Haines v. Kerner, 404 U.S. 519, 520-522 (1972), even pro se pleadings “must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong,” Brazil v. United States Dept. of Navy, 66 F.3d 193, 199 (9th Cir. 1995).
Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. See Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support Plaintiff's claims. See id. The allegations must be short and plain, simple and direct, and describe the relief Plaintiff seeks. See Fed.R.Civ.P. 8(a); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002).
Plaintiff has not complied with these requirements. The amended complaint is repetitive and argumentative, includes vague and conclusory allegations, and largely fails to allege facts to support any claim against Defendants in their individual capacities. This alone justifies dismissal of her amended complaint. See Schmidt v. Hermann, 614 F.2d 1221, 1223 (9th Cir. 1980) (upholding the dismissal of a complaint where it was “impossible to designate the cause of action or causes of action attempted to be alleged in the complaint.”); In re Sagent Tech., Inc., 278 F.Supp.2d 1079, 1094 (N.D. Cal. 2003) (“[T]he complaint fails to state a claim because plaintiffs do not indicate which individual defendant or defendants were responsible for which alleged wrongful act.”); see also McHenry v. Renne, 84 F.3d 1172, 1177-78 (9th Cir. 1996) (affirming Rule 8 dismissal of complaint that was “argumentative, prolix, replete with redundancy, and largely irrelevant” and providing an example of a properly pleaded claim, which could be “read in seconds and answered in minutes”).
3. Failure to State a Claim
Defendants next present a series of arguments as to each federal cause of action asserted in the pleading. The Court addresses these arguments below.
a. First Amendment Retaliation
To state a First Amendment retaliation claim, a plaintiff must plausibly allege “that (1) he was engaged in a constitutionally protected activity, (2) the defendant's actions would chill a person of ordinary firmness from continuing to engage in the protected activity, and (3) the protected activity was a substantial or motivating factor in the defendant's conduct.” O'Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016) (quoting Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006)).
Plaintiff alleges Defendants retaliated against her because of her history of engaging in protected activity. She claims as follows:
Over the past several years, Plaintiff has brought multiple legal actions against the HCSD and its officers for violations of the Brown Act (prevailing on many in both the trial court, and the Third District Court of Appeals of California), filed complaints concerning its operations with multiple government agencies, and has assisted others in doing those things as well, much to their angst and irritation. In fact, Puckett seized the opportunity while he was on local television to complain about some of that litigation. See news story on the Channel 10 Medford, OR station at: https://ktvl.com/news/local/amid-water-crisis-small-community-takes-matters-into-its-own-hands[.] . . .Am. Compl. ¶ 17, n. 17.
Defendants argue these allegations do not state a viable First Amendment claim. They contend:
Here, Plaintiff has not established any of the foregoing elements. Instead, Plaintiff relies upon “shotgun pleading” and she does not allege any facts in support of her retaliation claim.
Without additional factual specificity, a retaliation is not cognizable. See Iqbal, 556 U.S. at 678 (a claim has the requisite facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged).ECF No. 47-1, pg. 15.
Liberally construing the pleading, Plaintiff has adequately alleged that she engaged in constitutionally protected activity and that Defendants' actions would chill a person of ordinary firmness from continuing to engage in those activities. The problem, however, arises with respect to Defendants' motivation. It is true that in rare cases will a plaintiff have direct evidence of intent. See Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (“Because direct evidence of retaliatory intent rarely can be pleaded in a complaint, allegation of a chronology of events from which retaliation can be inferred is sufficient to survive dismissal.”). Therefore, circumstantial evidence is often critical in establishing the motive behind a defendant's conduct. But here, the only arguable suggestion of retaliatory motive is a news article wherein Defendant Puckett refers to Plaintiff's litigation activity. This link, however, is too tenuous to ascribe retaliatory intent to Defendants as a whole or even to Defendant Puckett in particular. Given this deficiency, Plaintiff's First Amendment claim is subject to dismissal.
b. Fourth Amendment and Fifth Amendment Search and Seizure
The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” U.S. Const. amend. IV. “To establish a viable Fourth Amendment claim, a plaintiff must show not only that there was a search and seizure as contemplated by the Fourth Amendment, but also that said search and seizure was unreasonable and conducted without consent.” Rakas v. Illinois, 439 U.S. 128, 143 (1978); United States v. Rubio, 727 F.2d 786, 796-97 (9th Cir. 1983). / / / / / / / / /
Generally, under the Fifth Amendment, a “plaintiff must establish two elements to have a viable” takings claim. In re Upstream Addicks and Barker (Texas) Flood-Control Reservoirs, 146 Fed.Cl. 219, 246 (Fed. Cl. 2019). First, a plaintiff “must establish that he or she holds ‘a property interest for purposes of the Fifth Amendment.' ” Id. (quoting Caquelin v. United States, 140 Fed.Cl. 564, 572 (2018)). Second, “ ‘the court must determine whether the governmental action at issue amounted to a compensable taking of that property interest.' ” Id. (quoting Amer. Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363, 1372 (Fed. Cir. 2004)). When the government physically acquires private property for public use, a “physical taking” has occurred. Cedar Point Nursery v. Hassid, 141 S.Ct. 2063, 2071 (2021). If the government imposes regulations that restrict a landowner's use of his or her own property, it might commit a “regulatory taking.” Id. at 2072. A temporary interference with the use of property can be considered a regulatory taking. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978); see also Bridge Aina Le‘a, LLC v. Land Use Comm'n, 950 F.3d 610, 626 (9th Cir. 2020).
Plaintiff accuses Defendants of “trespassing onto Plaintiff's property, seizing her property (including her property interest in her domestic water service from the HCSD) without warrant or due process, and taking a portion of her driveway exclusively for governmental use without due process or compensation.” Am. Compl. ¶ 44. According to Plaintiff, the seized property “included Plaintiff's water meter, a utility van belonging to a plumbing contractor hired by Plaintiff, and a 2001 Honda CR-V belonging to [Plaintiff]'s Personal Caregiver (actually seized twice).” Id. ¶ 9, fn. 11.
Defendants argue these allegations do not state either a Fourth or Fifth Amendment claim:
Here it, is entirely incomprehensible how Plaintiff's vague and conclusory allegation regarding her property interest in her domestic water service or the towing of vehicles (that obstructed from the reading of Plaintiff's water meter) constitutes a taking of Plaintiff's driveway [or] constitutes an unreasonable search and seizure. As such, Plaintiff's unconstitutional search and seizure claim is subject to dismissal.ECF No. 47-1, pg. 12.
The Court agrees that some of Plaintiff's allegations are insufficient to proceed. For example, any Fifth Amendment claim premised on Defendants' seizure of personal property belonging to Plaintiff's plumbing contractor and/or personal caregiver fails because Plaintiff does not allege that she herself has a property interest in those vehicles. Nonetheless, liberally construing the pleading, Plaintiff's allegations suffice to state Fourth and Fifth Amendment claims that Defendants searched her property without a warrant, seized her water meter, and prohibited her from using her own driveway, and that the act of cutting off water service interfered with her property right in continued water service. Cf. McMillan v. Goleta Water Dist., 792 F.2d 1453, 1457 (9th Cir. 1986). a
c. Fourteenth Amendment
“The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). The due process clause of the Fourteenth Amendment confers both substantive and procedural protections. Albright v. Oliver, 510 U.S. 266, 272 (1994).
The substantive protections of the due process clause bar certain governmental actions regardless of the fairness of the procedures that are used to implement them. Cty. of Sacramento v. Lewis, 523 U.S. 833, 840 (1998). Therefore, the substantive protections of the due process clause are intended to prevent government officials from abusing their power or employing it as an instrument of oppression. Lewis, 523 U.S. at 846. The Supreme Court has held that “the substantive component of the Due Process Clause is violated by executive action only when it ‘can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.' ” Id. at 847. “[O]nly the most egregious official conduct can be said to be arbitrary in a constitutional sense.” Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006) (quoting Lewis, 523 U.S. at 846).
“The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569-70 (1972). “[Procedural due process claims are resolved by balancing tests, where differing interests can give rise to many differing procedural requirements.” Brittain, 451 F.3d at 1000. “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).
Defendants argue Plaintiff fails to state either a substantive or procedural due process claim:
Here, Plaintiff has only alleged that Defendants wrongfully cut off the domestic water supply to Plaintiff's home without alleging any of the facts or circumstances prior to the discontinuation of her water service. “[Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” Goldberg v. Kelly, 397 U.S. 254, 263 (1970). Merely stating that a due process violation occurred is conclusory and does not suffice to state a valid claim. [¶] [S]imilar to Plaintiff's failure to allege procedural due process, Plaintiff has also failed to allege facts in support of egregious official conduct that constituted an abuse of power. As such, Plaintiff's substantive due process claim likewise is subject to dismissal.ECF No. 47-1, pg. 14.
The Court does not agree that Plaintiff has alleged only that a due process violation occurred. Nor is Plaintiff required, as Defendants contend, to set forth all the circumstances underlying her claim. Her allegations fall between these two endpoints, accusing Defendants of failing to provide her with any written information “on the basis for the seizures and water shut off' and further failing to provide “any notice of, or instruction concerning, the availability of any means to challenge allegations against her, hearing rights, fees required, or other any other [ sic ] means by which she may have her water service (fully) restored.” Am. Compl. ¶ 11. She then alleges that Defendants cut off her own water pipe, limited her access to her own property, and placed her health and safety in danger. Id. ¶ 12. These allegations suffice to state a due process claim, as discussed in detail in this Court's September 17, 2021, Findings and Recommendations to grant in part Plaintiff's motion for injunctive relief, which the district judge adopted in full. ECF Nos. 29, 52.
d. Equal Protection
A plaintiff can state a claim for violation of the Equal Protection Clause by showing “that the defendant acted with an intent or purpose to discriminate against him based upon his membership in a protected class.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003). “Intent” in this context means that the defendant acted, at least in part, because of the plaintiff's membership in a protected class. Id. Alternately, the plaintiff can state a claim by alleging that he was intentionally treated differently than similarly situated individuals and there was no rational basis for the difference in treatment. Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (2005); Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Defendants argue:
Plaintiff has not included factual allegations that she was treated differently from other people with whom she was similarly situated and that there was no rational basis for the difference in treatment. Plaintiff has not alleged facts demonstrating irrational or arbitrary actions on the part of Defendants. As such, Plaintiff has failed to present an Equal Protection claim sufficient to withstand a motion to dismiss.ECF No. 47-1, pg. 15.
The Court again disagrees with Defendants' reading of the pleading. Plaintiff's equal protection claim is premised on a “class of one.” Am. Compl. ¶ 32; Willowbrook v. Olech, 528 U.S. 562, 564 (2000). A class of one claim arises when a plaintiff alleges that they have been intentionally treated differently from other similarly situated people and that there is no rational basis for different treatment. Id. This theory alleges that the defendants arbitrarily discriminated against the specific plaintiff rather than against a group or protected class. Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008). In this case, Plaintiff alleges that Defendants “acted to treat Plaintiff differently, and more harshly, than other customers of the HCSD, and for an improper purpose.” Am. Compl. ¶ 16. They did this by providing other HCSD customers with water and/or by complying with notice requirements. See id. ¶¶ 11, 13. Plaintiff also claims Defendants brought “baseless, wrongful, unconstitutional governmental and other actions against Plaintiff - but without utilizing the same tactics or actions against any other customers of the HCSD besides Plaintiff.” Id. ¶ 17, fn. 19. Because Plaintiff alleges that there was no rational basis for this differential treatment, she has stated a viable equal protection claim.
e. Conspiracy
To state a claim for civil conspiracy, a plaintiff must plead “(1) the formation of a group of two or more persons who agreed to a common plan or design to commit a tortious act; (2) a wrongful act committed pursuant to the agreement; and (3) resulting damages.” City of Indus. v. City of Fillmore, 198 Cal.App.4th 191, 212 (2d Dist. 2011), as modified (Aug. 24, 2011). “Civil conspiracy is not an independent tort.” Id.
Defendants argue Plaintiff's conspiracy claim is too conclusory to state a claim:
Here, Plaintiff's allegations regarding conspiracy are entirely conclusory, lack facts, and lack the required specificity. Plaintiff failed to allege what each Defendant did to carry out any overt acts in furtherance of the alleged conspiracy. Plaintiff also does not allege how the Defendants conspired together to commit wrongful acts. Thus, Plaintiff fails to allege specific facts that are necessary to establish a §1985 claim, and Plaintiff's claim of conspiracy fails to satisfy the pleading requirements.
Moreover, a racial, or other class-based, invidiously discriminatory animus is an indispensable element of a section 1985(3) claim. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 267-69 (1993). Plaintiff does not allege a racial or other class-based invidiously discriminatory animus. Plaintiff's claim of conspiracy fails on this basis as well.ECF No. 47-1, pg. 13.
Examination of the pleading confirms that Plaintiff's conspiracy claims brought pursuant to 42 U.S.C. § 1983, § 1985, and § 1986 rest entirely on speculation. Plaintiff alleges only that Defendants “jointly acted to systematically and wrongfully stifle, deny, suppress, and thwart, Plaintiff Olson's rights under the federal and State constitutions, her statutory rights, those rights as provided in the HCSD's Bylaws, Rules and Regulations, and its customs, policies, and practices, and specifically inclusive of her First, Fourth, and Fourteenth Amendment procedural and substantial due process rights, and her Equal Protection rights. . . .” Am. Compl. ¶ 17. She then alleges that this conduct “violated . . . the provisions of, and protections afforded Plaintiff by, 42 USC 1985(2) and/or (3) as a ‘class of one', so each of those Defendants also violated 42 USC §1986 by failing and/or refusing to take any action to stop, or prevent, the violation of Plaintiff's constitutional rights.” Id. ¶ 54. There are no allegations, however, to indicate how and/or when the alleged conspiracy occurred. Without these necessary details, these claims fail.
f. Monell Liability
“In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Supreme Court held that a municipality may not be held liable for a § 1983 violation under a theory of respondeat superior for the actions of its subordinates.” Castro v. County of Los Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016). In this regard, “[a] government entity may not be held liable under 42 U.S.C. § 1983, unless a policy, practice, or custom of the entity can be shown to be a moving force behind a violation of constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing Monell, 436 U.S. at 694).
In order to allege a viable Monell claim, a plaintiff “must demonstrate that an ‘official policy, custom, or pattern' on the part of [the defendant] was ‘the actionable cause of the claimed injury.' ” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012) (quoting Harper v. City of Los Angeles, 533 F.3d 1010, 1022 (9th Cir. 2008)). There are three ways a “policy” can be established. See Clouthier, 591 F.3d at 1249-50. “First, a local government may be held liable ‘when implementation of its official policies or established customs inflicts the constitutional injury.' ” Id. at 1249 (quoting Monell, 436 U.S. at 708 (Powell, J. concurring)). Second, plaintiff may allege that the local government is liable for a policy of inaction or omission, for example when a public entity, “fail[s] to implement procedural safeguards to prevent constitutional violations” or fails to adequately train its employees. Tsao, 698 F.3d at 1143 (citing Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992)); see also Clouthier, 591 F.3d at 1249 (failure to train claim requires plaintiff show that “the need for more or different training [was] so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers ... can reasonably be said to have been deliberately indifferent to the need.”) (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)); Long v. County of Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006) (“To impose liability against a county for its failure to act, a plaintiff must show: (1) that a county employee violated the plaintiff's constitutional rights; (2) that the county has customs or policies that amount to deliberate indifference; and (3) that these customs or policies were the moving force behind the employee's violation of constitutional rights.”). “Third, a local government may be held liable under § 1983 when ‘the individual who committed the constitutional tort was an official with final policy-making authority' or such an official ‘ratified a subordinate's unconstitutional decision or action and the basis for it.' ” Clouthier, 591 F.3d at 1250 (quoting Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992)).
However, a complaint alleging a Monell violation “ ‘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.' ” AE ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). At a minimum, the complaint should “identif[y] the challenged policy/custom, explain[ ] how the policy/custom was deficient, explain[ ] how the policy/custom caused the plaintiff harm, and reflect[ ] how the policy/custom amounted to deliberate indifference[.]” Young v. City of Visalia, 687 F.Supp.2d 1141, 1149 (E.D. Cal. 2009); see also Little v. Gore, 148 F.Supp.3d 936, 957 (S.D. Cal. 2015) (“Courts in this circuit now generally dismiss claims that fail to identify the specific content of the municipal entity's alleged policy or custom.”).
Plaintiff alleges that Defendant Dingman helped create and submit false government documents, failed to comply with HCSD Rules and Regulations, claimed time for duties and/or actions that were not pre-approved by the Board or General Manager, illegally seized and converted Plaintiff's real and personal property, and cut off Plaintiff's water supply without notice, hearing, and/or opportunity for review. Am. Compl. ¶ 36. Plaintiff alleges that the Defendants were aware of and ratified this conduct and that it was the result of “the written and unwritten official policy, custom, or practices of the HCSD as created and implemented by one or more of the Board Defendants, and/or HCSD itself.” Id. ¶ 37.
Defendants argue simply that the amended complaint “fails to demonstrate that HCSD had a ‘policy or custom' of deliberately engaging in retaliation and violations of clearly established constitutional rights.” ECF No. 47-1, pg. 17. Although the Court is unimpressed with the cursory nature of this argument, Defendants are correct. Plaintiff alleges only that the Board Defendants knew of Dingman's conduct and ratified it. But this conclusory allegation fails to specify the precise policy or custom at issue and fails to even identify how the Board became aware of the conduct so as to ratify it. The Court therefore finds that Plaintiff's vague and conclusory allegations do not satisfy the pleading requirements to assert a Monell claim.
g. Americans with Disabilities Act
Title II of the Americans with Disabilities Act (ADA) is designed to ensure that qualified individuals with a disability are not excluded from participation in or denied the benefits of a program, service or activity of any public entity, service or program receiving federal financial assistance on the basis of their disability. 42 U.S.C. § 12132. This statute also ensures that public entities, services and programs receiving federal financial assistance do not otherwise discriminate against an individual with a qualified disability based on such disability. 42 U.S.C. § 12132.
Defendants argue:
Here, Plaintiff uses only conclusory language in attempting to state a claim under the ADA. Plaintiff does not set forth any non-conclusory factual allegations that she was discriminated against based upon her disabilities. Plaintiff has also failed to allege facts as to what accessibility barriers Plaintiff encountered or to explain how any alleged barriers relate to her particular disability. Plaintiff's bare legal conclusions are insufficient to satisfy standing and the ADA's pleading requirements. As such, Plaintiff's ADA claim must be dismissed.ECF No. 47-1, pg. 16.
The Court agrees that Plaintiff's allegations are insufficient to state an ADA claim. She adequately alleges that she has a disability and that Defendants were aware of it, but she does not indicate how she was discriminated against or denied services based on that disability. Plaintiff alleges that she could not access the facility where HCSD stored its public records, see Am. Compl. ¶ 52, but she does not specify what circumstances rendered the office inaccessible. Moreover, while Plaintiff alleges that Defendants “failed to accommodate her disability by giving her adequate and proper notice of any adverse determinations or actions against her,” it is unclear what type of accommodation she required because of her disability. Am. Compl. ¶¶ 51-52. This claim thus fails as vague and conclusory.
h. Jurisdiction
Defendants next make a related arguments suggesting that this Court lacks jurisdiction to provide the relief that Plaintiff seeks. They argue:
The First Amended Complaint alleges that HCSD is a public entity operating wholly within the County of Siskiyou, a political subdivision of the State of California. (ECF No. 1, Complaint, ¶2) The Complaint seeks injunctive and declaratory relief that is equivalent to seeking mandamus relief, and this Court lacks mandamus jurisdiction to compel a state official to perform his or her duties. The Court's mandamus power, as set forth in 28 U.S.C. §1361, extends only to federal officials. See Amisub (PSL), Inc. v. Colo. Dep't of Soc. Servs., 879 F.2d 789, 790 (10th Cir. 1989) (“No relief against state officials or state agencies is afforded by §1361.”); see also Williams v. Va. Supreme Court, 457 Fed.Appx. 228, 229 (4th Cir. 2011) (“[F]ederal courts do not have jurisdiction to grant mandamus relief against state officials”).
This action also is barred by the Eleventh Amendment. The Eleventh Amendment bars courts from entertaining suits brought by a private party against a state, an arm of the state, its instrumentalities, or its agencies. Los Angeles Brach NAACP v. Los Angeles UnifiedSch. Dist., 714 F.2d 946, 950 (9th Cir. 1983). In Ex Parte Young, 209 U.S. 123 (1908), the Supreme Court recognized a limited exception to Eleventh Amendment immunity, permitting suits for prospective declaratory and injunctive relief against state officers “who threaten and are about to commence proceedings” to enforce an alleged unconstitutional act. Here, the limited exception does not apply since no such prospective proceedings are contemplated by HCSD.ECF No. 47-1, pg. 18.
The Court finds these arguments unpersuasive. As an initial matter, Defendants cite to no authority for the proposition that Plaintiff's request for injunctive and declaratory relief “is equivalent to seeking mandamus relief.” Notably, Plaintiff has not filed a writ of mandamus and is not proceeding pursuant to 28 U.S.C. § 1361. Furthermore, it is axiomatic that “[c]ounties, municipalities, municipal agencies, and officers thereof, usually are not considered arms of the state, and thus usually are not entitled to [Eleventh Amendment] immunity.” Wright & Miller, 13 Fed. Prac. & Proc. Juris. § 3524.2 (3d ed.). As a political subdivision of Siskiyou County, HCSD is not an “arm of the state” for Eleventh Amendment purposes. See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401 (1979) (holding that suit against a political subdivision is not barred by the Eleventh Amendment); Monell, supra, 436 U.S. 658.
This statute reads, “The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”
i. State Law Claims
Under 28 U.S.C. § 1367(a), in any civil action in which the district court has original jurisdiction, the “district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution,” except as provided in subsections (b) and (c). The Supreme Court has stated that “if the federal claims are dismissed before trial, ... the state claims should be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). Although the Court may exercise supplemental jurisdiction over state law claims, Plaintiff must first have a cognizable claim for relief under federal law. 28 U.S.C. § 1367.
Defendants seek dismissal of Plaintiff's state law claims as follows:
Plaintiff's [ sic ] move to dismiss Plaintiff's state law claims for failure to state a cause of action and noncompliance with Rule 8(a). Alternatively, given that Plaintiff has failed to state a federal law claim, Defendants request that the Court decline to exercise supplemental jurisdiction over Plaintiff's remaining state claims pursuant to 28 U.S.C. § 1367(c)(3) (a district court may “decline to exercise supplemental jurisdiction” over state law claims if it “has dismissed all claims over which it has original jurisdiction”); see also Sanfordv. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010).ECF No. 47-1 at 18.
Defendants fail to analyze any of Plaintiff's ten state law claims to determine whether they state a cause of action, and the Court declines to conduct that analysis for them. To the extent Defendants argue that the Court should decline supplemental jurisdiction because Plaintiff fails to state a federal cause of action, the Court has found that Plaintiff's allegations are sufficient to state Fourth, Fifth, and Fourteenth Amendment claims. Nevertheless, the Court will recommend that supplemental jurisdiction be declined at this time because Plaintiff has not complied with Rule 8's pleading requirements, as discussed supra.
B. Motion for Contempt Sanctions or a Further Preliminary Injunction
Also pending before the Court is Plaintiff's motion for contempt sanctions or a further preliminary injunction. The Preliminary Injunction ordered Defendants to, among other things, “provide Olson with water in compliance with internal rules and all other applicable state and local laws.” ECF No. 52. It further ordered Defendants “to return Olson's water meter and attach a flow restrictor to it, limiting Olson to 200 gallons of water per day, or whatever generally applicable use restrictions HCSD enacts in order to conserve water.” Id. (emphasis in original).
Plaintiff claims Defendants failed to comply with the Preliminary Injunction by (1) failing to fully restore Plaintiff's water service to her home “in compliance with local rules, and all other applicable state and local laws,” (2) restricting her water use more severely than other customers, (3) installing a “flow restrictor” that does not permit Plaintiff to use water up to the then-limit of 200 gallons per day, and (4) failing to properly repair and maintain the connection providing Plaintiff's water service.
In support of her motion, Plaintiff submits several letters she sent to Defendant Puckett between September 29, 2021, and January 26, 2022, wherein she claimed that she had only been able to use 1,200 to 1,600 gallons per month, despite other residents receiving substantially more water, and that her water pressure was too low to take a shower or perform other daily activities. Pl.'s Decl. ¶ 3, Ex. C. Plaintiff also submits copies of her water bills, which reflect that she used 1,230 gallons of water in October 2021; 1,640 gallons in November 2021; and 1,160 gallons in December 2021. Pl.'s Decl. Ex. D. Concerning her water pressure, Plaintiff attaches a copy of § 608.1 of the California Plumbing Code, which mandates a minimum water pressure of 15 pounds force per square inch. Pl.'s Decl. Ex. F. Plaintiff contends that her water pressure fell far short of this statutory minimum, as evidenced by her own measurements of the flow rate in her home on an unspecified date. Pl.'s Decl. ¶ 3.
Plaintiff's calculations were based on sequentially filling 3 one-gallon jugs from her kitchen tap. Pl.'s Decl. ¶ 3. According to Plaintiff, it took 88 seconds to fill the first jug, 96 seconds to fill the second jug, and 93 seconds to fill the third jug. Id.
Defendants oppose Plaintiff's motion, arguing that she has not met the high burden for sanctions or an amended preliminary injunction. ECF No. 69. They contend there is simply no showing that they failed to comply with the Preliminary Injunction and that Plaintiff's issue here stems from the water pressure, not the amount of water provided. They further note that, by the time the Preliminary Injunction went into effect, the 10-gallon per hour flow restrictor, which had also been installed on five other HCSD customers' homes, had been replaced with a 90-gallon-an-hour flow restrictor. Decl. of Robert Puckett in Supp. of Defs.' Opp'n ¶¶ 3-6. Still, Plaintiff, like all other HCSD customers, was limited to 300 gallons per day pursuant to resolutions passed by the HCSD Board Defendants. Id. ¶ 6, Ex. 1.
A party seeking a civil contempt order must establish: (1) that the defendant violated a court order, (2) beyond substantial compliance, (3) not based on a good faith and reasonable interpretation of the order, (4) by clear and convincing evidence. Labor/Community Strategy Ctr. v. Los Angeles Cty. Metropolitan Transp. Authority, 564 F.3d 1115, 1123 (9th Cir. 2009).
District courts have “inherent power” to impose sanctions to manage their cases, ensure the orderly administration of justice, and enforce compliance with orders. ChromaDex, Inc. v. Elysium Health, Inc., 535 F.Supp.3d 906, 911 (C.D. Cal. 2021) (citing Int'l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 831 (1994). “That authority includes the ability to fashion an appropriate sanction for conduct which abuses the judicial process.” Goodyear Tire & Rubber Co. v. Haeger, 137 S.Ct. 1178, 1186 (2017). But a court imposing sanctions pursuant to its inherent power may impose sanctions based only on a finding of either “a willful violation of a court order [or ...] bad faith.” Am. Unites for Kids v. Rousseau, 985 F.3d 1075, 1090 (9th Cir. 2021).
The Court finds that Plaintiff has not shown by clear and convincing evidence that Defendants violated the Preliminary Injunction. While she claims that she received less water than other HCSD customers, her evidence shows only that she used less than 200 gallons of water per day, not that Defendants provided less. Turning to the water pressure, Defendants are incorrect in claiming that it is not at issue here. To the contrary, the Preliminary Injunction specifically states that “HCSD must provide Olson with water in compliance with internal rules and all other applicable state and local laws.” ECF No. 52 ¶ 2 (emphasis added). This would necessarily encompass the state's minimum requirements for water pressure. In any event, Plaintiff's evidence-measurements based on filling 3 one-gallon jugs on an unspecified date-is insufficient to show that her water pressure fell below the state statutory minimum. And finally, Plaintiff readily admits in her Reply brief that Defendants “altered Plaintiff's water service to a fully usable state on February 20, 2022.” ECF No. 73, pg. 3. For these reasons, Plaintiff's motion should be denied.
Plaintiff also claims that Defendants damaged and then failed to repair a control valve on the “supply side” of the water meter. Pl.'s Decl. ¶ 2, ECF No. 67. She seeks an order directing them to remedy this as soon as possible, but this issue exceeds the scope of the Preliminary Injunction and is therefore not a proper basis to modify it.
IV. CONCLUSION
Based on the foregoing, the undersigned recommends that:
1. Defendants' motion to dismiss, ECF No. 47, be granted with leave to amend; and
2. Plaintiff's motion for sanctions or, in the alternative, for a further preliminary injunction, ECF No. 67, be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after being served with these findings and recommendations, any party may file written objections with the Court. Responses to objections shall be filed within 14 days after service of objections. Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).