Creamer v. City of Tulare

• Decision Date: 29 August 2016
• Docket Number: No. 1:15-cv-00916-DAD-EPG,1:15-cv-00916-DAD-EPG
• Court: U.S. District Court — Eastern District of California
• Parties: BRUCE CREAMER, Plaintiff, v. CITY OF TULARE, et al., Defendants.

BRUCE CREAMER, Plaintiff, v. CITY OF TULARE, et al., Defendants.

No. 1:15-cv-00916-DAD-EPG

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

August 29, 2016

ORDER DISMISSING PLAINTIFF'S SECOND AMENDED COMPLAINT

(Doc. Nos. 14 and 15.)

Plaintiff Bruce Creamer, appearing pro se and in forma pauperis, commenced this civil rights action on June 17, 2015. (Doc. No. 1.) On December 23, 2015, plaintiff's original complaint was screened pursuant to 28 U.S.C. § 1915(e)(2) and dismissed with leave to amend. (Doc. No. 11.) Plaintiff then filed an amended complaint that was again screened and dismissed with leave to amend. (Doc. Nos. 12 and 13.)

On May 16, 2016, plaintiff filed the operative second amended complaint ("SAC") naming the following defendants: City of Tulare, current/former pro term mayor David Macedo, city manager Don Dorman, chief of police Jerry Breckinridge, officer Richard Garcia, officer James Ussery, officer Frank Furtaw, officer Greg Merrill, officer V. Medina, Tulare County Superior Court Judge Walter Gorelick, chief deputy city clerk Roxanne Yoder, officer Rosa Moreno, Action Towing, Inc., United States Magistrate Judge Erica Grosjean, and an unknown number of Doe defendants. (Doc. No. 15.) Although plaintiff lists therein a litany of potential state and federal claims, his SAC appears to focus on three claims alleging violations of 42 U.S.C. §§ 1983, 1985, and 1986. (Id.) The court has reviewed the SAC and concludes that plaintiff has again failed to state a cognizable claim against any of the defendants in this action.¹

I. Pleading Standard

Under 28 U.S.C. § 1915(e)(2), the court must conduct a review of a pro se 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.

A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) "requires a complaint to include 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, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). While the complaint must comply with the "short and plaint statement" requirements of Rule 8 and detailed factual allegations are not required, its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

To avoid dismissal for failure to state a claim a complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555-557. In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Iqbal, 556 U.S. at 678. Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. 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, 556 U.S. at 678. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). However, while factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.

Finally, pleadings of pro se plaintiffs "must be held to less stringent standards than formal pleadings drafted by lawyers." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after Iqbal). See also Erickson, 551 U.S. at 94.

II. Plaintiff's Allegations

Plaintiff has included a timeline in his SAC, almost identical to that set forth in his prior complaints, in which he alleges the following.

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 the violation.

On January 26, 2014, plaintiff received a letter from defendant Garcia informing plaintiff that he had been cited 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 the "city manager" in which plaintiff he requested a hearing on the citation.² Two weeks later, on February 13, 2014, plaintiff received two letters from the Tulare Police Department informing him of the department's intent to abate the nuisance under TulareMunicipal Code § 4.36.010 et seq., which defines the removal procedure for abandoned, wrecked, dismantled, or inoperative vehicles. On February 18, 2014, plaintiff delivered a letter to the police department, apparently challenging their authority under the Municipal Code to proceed in the manner indicated by their letters. On April 18, 2014, at least three Tulare Police Department officers arrived at plaintiff's address. They handcuffed plaintiff and towed his vehicle(s) away with the assistance of defendant Action Towing Inc. The officers also produced a search warrant pursuant to which they searched plaintiff's house, his garage, and a shed outside his house. Plaintiff generally contends that the warrant did not authorize a search of this breadth. The officers also informed plaintiff that he would need to vacate the premises. On April 22, 2014, the police department mailed plaintiff receipts for the property that had been seized, although plaintiff contends that not all the property seized was reflected on those receipts. 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 in which plaintiff alleged that Action Towing Inc. 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 for Tulare. On June 13, 2014, plaintiff sent defendant code enforcement officer Frank Furtaw 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 he would be named in plaintiff's lawsuit. On July 20, 2014, plaintiff received a letter from defendant Garcia referring him to the Tulare County Superior Court.

On July 30, 2014, plaintiff emailed defendant city clerk Roxanne Yoder regarding information on how to sue the city. The next day, Lori Heeszel, a different city clerk, responded. On December 23, 2014, an unknown police officer walked onto plaintiff's property. Plaintiff asked him to leave, but the officer did not do so. Over the following four months, plaintiff attempted to investigate the Tulare Police Department, first by filing a police report with theTulare Police Department and later by calling the FBI. Plaintiff filed his original complaint in this court on June 12, 2015.

III. Discussion

A. First Claim: 42 U.S.C. § 1983

As plaintiff has previously been advised, to state a cognizable claim under § 1983, a plaintiff "must allege a violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). See also Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980) (a plaintiff in a civil rights action must allege facts demonstrating how the conditions complained of resulted in a deprivation of his federal constitutional or statutory rights.) Plaintiff must allege in specific terms how each named defendant was involved in the deprivation of plaintiff's rights. Iqbal, 556 U.S. at 677 ("Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection alleged between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1975); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations of official participation in civil rights violations, such as those made by plaintiff in his complaints thus far, are not sufficient. Ivey v. Board of...