(PS) Lull v. County of Sacramento et al, No. 2:2017cv01211 - Document 15 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 3/1/2018 RECOMMENDING that the County of Sacramento's 5 motion to dismiss be granted and plaintiff's claims against the County be dismissed without leave to am end. Defendants' Stewart and Doane's 10 motion to dismiss be granted as follows: Plaintiff's Fourth Amendment claim be dismissed without leave to amend; Plaintiff's First Amendment claim be dismissed with leave to amend; The c ourt decline to exercise jurisdiction over plaintiff's Bane Act claim. Plaintiff be granted thirty days from the date of any order adopting these findings and recommendations to file a second amended complaint. Motions referred to Judge Troy L. Nunley. Objections to F&R due within 14 days. (Zignago, K.)

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(PS) Lull v. County of Sacramento et al Doc. 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER LULL, 12 13 14 15 No. 2:17-cv-1211-TLN-EFB PS Plaintiff, v. FINDINGS AND RECOMMENDATIONS COUNTY OF SACRAMENTO, CORY STEWART, MICHAEL DOANE, and DOES 1 to 100, 16 Defendants. 17 18 This case was before the court on September 13, 2017, for hearing on defendant County of 19 Sacramento’s (“County”) motion to dismiss plaintiff’s first amended complaint for failure to state 20 a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).1 ECF No. 5. Attorney Wendy 21 Matooka appeared on behalf of the County of Sacramento; plaintiff appeared pro se. After the 22 hearing on that motion, defendants Michael Doan and Cory Stewart also moved to dismiss on 23 similar grounds pursuant to Rule 12(b)(6). ECF No. 10. The court determined that further oral 24 argument would not materially assist in the resolution of defendants Doan and Stewart’s motion 25 and the matter was ordered submitted on the briefs. See E.D. Cal. L.R. 230(g). For the reasons 26 explained below, it is recommended that defendants’ motions be granted. 27 28 1 This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). 1 Dockets.Justia.com 1 I. 2 Factual Allegations The first amended complaint alleges that on July 17, 2016, plaintiff purchased a permit 3 from the County of Sacramento’s Regional Parks Department to enable him to use regional park 4 facilities. Id. at 3. Later that day, plaintiff used the permit to access River Bend Park, which is a 5 beach area located in Rancho Cordova, California. Id. While plaintiff was loading a kayak onto 6 a vehicle parked in an area that prohibited vehicle access, he was confronted by defendant 7 Stewart.2 Id. 3-4, 6-7. Stewart allegedly blocked plaintiff’s movement and demanded he provide 8 identification. Id. at 3-4. When plaintiff questioned the grounds for detaining him, Stewart 9 placed plaintiff in handcuffs, searched him without consent, and placed him in a “patrol vehicle 10 without probable cause or a warrant.” Id. at 4. Stewart then checked for warrants and, after 11 approximately 45 minutes, released plaintiff. Id. 12 Plaintiff alleges that he was arrested by Stewart for supposedly violating “an official 13 policy that forbids and makes illegal any vehicle traffic at” River Bend Park. Id. at 4. Plaintiff 14 claims that this policy was enacted by defendant Michael Doane3, and enforced by defendant 15 Stewart. Id. He claims that the policy is arbitrary because it restricts public vehicle access to 16 River Bend Park, while granting exclusive vehicle access to rafting companies in exchange for a 17 fee. Id. at 6-7. 18 Judicially noticeable documents show that plaintiff was charged with violation of 19 California Penal Code 148(a)(1) (resisting, delaying, or obstructing a peace officer), to which he 20 ///// 21 ///// 22 ///// 23 ///// 24 ///// 25 2 26 27 28 The first amended complaint is devoid of any background information regarding defendant Stewart. However, in his motion Stewart clarifies that he is a county park ranger. ECF No. 10-1 at 6. 3 The complaint provides no background information regarding Doane. 2 1 pled no contest. Def.’s RJN No. 2 (ECF No. 5-2 at 17)4. State court records reflect that plaintiff 2 was scheduled to be sentenced on September 17, 2017. 3 The complaint purports to assert five claims for relief, which plaintiff styles as: (1) 4 “Unreasonable Search and Seizure,” (2) “substantive due process,” (3) “denial of Equal 5 Protection,” (4) “Retaliation for Exercise of Free Speech,” (5) and “Violation of the Ca [sic] Bane 6 Act.” ECF No. 4 at 5-10. Plaintiff’s second and third causes of action are alleged against all 7 defendants, while the first, fourth, and fifth causes of action are asserted only against defendant 8 Stewart. Defendants now move to dismiss the first amended complaint for failure to state a 9 claim. ECF Nos. 5, 10. 10 11 II. Legal Standard To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint 12 must contain more than a “formulaic recitation of the elements of a cause of action”; it must 13 contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell 14 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading must contain something more 15 . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of 16 action.” Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235- 17 236 (3d ed. 2004)). “[A] complaint must contain sufficient factual matter, accepted as true, to 18 ‘state a claim to relief that is plausible on its face.’” Aschroft v. Iqbal, 556 U.S. 662, 678 (2009) 19 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when plaintiff pleads factual 20 content that allows the court to draw the reasonable inference that the defendant is liable for the 21 misconduct alleged.” Id. However, dismissal is appropriate if the complaint lacks a cognizable 22 legal theory or it fails to plead sufficient facts to support a cognizable legal theory. Balistreri v. 23 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 24 4 25 26 27 28 Defendants’ requests for judicial notice of state court records and sections of the Sacramento County Municipal Code are granted. See ECF No. 5-2 at 17-22 (RJN Nos. 2-4); see also, e.g., Hunt v. Check Recovery Sys. Inc., 478 F. Supp. 2d 1157, 1160-61 (N.D. Cal. 2007) (“Judicial notice may be taken of ‘adjudicative facts’ such as court records [and] pleadings . . . .”); Wood v. City of San Diego, 2010 WL 2382335, at *5 (S.D. Cal. June 10, 2010) (“Municipal Code sections may be judicially noticed . . . .”). Plaintiff’s request for judicial notice of the first amended complaint (ECF No. 5-2 at 11 (RJN No. 1)) is denied as unnecessary. 3 1 In considering a motion to dismiss, the court must accept as true the allegations of the 2 complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe 3 the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in 4 the pleader’s favor. Jenkins v. McKeithem, 395 U.S. 411, 421, reh’g denied, 396 U.S. 869 5 (1969). The court will “presume that general allegations embrace those specific facts that are 6 necessary to support the claim.’” Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 7 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). 8 Plaintiff is proceeding without counsel and pro se pleadings are held to a less stringent 9 standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972); Bretz v. 10 Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985). But the Ninth Circuit has held that this less 11 stringent standard must still be viewed in light of Iqbal and Twombly. Hebbe v. Pliler, 627 F.3d 12 338, 342 (9th Cir. 2010). Further, the court’s liberal interpretation of a pro se litigant’s pleading 13 may not supply essential elements of a claim that are not pled. Pena v. Gardner, 976 F.2d 469, 14 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 15 Furthermore, “[t]he court is not required to accept legal conclusions cast in the form of factual 16 allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. 17 Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept 18 unreasonable inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643 F.2d 19 618, 624 (9th Cir. 1981). 20 In deciding a Rule 12(b)(6) motion to dismiss, the may also consider facts which may be 21 judicially noticed, Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987), including 22 matters of public record such as pleadings, orders, and other papers filed with the court, Mack v. 23 South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986). 24 III. Plaintiff’s Claims 25 A. 26 Plaintiff’s first claim alleges that he was wrongfully arrested and searched by Stewart in Unreasonable Search and Seizure 27 violation of the Fourth Amendment. ECF No. 4 at 5-6. Plaintiff claims that Stewart did not have 28 ///// 4 1 a warrant to arrest and search plaintiff, nor did Stewart have probable cause for the arrest and 2 subsequent search. Id. 3 “The Fourth Amendment protects the right of the people to be secure in their persons, 4 houses, papers, and effects, against unreasonable searches and seizures. In conformity with the 5 rule at common law, a warrantless arrest by a law officer is reasonable under the Fourth 6 Amendment where there is probable cause to believe that a criminal offense has been or is being 7 committed.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (citing United States v. Watson, 423 8 U.S. 411, 417-24 (1976)) (internal quotations omitted). To prevail on a § 1983 claim for false 9 arrest a plaintiff must demonstrate that there was no probable cause to arrest him. Cabrera v. City 10 of Huntington Park, 139 F.3d 374, 380 (1998). 11 “Probable cause exists when, under the totality of the circumstances known to the 12 arresting officers, a prudent person would have concluded that there was a fair probability that 13 [the defendant] had committed a crime.” United States v. Buckner, 179 F.3d 834, 837 (9th Cir. 14 1999) (quoting United States v. Garza, 980 F.2d 546, 550 (9th Cir. 1992)). Probable cause does 15 not require overwhelmingly convincing evidence, but only “reasonably trustworthy information.” 16 Saucier v. Katz, 533 U.S. 194, 207 (2001). “Probable cause is an objective standard and the 17 officer’s subjective intention in exercising his discretion to arrest is immaterial in judging whether 18 his actions were reasonable for Fourth Amendment purposes.” John v. City of El Monte, 505 19 F.3d 907, 911 (9th Cir. 2007) (citing United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 20 2007)). Further, as a general matter, “‘an officer need not have probable cause for every element 21 of the offense.’” Lopez, 482 F.3d at 1072 (only when specific intent is a required element of the 22 offense must the arresting officer have probable cause for that element in order to reasonably 23 believe that a crime has occurred) (quoting Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 24 1994)). 25 The complaint alleges that when plaintiff was approached by Stewart, he was loading a 26 kayak onto a vehicle that was parked in area of the River Bend Park that prohibited vehicle access 27 pursuant to a county ordinance. Thus, based on the face of plaintiff’s complaint, Stewart had 28 probable cause to believe that plaintiff had violated a County ordinance. See Atwater v. City of 5 1 Lago Vista, 532 U.S. 318, 354 (2001) (“If an officer has probable cause to believe that an 2 individual has committed even a very minor criminal offense in his presence, he may, without 3 violating the Fourth Amendment, arrest the offender.”) 4 Furthermore, the complaint’s allegations also demonstrate that Stewart had probable cause 5 to arrest plaintiff for violating Penal Code § 148(a), for which plaintiff was ultimately charged. 6 “The legal elements of a violation [Penal Code § 148(a)] are as follows: (1) the defendant 7 willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the 8 performance of his or her duties, and (3) the defendant knew or reasonably should have known 9 that the other person was a peace officer engaged in the performance of his or her duties.” In re 10 Muhammed C., 95 Cal.App.4th 1325, 1329 (2002) (citations omitted). Although section 148 does 11 not “criminalize a person’s failure to respond with alacrity to police orders,” it reaches affirmative 12 responses of defiance to police orders. Id. at 1030. 13 The amended complaint alleges that Stewart approached plaintiff and attempted to ask 14 questions, to which plaintiff responded by stating “no” and resuming his efforts to load the kayak 15 on the vehicle. ECF No. 4 at 3, 6-7. Id. Stewart then allegedly placed himself in plaintiff’s 16 direct path “in order to verbally and physically engage [plaintiff].” Id. Plaintiff “attempted to 17 side step Stewart in an effort to circumvent engagement,” which led to Stewart placing his hand 18 on plaintiff’s chest to stop plaintiff from moving. Id. Stewart notified plaintiff that he was being 19 detained and requested identification. Id. Plaintiff responded by stating “you don’t need to know 20 who I am,” and making other “condescending remarks.” Id. These allegations establish that 21 Stewart had reason to believe plaintiff had violated Penal Code § 148. They indicate that plaintiff 22 was approached by Stewart because plaintiff was loading a kayak onto a vehicle that was parked 23 in a restricted area. They show that when Stewart attempted to talk with plaintiff, plaintiff 24 obstructed Stewart’s efforts by trying to physically evade Stewart, refusing to provide 25 identification, and making condescending remarks. Thus, there was at least probable cause for 26 Stewart to make an arrest for violating Penal Code § 148(a) based on plaintiff’s obstruction of 27 Stewart’s ability to engage in the performance of his duties. 28 ///// 6 1 Moreover, because there was probable cause for the arrest, Stewart was permitted to 2 conduct a limited search of plaintiff’s person incident to arrest. See United States v. Robinson, 3 414 U.S. 218, 235 (1973). Thus, plaintiff’s own allegations demonstrate that Stewart did not 4 violate plaintiff’s Fourth Amendment rights. 5 Dismissal of plaintiff’s Fourth Amendment claim is also warranted under the favorable 6 termination rule set forth in Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme 7 Court held that a plaintiff may not prevail on § 1983 claim if doing so “would necessarily imply 8 the invalidity” of plaintiff’s conviction arising out of the same underlying facts as those at issue in 9 the civil action “unless the plaintiff can demonstrate that the conviction or sentence has already 10 been invalidated.” 512 U.S. at 487. “Consequently, ‘the relevant question is whether success in a 11 subsequent § 1983 suit would ‘necessarily imply’ or ‘demonstrate’ the invalidity of the earlier 12 conviction or sentence . . . .” Beets v. County of Los Angeles, 669 F.3d 1038, 1042 (9th Cir. 13 2012) (quoting Smithart, 79 F.3d at 951). 14 State court records indicate that plaintiff was charged with Penal Code 148(a)(1), to which 15 he pled no contest. Def.’s RJN No. 2 (ECF No. 5-2 at 17). Success on plaintiff’s wrongful arrest 16 claim would “necessarily imply the invalidity of his conviction,” and therefore his claim is barred 17 under Heck. See Guerrero v. Gates, 442 F.3d 697, 703 (9th Cir. 2006) (holding that Heck bars 18 § 1983 claims of wrongful arrest and malicious prosecution absent “termination of the prior 19 criminal proceeding in favor of the accused.”); Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 20 1996) (Heck barred plaintiff’s “claims that defendants lacked probable cause to arrest him and 21 brought unfounded criminal charges against him.”). 22 In his opposition to these motions, plaintiff argues that his plea was subsequently 23 withdrawn and the charges against him dismissed. However, he fails to submit any 24 documentation to show that the judicially noticed state court records are either inaccurate or 25 incomplete. Accordingly, he fails to satisfy the requirement that the conviction was reversed. 26 ///// 27 ///// 28 ///// 7 1 See Heck, 512 U.S. at 486-87 (“a § 1983 plaintiff must prove that the conviction or sentence has 2 been reversed.”).5 3 Accordingly, plaintiff’s Fourth Amendment claim must be dismissed without leave to 4 amend. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (while the court ordinarily 5 would permit a pro se plaintiff to amend, leave to amend should not be granted where it appears 6 amendment would be futile). 7 B. 8 Plaintiff alleges that the enforcement of the County’s ordinance restricting vehicle access 9 Substantive Due Process in certain areas of River Bend Park violated his right to substantive due process under the 10 Fourteenth Amendment. ECF No. 4 at 6-8. He claims that the ordinance is unconstitutional 11 because it restricts public vehicle access, while simultaneously granting exclusive vehicle access 12 to two raft rental companies that paid a fee for the right to use the restricted areas. Id. at 7. 13 Defendants argue that plaintiff’s substantive due process claim must be dismissed because 14 plaintiff fails to identify a fundamental liberty interest. ECF No. 5-1 at 3-4; ECF No. 10-11 at 8, 15 15. Doane and Stewart further argue that plaintiff’s challenge fails because there is a rational 16 basis for treating plaintiff differently than the river raft companies.6 ECF No. 10-1 at 15-16. 17 The Fourteenth Amendment provides, in relevant part, that no state shall “deprive any 18 person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV. The 19 substantive component of the Fourteen Amendment’s due process clause “guards against arbitrary 20 and capricious government action . . . .” Halverson v. Skagit Cnty., 42 F.3d 1257, 1261 (9th Cir. 21 1994). Thus, to establish a violation of substantive due process, plaintiff must show that the 22 County’s ordinance “was ‘clearly arbitrary and unreasonable, having no substantial relation to the 23 public health, safety, morals or general welfare.’” Kawaoka v. City of Arroyo Grande, 17 F.3d 24 ///// 25 26 27 28 5 Apart from his failure to submit any documentation to show the conviction was overturned, as noted above the allegations stated in the complaint establish that Stewart had probable cause to arrest plaintiff. Thus, his claim fails even if it is not barred by Heck. 6 This last argument is raised in relation to plaintiff’s equal protection claim, but is equally applicable to plaintiff’s substantive due process claim. 8 1 1227, 1234 (9th Cir. 1994) (quoting Sinaloa Lake Owners Ass’n v. City of Simi Valley, 882 F.2d 2 1398, 1407 (9th Cir.1989). 3 Where, as here, the challenged legislative act does not implicate a fundamental right or 4 employ suspect classifications, the “governmental action need only have a rational basis to be 5 upheld against a substantive due process attack.” Kim v. United States, 121 F.3d 1269, 1273 (9th 6 Cir. 1997); Kawaoka, 17 F.3d at 1234. Under rational basis review, “[if] a statute is not arbitrary, 7 but implements a rational means of achieving a legitimate governmental end, it satisfies due 8 process. Kim, 121 F.3d at 1273. However, courts “do not require that the [County’s] legislative 9 acts actually advance its stated purpose, but instead look to whether the governmental body could 10 have had no legitimate reason for its decision.’” Kawaoka, 12 F.3d at 1234 (emphasis in original 11 and citations omitted). Accordingly, the County’s ordinance “does not violate substantive due 12 process so long as it advances any legitimate public purpose and if it is ‘at least fairly debatable’ 13 that the decision to adopt the [ordinance] was rationally related to legitimate governmental 14 interest.” Id. (citations and some quotations omitted). 15 Although plaintiff’s complaint suggests that he is challenging a single ordinance, the 16 disparate treatment alleged in the complaint is the result of two separate ordinances. One 17 ordinance provides that no person shall drive or operate a “vehicle on roads or trails other than 18 those designated for that purpose without a permit. . . .” Sacramento County Code § 9.36.065 19 (RJN 4, ECF No. 5-2 at 22). The other permits the County Board of Supervisors to grant permits 20 to vendors to provide services within county parks. Sacramento County Code § 9.36.053 (RJN 3, 21 ECF No. 5-2 at 20). 22 Contrary to plaintiff’s contention, these ordinances advance legitimate governmental 23 interests. The County has an interest in maintaining the natural character of its parks, which 24 would surely be impaired by excessive vehicle traffic. The ordinances at issue allow the County 25 to minimize vehicular traffic in designated areas thereby lessening disturbance to natural features 26 occasioned by vehicles elsewhere in the park. At the same time, they permit the County to 27 authorize vehicle access to a limited number of venders providing goods and services to park 28 visitors. The ordinance also serves the County’s interest in promoting public safety. It allows the 9 1 County to minimize vehicle access to areas of the park that have high pedestrian traffic. Limiting 2 vehicle traffic in such areas lessens the opportunity for vehicle vs. pedestrian accidents while still 3 allowing park visitors access to benefits of the park. Thus, the ordinance strikes a balance 4 between preserving the character of the County’s parks and protection pedestrian visitors on the 5 one hand, and allowing visitors access to the park on the other. That balance clearly bears a 6 rational nexus to a legitimate governmental interest of the County. 7 8 9 Accordingly, plaintiff’s substantive due process claim must be dismissed without leave to amend.7 See Noll, 809 F.2d at 1448. C. Equal Protection 10 Plaintiff also claims that the County’s ordinances violated his right to equal protection. 11 ECF No. 4 at 8-9. Defendants move to dismiss plaintiff’s equal protection claim, arguing that 12 plaintiff fails to allege membership in a protected class and that he was treated differently than 13 others similarly situated to those employees. ECF No. 5-1 at 5-6; ECF No. 10-1 at 8-9, 15. 14 To state a claim for discrimination under the Equal Protection Clause, plaintiff must allege 15 that defendant “acted with an intent or purpose to discriminate against plaintiff based upon 16 membership in a protected class.” Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). 17 If plaintiff is not a member of a protected class, he may assert an equal protection claim as a 18 “class of one” by alleging that defendants intentionally treated him differently than other similarly 19 20 21 22 23 24 25 26 27 28 7 Plaintiff also alleges that defendants deprived him “of his constitutional right to be free from arbitrary, baseless and capricious governmental action in investigating, detaining or arresting” him. ECF No. 4 at 7. This appears to be intended as a substantive due process claim based on his arrest. That claim must be considered under the Fourth Amendment, not under substantive due process standards. See Fontana v. Haskin, 262 F.3d 871, 881 (9th Cir. 2001) (although the plaintiff’s claim could “possible fit under the Fourteenth Amendment, [it] is better seen as a Fourth Amendment claim because she had been seized by the police.”) (citing Reed v. Hoy, 909 F.2d 324, 329 (9th Cir. 1990) (“[C]laims arising before or during arrest are to be analyzed exclusively under the fourth amendment’s reasonableness standard rather than the substantive due process standard . . . .”). Even if considered under the Fourteenth Amendment standards, the claim still fails as the complaint is devoid of allegations demonstrating that Stewart’s conduct was outrageous or egregious. See id. at 882, n.7 (under the Fourteenth Amendment’s substantive due process prong, “[t]he threshold question is ‘whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’”) (quoting Sacramento v. Lewis, 523 U.S. 833, 848, n.8 (1998)). 10 1 situated individuals and without a rational basis for doing so. See Gerhart v. Lake County, Mont., 2 637 F.3d 1013, 1021 (9th Cir. 2011); see also Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601 3 (2008) (noting that “an equal protection claim can in some circumstances be sustained even if the 4 plaintiff has not alleged class-based discrimination, but instead claims that she has been 5 irrationally singled out as a so-called ‘class of one.’”); Willowbrook v. Olech, 528 U.S. 562, 564 6 (2000) (confirming that the purpose of the equal protection clause, including “class of one” 7 claims, is to protect against “intentional and arbitrary discrimination”). Discriminatory intent for 8 equal protection purposes “implies more than intent as volition or intent as awareness of 9 consequences. It implies that the decision maker . . . selected . . . a particular course of action . . . 10 because of . . . its adverse effects upon an identifiable group.” Pers. Adm’r of Mass. V. Feeney, 11 442 U.S. 256, 279 (1979) (citation and quotations omitted). 12 Plaintiff does not allege that he is a member of a protected class. Instead, he argues that 13 he is a member of a “class of one” and that he was treated differently than employees of the raft 14 companies that were granted vehicle access to River Bend Park. ECF No. 6 at 4-5. The 15 complaint, however, indicates that plaintiff was not similarly situated to employees of the two 16 river raft companies. Instead, he specifically alleges that two river raft companies were granted 17 vehicle access at River Bend Park in exchange for a fee. He does not allege that he paid a fee to 18 the County in exchange for the same right, or that he operates a business that transports members 19 of the public to park as to the vendors who pay such a fee and are permitted access for that 20 purpose. Accordingly, plaintiff has failed to allege that he was similarly situated to the 21 individuals that were allegedly treated differently. 22 Further, because plaintiff is not a member of a protected class and the challenged 23 ordinance does not infringe on a fundamental interest, the ordinance must only satisfy rational 24 basis review. See Heller v. Doe, 509 U.S. 312, 319-20 (1993); Nordlinger v. Hahn, 505 U.S. 1, 25 10 (1992). Under this review, the classification is upheld “if there is a rational relationship 26 between the disparity of treatment and some legitimate government purpose.” See Munoz v. 27 Sullivan, 930 F.2d 1400, 1404-05 & n. 10 (9th Cir. 1991). “[A] classification ‘must be upheld 28 against equal protection challenge if there is any reasonably conceivable state of facts that could 11 1 provide a rational basis for the classification.’” Heller, 509 U.S. at 320 (quoting FCC v. Beach 2 Commc’ns, Inc., 508 U.S. 307, 313 (1993)). 3 As explained above, there is a rational basis for allowing only the limited access to certain 4 areas of the park as discussed above. For this reason, plaintiff’s equal protection claim must be 5 dismissed without leave to amend. See Noll, 809 F.2d at 1448. 6 D. 7 Plaintiff also alleges a First Amendment retaliation claim against defendant Stewart. First Amendment 8 Plaintiff alleges that he criticized Stewart’s understanding of the law and made “condescending 9 remarks such as . . . ‘you don’t need to know who I am.” ECF No. 4 at 4. Stewart allegedly 10 retaliated by unlawfully arresting and searching plaintiff in an effort to chill plaintiff’s speech. 11 Defendant Stewart first argues that plaintiff’s First Amendment claim is not cognizable as 12 alleged. According to Stewart, plaintiff’s First Amendment claim is a challenge to the lawfulness 13 of his arrest, which must be brought under the Fourth Amendment pursuant to the Supreme 14 Court’s decision Graham v. Connor, 490 U.S. 386 (1989).8 ECF No. 10-1 at 16-17. This 15 argument mischaracterizes plaintiff’s claim. Unlike plaintiff’s Fourth Amendment claim, 16 plaintiff’s First Amendment claim does not specifically challenge the legality of his arrest. 17 Instead, plaintiff claims that that the arrest was an act of retaliation against him for making 18 condescending remarks and criticizing defendant Stewart. Thus, the crux of the claim is that 19 plaintiff was subjected to retaliatory conduct for exercising his rights under the First Amendment, 20 not that probable cause was lacking to justify the arrest. Thus, plaintiff’s retaliation claim, if any, 21 is properly addressed under the First, and not the Fourth, Amendment. 22 Stewart next argues that plaintiff fails to allege sufficient facts to state a First Amendment 23 retaliation claim. ECF No. 10-1 at 17. “The law is settled that as a general matter the First 24 Amendment prohibits government officials from subjecting an individual to retaliatory actions 25 . . . for speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006). “[T]o demonstrate a First 26 27 28 8 In Graham, the Supreme Court held that “[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” 490 U.S. at 395. 12 1 Amendment violation, a plaintiff must provide evidence showing that ‘by his actions the 2 defendant deterred or chilled the plaintiff’s political speech and such deterrence was a substantial 3 or motivating factor in the defendant’s conduct.’” Lacey v. Maricopa County, 693 F.3d 896, 916 4 (9th Cir. 2012) (quoting Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th 5 Cir. 1999)). This requires plaintiff to show that the officer’s “conduct would chill a person of 6 ordinary firmness from future First Amendment Activity,” and that the officer’s “desire to chill 7 [plaintiff’s] speech was a but-for cause of [his] conduct.” Ford v. City of Yakima, 706 F.3d 1188, 8 1193 (9th Cir. 2013). 9 “The Supreme Court has consistently held that the First Amendment protects verbal 10 criticism, challenges, and profanity directed at police officers unless the speech is ‘shown likely 11 to produce a clear and present danger of a serious substantive evil that rises far above public 12 inconvenience, annoyance, or unrest.’” United States v. Poocha, 259 F.3d 1077, 1080 (9th Cir. 13 2001) (quoting City of Houston v. Hill, 482 U.S. 451, 461 (1987)); see also Mackinney v. Nielsen, 14 69 F.3d 1002, 1007 (9th Cir. 1995) (“Even when crass and inarticulate, verbal challenges to the 15 police are protected.”); Duran v. City of Douglas, Ariz., 904 F.2d 1372, 1378 (9th Cir. 1990) 16 (“The freedom of individuals to oppose or challenge police action verbally without thereby 17 risking arrest is one important characteristic by which we distinguish ourselves from a police 18 state.”). Moreover, the Ninth Circuit “has recognized that a retaliatory police action such as an 19 arrest or search and seizure would chill a person of ordinary firmness from engaging in future 20 First Amendment activity.” Ford, 706 F.3d at 1193. 21 Plaintiff alleges that he was detained, arrested, and searched for making condescending 22 remarks and criticizing Stewart. ECF No. 4 at 4, 9. While these allegations alone might be 23 sufficient to establish acts that “would chill or silence a person of ordinary firmness from future 24 First Amendment activities,” Ford, 706 F.3d at 1193, plaintiff’s own allegations add that in 25 addition to his statements of defiance he attempted to physically evade Stewart in a manner that 26 would clearly impair Stewart’s ability to perform his duties regarding enforcement of the 27 ordinance. According to the complaint, plaintiff was not arrested simply for mouthing off. 28 Rather, as the complaint explains, plaintiff was trying to physically evade Stewart and refusing to 13 1 provide identification while he made the statements of defiance. Plaintiff himself has supplied 2 the non-retaliatory motivation for Stewart to make the arrest under California Penal Code 3 148(a)(1). Furthermore, there are no factual allegations suggesting plaintiff’s condescending 4 remarks motivated Stewart to make an arrest he would not have otherwise made under these 5 circumstances. Accordingly, plaintiff First Amendment retaliation claim against Stewart 6 necessarily fails based on plaintiff’s own factual allegations.9 7 While plaintiff cannot cure the deficiencies by submitting an amended complaint that 8 contradicts what he has already alleged, it is not clear whether plaintiff could cure the claim’s 9 defect. Accordingly, he will be granted leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-27 10 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity to amend to 11 correct any deficiency in their complaints). 12 E. 13 Plaintiff also asserts a state law cause of action under the Tom Bane Civil Rights Act 14 California’s Bane Act (“Bane Act”), Cal. Civ. Code § 52.1, against defendant Stewart. ECF No. 4 at 10. 15 As plaintiff has failed to state a federal claim for relief, the court should decline to 16 exercise supplemental jurisdiction over plaintiff’s state law claim. See Carlsbad Tech., Inc. v. 17 HIF BIO, Inc., 556 U.S. 635, 639-40 (2009); Albingia Versicherungs A.G. v. Schenker Int’l Inc., 18 344 F.3d 931, 936 (9th Cir. 2003); 28 U.S.C. § 1367(c) (“The district courts may decline to 19 exercise supplemental jurisdiction over a claim under subsection (a) if . . . the district court has 20 dismissed all claims over which it has original jurisdiction.”). “[I]n the usual case in which all 21 federal-law claims are eliminated before trial, the balance of factors to be considered under the 22 pendent jurisdiction doctrine-judicial economy, convenience, fairness, and comity-will point 23 toward declining to exercise jurisdiction over the remaining state-law claims.” Carnegie–Mellon 24 Univ. v. Cohill, 484 U.S. 343, 351 (1988). Indeed, “[n]eedless decisions of state law should be 25 avoided both as a matter of comity and to promote justice between the parties, by procuring for 26 ///// 27 28 9 Because plaintiff’s First Amendment claim fails on the merits, the court does not reach Stewart’s argument that he is entitled to qualified immunity as to this claim. ECF No. 10-1 at 17. 14 1 them a surer-footed reading of the applicable law.” United Mine Workers of America v. Gibbs, 2 383 U.S. 715, 726 (1966). 3 As discussed above, all of plaintiff’s federal claims must be dismissed. Further, plaintiff 4 and County of Sacramento are both citizens of California. Accordingly, the court should decline 5 to exercise supplemental jurisdiction over plaintiff’s state law claims. 6 IV. Conclusion 7 Based on the foregoing, it is hereby RECOMMENDED that: 8 1. The County of Sacramento’s motion to dismiss (ECF No. 5) be granted and plaintiff’s 9 claims against the County be dismissed without leave to amend. 10 11 2. Defendants’ Stewart and Doane’s motion to dismiss (ECF No. 10) be granted as follows: 12 13 a. Plaintiff’s Fourth Amendment claim, substantive due process claim, and equal protection claim be dismissed without leave to amend. 14 b. Plaintiff’s First Amendment claim be dismissed with leave to amend; 15 c. The court decline to exercise jurisdiction over plaintiff’s Bane Act claim. 16 3. Plaintiff be granted thirty days from the date of any order adopting these findings and 17 recommendations to file an amended complaint as provided herein. The amended complaint must 18 bear the docket number assigned to this case and must be labeled “Second Amended Complaint.” 19 Should plaintiff fail to timely file an amended complaint, this action will proceed on plaintiff’s 20 First Amendment claim against defendant Stewart. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 26 ///// 27 ///// 28 ///// 15 1 within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: March 1, 2018. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16

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