Carne v. Stanislaus County Animal Services Agency ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 BOBBIE CARNE; ALL MY CASE NO. 1:19-CV-1151 AWI SKO TOMORROWS PET RESCUE a 9 California corporation; ELEANOR ORDER RE: MOTION TO DISMISS TRIBOLETTI; CAROLINE GRAYSON, 10 Plaintiffs 11 v. 12 STANISLAUS COUNTY ANIMAL (Doc. 25) 13 SERVICES AGENCY; ANNETTE PATTON, in her individual and official 14 capacities; CONNIE HOOKER, in her individual and official capacities; and 15 DOES 1-50 inclusive, 16 Defendants 17 18 I. Introduction 19 Plaintiffs Bobbie Carne and Caroline Grayson are persons who have volunteered or been to 20 the Stanislaus County animal shelter (“Stanislaus Shelter”). Plaintiff All My Tomorrows Pet 21 Rescue is a nonprofit animal rescue organization which has attempted to take animals from the 22 Stanislaus Shelter to prevent their euthanization. Plaintiff Eleanor Triboletti is the founder and 23 CEO of All My Tomorrows Pet Rescue. Defendant Stanislaus County Animal Services Agency is 24 a political subdivision of the state of California which operates the Stanislaus Shelter. Defendant 25 Annette Patton is the Director and Defendant Connie Hooker is the Animal Control Supervisor of 26 the Stanislaus Shelter. 27 The Hayden Act is a California law passed in 1998 that regulated the treatment of animals 28 in state run animal shelters, generally required the release of the animals to rescue organizations, 1 and limited the ability of shelters to euthanize animals. Plaintiffs believe that Defendants have 2 violated the Hayden Act in the operation of the Stanislaus Shelter by failing to provide appropriate 3 veterinary care, failing to cooperate with animal rescue organizations, and improperly euthanizing 4 animals. Plaintiffs allege that after they began publicly criticizing the Stanislaus Shelter on social 5 media platforms, Defendants retaliated against them. Defendants allegedly banned Plaintiffs from 6 the Stanislaus Shelter, forbade them from filming inside the Stanislaus Shelter, threatened to 7 remove persons who expressed criticism from a networker email list, called the police on Plaintiff 8 Carne claiming that Plaintiff Carne was harassing staff members, and falsely stated that Plaintiff 9 Carne had threatened to run over Defendant Patton with a bus. 10 Plaintiffs initially filed suit against Defendants in the Stanislaus County Superior Court. 11 At that time, they alleged violations of 42 U.S.C. § 1983 and a number of state causes of action. 12 Defendants removed the case to federal court. Upon motion by the parties, the state causes of 13 action were remanded and Plaintiffs were directed to file an amended complaint. Doc. 22. The 14 operative complaint is the Second Amended Complaint. Doc. 24. Plaintiffs are asserting liability 15 under 42 U.S.C. § 1983 for violation of First Amendment rights (both individual and municipal 16 liability). Defendants filed a motion to dismiss all claims. Doc. 25. Plaintiffs oppose the motion. 17 Doc. 26. 18 19 II. Legal Standard 20 Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the 21 plaintiff’s “failure to state a claim upon which relief can be granted.” Fed. Rule Civ. Proc. 22 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory 23 or on the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. 24 Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011); Johnson v. Riverside Healthcare Sys., 534 F.3d 25 1116, 1121 (9th Cir. 2008). In reviewing a complaint under Rule 12(b)(6), all allegations of 26 material fact are taken as true and construed in the light most favorable to the non-moving party. 27 Faulkner v. ADT Sec. Servs., 706 F.3d 1017, 1019 (9th Cir. 2013). However, complaints that 28 offer no more than “labels and conclusions” or “a formulaic recitation of the elements of action 1 will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court is not required “to accept as 2 true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 3 inferences.” Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1145 n. 4 (9th Cir. 2012); Sprewell v. 4 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). To avoid a Rule 12(b)(6) dismissal, “a 5 complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is 6 plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that 7 allows the court draw the reasonable inference that the defendant is liable for the misconduct 8 alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more 9 than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 10 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). The Ninth Circuit has 11 distilled the following principles from Iqbal and Twombly: (1) to be entitled to the presumption of 12 truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of 13 action, but must contain sufficient allegations of underlying facts to give fair notice and to enable 14 the opposing party to defend itself effectively; (2) the factual allegations that are taken as true 15 must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing 16 party to be subjected to the expense of discovery and continued litigation. Starr v. Baca, 652 F.3d 17 1202, 1216 (9th Cir. 2011). In assessing a motion to dismiss, courts may consider documents 18 attached to the complaint, documents incorporated by reference in the complaint, or matters of 19 judicial notice. Dichter-Mad Family Partners. LLP v. United States, 709 F.3d 749, 761 (9th Cir. 20 2013). 21 22 III. Discussion 23 A. Official Capacity Suits 24 Plaintiffs seek to sue both the Stanislaus County Animal Service Agency directly and 25 Patton and Hooker in their official capacities. Doc. 24, 9:17-18. “Personal-capacity suits seek to 26 impose personal liability upon a government official for actions he takes under color of state law. 27 Official-capacity suits, in contrast, ‘generally represent only another way of pleading an action 28 against an entity of which an officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 165-66 1 (1985), quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55 2 (1978). Thus, suing Patton and Hooker in their official capacities is duplicative. The claims 3 against Patton and Hooker in their official capacities are dismissed. 4 5 B. Plaintiffs Carne and Grayson 6 1. Selective Enforcement 7 Plaintiffs allege “Defendants permitted Plaintiff Carne to videotape and photograph 8 animals in the shelter for well over a year, which changed as soon as Carne started making 9 criticisms on social media of the shelter’s practices. Suddenly, Carne was restricted from 10 videotaping, and was told she needed to seek permission, which was then denied by Defendant 11 Hooker. The same restrictions were not placed on other volunteers who had not voiced concerns 12 about the shelter’s practices. Accordingly, Plaintiffs can establish that the application of this 13 policy with only Carne can be construed as selective enforcement, and therefore violative of 14 Plaintiff Carne’s First Amendment rights…. Further, Defendants’ restriction of Plaintiff Grayson 15 from videotaping at the shelter could also be construed as selective enforcement, and thus a 16 violation of Plaintiff’s First Amendment rights.” Doc. 26, 6:21-7:1. In a case discussing the right 17 of persons to videotape inside agricultural production facilities, the Ninth Circuit stated that “we 18 have recognized that there is a ‘First Amendment right to film matters of public interest.’ It defies 19 common sense to disaggregate the creation of the video from the video or audio recording itself. 20 The act of recording is itself an inherently expressive activity; decisions about content, 21 composition, lighting, volume, and angles, among others, are expressive in the same way as the 22 written word or a musical score.” Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1203 (9th 23 Cir. 2018), quoting Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995). 24 Defendants argue that “selective enforcement is founded on the Equal Protection Clause of 25 the Fourteenth Amendment…not the First Amendment.” Doc. 27, 5:2-3. While selective 26 enforcement is typically a Fourteenth Amendment claim, “A similar claim arises under the First 27 Amendment where ‘discriminatory enforcement of a speech restriction amount[s] to viewpoint 28 discrimination.’” Ballentine v. Las Vegas Metro. Police Dep't, 2017 U.S. Dist. LEXIS 133777, at 1 *14 (D. Nev. Aug. 21, 2017), quoting Menotti v. City of Seattle, 409 F.3d 1113, 1146-47 (9th Cir. 2 2005). In this case, Plaintiffs’ theory is that Defendants are selectively enforcing a videotaping in 3 retaliation for their prior criticism of the Stanislaus Shelter. See Doc. 24, 12:16-23. “[W]here a 4 plaintiff is asserting a separate First Amendment retaliation claim, and where, as here, the 5 plaintiff’s selective enforcement equal protection claim is also based on alleged retaliation for the 6 exercise of First Amendment rights, the selective enforcement claim and First Amendment 7 retaliation claims ‘coalesce.’” Geiger v. Town of Greece, 2007 U.S. Dist. LEXIS 87466, at *33 8 (W.D.N.Y. Sep. 4, 2007); see also Hill v. City of Scranton, 411 F.3d 118, 125-26 (3d Cir. 2005) 9 (“The officers’ First Amendment and Equal Protection claims are functionally identical and it 10 would be redundant to treat them separately”). The issues of selective enforcement will be 11 considered as part of Plaintiffs’ retaliation claim since it encompasses a broader set of allegedly 12 retaliatory acts. 13 14 2. Forum Status 15 Plaintiffs allege that “Defendants PATTON and HOOVER violated Plaintiffs’ First 16 Amendment rights by restricting Plaintiffs’ rights to video and audio record County shelter 17 administrators and public employees when the employees were performing their public duties, the 18 employees were in a place typically designated as public areas in the shelter, and when the 19 employees were speaking at a volume audible to the unassisted human ear. The Free Speech 20 Clause of the First Amendment protects the rights to gather, receive, or record the information at 21 issue herein, as well as for purposes of using that information to petition government for redress of 22 grievances. The Free Speech Clause further protects the rights to gather, receive, or record the 23 information at issue herein for purposes of disseminating and publishing that information to other 24 people. Defendants’ conduct in implementing and executing policies restricting Plaintiffs’ 25 attempts to video and audio record both animals in the shelter as well as employees while 26 conducting their public duties was a violation of Plaintiffs’ rights pursuant to the First 27 Amendment.” Doc. 24, 13:4-15. 28 The parties disagree on whether the Stanislaus Shelter (or any part of it) is a public forum. 1 However, the forum status of the facility is not directly relevant to Plaintiffs’ claims. Plaintiffs 2 state that “other individuals were permitted to video without consent and without the same 3 restrictions.” Doc. 24, 7:26-27. Plaintiffs make no argument that they were prevented from 4 videotaping based on the kind of video they were making or any contemporaneous statements they 5 made while inside the Stanislaus Shelter. Instead, Plaintiffs clearly assert that they were denied 6 access due to their criticism on social media sites. Plaintiffs have not plead that there is any 7 restriction on videotaping based on the content of the video; instead, their claims are solely that 8 Defendants are denying access to the Stanislaus Shelter as a means to punish Plaintiffs for 9 statements made outside the facility. The gravamen of the suit is one of retaliation. 10 11 3. Retaliation 12 In addition to preventing Plaintiffs Carne and Grayson from videotaping at the Stanislaus 13 Shelter, Plaintiffs assert that “After Carne started making critical comments about the shelter’s 14 practices, including on social media, she began experiencing increased harassment from 15 Defendants Hooker and Patton, including having her volunteer application denied, and being 16 banned from the shelter on December 20, 2017. (SAC, ¶ 16.) Defendants continued singling out 17 Carne and treating her poorly, contacting police and falsely claiming she was being disruptive, 18 making false statements to others about Carne’s conduct and statements. (SAC, ¶¶ 16-20.) 19 Defendant Patton went so far as to make false statements to others that Carne had edited and 20 ‘faked’ photographs of dogs in the shelter to make their condition appear worse. (SAC, ¶ 18.)” 21 Doc. 26, 8:22-9:3. On December 20, 2018, Plaintiff Grayson went to the Stanislaus Shelter to 22 “assist in evaluating dogs, obtain photographs and videos in order to network with rescues and on 23 social media” to try to find places for a large number of dogs who were scheduled to be 24 euthanized; Defendant Hooker told her “to stop videotaping and to leave the shelter.” Doc. 24, 25 8:20-25. 26 “Otherwise lawful government action may nonetheless be unlawful if motivated by 27 retaliation for having engaged in activity protected under the First Amendment….‘[A] plaintiff 28 must show that (1) he was engaged in a constitutionally protected activity, (2) the defendant’s 1 actions would chill a person of ordinary firmness from continuing to engage in the protected 2 activity and (3) the protected activity was a substantial or motivating factor in the defendant’s 3 conduct.’” O’Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016), quoting Pinard v. Clatskanie Sch. 4 Dist. 6J, 467 F.3d 755 (9th Cir. 2006); see also Capp v. Cty. of San Diego, 940 F.3d 1046, 1053 5 (9th Cir. 2019) (applying standard to retaliatory acts committed by police officers). 6 Defendants agree that “public criticism of the shelter’s operations or kennel conditions are 7 arguably a matter of public concern” which constitutes a constitutionally protected activity but 8 argue that Plaintiffs have insufficiently alleged that they criticized the Stanislaus Shelter. Doc. 25, 9 10:25-27. The operative complaint includes allegations that “Carne made several complaints on 10 social media, including, but not limited to, September 27, 2017, October 24, 2017, October 31, 11 2017 expressing criticism of the shelter’s practices. For example, on September 27, 2017, Carne 12 posted on Facebook about several dogs that had been improperly euthanized at the shelter – dogs 13 that she had just spent extensive time working with in the previous couple of days” and “Grayson 14 had previously been critical of shelter practices in her comments and support of others critical of 15 the shelter on Facebook, and had associated with other individuals known to be critical of the 16 shelter.” Doc. 24, 8:16-18. These allegations are sufficient to satisfy the first requirement at this 17 stage. Defendants do not challenge the second requirement. See Doc. 25, 10:16-11:8; Doc. 27, 18 6:26-7:19. 19 Regarding whether Plaintiffs’ criticism was a factor in Defendants’ conduct, Defendants 20 argue that the allegations are “too vague to state a claim, particularly for purposes of a causal 21 connection.” Doc. 27, 7:17-18. In this case, Plaintiffs allege that Defendants were aware of the 22 criticism. With respect to Plaintiff Grayson: “Upon information and belief, HOOKER and other 23 staff members were aware at the time that Grayson had previously been critical of shelter practices 24 in her comments and support of others critical of the shelter on Facebook, and had associated with 25 other individuals known to be critical of the shelter.” Doc. 24, 8:15-19. With respect to Plaintiff 26 Carne: “certain shelter employees made mention of Carne’s criticisms, such that she knew 27 Defendants HOOKER and PATTON were aware of her Facebook posts and had been reading 28 them. For example, on one occasion when Carne was escorted out of the shelter by police (after a 1 request by PATTON), PATTON made a comment as she was leaving to the effect of: ‘Don’t 2 worry, she’ll post it on Facebook like she always does…’ In addition, one staff member (currently 3 employed at the shelter), Jamie Heilman, reacted to the Facebook post, so it was clear that shelter 4 staff was aware of Carne’s negative comments about shelter practices on Facebook.” Doc. 24, 6:2- 5 9. Where a plaintiff allege that “defendants were aware of Plaintiff’s protected speech” and “also 6 pleads circumstances which make his allegation of awareness plausible,” the allegations are 7 sufficient to show the protected activity was a substantial or motivating factor at the motion to 8 dismiss stage. inaccuracies Maa v. Ostroff, 2013 U.S. Dist. LEXIS 152527, at *34 (N.D. Cal. Oct. 9 23, 2013). Plaintiffs allege that they believed Defendants knew of the criticism and of facts that 10 support that belief. 11 Plaintiffs Carne and Grayson have stated a First Amendment retaliation claim against 12 Defendants Patton and Hooker. 13 14 4. Monell Liability 15 “Under the familiar Monell analysis, a plaintiff may establish municipal liability by 16 establishing that (1) the constitutional violation was the result of a governmental policy or a 17 longstanding practice or custom; (2) the individual who committed the constitutional violation was 18 an official with final policy-making authority; or (3) an official with final policy-making authority 19 ratified the unconstitutional act.” Heath v. City of Desert Hot Springs, 618 F. App'x 882, 885 (9th 20 Cir. 2015), citing Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992). With respect to the 21 claims, Plaintiffs allege in the operative complaint that “Both PATTON and HOOKER were 22 policymakers at the shelter.” Doc. 24, 10:20-21. They explain that “certain actions have been 23 committed by employees at the shelter with top policymaking authority, including Hooker and 24 Patton.” Doc. 26, 5:11-12. It appears that Plaintiffs are arguing the Monell liability applies 25 because the individuals who committed the violations were officials with final policy-making 26 authority. Plaintiffs state that “Defendant, ANNETTE PATTON is, and at all times relevant to the 27 complaint, was employed by STANISLAUS COUNTY ANIMAL SERVICES AGENCY as the 28 Director or other administrative role” and that “Defendant, CONNIE HOOKER is, and at all times 1 relevant to the complaint, was employed by STANISLAUS COUNTY ANIMAL SERVICES 2 AGENCY as the Animal Control Supervisor.” Doc. 24, 3:22-27. 3 “[M]unicipal liability under § 1983 attaches where—and only where—a deliberate choice 4 to follow a course of action is made from among various alternatives by the official or officials 5 responsible for establishing final policy with respect to the subject matter in question.” Pembaur v. 6 City of Cincinnati, 475 U.S. 469, 483 (1986). “[W]hether a particular official has ‘final 7 policymaking authority’ is a question of state law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 8 123 (1988), citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). Plaintiffs have cited 9 to no law or regulation that supports a finding that either Defendant Patton or Defendant Hooker 10 had final policymaking authority. To state this kind of Monell claim, a plaintiff must provide law 11 that plausibly suggests the identified individual has the appropriate authority over the conduct at 12 issue. Muir v. City of Placentia, 2020 WL 4342545, at *4 (C.D. Cal. Apr. 15, 2020) (“Plaintiff’s 13 allegation that each individual defendant possessed final policymaking authority as delegated by 14 the City (and/or Defendant Lenyi) is conclusory and, therefore, insufficient. Although at this stage 15 Plaintiff certainly need not offer evidence that the individual defendants possessed final 16 policymaking authority in employment-related decisions, he must be able to ‘point[ ] to [a] 17 charter, municipal code, ordinance, or other enactment’ that would suggest the individual 18 defendants had the requisite kind of authority”) 19 Plaintiffs Carne and Grayson’s Monell claim is dismissed without prejudice. 20 21 5. Statute of Limitations 22 Defendants argue that Carne’s claims are beyond that of the statute of limitations. Doc. 25, 23 11:15-12:2. Plaintiffs initially filed suit on December 18, 2018 in Stanislaus County Superior 24 Court. Doc. 1. Plaintiffs’ key factual allegations concern events that have happened in 2017 25 through 2019. See Doc. 24, 5:3-8:2. The applicable statute of limitations for 42 U.S.C. § 1983 26 claims in California is two years. Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004). 27 Plaintiffs’ claims are timely. 28 1 C. Plaintiffs All My Tomorrows Pet Rescue and Triboletti 2 In the operative complaint, Plaintiffs allege “On or about April 2, 2019, one of Defendant 3 STANISLAUS’ employees sent an email to the email group advising that ‘if there is bad 4 mouthing, threatening, or disrespectful emails, communication, or posts on social media, that 5 [they] would be removed from the networkers email group.’ She further advised that one 6 particular rescue who had expressed criticism of the shelter’s practices was already 7 removed….Plaintiff Triboletti is, and was at all relevant times, a rescue and member of the 8 networkers email group. This email, as well as other negative treatment she witnessed by shelter 9 staff against persons that spoke up on behalf of the animals, created fear of retaliation. Triboletti 10 and others were afraid to speak up as they feared being excluded altogether from being able to 11 rescue animals in the shelter’s care.” Doc. 24, 9:4-14. “The policy was sent via email from the 12 shelter’s primary account: Rescue@stancounty.com. This email is monitored and used by various 13 administrative staff at the shelter, including HOOKER. It is the manner in which the shelter 14 corresponds with rescues and volunteers, as well as the networkers email group, and how rules and 15 policies are disseminated from the shelter to volunteers and rescues. Accordingly, the April 2, 16 2019 should be construed as official policy communicated from the shelter, and Plaintiff Triboletti 17 and others reasonably believed that this communication represented official shelter policy.” Doc. 18 24, 11:1-7. This claim is plead only as a Monell claim; Plaintiffs have not asserted individual 19 liability. 20 Plaintiffs argue that this qualifies as “an illegal prior restraint.” Doc. 26, 3:21. “The term 21 ‘prior restraint’ is used ‘to describe administrative and judicial orders forbidding certain 22 communications when issued in advance of the time that such communications are to occur.’” 23 Alexander v. United States, 509 U.S. 544, 550 (1993), quoting M. Nimmer, Nimmer on Freedom 24 of Speech § 4.03, p. 4-14 (1984). “[P]rior restraints on speech and publication are the most 25 serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a 26 judgment in a defamation case is subject to the whole panoply of protections afforded by deferring 27 the impact of the judgment until all avenues of appellate review have been exhausted. Only after 28 judgment has become final, correct or otherwise, does the law’s sanction become fully operative. 1 A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it 2 can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior 3 restraint ‘freezes’ it at least for the time.” Neb. Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976). 4 The email does not qualify as a prior restraint. It does not enjoin or legally forbid Plaintiffs from 5 exercising their rights of free speech. 6 In essence, this claim is also based on a First Amendment retaliation theory. Plaintiffs 7 recognize in their operative complaint, they have a “fear of retaliation.” Doc. 24, 9:13. Again 8 “‘[A] plaintiff must show that (1) he was engaged in a constitutionally protected activity, (2) the 9 defendant’s actions would chill a person of ordinary firmness from continuing to engage in the 10 protected activity and (3) the protected activity was a substantial or motivating factor in the 11 defendant’s conduct.’” O’Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016), quoting Pinard v. 12 Clatskanie Sch. Dist. 6J, 467 F.3d 755 (9th Cir. 2006). But with regards to this claim, Plaintiffs 13 All My Tomorrows Pet Rescue and Triboletti have not yet engaged in the constitutionally 14 protected activity; there has been no retaliation because there has been no speech challenging the 15 Defendants. 16 “Ripeness is a justiciability doctrine designed to prevent the courts, through avoidance of 17 premature adjudication, from entangling themselves in abstract disagreements over administrative 18 policies, and also to protect the agencies from judicial interference until an administrative decision 19 has been formalized and its effects felt in a concrete way by the challenging parties. The ripeness 20 doctrine is drawn both from Article III limitations on judicial power and from prudential reasons 21 for refusing to exercise jurisdiction, but, even in a case raising only prudential concerns, the 22 question of ripeness may be considered on a court's own motion. Determining whether 23 administrative action is ripe for judicial review requires us to evaluate (1) the fitness of the issues 24 for judicial decision and (2) the hardship to the parties of withholding court consideration.” Nat'l 25 Park Hosp. Ass'n v. DOI, 538 U.S. 803, 807-08 (2003), citations and quotations omitted. 26 With respect to the fitness of the issues, “traditional ripeness analysis has been relaxed 27 somewhat in cases involving facial challenges based on First Amendment grounds.” Nutritional 28 Health All. v. Shalala, 144 F.3d 220, 226 (2d Cir. 1998); see also Democratic Nat'l. Comm. v. 1 Watada, 198 F. Supp. 2d 1193, 1201 (D. Haw. 2002) (no looser ripeness analysis for “an ‘as 2 applied’ challenge”). “While ‘pure legal questions that require little factual development are more 3 likely to be ripe,’ a party bringing a preenforcement challenge must nonetheless present a 4 ‘concrete factual situation . . . to delineate the boundaries of what conduct the government may or 5 may not regulate without running afoul’ of the Constitution.” Alaska Right to Life v. Feldman, 6 504 F.3d 840, 849 (9th Cir. 2007), quoting San Diego Gun Rights Comm. v. Reno, 98 F.3d 1121, 7 1132 (9th Cir. 1996). 8 In the present case, the claim is centered on the email. However, Defendants state that 9 “Plaintiffs appear to intentionally mischaracterize the email admonishment which appears to seek 10 decorum in communication, into one curtailing criticism.” Doc. 25, 10:12-13. With a factual 11 dispute over the meaning behind the wording of an email, the claim may not be suited for 12 resolution on a facial challenge basis. Declining to address the claim at this point could impose a 13 hardship on Plaintiffs as they might feel deterred from exercising their First Amendment rights. 14 But, this case does not involve a criminal penalty or even any kind of civil fines. Also, the case 15 will proceed with Plaintiffs Carne and Grayson’s claims. As their claims mirror those of Plaintiffs 16 All My Tomorrows Pet Rescue and Triboletti, the legal question of whether Defendants can deny 17 access to or otherwise punish persons who criticize the Stanislaus Shelter will likely be settled in 18 this case. “Prudential considerations of ripeness are discretionary.” Thomas v. Anchorage Equal 19 Rights Comm'n, 220 F.3d 1134, 1142 (9th Cir. 2000). Plaintiffs All My Tomorrows Pet Rescue 20 and Triboletti’s claims are dismissed for lack of ripeness. 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 28 1 IV. Order 2 1. Defendants’ motion to dismiss is GRANTED in part and DENIED in part. 3 2. Claims against Defendants Patton and Hooker in their official capacity are DISMISSED with prejudice. 5 3. Plaintiffs Carne and Grayson’s claims against Defendant Stanislaus County Animal 6 | Services Agency are DISMISSED without prejudice. 7 3. Plaintiffs All My Tomorrows Pet Rescue and Triboletti’s claims are DISMISSED for 8 | lack of ripeness. 9 10 IT IS SO ORDERED. 11 | Dated: _March 30, 2021 7 Sz 7 Cb Lec — SENIOR DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12