(PS)Giddens v. Solano County ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 RICHARD GIDDENS, No. 2:19-cv-0019-KJM-EFB PS 11 Plaintiff, 12 v. FINDINGS AND RECOMMENDATIONS 13 SOLANO COUNTY, et al., 14 Defendants. 15 16 This case is before the court on defendants’ motion to dismiss plaintiff’s first amended 17 complaint pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6).1 ECF No. 38. For the 18 reasons that follow, the motion should be granted.2 19 I. Factual Allegations 20 The first amended complaint alleges that in June 2018, plaintiff was involved in an 21 altercation at the Solano County Government Center. ECF No. 24 ¶¶ 14-16. Plaintiff claims that 22 he subsequently submitted a public records request pursuant to California’s Public Records Act, 23 Cal. Gov’t Code §§ 6250, et seq., to defendant County of Solano (the “County”) to obtain digital 24 video recordings of the incident. Id. ¶ 17. Shortly thereafter, defendant Daniel Wolk, an attorney 25 1 This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to 26 28 U.S.C. § 636(b)(1) and Eastern District of California Local Rule 302(c)(21). 27 2 The court determined that oral argument would not materially assist in resolution of the motion, and it was submitted without argument pursuant to Eastern District of California Local 28 Rule 230(g). ECF No. 45. 1 employed by the County, informed plaintiff that the requested video footage would be ready for 2 pick up within a few days at the Solano County Sherriff’s Department. Id. ¶¶ 20-21. Plaintiff 3 claims that when he went to pick up the recordings he “was re-arrested and recharged after having 4 the charges dropped.”3 Id. ¶ 21. He says that he was released after several hours and ultimately 5 provided video files on a CD, but he claims that he was not provided with the specific video 6 footage he requested. Id. Specifically, he contends that although the recording he was provided 7 covered the correct location, the time and date stamps on the files indicated that the recording 8 “appear[s] to be a crude forgery and a fraud.” Id. ¶¶ 23-24. 9 The amended complaint purports to assert federal claims under 42 U.S.C. § 1983 for 10 violation of plaintiff’s First and Fourteenth Amendment rights, as well as state law claims for 11 violations of California Public Records Act, Cal. Gov’t Code §§ 6250 et seq.; Article 1, Section 12 3(b) of the California Constitution; and for fraudulent concealment and misrepresentation. Id. at 13 5-9. 14 II. Rule 12(b)(6)’s Standards 15 A complaint may be dismissed for “failure to state a claim upon which relief may be 16 granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to state a claim, a 17 plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell 18 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility when the 19 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 20 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 21 (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability 22 requirement,” but it requires more than a sheer possibility that a defendant has acted unlawfully. 23 Iqbal, 556 U.S. at 678. 24 Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal 25 theory, or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d 26 27 3 Plaintiff’s original complaint alleged that plaintiff was arrested at the time of the June 2018 altercation and that criminal charges were subsequently filed against him. ECF No. 1 ¶¶ 23, 28 27. These allegations are omitted from the first amended complaint. 1 at 956. Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the 2 claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984). 3 Pro se pleadings are held to a less-stringent standard than those drafted by lawyers. 4 Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). However, the Court need not accept as 5 true unreasonable inferences or conclusory legal allegations cast in the form of factual 6 allegations. See Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (citing Western Mining 7 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). 8 For purposes of dismissal under Rule 12(b)(6), the court generally considers only 9 allegations contained in the pleadings, exhibits attached to the complaint, and matters properly 10 subject to judicial notice, and construes all well-pleaded material factual allegations in the light 11 most favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 12 F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 13 III. Discussion 14 A. First Amendment Retaliation 15 Defendants first argue that plaintiff’s First Amendment retaliation must be dismissed for 16 failure to set forth sufficient facts to state a claim. ECF No. 38-1 at 5. 17 “A plaintiff may bring a Section 1983 claim alleging that public officials, acting in their 18 official capacity, took action with the intent to retaliate against, obstruct, or chill the plaintiff’s 19 First Amendment rights.” Az. Students’ Ass. v. Ariz. Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 20 2016). To state First Amendment retaliation claim, “the plaintiff must allege that (1) it engaged 21 in constitutionally protected activity; (2) the defendant’s actions would ‘chill a person of ordinary 22 firmness’ from continuing to engage in the protected activity; and (3) the protected activity was a 23 substantial motivating factor in the defendant’s conduct—i.e., that there was a nexus between the 24 defendant’s actions and an intent to chill speech.” Id. A plaintiff need not establish that the 25 defendant’s actions actually suppressed or inhibited his speech; rather, “a plaintiff need only 26 show that the defendant ‘intended to interfere’ with the plaintiff’s First Amendment rights and 27 that it suffered some injury as a result.” Id. 28 ///// 1 Here, plaintiff has only alleged the first element of his First Amendment claim. The 2 amended complaint alleges that plaintiff engaged in constitutionally protected speech by filing his 3 public records request with the County. ECF No. 24 ¶ 29 (“Plaintiff had a right to petition for the 4 building security camera video files . . . .”). Making a public records request constitutes protected 5 speech under the First Amendment. O’Brien v. Welty, 818 F.3d 920, 933 (9th Cir. 2016).4 But 6 plaintiff fails to allege facts sufficient to satisfy the second prong for such a claim. The 7 retaliatory action alleged here—failing to provide plaintiff with the correct video footage (ECF 8 No. 24 ¶¶ 30-32)—cannot be fairly characterized as the type that would “chill a person of 9 ordinary firmness” from continuing to make public records requests. Az. Students’ Assn., 824 10 F.3d at 867; see also Blair v. Bethel School Dist., 608 F.3d 540, 544 (9th Cir. 2010) (“[D]e 11 minimis deprivations of benefits and privileges on account of one’s speech do not give rise to a 12 First Amendment claim. Rather, for adverse, retaliatory actions to offend the First Amendment, 13 they must be of a nature that would stifle someone from speaking out. The most familiar adverse 14 actions are “exercise[s] of governmental power” that are “regulatory, proscriptive, or compulsory 15 in nature” and have the effect of punishing someone for his or her speech.”) (citing Laird v. 16 Tatum, 408 U.S. 1, 11 (1972)). 17 ///// 18 19 4 The Ninth Circuit held in O’Brien that the plaintiff engaged in speech protected by posting his views on a website and making “several public records requests.” 818 F.3d at 933. 20 Subsequent to that decision, some district courts in this circuit, without citation to O’Brien, have held that a public records request does not constitute protected speech for purposes of a First 21 Amendment retaliation claim. See, e.g., Brennan v. Aston, 2019 WL 5225047, at *6-7 (W.D. Wash. Aug. 16, 2019) (concluding that neither the Supreme Court or the Ninth Circuit have 22 decided whether “the First Amendment protects the right to request public records,” and holding 23 that the plaintiff’s First Amendment retaliation claim failed because he did “not have a First Amendment right to request public records.”); Brennan v. Aston, WL 5225047 (W.D. Wash. 24 August 16, 2019) (same). These cases could be reconciled with O’Brien by narrowly reading the Ninth Circuit’s decision to hold that submitting a public records request, without making other 25 protected speech, is not protected under the First Amendment. See O’Brien, 818 F.3d at 933 26 (finding the plaintiff expressed his views by “posting on a website his opposition to the student government president and the school administration [and] . . . mak[ing] several public records 27 requests.”). The court need not decide whether such a reading is appropriate because, even assuming the act of making a public records request is protected, plaintiff’s retaliation claim still 28 fails for the reasons explained herein. 1 In his opposition, plaintiff argues that the retaliatory conduct was placing him under 2 arrest. ECF No. 40 at 3. Although the complaint does allege that plaintiff was arrested when he 3 went to pick up the requested footage, the complaint specifically alleges that he was harmed by 4 defendants’ refusal to provide the correct video recording, not by being arrested. ECF No. 24 5 ¶ 31 (“As a result of Defendants refusal to produce these files, plaintiff was harmed in that he was 6 not given the recordings of what happened at the incident.”). However, even construing the 7 complaint to allege an arrest as the retaliatory action, plaintiff still fails allege that his public 8 records request was a substantial motivating factor in the decision to make the arrest, i.e. the third 9 required element for a First Amendment retaliation claim. Thus, the complaint must be amended 10 anyway and clarifying the second prong in an amended complaint is appropriate. 11 For the above reasons, plaintiff’s First Amendment retaliation claim must be dismissed 12 with leave to amend. Harris v. Mangum, 863 F.3d 1133, 1142 (9th Cir. 2017) (pro se litigants 13 should be granted leave to amend where it appears “possible that the plaintiff can correct the 14 defect.”). 15 B. Equal Protection 16 Plaintiff also alleges that defendants violated his right to equal protection under the 17 Fourteenth Amendment. ECF No. 24 at 5-6. 18 To state a claim for discrimination under the Equal Protection Clause, plaintiff must allege 19 that defendants “acted with an intent or purpose to discriminate against plaintiff based upon 20 membership in a protected class.” Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). 21 If plaintiff is not a member of a protected class, he may assert an equal protection claim as a 22 “class of one” by alleging that defendants intentionally treated him differently than other similarly 23 situated individuals and without a rational basis for doing so. See Gerhart v. Lake County, 24 Mont., 637 F.3d 1013, 1021 (9th Cir. 2011); see also Engquist v. Or. Dep’t of Agric., 553 U.S. 25 591, 601 (2008) (noting that “an equal protection claim can in some circumstances be sustained 26 even if the plaintiff has not alleged class-based discrimination, but instead claims that she has 27 been irrationally singled out as a so-called ‘class of one.’ ”); Willowbrook v. Olech, 528 U.S. 562, 28 564 (2000) (confirming that the purpose of the equal protection clause, including “class of one” 1 claims, is to protect against “intentional and arbitrary discrimination”). Discriminatory intent for 2 equal protection purposes “implies more than intent as volition or intent as awareness of 3 consequences. It implies that the decision maker . . . selected . . . a particular course of action . . . 4 because of . . . . its adverse effects upon an identifiable group.” Pers. Adm’r of Mass. V. Feeney, 5 442 U.S. 256, 279 (1979) (citation and quotations omitted). 6 Here, plaintiff claims that he is member of a “class of one.” ECF No. 24 ¶ 6. But he does 7 not allege that he was treated differently than similarly situated persons. For instance, he does not 8 allege that defendants properly responded to public records requests submitted by other 9 individuals that are similarly situated. Accordingly, he fails to state an equal protection claim and 10 it must also be dismissed with leave to amend. See Harris, 863 F.3d at 1142. 11 C. State Law Claims 12 Plaintiff also alleges state law claims for violation of Cal Gov’t Code §§ 6250 et seq. & 13 Cal. Constitution Art. 1 §3b, fraudulent concealment, and fraudulent misrepresentation. ECF No. 14 24 at 6-9. But the complaint does not demonstrate that the parties’ citizenship is diverse, which 15 precludes diversity jurisdiction over plaintiff’s state law claims. See 28 U.S.C. § 1332; Bautista 16 v. Pan American World Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987) (to establish diversity 17 jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the 18 matter in controversy exceeds $75,000). And as explained above, plaintiff has yet to properly 19 allege a federal claim that could support supplemental jurisdiction over a state law claim. See 28 20 U.S.C. §§ 1331 (“The district courts shall have original jurisdiction of all civil actions arising 21 under the Constitution, laws, or treaties of the United States), 1367(a) (where the district court has 22 original jurisdiction, it “shall have supplemental jurisdiction over all other claims that are so 23 related to claims in the action within such original jurisdiction . . . .”). Accordingly, the court 24 should decline to exercise supplement jurisdiction over plaintiff’s state law claims. Carnegie– 25 Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7. (1988) (“[I]n the usual case in which all federal- 26 law claims are eliminated before trial, the balance of factors to be considered under the pendent 27 jurisdiction doctrine-judicial economy, convenience, fairness, and comity-will point toward 28 declining to exercise jurisdiction over the remaining state-law claims.”); United Mine Workers of 1 || America v. Gibbs, 383 U.S. 715, 726 (1966) (“Needless decisions of state law should be avoided 2 | both as a matter of comity and to promote justice between the parties, by procuring for them a 3 || surer-footed reading of the applicable law.”). 4} IV. Conclusion 5 Accordingly, it is hereby RECOMMENDED that: 6 1. Defendants’ motion to dismiss (ECF No. 38) be granted, and plaintiff’s First 7 | Amendment Retaliation and Equal Protection claims be dismissed with leave to amend; 8 2. The court decline to exercise supplemental jurisdiction over plaintiffs state law 9 | claims; and 10 3. Plaintiff be granted 30 days from the date of any order adopting these findings and 11 || recommendations to file an amended complaint. 12 These findings and recommendations are submitted to the United States District Judge 13 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 14 | after being served with these findings and recommendations, any party may file written 15 || objections with the court and serve a copy on all parties. Such a document should be captioned 16 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 17 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 18 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 19 | DATED: February 19, 2020. 20 tid, PDEA EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28