Sanchez v. City of Fresno, No. 1:12–CV–00428–LJO–SKO.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Writing for the Court: LAWRENCE J. O'NEILL
• Citation: 914 F.Supp.2d 1079
• Parties: Luis SANCHEZ, Plaintiffs, v. CITY OF FRESNO, Ashley Swearengin, Mark Scott, Bruce Rudd, Greg Barfield, Jerry Dyer, Phillip Weaterhs, Malcolm Dougherty, and Does 1–100, inclusive, Defendants.
• Docket Number: No. 1:12–CV–00428–LJO–SKO.
• Decision Date: 26 December 2012

914 F.Supp.2d 1079

Luis SANCHEZ, Plaintiffs,
v.
CITY OF FRESNO, Ashley Swearengin, Mark Scott, Bruce Rudd, Greg Barfield, Jerry Dyer, Phillip Weaterhs, Malcolm Dougherty, and Does 1–100, inclusive, Defendants.

No. 1:12–CV–00428–LJO–SKO.

United States District Court,
E.D. California.

Dec. 26, 2012.

[914 F.Supp.2d 1090]

Naureen Mohammad Nalia, Christina Skaf Hathaway, Central California Legal Services, Inc., Fresno, CA,

[914 F.Supp.2d 1091]

Paul Alexander, Arnold & Porter LLP, Palo Alto, CA, Suzanne Flora Swenk, Central California Legal Services, Visalia, CA, for Plaintiffs.

James B. Betts, Joseph D. Rubin, Betts, Rubin & McGuinness, C. Russell Georgeson, Georgeson Belardinelli & Noyes, Fresno, CA, for Defendants.

MEMORANDUM DECISION AND ORDER RE MOTIONS TO DISMISS (DOCS. 38, 45)
LAWRENCE J. O'NEILL, District Judge.
I. INTRODUCTION

Luis Sanchez, a homeless resident of the City of Fresno, alleges that his personal property, including property necessary for his survival, essential to his health, and of personal and emotional value, was seized and immediately destroyed as part of the City of Fresno's efforts to clean up homeless encampments in Downtown Fresno in late 2011 and early 2012. This case is but one of more than thirty similar cases filed by homeless individuals arising out of these cleanup activities, all of which have been consolidated for pretrial purposes, with the above-captioned matter serving as the lead case. See Doc. 27.

Before the Court for decision are separate, but partially overlapping, motions to dismiss Sanchez's first amended complaint (“FAC”) pursuant to Fed.R.Civ.P. 12(b)(6), filed by (1) the City of Fresno (the “City”), Doc. 38–1, and (2) individual City employee Defendants Ashley Swearengin, Mark Scott, Bruce Rudd, Greg Barfield, Jerry Dyer, Phillip Weathers, and Malcolm Dougherty (collectively, “Individual Defendants”), Doc. 45. In the alternative, Defendants move for a more definite statement pursuant to Fed. R. Civ. P 12(e) and to strike certain allegations from the complaint pursuant to Fed.R.Civ.P. 12(f). The motions address allegations that are contained in all consolidated complaints, and the Parties have stipulated that any ruling will be applicable to all related cases. Doc. 26 at 2. Plaintiff filed a consolidated opposition. Doc. 40. Defendants filed a consolidated reply. Doc. 43. The matter was originally set for hearing on December 6, 2012, but given the voluminous materials submitted to the Court, the hearing was vacated. Doc. 44. After reviewing the submissions of the parties in light of the entire record, the Court does not believe oral argument is necessary to aid resolution of the disputes, and hereby rules on the papers pursuant to Local Rule 230(g).

II. BACKGROUND. A. The Kincaid Case.¹

This case cannot be understood in a vacuum, as the City of Fresno and its homeless population have a history of conflict and litigation. In October 2006, a group of homeless individuals residing in the City of Fresno filed a class action complaint against the City and various other defendants, challenging cleanup operations conducted over the course of more than a year in which defendants implemented a policy of seizing and immediately destroying personal property belonging to homeless individuals. See Kincaid v. City of Fresno, 244 F.R.D. 597, 598 (E.D.Cal.2007).

In late October 2006, the district court found plaintiffs were likely to succeed on their claims that defendants' conduct violated the Fourth, Fifth and Fourteenth

[914 F.Supp.2d 1092]

Amendments of the United States Constitution, as well as Article 1, Section 13 (unlawful searches and seizures) and Article 1, Section 7(A) (due process) of the California Constitution. Kincaid, 1:06–cv–01445 OWW SMS, Doc. 34 at 13–14. A preliminary injunction was entered, barring Defendants from “immediately destroying the property of homeless persons during protective sweeps, activities to remove homeless persons from temporary shelter sites, or other activities to seize the personal property of homeless persons, without providing constitutionally adequate notice and meaningful opportunity to be heard concerning the seizure and destruction of such personal property.” Id. at 14.

On August 14, 2007, plaintiffs' motion for class certification was granted, permitting the case to proceed on behalf of a class of “[a]ll persons in the City of Fresno who were or are homeless, without residence, after October 17, 2003, and whose personal belongings have been unlawfully taken and destroyed in a sweep, raid or cleanup by any of the Defendants.” Kincaid, Doc. 147. The case proceeded through several rounds of dispositive motions toward trial, which was set for early June 2008. On the eve of trial, the parties reached a settlement, which was eventually approved by the district court. Kincaid, Docs. 321 & 323. The City agreed to pay $1,400,000 ² to the class, to be allocated by a well-known local homeless advocate in the form of small cash allowances to be paid directly to class members and additional living allowances to be paid to third parties to cover housing expenses. Kincaid, Doc. 321–2 at 3.1.1 (City Settlement), Doc. 321–4 (Settlement Plan). The City also agreed to pay $850,000 in attorney's fees and costs to class counsel. Kincaid, Doc. 321–2 at 3.1.1.

In addition, the City agreed as follows:

The City of Fresno Defendant and all agents and employees of the City of Fresno will, for a period of not less than 5 years from the day this settlement is approved by the Court, comply with the provisions of Fresno Administrative Order No. 6–23[ ]. Before making any change in Administrative order 6–23 during this 5 year period, the City of Fresno Defendants will meet and confer with counsel for Plaintiffs and the Plaintiff class with respect to any such change and, following that meet and confer, seek leave of Court, and absent exigent circumstances, give Plaintiffs' counsel no less [sic] than 30 days notice of its intention to seek such leave and of the terms of the change. If exigent circumstances arise, the City of Fresno Defendants will give as much notice as reasonably possible of any proposed change and attempt in good faith to resolve any issue giving rise to such circumstances. The Court shall retain jurisdiction of this matter to resolve any dispute that may arise with respect to compliance with or changes to Administrative Order 6–23.

Id. at 3.1.2.³

Fresno Administrative Order (“AO”) 6–23, which is discussed in greater detail below, sets forth detailed procedures relating to the clean up of materials in and around areas in which individuals have erected temporary shelters. See Kincaid, Doc. 321–5 (AO 6–23). Absent any immediate threats to health or safety, specific forms of notice must be required prior to any clean up. In addition, “materials of

[914 F.Supp.2d 1093]

apparent value which appear to be the property of any individual” may not be destroyed. Id. at I. A(3). AO 6–23 acknowledges that “the fact that property is unattended does not necessarily mean that it has been discarded,” and directs that “[r]easonable doubt about whether property is ‘trash or debris' or valuable property should be resolved in favor of the conclusion that the property is valuable and should not be discarded.” Id. at I.A(4).

B. The Present Allegations.⁴

Beginning in or about September 2011, Defendants set in motion a plan to eradicate a number of small shelters used by homeless individuals in an area in the City of Fresno known generally as “south of Ventura Street.” FAC ¶ 20. It is alleged that Defendants knew these shelters were being used by Plaintiff and the Plaintiffs in related actions as “homes to provide not only protection from the elements but also contained personal property of great personal value and significance to both their physical and emotional health, including personal property such as medications, photographs, and important personal effects from family and loved ones....” FAC ¶ 9. Plaintiff further alleges that Defendants knew that Plaintiff and others in Plaintiff's position had no alternative shelter or means of protection from the elements nor any other means of keeping their personal property safe, and that no safe shelter was available to Plaintiff or to large numbers of other homeless residents, including many Plaintiffs whose cases have been consolidated with this one. Id.

Nonetheless, Defendants planned, directed, and implemented the demolition of these shelters and their contents, even though Defendants were advised that the demolition involved the destruction of valuable personal property and the demolition of entire tents and shelters. See id. It is alleged that Defendants engaged in this conduct “[d]espite the extreme weather conditions” prevailing at the time, and “know or should reasonably know that their conduct threatened plaintiff's continued survival.” FAC ¶ 22. According to the FAC, Defendants failed to provide adequate notice of their intent to seize and destroy Plaintiff's property, nor any means of retrieving seized property. FAC ¶ 21. Plaintiff concedes that at the time his property was destroyed, he “had left his shelter temporarily for a brief time,” but “had in no way either abandoned his shelter or the contents of his shelter.” Id. When Plaintiff returned to the area, he witnessed Defendants demolishing other property in the area. Id.

III. DISCUSSION A. Motions to Dismiss.
1. Standard of Decision.

A motion to dismiss pursuant to Fed R. Civ. P. 12(b)(6) is a challenge to the sufficiency of the allegations set forth in the complaint. A 12(b)(6) dismissal is proper where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990). In considering a motion to dismiss for failure to state a claim, the court generally accepts as true the allegations in the complaint, construes the pleading in...