Lull v. Cnty. of Placer, 2:19-cv-2444 KJM AC PS
| Decision Date | 24 March 2021 |
| Docket Number | No. 2:19-cv-2444 KJM AC PS,2:19-cv-2444 KJM AC PS |
| Parties | CHRISTOPHER M. LULL, Plaintiff, v. COUNTY OF PLACER, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
Plaintiff is proceeding in this matter pro se, and pre-trial proceedings are accordingly referred to the undersigned pursuant to Local Rule 302(c)(21). All defendants except Ryan Zender, who has not appeared, move for dismissal of plaintiff's First Amended Complaint (ECF No. 21). ECF No. 23; see also ECF No. 27. Plaintiff has opposed the motion. ECF No. 26. For the reasons that follow, the undersigned recommends that the motion to dismiss be granted as to all claims, and that no further leave to amend be granted.
Plaintiff commenced this action on December 6, 2019. ECF No. 1 at 1.1 All named defendants except Ryan Zender have appeared. It does not appear that Zender has been served.
On February 11, 2020, defendants moved to dismiss. ECF No. 9. The motion was granted, with limited leave to amend, as follows:
Plaintiff filed the operative First Amended Complaint on December 15, 2020. ECF No. 21. It sets forth the following claims for relief under 42 U.S.C. § 1983: (1) violation of plaintiff's right to procedural due process, against Duran, Frank, Holmes, Montgomery, Profant, Solomon, Uhler, Weygandt, and Zender;2 (2) violation of plaintiff's right to substantive due process, against Duran, Frank, Holmes, Montgomery, Profant, Solomon, Uhler, Weygandt, and Zender; (3) denial of equal protection, against Duran, Frank, Holmes, Montgomery, Profant, Solomon, Uhler, Wegner, Weygandt, and Zender; (4) unreasonable seizure in violation of the Fourth Amendment, against Harris and Blair; (5) violation of plaintiff's First Amendment right to free speech, against all defendants; and (6) violation of California's Bane Civil Rights Act by Harris's use of "threats, intimidation, coercion and actual violence" against plaintiff.
Plaintiff Christopher Lull owns 6.4 acres of property ("the Property") in Placer County, some of which he leased to third parties for agriculture (cannabis). ECF No. 21 at 2-4. He bringssuit against Placer County and numerous county officials regarding 2017 nuisance abatement proceedings and related matters.
In 2010, Lull criticized Wegner's job performance, a criticism he repeated in November 2016 when he sent an e-mail also criticizing Placer County and the supervisors for enforcement measures adopted by the county. Id. at 4. On October 19, 2017, Solomon and another individual requested permission from Lull to inspect the Property, which Lull refused. Id. The next day, Solomon posted a notice on the entry gate of the property demanding access to search for evidence. Id. Lull filed a federal lawsuit concerning the events of October 19 and 20 ("Lull I") and served that complaint on Solomon and Wegner. Id. Upon receiving the summons, Wegner became visibly angry and on October 27th, Solomon searched the Property pursuant to a warrant and posted a notice of abatement hearing on the Property. Id. at 5.
On November 8, 2017, before hearing officer Frank, Profant and Soloman presented the County's case for the requested abatement order and administrative fine. ECF No. 21 at 6. Frank noted that it was their first hearing and the procedures used were informal. Id. The hearing lasted several days and on December 13, 2017, Frank issued an order of abatement of the nuisance and a $32,000 fine. Id. At the hearing, Lull saw Wegner speak to several unnamed Sheriff's officers and gesture to Lull. Id.
In February of 2018, defendants Profant, Zender, Soloman and Wegner contacted a private collection company to report Lull's debt. ECF No 21. at 9.
In June of 2018, Holmes, Uhler, Montgomery, Weygandt and Duran held a Placer County Board of Supervisors meeting at which Zender presented the County's estimated abatement costs. The Supervisors imposed a $7,124 Special Assessment fine on Lull for the costs of the 2017 nuisance abatement hearing. Id. at 7.
After the Board of Supervisors meeting concluded, Officer Harris warned Lull against driving his car, saying that Lull did not have a valid driver's license and asking Lull to sign a citation for driving on a suspended license. Id. at 8. Lull asked if he was being detained, and Harris said "yes, you are detained." Id. Though Lull tried to show Harris his Puerto Rican driver's license, Harris would not look at it and stated it was suspended due to a "known DUI."Id. After Lull signed the citation, he was released. Id. Harris's immediate supervisor Blair witnessed the interaction and condoned Harris's action. Id. Lull alleges that other Placer County Sheriff's officers were present, and Blair commented, "we all know who you are Chris." Id. at 8-9. Lull alleges that Solomon, Wegner, and Zender ordered the deputies to investigate, harass, vex, and surveil Lull. Id. at 9.
All served defendants now move to dismiss pursuant to FRCP 12(b)(6) and to strike pursuant to FRCP 12(f). ECF No. 23. Plaintiff opposes the motion. ECF No. 26. Defendants argue that plaintiff's first, third, fifth and sixth claims are barred by statute of limitations; that all of plaintiff's claims fail to allege facts sufficient to state a claim for relief; and that plaintiff's second claim must be struck since the claim was dismissed in this court's previous order. ECF No. 18 at 2.
"The purpose of a motion to dismiss under rule 12(b)(6) is to test the legal sufficiency of the complaint." N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983) (citation omitted). "Dismissal can be based on the lack of a 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) (citation omitted).
In order to survive dismissal for failure to state a claim, 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." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). It is insufficient for the pleading to contain a statement of facts that "merely creates a suspicion" that the pleader might have a legally cognizable right of action. Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)). Rather, the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting 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." Id. (citing Twombly, 550 U.S. at 556).
In reviewing a complaint under this standard, the court "must accept as true all of the factual allegations contained in the complaint," construe those allegations in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert. denied, 564 U.S. 1037 (2011); Hebbe v. Pliler, 627 F.3d 338, 340 (9th Cir. 2010). However, the court need not accept as true legal conclusions cast in the form of factual allegations, or allegations that contradict matters properly subject to judicial notice. See Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), as amended, 275 F.3d 1187 (9th Cir. 2001). Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). "Pro se complaints are construed liberally and may only be dismissed if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (citation and internal quotation marks omitted). The court's liberal interpretation of a pro se complaint, however, may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); see also Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute as stated in Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc).
Under Federal Rule of Civil Procedure 12(f), a court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by...
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