1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JEFFREY BAYER, Case No. 22-cv-07440-AMO
8 Plaintiff, ORDER GRANTING MOTION TO 9 v. DISMISS FIRST AMENDED COMPLAINT WITH LEAVE TO 10 CITY AND COUNTY OF SAN AMEND FRANCISCO, 11 Re: Dkt. No. 26 Defendant.
12 13 Before the Court is the City and County of San Francisco’s motion to dismiss pro se 14 Plaintiff Jeffrey Bayer’s first amended complaint. ECF 26. Bayer opposes the motion, which is 15 suitable for disposition without hearing pursuant to Civil Local Rule 7-1(b). Having carefully 16 considered the parties’ papers, the relevant legal authority, and good cause appearing, the Court 17 GRANTS the motion WITH LEAVE TO AMEND, for the reasons set forth below. 18 I. BACKGROUND 19 On July 1, 2022, Bayer commenced this action in San Francisco Superior Court, asserting 20 a Fourteenth Amendment equal protection claim under 42 U.S.C. §1983 and a state law claim for 21 negligence. ECF 1-1. The City removed the case to this Court on November 23, 2022 and moved 22 to dismiss the complaint on November 30, 2022. ECF 1, 6. After full briefing, the Court1 granted 23 the City’s motion with leave to amend. ECF 21. The order specifically provided:
24 [A] significant portion of the Section 1983 claim is untimely on the face of the allegations. A Section 1983 claim is subject to the 25 two-year statute of limitations in California Code of Civil Procedure § 335.1, and typically accrues “when the plaintiff knows or has 26 reason to know of the injury which is the basis of the action.” 27 Bonelli v. Grand Canyon Univ., 28 F.4th 948, 951-52 (9th Cir. 1 2022) (internal quotation and citation omitted); see also Khaoone v. Sonoma Cnty. Adult Det. Facility, No. 22-cv04065-JD, 2022 WL 2 16528135, at *1 (N.D. Cal. Oct. 28, 2022). The complaint describes at considerable length events surrounding an incident that occurred 3 on April 6, 2014, as well as an “unrelated incident” that appears to have occurred in 2018 or 2019. Dkt. No. 1-1 at ECF pp. 18- 23. 4 These portions of the complaint do not describe constitutional violations that accrued within the two years before Bayer filed suit 5 on July 1, 2022. Bayer’s suggestion of continuing violations is unavailing. 6 See Dkt. No. 16 at 19-21. This exception allows a plaintiff to seek relief for actions that occurred outside the limitations period in 7 narrow circumstances. See Bird v. Dep’t of Hum. Servs., 935 F.3d 738, 746 (9th Cir. 2019). It may apply when a plaintiff alleges 8 either “a series of related acts, one or more of which falls within the limitations period,” or “the maintenance of a discriminatory system 9 both before and during [the limitations] period.” Id. (internal quotations and citation omitted). As a practical matter, “little 10 remains of the continuing violations doctrine” after the Supreme Court’s decision in National Railroad Passenger Corp. v. Morgan, 11 536 U.S. 101 (2002). Bird, 935 F.3d at 748. “Except for a limited exception for hostile work environment claims -- not at issue here -- 12 the serial acts branch is virtually non-existent.” Id. Courts have “consistently refused to apply the systematic branch to rescue 13 individualized claims that are otherwise time-barred.” Id. All of this forecloses Bayer’s suggestion that the exception applies to 14 resuscitate his pre-2020 allegations. In addition to the untimeliness problem, the complaint does 15 not state an equal protection claim under Section 1983. To start, it does not plausibly allege that San Francisco discriminated against 16 Bayer pursuant to an official policy, custom, or practice. Single or isolated incidents do not give rise to Section 1983 claims. See 17 Escobar-Lopez, 527 F. Supp. 3d at 1127-28; Harrison v. City & Cnty. of San Francisco, No. 21-cv-07072-JD, 2022 WL 3093303, at 18 *1 (N.D. Cal. June 1, 2022). Bayer says that San Francisco has rejected his requests to initiate criminal investigations and 19 prosecutions on several occasions, but that is insufficient to show a widespread custom or policy that caused his injuries. Additionally, 20 Bayer “must show that [San Francisco] acted with an intent or purpose to discriminate against [him] based upon membership in a 21 protected class.” Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005) (internal quotations and citation omitted). 22 As it stands, the complaint does not plausibly allege that San Francisco’s treatment of Bayer was motivated by the fact that he is 23 male. 24 ECF 21 at 2-3. The Court granted Bayer leave to file an amended complaint containing “the 25 factual and legal bases for each claim, and [the] dates for each instance of alleged misconduct.” 26 Id. at 3. Bayer was not to add “any new claims without the Court’s permission.” Id. 27 Bayer filed a first amended complaint on March 6, 2023. ECF 25. The City filed a motion 1 opposition on to the motion on April 3, 2023.2 ECF 29. The City’s reply followed on April 10, 2 2023. ECF 30. 3 II. LEGAL STANDARD 4 Federal Rule of Civil Procedure 8 requires a complaint to include “a short and plain 5 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 6 complaint that fails to meet this standard may be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). 7 To overcome a Rule 12(b)(6) motion to dismiss, the factual allegations in the plaintiff’s 8 complaint “‘must . . . suggest that the claim has at least a plausible chance of success.’” Levitt v. 9 Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014) (quoting In re Century Aluminum Co. Sec. Litig., 10 729 F.3d 1104, 1107 (9th Cir. 2013) (alterations in original)). In ruling on the motion, courts 11 “accept factual allegations in the complaint as true and construe the pleadings in the light most 12 favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 13 1031 (9th Cir. 2008) (citation omitted). 14 “[A]llegations in a complaint . . . may not simply recite the elements of a cause of action 15 [and] must contain sufficient allegations of underlying facts to give fair notice and to enable the 16 opposing party to defend itself effectively.” Levitt, 765 F.3d at 1135 (quoting Starr v. Baca, 652 17 F.3d 1202, 1216 (9th Cir. 2011)). The court may dismiss a claim “where there is either a lack of a 18 cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal claim.” 19 Hinds Invs., L.P. v. Angioli, 654 F.3d 846, 850 (9th Cir. 2011) (citing Johnson v. Riverside 20 Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008)). “[T]he non-conclusory ‘factual 21 content’ and reasonable inferences from that content must be plausibly suggestive of a claim 22 entitling the plaintiff to relief.” Moss v. U.S.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JEFFREY BAYER, Case No. 22-cv-07440-AMO
8 Plaintiff, ORDER GRANTING MOTION TO 9 v. DISMISS FIRST AMENDED COMPLAINT WITH LEAVE TO 10 CITY AND COUNTY OF SAN AMEND FRANCISCO, 11 Re: Dkt. No. 26 Defendant.
12 13 Before the Court is the City and County of San Francisco’s motion to dismiss pro se 14 Plaintiff Jeffrey Bayer’s first amended complaint. ECF 26. Bayer opposes the motion, which is 15 suitable for disposition without hearing pursuant to Civil Local Rule 7-1(b). Having carefully 16 considered the parties’ papers, the relevant legal authority, and good cause appearing, the Court 17 GRANTS the motion WITH LEAVE TO AMEND, for the reasons set forth below. 18 I. BACKGROUND 19 On July 1, 2022, Bayer commenced this action in San Francisco Superior Court, asserting 20 a Fourteenth Amendment equal protection claim under 42 U.S.C. §1983 and a state law claim for 21 negligence. ECF 1-1. The City removed the case to this Court on November 23, 2022 and moved 22 to dismiss the complaint on November 30, 2022. ECF 1, 6. After full briefing, the Court1 granted 23 the City’s motion with leave to amend. ECF 21. The order specifically provided:
24 [A] significant portion of the Section 1983 claim is untimely on the face of the allegations. A Section 1983 claim is subject to the 25 two-year statute of limitations in California Code of Civil Procedure § 335.1, and typically accrues “when the plaintiff knows or has 26 reason to know of the injury which is the basis of the action.” 27 Bonelli v. Grand Canyon Univ., 28 F.4th 948, 951-52 (9th Cir. 1 2022) (internal quotation and citation omitted); see also Khaoone v. Sonoma Cnty. Adult Det. Facility, No. 22-cv04065-JD, 2022 WL 2 16528135, at *1 (N.D. Cal. Oct. 28, 2022). The complaint describes at considerable length events surrounding an incident that occurred 3 on April 6, 2014, as well as an “unrelated incident” that appears to have occurred in 2018 or 2019. Dkt. No. 1-1 at ECF pp. 18- 23. 4 These portions of the complaint do not describe constitutional violations that accrued within the two years before Bayer filed suit 5 on July 1, 2022. Bayer’s suggestion of continuing violations is unavailing. 6 See Dkt. No. 16 at 19-21. This exception allows a plaintiff to seek relief for actions that occurred outside the limitations period in 7 narrow circumstances. See Bird v. Dep’t of Hum. Servs., 935 F.3d 738, 746 (9th Cir. 2019). It may apply when a plaintiff alleges 8 either “a series of related acts, one or more of which falls within the limitations period,” or “the maintenance of a discriminatory system 9 both before and during [the limitations] period.” Id. (internal quotations and citation omitted). As a practical matter, “little 10 remains of the continuing violations doctrine” after the Supreme Court’s decision in National Railroad Passenger Corp. v. Morgan, 11 536 U.S. 101 (2002). Bird, 935 F.3d at 748. “Except for a limited exception for hostile work environment claims -- not at issue here -- 12 the serial acts branch is virtually non-existent.” Id. Courts have “consistently refused to apply the systematic branch to rescue 13 individualized claims that are otherwise time-barred.” Id. All of this forecloses Bayer’s suggestion that the exception applies to 14 resuscitate his pre-2020 allegations. In addition to the untimeliness problem, the complaint does 15 not state an equal protection claim under Section 1983. To start, it does not plausibly allege that San Francisco discriminated against 16 Bayer pursuant to an official policy, custom, or practice. Single or isolated incidents do not give rise to Section 1983 claims. See 17 Escobar-Lopez, 527 F. Supp. 3d at 1127-28; Harrison v. City & Cnty. of San Francisco, No. 21-cv-07072-JD, 2022 WL 3093303, at 18 *1 (N.D. Cal. June 1, 2022). Bayer says that San Francisco has rejected his requests to initiate criminal investigations and 19 prosecutions on several occasions, but that is insufficient to show a widespread custom or policy that caused his injuries. Additionally, 20 Bayer “must show that [San Francisco] acted with an intent or purpose to discriminate against [him] based upon membership in a 21 protected class.” Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005) (internal quotations and citation omitted). 22 As it stands, the complaint does not plausibly allege that San Francisco’s treatment of Bayer was motivated by the fact that he is 23 male. 24 ECF 21 at 2-3. The Court granted Bayer leave to file an amended complaint containing “the 25 factual and legal bases for each claim, and [the] dates for each instance of alleged misconduct.” 26 Id. at 3. Bayer was not to add “any new claims without the Court’s permission.” Id. 27 Bayer filed a first amended complaint on March 6, 2023. ECF 25. The City filed a motion 1 opposition on to the motion on April 3, 2023.2 ECF 29. The City’s reply followed on April 10, 2 2023. ECF 30. 3 II. LEGAL STANDARD 4 Federal Rule of Civil Procedure 8 requires a complaint to include “a short and plain 5 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 6 complaint that fails to meet this standard may be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). 7 To overcome a Rule 12(b)(6) motion to dismiss, the factual allegations in the plaintiff’s 8 complaint “‘must . . . suggest that the claim has at least a plausible chance of success.’” Levitt v. 9 Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014) (quoting In re Century Aluminum Co. Sec. Litig., 10 729 F.3d 1104, 1107 (9th Cir. 2013) (alterations in original)). In ruling on the motion, courts 11 “accept factual allegations in the complaint as true and construe the pleadings in the light most 12 favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 13 1031 (9th Cir. 2008) (citation omitted). 14 “[A]llegations in a complaint . . . may not simply recite the elements of a cause of action 15 [and] must contain sufficient allegations of underlying facts to give fair notice and to enable the 16 opposing party to defend itself effectively.” Levitt, 765 F.3d at 1135 (quoting Starr v. Baca, 652 17 F.3d 1202, 1216 (9th Cir. 2011)). The court may dismiss a claim “where there is either a lack of a 18 cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal claim.” 19 Hinds Invs., L.P. v. Angioli, 654 F.3d 846, 850 (9th Cir. 2011) (citing Johnson v. Riverside 20 Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008)). “[T]he non-conclusory ‘factual 21 content’ and reasonable inferences from that content must be plausibly suggestive of a claim 22 entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). A 23 pro se plaintiff is entitled to a generous reading of his complaint but must still meet these pleading 24 standards. See Feathers v. SEC, No. 22-cv-05756-JD, 2022 WL 17330840, at *1 (N.D. Cal. Nov. 25 29, 2022). 26 // 27 1 III. DISCUSSION 2 Like the original, Bayer’s first amended complaint fails to state a claim upon which relief 3 can be granted. The first amended complaint retains allegations about events that occurred in 4 2014, 2015, and 2018. See, e.g., ECF 25 at 21, 30. As explained in the Court’s prior order, these 5 events are outside the applicable limitations period and thus do not give rise to an actionable 6 federal claim. ECF 21 at 2-2. Accordingly, to the extent Bayer relies on these events to form the 7 basis of a federal claim, it is DISMISSED WITHOUT LEAVE TO AMEND. 8 The other events described in the first amended complaint also do not give rise to a 9 plausible claim for relief. First, Bayer alleges that on March 11, 2021, his then employer, Wish, 10 asked him to explain “‘disturbing things’ on [his] website.” ECF 25 at 7. The website included 7- 11 year-old blog posts in which Bayer described being assaulted by City police. Id. Bayer alleges 12 that “[t]his was a direct intentional attack upon [him] and [his] salary . . . [and] criminal 13 harassment by people with a personal interest in silencing and further harming their 14 victim.” Id. at 8 (emphasis in original). He also alleges that “[n]one of this would have happened 15 if Defendant had not wilfully [sic] and intentionally deprived [him] of equal protection of the laws 16 . . . and had not brutally violated [his] body through its employees intentional hate crimes . . . .” 17 Id. at 9. 18 Second, Bayer alleges that on June 13, 2021, “[a]fter being forced to take a ‘severance 19 agreement’ . . . the harassers in the Wish corporation . . . reneged on their harassment settlement of 20 ~$50,000 and intentionally canceled . . . 6 months of continued fully paid health coverage.” Id. 21 Later that day, Bayer claims he “was accosted in [his] home by police that had let themselves in 22 while [he] was in the bathroom,” conducted a “fake search,” and yelled, “Yeah, I read your blog. 23 I decide IF you get to stay home, I decide if you go to jail, I decide if you go to a hospital, I 24 decide what happens to you.” Id. at 10 (emphasis in original). 25 Third, Bayer points to letters from “Defendant Mayor London N. Breed, Chief of Police 26 William Scott, City and County of San Francisco, City Attorney, etc.[,] aiding in the commission 27 of the SFPD crimes. Hiding them from criminal prosecution through the Defendant’s 1 laws . . . .” Id. at 14. Fourth, Bayer alleges that on January 31, 2022, he was “further harmed by 2 this [C]ity’s complicit actions in the intentional grand theft of [his] labor” when a Deputy Labor 3 Commissioner from the Division of Labor Standards Enforcement3 cancelled a hearing. Id. at 13. 4 None of these events gives rise to an actionable claim under Section 1983 for the same reasons 5 previously explained in the Court’s order. The claim4 is therefore DISMISSED WITH LEAVE 6 TO AMEND. Bayer’s prayer for punitive damages, however, is DISMISSED WITHOUT 7 LEAVE TO AMEND because the City is immune from punitive damages under Section 1983. 8 Melendez v. City of Mountain View, No. 21-CV-02651-BLF, 2021 WL 5359379, at *7 (N.D. Cal. 9 Nov. 17, 2021). 10 In light of the dismissal of Bayer’s sole federal claim, the Court declines to exercise 11 supplemental jurisdiction over any state law claim, which stands dismissed. See Bridges v. 12 Geringer, No. 5:13-CV-01290-EJD, 2015 WL 2438227, at *1 n.2 (N.D. Cal. May 21, 2015). 13 IV. CONCLUSION 14 For the reasons set forth above, the motion to dismiss is granted with leave to amend. 15 Bayer may file a second amended complaint by no later than October 13, 2023. Bayer is reminded 16 that he may not add any new claims without the Court’s permission. The second amended 17 complaint should provide the factual and legal bases for each claim and include dates for each 18 instance of alleged misconduct. 19 // 20 // 21 // 22 // 23 // 24
25 3 Pursuant to Fed. R. Evid. 201(b), the City asks that the Court take judicial notice of the fact that the Division of Labor Standards Enforcement is a state agency. ECF 27. The Court grants the 26 request.
27 4 Because Bayer did not seek leave of Court prior to adding additional claims to the first amended 1 In preparing a second amended complaint, Bayer may wish to contact the Federal Pro 2 || Bono Project’s Help Desk—a free service for pro se litigants—by calling (415) 782-8982 to make 3 an appointment to obtain legal assistance from a licensed attorney. More information about the 4 || program is available online at the Court’s website . 5 IT IS SO ORDERED. 6 || Dated: September 14, 2023
g . CELI MARTINEZ-OLGUI 9 United States District Judge 10 11 a 12
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