Kaplan v. State of California et al, No. 3:2017cv01336 - Document 28 (S.D. Cal. 2018)
Court Description: ORDER granting 8 and 13 Defendants' Motion to Dismiss. The Court finds Plaintiffs FAC fails to comply with the pleading requirements of Federal rules of Civil Procedure. Thus, Plaintiff's FAC is DISMISSED. Plaintiff must file a Second A mended Complaint that cures the deficiencies outlined herein by 8/31/2018. Additionally, many of Plaintiff's claims are DISMISSED WITH PREJUDICE and should be omitted from further pleadings absent additional factual material that would render them relevant. Failure to file an amended complaint will result in dismissal of this action. Signed by Judge Anthony J. Battaglia on 7/31/2018. (All non-registered users served via U.S. Mail Service)(acc)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Phillip Kaplan, Case No.: 17-cv-1336-AJB-KSC Plaintiff, 12 13 v. 14 State of California, et al.; City of San Diego CA, et al.; San Diego Police Department; Officer Eric Miller 10#6112; Officer Dwight Dunagan 10#5846; Officer Jaclyn Lowry 10#7390; Roadone Towing (AKA A to Z ENT); Eric Miller; Dwight Dunagan; Jaclyn Lowry as private individuals, 15 16 17 18 19 ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS (Doc. Nos. 8, 13) Defendants. 20 21 Before the Court is Defendants City of San Diego, San Diego Police Department 22 (SDPD), and Officers Eric Miller and Jaclyn Lowry’s motion to dismiss Plaintiff Phillip 23 Kaplan’s First Amended Complaint (FAC), or in the alternative, for a more definite 24 statement. (Doc. No. 8.) Separately, Defendant Dwight Dunagan also moves to dismiss the 25 FAC, or in the alternative, for a more definite statement. (Doc. No. 13.)1 For the reasons 26 27 1 28 Because both motions to dismiss make nearly identical arguments, the Court analyzes them jointly and cites to references from both. 1 17-cv-1336-AJB-KSC 1 discussed herein, the Court GRANTS Defendants’ motions. 2 I. BACKGROUND 3 Plaintiff brought the instant action for trespass, trespass on the case, constitutional 4 rights violations, and 42 U.S.C. § 1983 violations. (Doc. No. 4 at 1.) Plaintiff alleges 5 officers Miller, Dunagan, and Lowry seized and caused to be impounded his Freightliner 6 Sprinter van because the van did not have a license plate, and Plaintiff did not have 7 registration for the van. (Doc. No. 4 at 5–6.) Kaplan informed the officers he was not a San 8 Diego resident, had been traveling through many states for several years, lived in the van, 9 and had yet to title the van with any state. (Id.) After paying the towing fee the following 10 day, Kaplan’s receipt stated his van was towed pursuant to California Vehicle Code 22651, 11 which allows an officer to remove a vehicle when its registration has expired more than 12 “six months before the date it is found or operated on the highway, public lands, or [an] 13 offstreet parking facility.” (Id. at 6 (quoting CVC 22651(o)(1)(A).) Kaplan argues he could 14 not have violated this law because he had “only been in California for approximately 45 15 days, less than two months at the time of this incident.” (Id.) Kaplan eventually retrieved 16 his van, after starting the titling process, getting a moving permit from the DMV, and 17 paying towing and storage charges to the towing company. (Id. at 10.) 18 II. LEGAL STANDARDS 19 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s 20 complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “[A] court may dismiss 21 a complaint as a matter of law for (1) lack of cognizable legal theory or (2) insufficient 22 facts under a cognizable legal claim.” SmileCare Dental Grp. v. Delta Dental Plan of Cal., 23 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). However, a complaint will survive a 24 motion to dismiss if it contains “enough facts to state a claim to relief that is plausible on 25 its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In making this 26 determination, a court reviews the contents of the complaint, accepting all factual 27 allegations as true and drawing all reasonable inferences in favor of the nonmoving party. 28 See Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 972, 975 2 17-cv-1336-AJB-KSC 1 (9th Cir. 2007). Notwithstanding this deference, a reviewing court need not accept legal 2 conclusions as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for 3 a court to assume “the [plaintiff] can prove facts that [he or she] has not alleged.” Assoc. 4 Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 5 (1983). However, “[w]hen there are well-pleaded factual allegations, a court should assume 6 their veracity and then determine whether they plausibly give rise to an entitlement to 7 relief.” Iqbal, 556 U.S. at 664. 8 Pro se pleadings are held to “less stringent standards than formal pleadings drafted 9 by lawyers” because pro se litigants are more prone to making errors in pleading than 10 litigants represented by counsel. Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotations 11 omitted). Thus, the Supreme Court has stated that federal courts should liberally construe 12 the “‘inartful pleading’ of pro se litigants.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th 13 Cir. 1987) (quoting Boag v. MacDougall, 454 U.S. 364, 365 (1982)). Nonetheless, Federal 14 Rule of Civil Procedure 8(a) requires that a complaint contain a short plain statement of 15 “the claim showing that the pleader is entitled to relief[.]” Even if some claims may not— 16 on their face—be subject to dismissal under Rule12(b), a court still has discretion to 17 dismiss those that fail to comply with the requirement that they be simple, concise, and 18 direct. McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996) (citing Fed. R. Civ. P. 8(e)). 19 III. DISCUSSION 20 Defendants argue Plaintiff’s FAC should be dismissed for failure to conform to 21 Federal Rule of Civil Procedure 8 as the complaint does not clearly identify each claim for 22 relief and contains numerous pages of “unnecessary legal citations, discourses on unrelated 23 issues, as well as ‘Exhibits’ of copied and pasted sections from non-germane newspaper 24 articles.” (Doc. Nos. 8-1 at 12–13; 13-1 at 12.) Defendants argue that Plaintiff’s FAC 25 would make the work of other parties to this case, as well as the Court, impracticable. 26 (Doc. Nos. 8-1 at 13; 13-1 at 12–13.) 27 Rule 8 states a pleading must contain “a short and plain statement of the claim 28 showing that the pleader is entitled to relief.” It is well settled that dismissal is proper where 3 17-cv-1336-AJB-KSC 1 a complaint is “argumentative, prolix, replete with redundancy, and largely irrelevant[,]” 2 McHenry, 84 F.3d at 1177–80, or where filings are confusing, conclusory, and 3 unnecessarily voluminous. Hatch v. Reliance Ins. Co., 758 F.2d 409, 415 (9th Cir. 1985) 4 (holding that dismissal of plaintiff’s complaint was appropriate as it exceeded seventy 5 pages in length, was confusing, conclusory, and not in compliance with Rule 8). At 91 6 pages, Plaintiff’s complaint is beyond prolix. It is entirely unclear what claims Plaintiff is 7 asserting and this Court finds the number of irrelevant and improper legal citations 8 contained therein—given the legal insufficiency of many of Plaintiff’s claims discussed 9 below—more than sufficient grounds for dismissal. 10 Significantly, Plaintiff misconstrues 42 U.S.C. § 1983—as well as other statutes— 11 in alleging the Defendants violated federal law, (Doc. No. 4 at 22), when the statute in fact 12 does not by itself establish or create any substantive rights but merely “authorizes a cause 13 of action based on the deprivation of civil rights[.]” Chapmen v. Houston Welfare Rights 14 Org., 441 U.S. 600, 617 (1979). Under the same premise, Plaintiff cites the following 15 statutes: 42 U.S.C. §§ 14141, 12202, 12203; 15 U.S.C. §1122; 28 U.S.C §§ 1243, 595; and 16 18 U.S.C. §§ 241, 242, 245, 2236, 1962. (Id. at 22.) Many of these are entirely irrelevant 17 to his pleadings. The Court notes, for example, that 42 U.S.C. § 14141 (now codified as 34 18 U.S.C.A. § 12601) pertains to “the administration of juvenile justice or the incarceration 19 of juveniles” and authorizes the Attorney General to pursue a civil action in the name of 20 the United States. See 34 U.S.C.A. §§ 12601 (a)–(b). Plaintiff has not alleged any facts that 21 would indicate the administration of juvenile justice is relevant here. 22 Similarly, the FAC appears to argue that the deprivations Plaintiff has suffered are 23 the result of an unconstitutional exercise of the police power. (Id. at 35.) Variously citing 24 phraseology from different state supreme courts, the U.S. Supreme Court, and the “COURT 25 OF APPEALS FOR THE NINTH CIRCUIT and 5 similar citations[,]” Plaintiff argues 26 repeatedly that the police power cannot justify arbitrary laws that infringe upon 27 fundamental rights, and that one cannot be penalized for exercising their constitutional 28 rights. (Id.) However, the constitutional rights Plaintiff invokes are unclear. The FAC 4 17-cv-1336-AJB-KSC 1 alleges different combinations of constitutional protections at various places, including the 2 following combinations: Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments, 3 (Id. at 11); the Fourth and Fourteenth Amendments, (Id. at 24); and the Fourth, Fifth, Ninth, 4 and Fourteenth Amendments, (Id. at 28). The Supreme Court has clearly stated that 5 assessing claims under 42 U.S.C § 1983 begins with identifying the precise constitutional 6 right allegedly infringed upon. Graham v. Connor, 490 U.S. 386, 394 (1989). The FAC’s 7 unclear and inconsistent invocation of constitutional provisions fails to conform to the 8 requirement that it be clear, concise, and direct under Rule 8(e). 9 Finally, from a practical standpoint, after an analysis of the Complaint, it is 10 impossible for the Court to deduce the cause or causes of action being alleged. Moreover, 11 the Court’s limited resources make it impractical to scrutinize each of Plaintiff’s allegations 12 and theorize what hypothetically cognizable claims for relief are being alleged. Thus, the 13 Court DISMISSES the FAC in its entirety, with leave to amend. 14 IV. PLAINTIFF’S ALLEGATIONS DISMISSED WITH PREJUDICE 15 While the Court grants Plaintiff leave to amend, many of the FAC’s allegations are 16 without legal support and thus are dismissed with prejudice. Balistreri v. Pacifica Police 17 Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) (finding dismissal is proper were a “plaintiff can 18 prove no set of facts in support of [a] claim which would entitle him to relief.”) (citing 19 Conley v. Gibson, 355 U.S. 41, 45–46 (1957)). 20 As an initial matter, Plaintiff’s claim that he is not subject to the United States’ 21 jurisdiction, (Doc. No. 4 at 11), known as the “sovereign citizen” argument, has been 22 uniformly rejected by courts. See U.S. v. Studley, 783 F.2d 934, 937 (9th Cir. 1986); see 23 also U.S. v. Staten, No. 1:10-cr-179, 2012 WL 2389871, at *3 (M.D. Pa. June 25, 2012) 24 (collecting cases). Plaintiff seems to rely on his so-called “sovereign citizenship” to allege 25 defendants acted “without jurisdiction” in impounding his vehicle. (Id. at 14–15.) 26 However, Plaintiff was parked on the public streets of San Diego and this Court cannot 27 conceive of any rule that would bar local law enforcement from stopping or impounding 28 vehicles on public roads in appropriate circumstances. Thus, Plaintiff’s argument that his 5 17-cv-1336-AJB-KSC 1 constitutional rights were violated because the officers had no jurisdiction over him is 2 DISMISSED WITH PREJUDICE. Similarly, Plaintiff alleges he was forced to associate 3 and contract with the California government and the department of motor vehicles. (Doc. 4 No. 4 at 34.) As defendants state, there is no “right to refuse to associate with a state law.” 5 (Doc. No. 13-1 at 19.) Because the Court finds Plaintiff is subject to local authority— 6 including the vehicle code—his invocation of the Foreign Sovereign Immunities Act, (id. 7 at 16–20), is inappropriate. Thus, the claims Plaintiff alleges under that act, including his 8 references to the “Commercial Activity Exception,” commercial contracts, “[t]he 9 immunity doctrine of respondeat superior under the clearfield doctrine or common law,” 10 and his argument that the government acted in excess of jurisdiction, (id. at 17–18, 20), are 11 also DISMISSED WITH PREJUDICE. Further, Plaintiff’s defense that he is not required 12 to register his vehicle because he is not a “person” under Cal. Veh. Code § 4000(a)(1), (id. 13 at 44–52, 53–55), is also inaccurate and DISMISSED WITH PREJUDICE. 14 Additionally, Plaintiff’s claims under the First and Eleventh Amendment fail as a 15 matter of law. The First Amendment is inapplicable to any interpretation of facts alleged 16 in the complaint. Additionally, the Eleventh Amendment is irrelevant as its function is to 17 immunize the States from lawsuits absent their consent. Edelman v. Jordan, 415 U.S. 651, 18 662–63 (1974) (“While the Amendment by its terms does not bar suits against a State by 19 its own citizens, this Court has consistently held that an unconsenting State is immune from 20 suits brought in federal courts by her own citizens as well as by citizens of another State.”) 21 The state—not the citizen—may raise an immunity defense under the Eleventh 22 Amendment; thus, Plaintiff’s use of it here is amiss. Therefore Plaintiff’s First and Eleventh 23 Amendment claims are DISMISSED WITH PREJUDICE. 24 Similarly, Plaintiff’s claim that the officers in this case intruded on his seclusion 25 fails. (Id. at 28.) Intrusion upon seclusion is a tort relating to invasions of privacy, not a 26 federal right. See Restatement (Second) of Torts § 652B (1977); see, e.g., Taus v. Loftus, 27 40 Cal. 4th 683 (2007). Thus, it cannot be brought through a Section 1983 claim as that 28 section merely authorizes suits for violations of Constitutional rights. Baker v. McCollan, 6 17-cv-1336-AJB-KSC 1 443 U.S. 137, 146 (1979). Moreover, Plaintiff is suing state actors, thus his tort claim must 2 be brought under the California Tort Claims Act (“CTCA”); however, under the CTCA a 3 plaintiff must first present the public entity with a written claim before initiating a suit in 4 court. Butler v. Los Angeles County, 617 F. Supp. 2d 994, 1001 (C.D. Cal. 2008); See Cal. 5 Gov’t Code §§ 905, 945.4, 950.2. Plaintiff alleges no facts regarding compliance with this 6 requirement. Additionally, there is no right to privacy in one’s movements from one place 7 to another when traveling on public thoroughfares. U.S. v. Knotts, 460 U.S. 276, 281 8 (1983). Plaintiff’s vehicle was located in a public area and was subject to local laws and 9 the jurisdiction of local law enforcement. Thus, to the extent Plaintiff alleges privacy tort 10 claims under Section 1983, those claims are DISMISSED WITH PREJUDICE. 11 Plaintiff also claims the officers’ demand for his registration was unconstitutional 12 and violated his right to travel. (Doc. No. 4 at 36–42, 57–62.) Both Ninth Circuit and 13 California precedent have found registration requirements do not impede on a person’s 14 right to travel. Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir. 1999); see also Darkins v. 15 Snowden, No. 13-3831-JLS(MAN), 2013 WL 5530977, at *7 (C.D. Cal. Oct. 1, 2013) (“It 16 is beyond dispute that states may impose . . . vehicle registration requirements[.]”). “In the 17 lawful exercise of its police power, the state may, beyond question, exact registration fees 18 from owners and users of motor vehicles . . ., so long as the vehicles are or may be used on 19 the public highways of the state.” Carley & Hamilton v. Snook, 38 F.2d 1003, 1004–05 20 (N.D. Cal. 1929) (holding that the registration fee requirement of California’s Vehicle 21 Code is a “valid exercise of the police power of the state and violates no provision of the 22 Constitution of the United States”). Thus, Plaintiff’s assertions that California’s 23 registration requirements are unconstitutional are DISMISSED WITH PREJUDICE. 24 Finally, Plaintiff’s allegations concerning the Ninth Amendment similarly fail 25 because, as Defendants argue, “[t]he Ninth Amendment is not a legal basis for a section 26 1983 claim.” (Doc. Nos. 13-1 at 22; 8-1 at 22.) The Ninth Amendment has “never been 27 recognized as independently securing any constitutional right, for purposes of pursuing a 28 civil rights claim.” Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986). Thus, 7 17-cv-1336-AJB-KSC 1 Plaintiff’s assertions under the Ninth Amendment are DISMISSED WITH PREJUDICE. 2 IV. LEAVE TO AMEND 3 The Court “should freely give leave when justice so requires.” Fed. R. Civ. P. 4 15(a)(2). Thus, the Court grants Plaintiff leave to amend, but urges Plaintiff to clearly and 5 concisely state a claim for relief in drafting a second amended complaint. If Plaintiff 6 chooses to re-allege his § 1983 claims, Plaintiff must specify which underlying 7 constitutional right was allegedly violated. Plaintiff is encouraged to use Defendants’ 8 thorough dismissal motion to address deficiencies in the complaint, such as the failure to 9 show compliance with the Government Claims Act. (See Doc. Nos. 8-1 at 10; 13-1 at 9.) 10 Plaintiff can also anticipate qualified immunity challenges to his allegations against the 11 individually named officers and is advised to plead accordingly. (See Doc. Nos. 8-1 at 14; 12 13-1 at 14.) Plaintiff’s amendment should also reflect the dismissal of the excess claims 13 the Court has barred herein. 14 V. CONCLUSION 15 The Court finds Plaintiff’s FAC fails to comply with the pleading requirements of 16 Federal rules of Civil Procedure. Thus, Plaintiff’s FAC is DISMISSED. Plaintiff must file 17 a Second Amended Complaint that cures the deficiencies outlined herein by 18 August 31, 2018. Additionally, many of Plaintiff’s claims are DISMISSED WITH 19 PREJUDICE and should be omitted from further pleadings absent additional factual 20 material that would render them relevant. Failure to file an amended complaint will result 21 in dismissal of this action. 22 IT IS SO ORDERED. 23 24 Dated: July 31, 2018 25 26 27 28 8 17-cv-1336-AJB-KSC
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