McGee v. California
| Decision Date | 02 March 2017 |
| Docket Number | No. 2:16-cv-1796-JAM-EFB PS,2:16-cv-1796-JAM-EFB PS |
| Parties | JEFFERSON A. McGEE, Plaintiff, v. STATE OF CALIFORNIA, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
This case is before the court on defendant City of Sacramento's motion to declare plaintiff a vexatious litigant and for an order compelling plaintiff to provide security (ECF No. 9); defendants County of Sacramento and the State of California's motions to dismiss plaintiff's complaint for failure to state a claim pursuant to Federal Rule of Civil Procured ("Rule") 12(b)(6) (ECF Nos. 13 and 22); plaintiff's motion for default judgment against California and the City and County of Sacramento (ECF No. 15); and the court's October 7, 2016 order to show cause (ECF No. 28).1 For the reasons explained below, the court discharges the order to show cause, defers ruling on the vexatious litigant motion, and recommends that Sacramento County and the State of California's motions to dismiss be granted and plaintiff's motion for default judgment be denied.2
Defendants County of Sacramento and the State of California filed motions to dismiss the complaint, which were noticed for hearing on October 19, 2016. ECF Nos. 13, 22, 25. Pursuant to Local Rule 230(c), plaintiff was required to file an opposition or statement of non-opposition to the motions by October 5, 2016, but failed to do so. Accordingly, the hearing on the motions was continued and plaintiff was ordered to file an opposition or statement of non-oppositions to the motions and to show cause why sanctions should not be imposed for his failure to timely do so.
In his response plaintiff states that he mailed his opposition to the County's motion on September 17, 2016, and his opposition to the State of California's motion on October 4, 2016. While the court belatedly received plaintiff's opposition to the State's motion on October 6, 2016, plaintiff did not file his opposition to the County's motion until November 2, 2016, the same date he filed his response to the court's order to show cause. In light of plaintiff's pro se status, and given that he has now filed oppositions to the pending motions, the court discharges the order to show cause and declines to impose sanctions. Plaintiff is admonished, however, that his pro se status does not excuse compliance with the Federal Rules of Civil Procedures, Local Rules, and court orders.
Defendant City of Sacramento, instead of filing a responsive pleading or motion in accordance with Rule 12 of the Federal Rules of Civil Procedure, filed a motion for an order declaring plaintiff a vexatious litigant and requiring security under Local Rule 151(b). ECF No 9. Local Rule 151(b) adopts the provisions of Title 3A, part 2, of the California Code of Civil Procedure relating to vexatious litigants. One of those provisions provides that when a vexatious litigant motion is filed prior to trial, the litigation - including the moving defendant's obligation to plead - is stayed. Cal. Civ. Proc. Code § 391.6. Setting aside the question of whether that stay provision is in variance with the pleading practices prescribed by the Federal Rules of Civil Procedure, Local Rule 151(b) also states that the Court's power "shall not be limited by this provision." See E.D. Cal. L.R. 151(b). Here, the City's motion calls upon the court to examine the merits of plaintiff's complaint. See DeLong v. Hennesey, 912 F.2d 1144, 1148 (9th Cir. 1990)(before a court may enter a pre-filing injunction it must make "substantive findings as to the frivolous or harassing nature of the litigant's actions."). The standards and procedures for determining whether plaintiff's complaint is sufficient to state a claim are set out in Rule 12 of the Federal Rules of Civil Procedure and governed by federal, not state law. For that reason, the court exercises its discretion under Local Rule 151(b) to require the City to address its contention that plaintiff's complaint is either frivolous or fails to state a claim pursuant to a properly noticed and briefed motion presented under either Rule 12 or Rule 56 of the Federal Rules of Civil Procedure. Accordingly, ruling on the pending vexatious litigant motion is deferred pending resolution of any motion brought under Rule 12 or, if appropriate, Rule 56, together with appropriate briefing that addresses the standards under those rules.
The County of Sacramento and the State of California both move to dismiss plaintiff's complaint for failure to state a claim pursuant to Rule 12(b)(6). ECF Nos. 13, 22. As explained below, the motions must be granted.
Plaintiff and his son reside at the Bridgeport Condominium Complex in Sacramento California. ECF No. 1 at 3-4. The crux of the complaint is that throughout 2016, plaintiff and his son were terrorized, harassed, and assaulted by Sean Swarthout, another resident of the condominium complex.3 Plaintiff alleges Swarthout's actions against plaintiff and his son were racially motivated. Id. at 6.
On numerous occasions, plaintiff contacted the Sacramento City Police Department for assistance and protection. However, plaintiff claims that the department either refused to respond to his calls, or when they did respond "they saw that plaintiff was African American and Sean was white and decided to discriminate against plaintiff and [his son] because of their race andcolor by refusing to hear plaintiff's complaint." Id. at 11. He further alleges that the decision to not provide assistance was made pursuant to the departments "policy and conspiracy" to discriminate against African Americans. Id. at 6. The complaint further alleges that the Id. at 8.
The complaint alleges federal claims under 42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986 and 2000a, as well as state law claims under California Civil Code §§ 51 and 52. Id. at 17-20. The County of Sacramento and State of California move to dismiss the complaint for failure to state a claim pursuant to Rule 12(b)(6). ECF Nos. 13, 22.
To survive dismissal for failure to state a claim pursuant to 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." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Aschroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithem, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869(1969). The court will "presume that general allegations embrace those specific facts that are necessary to support the claim.'" Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972); Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985). The Ninth Circuit has held that the less stringent standard for pro se parties is now higher in light of Iqbal and Twombly, but the court still continues to construe pro se filings liberally. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, the court's liberal interpretation of a pro se litigant's pleading may not supply essential elements of a claim that are not pled. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Furthermore, "[t]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
In deciding a Rule 12(b)(6) motion to dismiss, the court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987), and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986).
Sacramento County moves to dismiss for failure to allege sufficient facts to state a claim for relief. ECF No. 13.
Section 1981 provides...
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