Barich v. Cotati

• Court: District Court, N.D. California
• Decided: March 30, 2021
• Docket: 3:21-cv-00034
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GEORGE BARICH, et al., Case No. 21-cv-00034-EMC

8 Plaintiffs, ORDER GRANTING DEFENDANTS’ 9 v. MOTION TO DISMISS

10 CITY OF COTATI, et al., Docket No. 9 11 Defendants.

12 13 14 Defendants the City of Cotati (“City”) and John A. Dell’Osso, the Mayor of the City 15 during the time in question, moved to dismiss Plaintiffs George E. Barich and Laurie Alderman’s 16 complaint. See Docket No. 9 (“Mot.”). The Court held a hearing on the motion on March 25, 17 2021. This order memorializes the Court’s oral rulings and provides additional analysis, as 18 necessary. For the reasons stated on the record and supplemented herein, the motion is 19 GRANTED. 20 I. DISCUSSION 21 A. First Amendment and Equal Protection Claims 22 In this case, Plaintiffs challenge Mayor Dell’Osso’s decision not to allow Ms. Alderman to 23 read a written statement from Mr. Barich into the record during the public comment period at two 24 City Council meetings in 2019. Plaintiffs assert First Amendment and equal protection claims. 25 Compl. ¶ 20–25. Plaintiffs allege Mayor Dell’Osso’s decision was “based solely on the content, 26 and the source, of the testimony” and done “with the specific intent to deprive Alderman of her 27 constitutional rights.” Id. ¶¶ 45, 57. In support of their claims, Plaintiffs allege that they were 1 statements read into the record.” Id. ¶¶ 40, 46, 50, 51. 2 The “[courts] are not bound to accept as true a legal conclusion couched as a factual 3 allegation.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. 4 Twombly, 550 U.S. 544, 555 (2007)). In the complaint, Plaintiffs do not allege any specific 5 instances where Mayor Dell’Osso (or his predecessors) allowed a similarly situated individual to 6 read a written statement into the record during a City Council meeting. The assertion that this was 7 done “routinely” is conclusory. See Compl. ¶ 14. Absent non-conclusory allegations of such 8 disparate treatment, Plaintiffs fail to state claim for First Amendment viewpoint discrimination or 9 equal protection disparate treatment. 10 B. Monell Claim 11 Because Plaintiffs failed to plead a plausible constitutional violation their claim that the 12 City had an unconstitutional policy, custom, or practice in violation of 42 U.S.C. § 1983 pursuant 13 to Monell v. Department of Social Services, 436 U.S. 658 (1978), (the “Monell Claim”) also fails. 14 See Plumeau v. Sch. Dist. No. 40, 130 F.3d 432, 438 (9th Cir. 1997) (listing deprivation of a 15 constitutional right as an element of § 1983 municipal liability). Moreover, Plaintiffs fail to allege 16 in non-conclusory terms that the City had a policy or custom of violating individual’s First 17 Amendment and equal protection rights. Nor have Plaintiffs allege facts establishing Mayor 18 Dell’Osso is the final policymaker for the City. See Dougherty v. City of Covina, 654 F.3d 892, 19 900 (9th Cir. 2011) (dismissing “Monell and supervisory liability claims [that] lack[ed] any factual 20 allegations that would separate them from the ‘formulaic recitation of a cause of action’s 21 elements’ deemed insufficient by Twombly” (quoting Twombly, 550 U.S. at 555)). 22 C. Qualified Immunity 23 The Court does not reach the merits of the Defendants’ qualified immunity defense. The 24 Court notes, however, that qualified immunity is not ordinarily available when the plaintiffs allege 25 a claim which requires intentional discrimination which, if proven, would clearly constitute a 26 constitutional violation. See Metro Display Advert., Inc. v. City of Victorville, 143 F.3d 1191, 27 1195–96 (9th Cir. 1998) (holding that no qualified immunity applies because the impermissibility 1 v. Pierce, 617 F.2d 1386, 1392 (9th Cir. 1980) (“The constitutional right to be free from such 2 invidious discrimination is so well established and so essential to the preservation of our 3 constitutional order that all public officials must be charged with knowledge of it”). Here, 4 Plaintiffs have alleged intentional discrimination. See Compl. ¶¶ 46, 51, 57, 71. Therefore, a 5 qualified immunity defense to such a claim, if sufficiently alleged, would not be available to 6 Defendants. 7 If Plaintiffs brought a claim that did not include intentional discrimination, however, such 8 as a challenge to the reasonableness of the City’s Council’s time, place, and manner restrictions on 9 speech, then Mayor Dell’Osso might be entitled to qualified immunity if a reasonable person in 10 his position would not have known that enforcing the rules to prevent Ms. Alderman from reading 11 Mr. Barich’s letter violated a clearly established constitutional right. See Norse v. City of Santa 12 Cruz, 629 F.3d 966, 974 (9th Cir. 2010). 13 D. ADA Claim 14 “[A] disabled individual claiming discrimination must satisfy the case or controversy 15 requirement of Article III by demonstrating his standing to sue at each stage of the litigation.” 16 Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011). Plaintiffs must 17 “demonstrate that he has suffered an injury-in-fact, that the injury is traceable to the [City’s] 18 actions, and that the injury can be redressed by a favorable decision.” Id. Here, Plaintiffs have 19 failed to state a redressable claim under the ADA. 20 Plaintiffs seek punitive damages, injunctive relief, and compensatory damages. Compl., 21 (Prayer for Relief) ¶ 2. Punitive damages are not available under Title II of the ADA. See Barnes 22 v. Gorman, 536 U.S. 181, 189 (2002) (holding punitive damages may not be awarded in suits 23 brought under Title II of the ADA). 24 “[T]o establish standing to pursue injunctive relief . . . [plaintiffs] must demonstrate a ‘real 25 and immediate threat of repeated injury’ in the future.” Chapman, 631 F.3d at 946 (quoting 26 Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004)). Here, Plaintiffs have 27 not alleged the threat of any imminent future harm. Plaintiffs’ ADA claim is predicated on the 1 A single failure without more does not support an inference that Plaintiff faces a real and 2 immediate threat of repeat injury in the future. See Midgett v. Tri-Cnty. Metro. Transp. Dist. of 3 Oregon, 254 F.3d 846, 850 (9th Cir. 2001) (“[O]ccasional problems do not, without more, 4 establish a violation of the ADA. At most, the evidence shows past violations of the ADA. It 5 does not, however, support an inference that Plaintiff faces a real and immediate threat of 6 continued, future violations of the ADA in the absence of injunctive relief.”). 7 To state a claim for compensatory damages under the ADA, Plaintiffs must allege the City 8 acted with “deliberate indifference.” Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 9 2001). Although the complaint alleges in conclusory fashion that “the City willfully disregarded 10 Barich’s disability, intentionally violating Title II of the ADA,” (Compl. ¶ 79), Plaintiffs have 11 failed to plead any facts in support of these legal conclusions. Here, the failure of hearing aid 12 devices given to Mr. Barich does not appear to have been an intentional act designed to exclude 13 him from participating. The complaint fails to state a claim of deliberate indifference. 14 Because the complaint does not state a redressable claim under the ADA, Plaintiffs have 15 not established Article III standing. 16 II. CONCLUSION 17 For the foregoing reasons, the City’s motion to dismiss is GRANTED with leave to amend 18 within thirty (30) days from the date of the Court’s ruling at the hearing. 19 This order disposes of Docket No. 9. 20 21 IT IS SO ORDERED. 22 23 Dated: March 30, 2021 24 25 ______________________________________ EDWARD M. CHEN 26 United States District Judge 27