Chaffee v. Chiu et al, No. 4:2011cv05118 - Document 71 (N.D. Cal. 2012)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR LEAVE TO AMEND; AND DENYING AS MOOT DEFENDANTS' MOTION TO DISMISS SECOND AMENDED COMPLAINT by Judge Yvonne Gonzalez Rogers granting in part and denying in part 53 Motion for Leave to Amend; finding as moot 55 Motion to Dismiss. The Court VACATES the hearing set for September 25, 2012. (fs, COURT STAFF) (Filed on 9/20/2012)
Download PDF
<![CDATA[
Chaffee v. Chiu et al Doc. 71 1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 8 JAMES CHAFFEE, 9 Plaintiff, 10 vs. United States District Court Northern District of California 11 12 Case No.: 4:11-CV-05118-YGR ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR LEAVE TO AMEND; AND DENYING AS MOOT DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED COMPLAINT DAVID CHIU, et al., Defendants. 13 14 15 Pending before the Court is Plaintiff James Chaffee’s Motion for Leave to Amend 16 Complaint. (Dkt. No. 53 (“Motion”).) Plaintiff has filed a [Proposed] Third Amended Complaint 17 for Damages (“P-3rd AC”) as part of his Motion. (Dkt. No. 53-1.) This Court previously issued an 18 Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss Amended Complaint 19 (Dkt. No. 32), which related to Plaintiff’s then-first amended Complaint. While that Order 20 dismissed certain claims without leave to amend, the Court permitted Plaintiff to file a motion for 21 leave to amend other claims and cited legal authority for why he should be permitted to amend the 22 claims he sought to add. (Dkt. No. 42.) Having read and considered the papers submitted by the 23 parties and the pleadings in this action, the Court hereby GRANTS IN PART AND DENIES IN PART 24 this Motion for Leave to Amend.1 25 1 26 Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court finds that this motion, which has been noticed for hearing on September 25, 2012, is appropriate for decision without oral argument. Accordingly, the Court VACATES the hearing set for September 25, 2012. 27 28 Dockets.Justia.com 1 I. FACTUA AND PROC AL CEDURAL BACKGROUND A D 2 Plaintiff action cen f’s nters on his arrest and re a emoval from a San Franc cisco Board of 3 Supervisors mee eting on Sep ptember 13, 2011. (Dkt. No. 21 (“1s AC”) ¶¶ 14 18–21.) O 2 st 4, On 4 Sept tember 19, 2011, Plainti filed this action in the Superior C 2 iff e Court of Calif fornia agains David st 5 o; Chiu President of the Board of Supervisors (“Chiu” City and County of S Francisco Board of u, d ”); San 6 Supervisors (“B Board”); and San Francisco Sheriff’s Department (collectivel “Defenda t ly, ants”). (Dkt. 7 No. 1.) The acti was rem ion moved to fede court on October 19 2011. (Id.) The opera eral n 9, ative 8 com mplaint upon removal alle eged claims of false arre false imp est, prisonment, violation of civil rights, f 9 and retaliation for exercise of First Ame f o endment righ (Id.) De hts. efendants m moved to dism miss. (Dkt. Nos 4 & 19.) The Court gr s. T ranted in par that motion to dismiss. (Dkt. No. 18 (“First Order”).) rt n . 11 United States District Court Northern District of California 10 Hav ving interpret Plaintiff claim for “violation o or “interf ted f’s of” ference with” civil rights as a claim ” s 12 for violation of the Equal Pr v t rotection Cla ause under 4 U.S.C. sec 42 ction 1983, t Court gra the anted the 13 mot tion to dismiss with leave to amend that claim, a well as the claim for re t as e etaliation for exercising r 14 First Amendmen rights. (F nt First Order at 3–6 & n.7.) The state l claims f false arre and false t ) law for est 15 w ressed becau the feder claims pro use ral ovided the b basis for the Court’s imprisonment were not addr 16 sdiction. (Id at 3 & 6 n. d. .13.) juris 17 Plaintiff filed his firs amended Complaint (“ AC”) on December 29, 2011, a f st C “1st n r alleging a 18 num mber of new claims. (Dk No. 21.) Specifically, Plaintiff all kt. leged false a arrest and fal lse 19 imprisonment, battery, viola b ation of the First Amend F dment right o free speec unequal t of ch, treatment in 20 violation of the Fourth and Fourteenth Amendments race discri F A s, imination un nder 42 U.S.C. section 21 1981, interferen with the First Amend nce F dment under 42 U.S.C. s section 1983, unlawful se eizure under r 22 the Fourth Amendment, equ protection and due pr F ual n rocess violat tions under t Fourteen the nth 23 Ame endment, an defamatio and slande On Janua 19, 2012 Defendant filed a Mo nd on er. ary 2, ts otion to 24 Dism Amend Complain (Dkt. No 25.) miss ded nt. o. 25 On April 2, 2012, th Court issu its Order Granting in Part and De he ued r n enying in Pa art 26 Defe fendants’ Mo otion to Dism Amende Complain (“Second Order”). In the Second Order, the miss ed nt 27 Cou denied the motion to dismiss the first claim fo false arres and false i urt e d f or st imprisonmen the nt, 28 seco claim for battery, the fourth claim for violati of the Fo ond e m ion ourth Amend dment, and t seventh the 2 1 claim for interference with the Fourth Amendment. To the extent that the fourth claim alleged a 2 violation of the Fourteenth Amendment, the Court dismissed that claim without leave to amend. 3 The Court also dismissed without leave to amend Plaintiff’s third and sixth claims to the extent 4 they were based on retaliation in violation of the First Amendment, his third and sixth claims to the 5 extent they were based on a First Amendment violation relating to two-minute restrictions on 6 public comment at Board meetings, his fifth claim for racial discrimination, and his eighth claim for 7 interference with the Fourteenth Amendment. The Court dismissed with leave to amend Plaintiff’s 8 third and sixth First Amendment claims to the extent they were based on the removal of citizens 9 from Board meetings, his third and six claims to the extent that they were based on the Board failing to provide an agenda item number to matters for public comment at Board meetings, his 11 United States District Court Northern District of California 10 ninth claim for defamation and slander, and David Chiu as a defendant in this action. Prior to when the amended complaint was due, Plaintiff filed a petition for writ of 12 13 mandamus requesting that the Ninth Circuit grant him additional leave to amend the complaint. 14 (See Dkt. No. 34.) The Ninth Circuit denied the writ on July 10, 2012. (Dkt. No. 48.) On July 23, 15 2012, Plaintiff filed his Second Amended Complaint (“2nd AC”) in accordance with the Court’s 16 instructions in the Second Order. (Dkt. No. 49.)2 On August 6, 2012, Plaintiff then filed the instant 17 motion based on the Court permitting him leave to file amended complaint. (Dkt. No. 42.) 18 Because the Second Amended Complaint was then operative, Plaintiff filed a Proposed Third 19 Amended Complaint. In his P-3rd AC, Plaintiff seeks to amend his third claim for violation of the First 20 21 Amendment with facts regarding the removal of citizens from Board meetings (P-3rd AC ¶¶ 46, 47, 22 49–51 & 57) but added additional facts and incorporated claims from the 1st AC that were removed 23 from the 2nd AC. Specifically, Plaintiff added additional facts pertaining to: (1) Plaintiff’s long 24 history of submitting letters to the Clerk of the Board, publishing newsletters, and speaking before 25 2 26 27 28 In the 2nd AC, Plaintiff amended his third claim for violation of the First Amendment with facts regarding the removal of citizens from Board meetings (2nd AC ¶¶ 46–50, 57) and removed from his complaint: (1) his third claim for violation of the First Amendment to the extent the claim was based on retaliation and the two minute restriction on public comments (1st AC ¶¶ 46, 48–49, 51–53); (2) his fourth claim alleging unequal treatment under the Fourteenth Amendment; (3) his fifth claim alleging racial discrimination (1st AC ¶¶ 60–62); and (4) his eighth claim for interference with the Fourteenth Amendment. (1st AC ¶¶ 75– 79.) 3 1 the Board of Sup B pervisors (P-3rd AC ¶¶ 54–56); (2) t San Fran the ncisco Admi inistrative Code, as 2 relat to his thi claim for violation of the First Am ted ird r f mendment t the extent the claim w based on to was 3 the two-minute restriction on public com t o mments (P-3 AC ¶ 48) (3) Defend 3rd ); dants’ neglig gence and 4 ce cont tempt in failing to train their officers and sheriff to protect civil rights i interferenc the t s fs in 5 Fou Amendm (P-3rd AC ¶ 76); an (4) Defen urth ment A nd ndants’ statem ments regard ding Plaintif ff’s 6 disru uption and consequent removal from the meetin being broa c m ng adcast on Sa Francisco an 7 Gov vernment Television. (P-3rd AC ¶ 81.) Plaintiff re-alleged h racial dis f his scrimination claim with n 8 no changes from the 1st AC c m C. On Augu 20, 2012, Defendants filed an Op ust s pposition to Plaintiff’s M Motion for Leave to 10 Ame end. (Dkt. No. 57 (“Opp N position”).) In their Opp position, Defendants’ pr rimarily argu that ued 11 United States District Court Northern District of California 9 Plaintiff’s motio should be denied as an improper a “poorlyon e a and -disguised m motion for 12 reco onsideration” and that Pl ” laintiff’s proposed amen ndments are f futile given t Court’s previous this 13 orde regarding Plaintiff’s claims. (See id.) On Au ers g e ugust 27, 20 012, Plaintiff filed his Re f eply Brief in 14 Support of Moti for Leav to Amend, in which he rebutted D ion ve , e Defendants’ p procedural ar rguments 15 and reasserted his right for leave to ame h l end. (Dkt. N 64 (“Rep No. ply”).) 16 II. DISCUSS SION 17 A. Legal Stand L dard on Mot tion for Lea to Amen ave nd 18 Grant or denial of leave to amen rests in the sound disc r nd e cretion of the court. Swa e anson v. U.S S. 19 Fore Serv., 87 F.3d 339, 343 (9th Cir. 1996). Lea to amend should be a est 7 3 ave d allowed freely “unless 20 the court determ c mines that the allegation of other fact consistent with the cha e ts t allenged ple eading could 21 not possibly cur the deficie p re ency.” Schre eiber Distrib Co. v. Serv b. v-Well Furn niture Co., In 806 F.2d nc., d 22 1393, 1401 (9th Cir. 1986). See Carrico v. City & C h o County of Sa Francisco 656 F.3d 1 an o, 1002 (9th 23 ding that leav to amend may be den ve nied if the pro oposed amen ndment is fu utile or Cir. 2011) (hold 24 uld ct osed amendm is futile only if no set of facts c be ment e can wou be subjec to dismissal). A propo 25 prov under th amendmen to the plea ven he nt adings that w would consti itute a valid and sufficien claim or nt 26 defe ense. Miller v. Rykoff-Se exton, Inc., 845 F.2d 209 214 (9th C 1988) (p 8 9, Cir. proper test in n 27 dete ermining legal sufficienc of a propo cy osed amendm is ident ment tical to that u used under R Rule 28 12(b b)(6)). 4 1 Under Rule 12(b)(6) “[f]actual allegations m be enou to raise a right to rel above R ), a must ugh lief 2 the speculative level” such that the claim “is plausib on its fac s l t m ble ce.” Bell Atl lantic Corp. v. Twombly, 3 550 U.S. 544, 555 & 570, 12 S. Ct. 195 (2007); J 27 55 Justo v. Char Capital Corp., No. 1 rter 11-cv-00670 0 4 EJD 2012 WL 359738, at *3 (N.D. Cal Feb. 2, 201 see Calh D, 3 * l. 12); houn v. VA M San Dieg No. 08MC go, 5 cv-2 2064 JM, 2009 WL 1227 7891, at *1 (S.D. Cal. M 5, 2009) (although le ( May eave to amen should be nd e 6 gran liberally to pro se plaintiffs, “co nted y ourts should dismiss a co omplaint for failure to st a claim tate 7 whe the factua allegations are insuffic en al s cient ‘to raise a right to r e relief above t speculati level’”) the ive 8 (quo oting Twomb bly). In cons sidering the sufficiency o a claim, th court must accept as true all of of he 9 the factual alleg f gations in the complaint, but it “is no required to accept as tr legal con e ot o rue nclusions cast in the form of factual al t llegations.” Justo, 2012 WL 359738 at *3 (“[r] 2 8, ]ecitals of th elements he 11 United States District Court Northern District of California 10 of a cause of act tion and con nclusory alleg gations are i insufficient” (citing Ash ”) hcroft v. Iqba 556 U.S. al, 12 662 (2009)). 13 B. Plaintiff’s First, Second Fourth, an Seventh Claims P d, nd 14 In the Se econd Order, the Court denied Defen d ndant’s Moti to Dismi Amended Complaint ion iss d t 15 o alse nd ment claim), batter (second cl ry laim), as to Plaintiff’s claims for fa arrest an imprisonm (first c 16 uneq treatme in violatio of the Fourth Amend qual ent on dment (fourth claim), and interferenc with the h d ce 17 Fou Amendm (seventh claim). Be urth ment h ecause the C Court previou found th usly hese claims w legally were y 18 suff ficient, those claims are not at issue in this Motio for Leave to Amend. e n i on e 19 C. Plaintiff’s Third Claim for Violatio of First A P T on Amendmen nt 20 In the Se econd Order, this Court gave Plaintif leave to am g ff mend his thi claim wit regard to ird th 21 the agenda item number issu and removal issue, bu denied lea to amend as to Plaint a m ue ut ave d tiff’s 22 retal liation and tw wo-minute restriction issues. r 23 As to the removal issue, Plaintif has alleged new facts i his P-3rd AC such tha he may e ff d in at 24 state a plausible claim again the Board based on an alleged pra e e nst d n actice or cus stom that res sults in 25 dete erring citizen from atten ns nding Board meetings. I particular, Plaintiff all In , leged that a deputy 26 sher once prev riff vented him from enterin the chamb (and mad a verbal c f ng ber de comment ind dicating that 27 the Board meeti was spec B ing cifically clos to him), t sed that Plaintiff once saw a member of the public f f 28 slam mmed to the floor for atte empting to speak to a su s upervisor, an that a num nd mber of indiv viduals had 5 1 been removed fr n rom the cham mber and we warned o “escalating repercussi ere of ions” if they tried to 2 retu urn. (P-3rd AC ¶¶ 46, 50 & 51.) Tak A 0 king these ne allegation as true an drawing inferences in ew ns nd n 3 favo of Plaintif Plaintiff has stated a plausible cla based on the remova of citizens from Board or ff, h p aim n al d 4 mee etings, includ ding his own removal on other occas n n sions. 5 Regardin the issue of retaliation Plaintiff h raised ad ng n, has dditional fact which—t ts, taking those 6 alleg gations as tru ue—may sta a plausible claim. In the P-3rd A Plaintiff provided ad ate n AC, dditional 7 facts regarding his long hist h tory of subm mitting letters to the Clerk of the Boa publishin s k ard, ng 8 new wsletters, and speaking be d efore the Bo oard of Super rvisors. (P-3 AC ¶ 54 Plaintiff a alleged 3rd 4.) also 9 that his commen exposed Defendants’ diversion o public reso nts D of ources to pri ivate interest which ts, may give rise to retaliation by the Defen y o b ndants. (P-3 AC ¶ 55.) Plaintiff c 3rd contends that a t 11 United States District Court Northern District of California 10 reas sonable infer rence of retaliation may be drawn ba b ased on his h history of inv volvement an his nd 12 criti icisms of the Board, to th extent tha he was sin e he at ngled out and removed fr d from the Sept tember 2011 1 13 mee eting. (Motio at 6–7.) The Court agrees that fr on T rom these ad dditional fact a plausibl claim for ts, le 14 retal liation has been stated. b 15 As to Pla aintiff’s two o-minute rest triction claim the Court believes tha Plaintiff’s claim still m, at 16 does not state pl s lausible claim based on the First Am m t mendment. H However, the Court also believes e 17 that Plaintiff ma be able to state a claim with addit ay m tional facts. The same is true of Plai s intiff’s 18 nda im, n o all he nd agen item clai which Plaintiff did not appear to amend at a between th 1st AC an P-3rd 19 AC. Plaintiff ha this last op . as pportunity to amend his claim based on the two-minute rest o d triction and 20 agen items by providing factual alleg nda y f gations expla aining how th alleged conduct is a v he violation of a 21 cons stitutionally-protected ri ight and the policy or pra p actice that re esults in thes violations The Court se s. t 22 does not find pe s ersuasive Pla aintiff’s refer rence to the San Francisco Administ trative Code which is e, 23 not substantively different from the Gov fr vernment Co sections referenced i the Secon Order. ode in nd 24 25 For the foregoing rea f asons, Plaint tiff’s Motion for Leave t Amend hi third claim for n to is m dment is GRANTED. R violation of the First Amend 26 D. 27 In his Motion, Plaint contends that becaus “defendan did not ha grounds to effect a M tiff s se nts ave 28 Plaintiff’s Fifth Claim for Racial D P f Discriminati ion ful ey er b n iff’s] First A Amendment a activities, or lawf arrest the were eithe motived by retaliation for [Plainti 6 1 they responded to hearsay comments fro the disru y om uptive individ duals and we maliciou ere usly 2 implementing th same racial animus.” (Motion at 12.) Plainti hat ” t iff’s primary authority in support of y n f 3 ve M ir. here nth leav to amend is Evans v. McKay, 869 F.2d 1341, 1345 (9th Ci 1989), wh the Nin Circuit 4 note that overt acts coupled with racial remarks are sufficient t state a cla for race ed d l e to aim 5 disc crimination. Evans is co onsistent wit the Court’ prior dism th ’s missal of the race discrim mination 6 claim without le m eave to amen In Evans the plainti raised ove acts and r nd. s, iff ert racial slurs b the by 7 defe endants them mselves. Her Plaintiff has not alleg any tang re, h ged gible indicia of intentiona al 8 disc crimination on account of race by Def o o efendants. Id at 1344 (“ d. “plaintiffs mu show int ust tentional 9 disc crimination on account of race”). Jus as with hi s 1st AC, Pl o o st laintiff’s P-3rd AC’s race disc crimination claim is “dev c void of any factual allega f ations showi such inte or animu ing ent us.” (Second d 11 United States District Court Northern District of California 10 Ord at 17.) Because Plain raised no new facts in the race d der ntiff n discriminatio section of his P-3rd on f 12 AC, Plaintiff’s Motion for Leave to Am , M L mend this cau of action is DENIED. use n 13 E. Plaintiff’s Si P ixth Claim for Interfer f rence with F First Amend dment 14 Plaintiff sixth claim for interfe f’s m erence with t First Am the mendment, 42 U.S.C. sect 2 tion 1983, 15 appe to be su ears ubstantively identical to the third clai for violat i t im tion of the F First Amendm right to ment o 16 free speech. Ind deed, there are no facts alleged with respect to th sixth claim Plaintiff Motion a a he m. f’s 17 for Leave to Am L mend this cla is DENIE because th claim is d aim ED he duplicative. Plaintiff is i instructed to o 18 com mbine his First Amendme claims in one claim in his amen ent nto m nded compla aint. 19 F. Plaintiff’s Eighth Claim for Defam P m mation and S Slander 20 As stated in the Cou d urt’s Second Order, the to of defam ort mation “invol lves (a) a pub blication 21 that is (b) false, (c) defamato and (d) unprivileged and that (e has a natu tendency to injure or ory, d, e) ural y 22 cial ” oftus, 40 Cal 4th 683, 72 (2007) (in l. 20 nternal citati ions that causes spec damage.” Taus v. Lo 23 omitted); see Ca Civ. Code §§ 45–46. For there to be a public al. e o cation, there must be som me 24 com mmunication— —whether oral or writte Cal. Civ. Code §§ 45 o en. . 5–46. The C Court previou usly 25 prov vided explici instruction to Plaintif if he sough to amend this claim: “ it ns ff ht “[i]f Plaintiff re-alleges ff 26 this claim, he must specify an actual sta m a atement that was made b Defendant how the s by ts, statement 27 i h w eged, and ho it naturally tended to injure him ow was false, how it defamed him, how it was unprivile 28 ( der or cause special damage.” (Second Ord at 18.) 7 In the P-3rd AC, Pla aintiff amend his defam ded mation claim and added the followin m ng 1 2 alleg gation: “The accusations of disruptio and statem e s on ments that th superviso were seek he ors king to 3 rem move him wer uttered in full view an hearing of the audienc in attenda re nd f ce ance and wer broadcast re t 4 on San Francisc Governme Televisio (SFGTV) (P-3rd A ¶ 81.) Th amendme suggests S co ent on ).” AC his ent 5 state ements were made but does not cure Plaintiff’s d e d e defective cla aim. Plaintif must speci the ff ify 6 actu statement made by Defendants. Without a sta ual t W atement, Pla aintiff likewi has not e ise explained 7 how that statem was false or any othe required e w ment er element for d defamation. See Taus, 4 Cal. 4th 40 8 at 72 20. 9 econd Order, the Court gave Plaintif leave to am g ff mend on this claim. Wh s hile In the Se Plaintiff’s propo osed claim is still insuffi s icient, he has provided a least one a s at additional fac ctual 11 United States District Court Northern District of California 10 alleg gation. In th Court’s vi he iew, Plaintif deficient claim could still be cured. To do so Plaintiff ff’s t d o, 12 mus allege exac what wa said and how it was fa st ctly as h alse. Accord dingly, Plain is GRAN ntiff NTED further r 13 leav to amend this claim, in addition to the allegati ve t n o ions in the P P-3rd AC. 14 G. David Chiu as a Defend D dant 15 In the Second Order this Court granted Plai r, intiff leave t amend to re-add Chiu as a to u 16 defe endant only to the extent that: (1) Pla t t aintiff can al llege a claim against him based on a claim that m m 17 was not dismissed or for wh Plaintiff had leave to amend; an (2) Plainti sufficient alleges hich f o nd iff tly 18 u’s w med ersonal (not o official) cap pacity. (Dkt. No. 32.) Pl . laintiff Chiu actions were perform in his pe 19 cont tends in his Motion and P-3rd AC th “[i]f the m M hat municipality is not liable for the dep y e privation of 20 civil rights unde the Monel doctrine, th David C l er ll hen Chiu must be individually liable beca e y ause it is 21 outs of his qu side ualified imm munity.” (Mo otion at 7–8. Plaintiff a alleges t Chiu “acted to .) also that 22 supp press free sp peech and the right to pet e tition the gov vernment in all circumst n tances” by 23 “sup ppress[ing] public comm by allow p ment wing only tw minutes fo public comment” and “ceas[ing] wo for d 24 to give the agen item ‘Gen nda neral Public Comment’ an item num mber.” (P-3r AC ¶¶ 44, 48 & 52.) rd , 25 Furt ther, in his P-3rd AC, Plaintiff allege that “[a]t all times ma P es aterial to this Complaint, these s , 26 defe endants,” wh presuma hich ably includes Chiu, “acte toward pl ed laintiff unde color of th statutes, er he 27 ordi inances, cust toms and usa of the St of Califo age tate ornia.” (P-3 AC ¶ 9.) 3rd 28 8 1 To estab blish persona liability of a local offic in a sect al f cial tion 1983 ac ction, “it is en nough to 2 show that the of w fficial, acting under colo of state law caused th deprivation of a federa right.” g or w, he n al 3 Ken ntucky v. Gra aham, 473 U.S. 159, 166 (1985); see also Hafer v. Melo, 502 U.S. 21, 25 (1991) U 6 e 2 5 4 (“Pe ersonal-capa acity suits, on the other hand, seek to impose ind n h o dividual liabi ility upon a g government 5 offic for action taken und color of state law.”) In light of th allegation above, Pla cer ns der s he ns aintiff’s 6 Mot tion is GRAN NTED as to th amendme in this fo his ent orm. 7 III. 8 9 10 United States District Court Northern District of California 11 CONCLU USION For the foregoing rea f asons, Plaint tiff’s Motion For Leave to Amend is GRANTED IN PART n s AND DENIED IN PART. D To minimize con m nfusion, Plai intiff shall c caption his am mended com mplaint as the e “Fou Amended Complain and may amend that complaint a follows: urth nt” as 1. Plaintiff’s cla P aims for fals arrest and imprisonme (first clai se ent im), battery (second 12 claim), unequ treatmen in violation of the Fou Amendm (fourth claim), and c ual nt n urth ment 13 in nterference with the Fou Amendm w urth ment (sevent claim) we previousl held to be th ere ly 14 sufficient in the 1st AC. As such, Pl aintiff’s Fou Amende Complain may allege s t urth ed nt e 15 th hese claims. 16 2. Plaintiff’s Motion for Le P M eave to Amen the third claim for vio nd olation of th First he 17 Amendment is GRANTED. This leav is granted as to the ent A D ve tirety of the First 18 Amendment claim, inclu A uding allegat tions relating to retaliatio two-minu g on, ute 19 restriction, ag r genda items, and remova , al. 20 3. The Fourth Amended Co T A omplaint may not allege this claim. y 21 22 The Motion for Leave to Amend the fifth claim f racial dis T f for scrimination is DENIED. n 4. The Motion for Leave to Amend the sixth claim for interfere T f ence with the First e 23 Amendment is DENIED to the extent that it is dup A plicative of P Plaintiff’s th claim. hird 24 Plaintiff shal allege only one First A P ll y Amendment c claim in the Fourth Ame ended 25 Complaint. C 26 27 5. Plaintiff is GRANTED fur P rther leave to amend his eighth claim for defama o m ation and slander. s 28 9 1 6. The Motion for Leave to Amend to add David Chiu as a defendant in his individual 2 capacity is GRANTED. David Chiu may be named as an individual defendant in the 3 Fourth Amended Complaint. 4 Because Plaintiff will file a Fourth Amended Complaint, the pending Motion to Dismiss the 5 Second Amended Complaint is DENIED AS MOOT. The Court terminates Dkt. No. 55 and vacates 6 the hearing on that motion scheduled for September 25, 2012. 7 Plaintiff’s Fourth Amended Compliant shall be filed within fourteen (14) days of the date of 8 this Order. Defendants shall file their response within fourteen (14) days thereafter. This Order 9 terminates Dkt. No. 53. 10 IT IS SO ORDERED. United States District Court Northern District of California 11 12 13 Dated: September 20, 2012 _______________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
