San Diego Minutemen v. California Bus. Transp.
| Decision Date | 27 June 2008 |
| Docket Number | No. 08CV210 WQH (RBB).,08CV210 WQH (RBB). |
| Citation | 570 F.Supp.2d 1229 |
| Parties | SAN DIEGO MINUTEMEN, an unincorporated association, Plaintiff, v. CALIFORNIA BUSINESS, TRANSPORTATION AND HOUSING AGENCY'S DEPARTMENT OF TRANSPORTTION; Dale Bonner, in his official capacity as Agency Director of the California Business, Transportation and Housing Agency; Will Kempton, individually and in his official capacity as Caltrans Director; Pedro Orso-Delgado, individually and in his official capacity as Caltrans District Director; and Does 1 through 50, Defendants. |
| Court | U.S. District Court — Southern District of California |
Lowell Robert Fuselier, Kaloogian & Fuselier LLP, Carlsbad, CA, for Plaintiff.
Jeffrey R. Benowitz, State of California, Department of Transportation, San Diego, CA, for Defendants.
ORDER (1) GRANTING IN PART, AND DENYING IN PART, DEFENDANTS' MOTION TO DISMISS, AND (2) GRANTING PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION
Pending before the Court are Defendants' motion to dismiss (Doc. # 19) and Plaintiffs motion for a preliminary injunction (Doc. # 13). The Court heard oral argument on these matters on Friday, May 9, 2008.
On February 4, 2008, Plaintiff San Diego Minutemen filed a Complaint against Defendants California Business, Transportation and Housing Agency's Department of Transportation (Caltrans); Dale Bonner, Agency Director of the California Business, Transportation and Housing Agency; Will Kempton, Caltrans Director; and Pedro Orso—Delgado, Caltrans District Director. (Doc. # 1). The Complaint alleges that Defendants violated Plaintiffs constitutional rights to free speech, free expression, equal protection, and due process in revoking Plaintiffs Adopt—A—Highway Program permit and removing Plaintiffs Adopt—A—Highway courtesy signs from their location along Interstate 5 at San Onofre, California. (Doc. # 1). In addition, the Complaint asserts claims for damages pursuant to 42 U.S.C. §§ 1983 and 1988. (Doc. # 1).
On February 4, 2008, Plaintiff filed a request for a temporary restraining order. (Doc. #2). On February 7, 2008, the Court denied the request for a temporary restraining order. (Doc. # 6).
On February 25, 2008, Plaintiff filed the pending motion for a preliminary injunction. (Doc. # 13). On February 27, 2008, Defendants' filed the pending motion to dismiss the Complaint. (Doc. # 19).
Plaintiff San Diego Minutemen is an unincorporated association operating in San Diego, California. Complaint (Compl), ¶ 1. Plaintiffs organization "promotes adherence to both California and federal immigration laws in a peaceful, non-violent manner," and its mission statement is:
To demand the maximum border security and immigration enforcement both locally and at the national level. We oppose illegal immigration in all parts of San Diego County with our activism. We assist and support the U.S. Border Patrol in securing the U.S. Mexican border from terrorists, gang members, criminals, drugs, and illegal aliens entering the United States. We also assist ICE (Immigration & Customs Enforcement) and local law enforcement in exposing law breaking employers and helping to return illegal aliens to their country of legal residence. We act on behalf of and in accord with the United States Constitution and the Bill of Rights.
Compl., ¶ 7.
Defendant Caltrans is the California agency or department in charge of highways and the California Adopt—A—Highway (AAH) Program. Compl., ¶ 4. Defendant Dale Bonner is Director of the California Business, Transportation, and Housing Agency, the state agency which oversees Caltrans. Compl, ¶ 5. Defendant Will Kempton is the Director of Caltrans. Compl, ¶ 6. Defendant Pedro Orso—Delgado is the District Director of Caltrans for the area which is the subject of Plaintiff's Complaint. Compl., ¶ 6.
On or about September 18, 2007, Plaintiff applied for an AAH encroachment permit. Compl., ¶ 8. On November 19, 2007, Defendant Caltrans "accepted" Plaintiff into the AAH Program. Compl., ¶ 9 & Ex. 1. On November 21, 2007, Defendant Caltrans issued Plaintiff a "site specific" AAH encroachment permit for a portion of Interstate 5 near San Onofre, California, designated as AAH Program segment "11-SD-005/66.3-68.3 N/B." Compl., ¶ 10 & Ex. 2. Thereafter, Defendants "erected signs on either side of the San Onofre, Immigration Check Point on the northbound side of Interstate 5," which read "San Diego Minutemen." Compl, ¶ 11 & Ex. 3.
In January of 2008, members of Plaintiff's organization picked up trash at their AAH Program "assigned area." Compl., ¶ 12. "While cleaning up their area," members of Plaintiffs organization wore "Caltrans approved hard hats and safety vests," and there was no "violence," "interaction with motorists," or use of "signs" or "placards." Compl, ¶ 12.
On January 28, 2008, Plaintiff received a letter from Defendant Orso—Delgado notifying Plaintiff that "Caltrans was terminating and revoking" Plaintiff's encroachment permit because the permit "raised questions" about safety. Compl, ¶ 13 & Ex. 5. The letter stated that Plaintiff's AAH Program courtesy sign would "be removed." Compl., ¶ 13 & Ex. 5. With respect to safety and the reasons for revocation, the letter noted that,
The location of your existing Adopt—Highway (AAH) permit has raised questions regarding public safety due to the proximity of your assigned highway segment to a U.S. Border Patrol facility that is co-located with the California Highway Patrol (CHP) San Onofre Inspection facility. Your group has also indicated concerns regarding possible vandalism to the courtesy sign displaying your participation in the AAH Program and the release of information relative to the days you will perform the required clean up.
Compl, Ex. 5. The letter further noted that Plaintiffs participation in the AAH Program at the location in San Onofre, posed "a significant risk of disruption to the operation of the State highway, as well as public safety concerns for both the traveling public and the participants in the AAH Program." Compl, Ex. 5.
In addition to safety concerns, the revocation letter of January 28, 2008, stated that Caltrans was "currently examining allegations of violent behavior and/or advocacy of violence by [Plaintiffs] group." Compl, Ex. 5. The letter informed Plaintiff that,
Under the AAH Program eligibility criteria, entities that advocate violence, violation of the law, or discrimination based upon race, religion, color, national origin, ancestry, physical handicap, medical condition, marital status, age, sex, or sexual orientation may not participate in the Program.
Compl., Ex. 5.
On or after January 28, 2008, Defendants removed Plaintiffs AAH courtesy sign from its location along Interstate 5. Compl, ¶ 15(3) & Ex. 5.
Plaintiff alleges that Defendants terminated Plaintiffs site-specific AAH Program permit because "three members of the California Legislature" placed pressure on Defendants to terminate Plaintiffs permit. Compl, ¶ 14. Plaintiff alleges that "the termination of [Plaintiffs] Adopt-A-Highway sign and requisite privileges and obligations" violated Plaintiffs "First Amendment rights" because the termination was the result of "content and viewpoint discrimination by Defendants." Compl., ¶ 15(1). "Plaintiff contends that the actions of Defendants ... in terminating Plaintiffs site specific Adopt-A-Highway location were done arbitrarily, capriciously and based upon the unfettered discretion given to the Defendants ... in violation of Plaintiffs constitutional right to free speech and equal protection under the laws." Compl., ¶ 15(2).
Plaintiff alleges that Defendants terminated Plaintiff's site-specific permit and removed Plaintiffs sign without following Defendants'"own policies and procedures," and without allowing Plaintiff a hearing or an opportunity to "present evidence" in violation of Plaintiffs rights to due process. Compl., ¶ ¶ 15(3), 16.
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings. De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir.1978). A complaint may be dismissed for failure to state a claim under Rule 12(b)(6) where the factual allegations do not raise the "right to relief above the speculative level." Bell Atlantic v. Twombly, ___ U.S. ___, ___, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). Conversely, a complaint may not be dismissed for failure to state a claim where the allegations plausibly show "that the pleader is entitled to relief." Id. (citing FED R. Civ. P. 8(a)(2)). In ruling on a motion to dismiss pursuant to Rule 12(b)(6), a court must construe the pleadings in the light most favorable to the plaintiff, and further, must accept as true all material allegations in the complaint, as well as any reasonable inferences to be drawn therefrom. See Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.2003). In considering a Rule 12(b)(6) dismissal, a court may not look beyond the complaint. Moore v. Costa Mesa, 886 F.2d 260, 262 (9th Cir.1989).
Defendants contend that the Complaint should be dismissed because it fails to state a cognizable claim for relief and is not ripe for review. Specifically, Defendants contend that Plaintiff has not alleged nor suffered harm, and further, that the facts alleged do not violate Plaintiffs constitutional rights to free speech, equal protection, or due process. Defendants contend that Plaintiffs claims pursuant to 42 U.S.C. § 1983 must be dismissed because Plaintiff has not stated a claim for violation of a constitutional right.
Defendant Caltrans contends that it should be dismissed because it is entitled to Eleventh Amendment sovereign immunity. Defendants Kempton and Orso-Delgado contend that they should be dismissed in their individual capacities because they are...
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