Creamer v. City of Tulare
| Decision Date | 05 May 2016 |
| Docket Number | Case No. 1:15-cv-00916---EPG |
| Court | U.S. District Court — Eastern District of California |
| Parties | BRUCE CREAMER, Plaintiff, v. CITY OF TULARE, et al., Defendants. |
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
THIRTY DAY DEADLINE TO FILE SECOND AMENDED COMPLAINT
On June 17, 2015, pro se and in forma pauperis Plaintiff Bruce Creamer ("Plaintiff") filed a Complaint. (ECF No. 1.) The Complaint was dismissed with leave to amend and Plaintiff filed a First Amended Complaint (the "FAC") on January 11, 2016. (ECF No. 12.) Plaintiff names the following Defendants: City of Tulare, David Macedo, Don Dorman, Jerry Breckinridge, Richard Garcia, James Ussery, Frank Furtaw, Greg Merrill, V. Medina, Walter Gorelick, Roxanne Yoder, Rosa Moreno, Action Towing, Inc., and an unknown number of Doe defendants. The Complaint alleges causes of action including, but not limited to:
42 U.S.C. § 1983 Denial of Rights Under Color of Law, 5th Amendment right to due process of law, Conspiracy, Collusion, Fraud, Obstruction of justice, Abuse of discretion, Tort of outrage, Intentional emotional distress, Breach of fiduciary duty, Fraud by commission, Fraud by omission, Fraud on the court, False imprisonment, Deprivation of rights, Deprivation of Due Process, Breach of Contract, Breach of Faithful Duty, Breach of Professional Duty, Breach of Public Duty, Breach of Law extortion, Mail fraud, Official misconduct, Criminal negligence, Culpable negligence, Criminal solicitation, Schemes to defraud, Asserting false and fictitious claims, Abuse of process, Simulated legal process under color of law, Fraudulent misrepresentation, Misuse of public office by public officers and employees, Constructive fraud, Fraud in the inducement, Racketeering activities, Domestic terrorism as defined by title 5, 18 and 42 U.S.C. and the California Criminal Codes, Assault, Battery, Breach of oath of office, Trespass to chattels, Trespass vi et armis (trespass with force of arms), Trespass de bonis asportatis (trespass for goods carried away), Trespasser ab initio, Trespass on the case, Continuing trespass, Permanent trespass, Joint trespass, Intentional tort, Personal tort, Negligence, Complicity and failure to prevent criminal activity, Outrageous conduct, Misprision, Theft of property, Theft of services, Extortion, Coercion, Obstructing of governmental operations, Tampering with governmental records, Interfering with judicial proceedings, Failure to disclose conflict of interest, Intimidating a witness, Tampering with a witness, and Terrorist threats.
Under 28 U.S.C. § 1915(e)(2), the Court must conduct an initial review of the Complaint to determine whether it "state[s] a claim on which relief may be granted," is "frivolous or malicious," or "seek[s] monetary relief against a defendant who is immune from such relief." If the Court determines that the Complaint fails to state a claim, it must be dismissed. Id. Leave to amend may be granted to the extent that the deficiencies of the Complaint can be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. at 663, quoting Twombly, 550 U.S. at 555. While factual allegations are accepted as true, legal conclusions are not. Id. at 678.
Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir.2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir.2002). Plaintiff's allegations must link the actions or omissions of each named defendant to a violation of his rights; there is norespondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir.2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir.2009); Jones, 297 F.3d at 934. Plaintiff must present factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir.2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
Plaintiff has narrowed the scope of his original 138 page Complaint to a 22 page FAC that includes a timeline asserting the following facts:
Plaintiff lives on property at 725 W. San Joaquin Avenue in Tulare, California. As part of an unspecified business, Plaintiff stored one or more vehicles on his property. The vehicles appear to have been kept in some state of disrepair. At some point in 2013 or 2014, Defendant James Ussery, a code enforcement officer for the City of Tulare, left his business card on Plaintiff's door with a note asking Plaintiff to contact him. On January 13, 2014, Plaintiff received a Notice of Violation of Tulare Municipal Code § 7.28.030, which declares it a nuisance for any person to maintain (or fail to maintain) property under an enumerated list of conditions. The Notice was issued by Defendant Richard Garcia and informed Plaintiff that he had ten days to remedy his violation.
On January 26, 2014, Plaintiff received a letter from Defendant Garcia informing Plaintiff that he had been cited by Defendant Richard Garcia for violating Tulare Municipal Code § 7.28.030(P)(5)(d), which requires that: "Abandoned, dismantled, wrecked, inoperative vehicles, or parts thereof, on private property shall be stored in a completely enclosed building or structure." On January 29, 2014, Plaintiff sent a letter to Defendant Don Dorman, the Tulare city manager, in which he requested a hearing regarding the citation. Two weeks later, on February 13, 2014, Plaintiff received two letters from the Tulare Police Department, which informed him of their intent to abate the nuisance under Tulare Municipal Code § 4.36.010 et seq., which defines the removal procedure for abandoned, wrecked, dismantled, or inoperative vehicles. OnFebruary 18, 2014, Plaintiff delivered a letter to the police department, apparently challenging their authority under the Municipal Code to proceed. It is unclear whether Plaintiff ever received the hearing he requested.
On April 18, 2014, at least three officers from the Tulare Police Department arrived at Plaintiff's address, placed him in handcuffs, and towed his vehicle(s) away with the assistance of Defendant Action Towing Inc. The officers produced a search warrant and proceeded to search Plaintiff's house, his garage, and a shed outside his house. Plaintiff contends that the warrant did not authorize a search of this breadth. They also informed him that he would need to vacate the premises. On April 22, 2014, the police department mailed Plaintiff receipts for the property that had been confiscated, although Plaintiff contends that not all property was named or included. On April 28, 2014, Plaintiff received a notice from Defendant Action Towing Inc. regarding the placement of a lien on his vehicle(s). Plaintiff returned the form, along with a statement that Action Towing owed him a number of fees, including a $1,400 per week rental fee for holding each of his vehicles and a $75,000 per vehicle charge if any of his property could not be returned.
On May 9, 2014, Plaintiff filed a notice of tort claim with the city clerk. On June 13, 2014, Plaintiff sent Defendant Frank Furtaw, a code enforcement officer, an email requesting unspecified information, but received an automated out of office reply. On July 11, 2014, Plaintiff again sent an email to Defendant Furtaw, but received a reply stating that Furtaw was no longer assigned to code enforcement. Plaintiff sent Furtaw another email informing him that that he would be named in Plaintiff's lawsuit. On July 20, 2014, Plaintiff received a letter from Defendant Garcia referring him to Tulare County Superior Court for an unspecified reason.
On July 30, 2014, Plaintiff emailed Defendant Roxanne Yoder, a city clerk, regarding information on how to sue the city. The next day, Lori Heeszel, a different city clerk, responded to Plaintiff. On December 23, 2014, an unknown Tulare police officer walked onto Plaintiff's property. Plaintiff asked him to leave, but the officer "stood in defiance" and did not leave. It is unclear what resolved this encounter. Over the next four months, Plaintiff sought various avenues to investigate the Tulare Police Department, first by filing a police report with the TularePolice Department and later by calling FBI headquarters. Finally, Plaintiff filed the Complaint on June 12, 2015.
Plaintiff does not explain what role Defendants David Macedo, Jerry Breckinridge, Greg Merrill, V. Medina, Walter Gorelick, or Rosa Moreno played, if any, in his allegations. Because Plaintiff has not linked the actions or omissions of each of these Defendants to the violation of his rights, he will be given leave to file an amended complaint that more clearly explains what conduct each Defendant is responsible for. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) ().
Although the FAC contains references to a variety of state and federal claims (including, for example, a breach...
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