Cuviello v. City of Vallejo, 16-cv-02584-KJM-KJN
| Decision Date | 16 November 2020 |
| Docket Number | No. 16-cv-02584-KJM-KJN,16-cv-02584-KJM-KJN |
| Court | U.S. District Court — Eastern District of California |
| Parties | Joseph P. Cuviello, Plaintiff, v. City of Vallejo, et al., Defendants. |
Defendants City of Vallejo ("City") and Vallejo Police Officer M. Koutnik move to dismiss plaintiff Joseph Cuviello's first, second and fourth causes of action. Mot. to Dismiss ("MTD"), ECF No. 73, at 9, 11-13. In addition, defendants argue Officer Koutnik is entitled to qualified immunity in the face of plaintiff's constitutional claims. Id. at 10-11. Plaintiff filed an opposition. Opp'n, ECF No. 74. Defendants replied. Reply, ECF No. 75. The court heard argument on July 24, 2020, with Matthew Strugar appearing for plaintiff and Richard Osman appearing for defendants. For the reasons below, the court DENIES in full defendants' motion to dismiss.
This case involves plaintiff's participation in eight demonstrations, his use of a bullhorn at the demonstrations, and the constitutionality of a municipal noise ordinance. On June 20, 2015, plaintiff attended a demonstration at the Six Flags Discovery Kingdom in Vallejo, California. Sec. Am. Compl. ("SAC") ¶ 22, ECF No. 72. He alleges that, prior to the demonstration, he researched Vallejo Municipal Code § 7.84.020, which regulates noise disturbances. Id. ¶¶ 23-26. He concluded that using his bullhorn would not violate the ordinance because it "could not be classified as either 'loud unnecessary noise or a noise disturbance.'" Id. ¶ 26. At the demonstration, plaintiff used an electronic bullhorn; once he did, another attendee told plaintiff Vallejo City Police Officer Garcia had informed the other attendee that individuals must apply for and receive a permit for using a bullhorn. Id. ¶ 27. Plaintiff approached Officer Garcia, who showed him the text of Vallejo Municipal Code § 8.56, which required a permit prior to using any "sound amplifying" device. Id. ¶ 28. After plaintiff spoke with Officer Garcia, plaintiff did not use the bullhorn further that day and resolved to apply for a permit prior to the next demonstration. Id. ¶ 29. Approximately two weeks later, on July 4, 2015, plaintiff attended another demonstration, but claims he did not apply for a permit beforehand because the organizers wished for it "to be unannounced." Id. ¶ 30. To prepare for another demonstration planned for July 18, 2015, plaintiff sought to apply for a permit. Id. ¶ 31. After calling the Vallejo Police Department and receiving a fax number to send in the permit application, plaintiff transmitted the application on July 14, 2015 and did not receive a response. Id. ¶¶ 31-33. "[F]or fear of being arrested," plaintiff did not use the bullhorn at the July 18, 2015 demonstration. Id. ¶ 34.
Plaintiff also attended five additional demonstrations in 2015 and 2016 and describes a series of intervening communications and events. As pled, plaintiff spent July, August and September 2015 researching precedent regarding municipal noise ordinances; as a result, he determined the permit requirement in § 8.56 to be unconstitutional. Id. ¶ 35. Upon reaching this conclusion, plaintiff emailed three City officials on September 11, 2015 to inform them of his opinion and his intent to use the bullhorn at a demonstration planned for the following day, September 12, 2015. Id. ¶¶ 37-38. In response to plaintiff's email, the City Attorney articulated the City's position that the ordinance was constitutional, id. ¶ 39; nevertheless, plaintiff did attend a demonstration on September 15, 2015 and used a bullhorn. Id. ¶ 40.
On October 31, 2015, plaintiff attended another demonstration in which both plaintiff and another demonstrator, Lisa Soldivini, used the bullhorn as well as a large television to project their message. Id. ¶ 41. After Ms. Soldivini used the bullhorn without interruption, plaintiff began to do the same. Id. According to plaintiff, Officer Koutnik then approached him, asked whether he had a permit, and upon hearing he did not, told him he could not use the bullhorn. Id. Plaintiff claims Officer Koutnik stated he would not arrest plaintiff, but he would confiscate the bullhorn "as evidence of a crime" if plaintiff continued to use it. Id. "[F]or no other reason than . . . [Officer] Koutnik's threat to seize it," plaintiff claims he stopped using the bullhorn. Id. Although plaintiff says Officer Koutnik made these statements regarding the bullhorn, the officer told plaintiff he would not prevent plaintiff from using the large television. Id.
On three additional occasions—November 21, 2015, May 28, 2016, and June 18, 2016—plaintiff attended demonstrations, without his bullhorn, for fear allegedly based on the City Attorney's threats of enforcement and Officer Koutnik's threat of seizure. Id. ¶ 43. Other attendees brought bullhorns and used them, without a permit, despite the presence of officers. Id. ¶ 44.
On October 31, 2016, plaintiff, proceeding pro se, filed suit against defendants. Compl., ECF No. 1. On March 17, 2017, plaintiff filed a motion for preliminary injunction, ECF No. 15; after the court found his notice defective, ECF No. 17, plaintiff filed an amended motion on March 27, 2017, Mot. for Prelim. Inj., ECF No. 18. As provided by this district's Local Rules regarding pro se litigants, a Magistrate Judge held the hearing on plaintiff's preliminary injunction. Minutes, ECF No. 23. On April 28, 2017, the Magistrate Judge issued Findings and Recommendations recommending this court deny plaintiff's motion for a preliminary injunction. Findings and Recommendations on Mot. for Prelim. Inj., ECF No. 24. Defendants then filed a motion for partial summary judgment, Mot. for Partial Summ. J. ("MSJ"), ECF No. 25; the Magistrate Judge issued Findings and Recommendations recommending this court grant defendants' motion for partial summary judgment and dismiss plaintiff's fifth claim for deprivation of his First Amendment rights, Findings and Recommendations on Mot. for PartialSumm. J., ECF No. 39. On September 1, 2017, this court adopted the Magistrate Judge's Findings and Recommendations and denied plaintiff's motion for a preliminary injunction. Order, ECF No. 41.
On September 25, 2017, plaintiff appealed this court's order denying his motion for a preliminary injunction. Not. of Interlocutory Appeal, ECF No. 42. As plaintiff's appeal was pending before the Ninth Circuit, on March 29, 2018, this court declined to adopt the Magistrate Judge's Findings and Recommendations that it grant defendants' motion for partial summary judgment. Order, ECF No. 48. Meanwhile, on May 22, 2018, the Vallejo City Council discussed amending Vallejo Municipal Code § 8.56. SAC ¶ 47. During this discussion, the City Attorney described the amended ordinance as "just a notification ordinance" to encourage possible demonstrators to let the City know when they plan to have an event. Id. Following debate, the City adopted the amended ordinance on June 12, 2018. Id. ¶ 48. Plaintiff claims there are significant differences between the amended ordinance and the original ordinance, though the amended ordinance still contains the permit requirement. Id. ¶ 49.
On December 10, 2019, a Ninth Circuit panel majority reversed this court's denial of plaintiff's motion for a preliminary injunction and remanded the case back to this court for further proceedings. See Cuviello v. City of Vallejo, 944 F.3d 816, 821 (9th Cir. 2019). This court subsequently vacated its previous order, granted plaintiff's motion for a preliminary injunction, enjoined the City from enforcing the ordinance, and referred the matter back to the Magistrate Judge for pretrial proceedings. Order, ECF No. 56. Plaintiff then retained counsel, and as provided by Local Rule 302(c)(21), the Magistrate Judge referred the case back to this court after plaintiff retained counsel. Order, ECF No. 65. The court granted the parties' stipulation for leave to file a Second Amended Complaint, Minute Order, ECF No. 71; plaintiff filed a Second Amended Complaint on April 29, 2020. See generally SAC.
In the operative complaint, plaintiff brings four claims: (1) municipal liability under 42 U.S.C. § 1983 for violation of plaintiff's First Amendment Right to Free Exercise of Speech, Assembly, and Press and Fourteenth Amendment Right to Equal Protection, id. ¶¶ 64-69; (2) violation of liberty of speech under Article 1, Sections 2(a) and 3(a) of the CaliforniaConstitution, id. ¶¶ 70-72; (3) a facial and as applied challenge to Vallejo Municipal Code § 8.56, as amended in 2018, id. ¶¶ 73-81; and (4) violation of California Civil Code § 52.1, the Bane Act, id. ¶¶ 82-86. Plaintiff names as defendants on each claim the City of Vallejo and Officer Koutnik. Id. ¶¶ 10-11.
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
Although a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), in order to survive a motion to dismiss this short and plain statement "must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than "an unadorned, the-defendant-unlawfully-harmed-me accusation" or "'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action.'" Id. (quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a "context-specific task...
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