Buckelew v. Gore

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DION SCOTT BUCKELEW, Case No.: 20-cv-00158-WQH-JLB

12 Plaintiff, REPORT AND 13 v. RECOMMENDATION

14 WILLIAM D. GORE, et al.,

15 Defendants. [ECF No. 3] 16 17 I. INTRODUCTION 18 Before the Court is specially-appearing Defendants’ Motion to Quash Service and 19 Dismiss for Lack of Personal Jurisdiction, or alternatively, Dismiss for Failure to State a 20 Claim. (ECF No. 3.) Plaintiff Dion Scott Buckelew is a state pretrial detainee proceeding 21 pro se in this civil rights action pursuant to 42 U.S.C. §§ 1981, 1983, 1985, and 1986. 22 (ECF No. 1-2 at 4.) This Report and Recommendation is submitted to United States 23 District Judge William Q. Hayes pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 24 72.1 of the United States District Court for the Southern District of California. After a 25 thorough review of the parties’ filings and all supporting documents, and for the reasons 26 discussed below, the Court RECOMMENDS that Defendants’ motion be GRANTED on 27 the bases that Plaintiff failed to properly serve any Defendant, and the Court therefore lacks 28 personal jurisdiction over Defendants. Alternatively, the Court RECOMMENDS that 1 Defendants’ motion be GRANTED on the basis that the Complaint fails to state a claim 2 upon which relief can be granted. 3 II. BACKGROUND 4 A. Factual Allegations1 5 The Court derives the following facts from the Complaint: On or about May 14, 6 2019, Plaintiff was released from Tri-City Medical Center into the custody of the San 7 Diego County Sheriff’s Department after approximately five days of “hospitalization on 8 life support.” (ECF No. 1-2 at 9.) From May 14 through May 24, 2019, Plaintiff was 9 detained at the Vista Detention Facility in the inmate safety program. (Id.) 10 1. Allegations Concerning Defendant Webster 11 Around May 16 through May 18, 2019, Plaintiff “encountered” Defendant Webster, 12 an officer of the Sherriff’s Department. (Id.) On several of Defendant Webster’s “routine 13 walks,” he “stared, laughed[,] and grinned” at Plaintiff, which made Plaintiff “feel 14 worthless, alone, confused, angry, uncared about[,] and suicidal.” (Id.) Plaintiff made 15 “several verbal requests for medical and psychiatric care and treatment” to Defendant 16 Webster, who responded by saying, “Yah, you’ll see someone soon,” “Not right now,” “In 17 a little while,” “Should be soon,” “I said later,” and “Any time now Buckelew.” (Id.) 18 Plaintiff “pleaded with [Defendant] Webster to see medical and mental health [providers] 19 due to pain, M.S. symptoms, di[zz]iness, migra[i]ne, depression, extreme anxiety, chest 20 pains, nausea[,] and insomnia.” (Id.) However, Defendant Webster lied to Plaintiff about 21 “medical and mental healthcare treatment[,] which was extremely provoking to Plaintiff.” 22 (Id. at 10.) 23 At one point while Plaintiff was still detained at the Vistage Detention Facility, 24 Defendant Webster “came into [Plaintiff’s] safety cell and took [his] food, cosmetics and 25 paperwork while laughing and saying[,] ‘This is all trash[,]’ and threw it in the garbage 26 27 1 The Court accepts as true the allegations in the Complaint only for purposes of 28 1 can.” (Id.) On a couple of occasions, Plaintiff asked Defendant Webster for a broom and 2 dust pan, which prompted laughter and responses from Defendant Webster such as, “In a 3 little while Buckelew,” and “Not right now.” (Id.) Defendant Webster “continued his 4 behavior” even though Plaintiff “was scared, very distraught, depressed, very anxious, 5 confused[,] and in severe physical and emotional pain.” (Id. at 11.) 6 2. Allegations Concerning Doe Defendants 1–5 7 On or about May 19, 2019, Plaintiff was moved from the inmate safety cell to 8 Housing Module Upper West 5, Cell 35, where Doe Defendant 1 “denied [him] church 9 service.” (Id.) When Plaintiff questioned “deputies” about being denied church service 10 and requested phone access to call his attorney, he was moved to Housing Module Upper 11 West 1, Cell 34. (Id.) Plaintiff was locked in this cell for approximately four days “without 12 running water,” despite making “numerous complaints” to Doe Defendants 2, 3, 4, and 5. 13 (Id.) 14 3. Allegations Concerning Non-Parties Milke and Mejina 15 On or about May 24, 2019, at around 4:00 AM, deputies awoke Plaintiff for transfer 16 to George Bailey Detention Facility (“GBDF”). (Id.) Upon arrival at GBDF, Plaintiff told 17 the transport deputy that he was not feeling well. (Id. at 11–12.) While deputies were 18 escorting Plaintiff to Housing Area 4, Plaintiff lost consciousness. (Id. at 12.) After a 19 medical assessment, Plaintiff was taken to a holding cell, where he encountered Deputies 20 Milke and Mejina. (Id.) 21 Deputy Mejina made “several unprofessional, taunting[,] [and] belittling comments” 22 to Plaintiff, such as “We’re gonna get buck wild Buckelew,” “What’s wrong Buckelew, 23 don’t you wanna get buck wild Buckelew[,]” and “Don’t worry Buckelew, we’re gonna 24 get buck wild, ok Buckelew?” (Id.) When Plaintiff asked Deputy Mejina why he was 25 behaving in this manner, Deputy Mejina responded, “Don’t fuckin[’] worry about it 26 Buckelew. Before we get buck wild, I’m gonna put these fucking chains on you extra tight, 27 ok Buckelew!” (Id.) Deputy Mejina then placed a waist chain around Plaintiff “extremely 28 tight,” causing Plaintiff “severe pain” and “trouble breathing.” (Id.) Deputy Mejina told 1 Plaintiff, “There you go Buckelew[.] [A]fter your fuckin[’] leg chains are on, we can go 2 buck wild, ok Buckelew.” (Id. at 12–13.) Deputy Mejina proceeded to put ankle chains 3 on Plaintiff, causing Plaintiff to “cr[y] out in pain. (Id. at 13.) Deputy Mejina “aggressively 4 pulled and pushed [Plaintiff] to the county sheriff vehicle and pushed him [in]to the back 5 seat.” (Id.) When Plaintiff asked the deputies to loosen the chains, they said, “We’ll be 6 there in a while,” and “Shut up Buckelew.” (Id.) 7 When Plaintiff arrived at Sharpe Chula Vista Hospital, he made several requests to 8 “deputies” to loosen the chains on him and for food and water. (Id.) The deputies 9 responded with comments like, “You’re fine Buckelew, shut up,” and “Quit asking us 10 Buckelew.” (Id.) After several hours of waiting in “severe pain” and with “trouble 11 breathing,” Plaintiff received “I.V. fluids.” (Id. at 14.) A doctor told Plaintiff that he “was 12 severely dehydrated,” and the dehydration had caused Plaintiff’s confusion and loss of 13 consciousness. (Id.) Plaintiff told the doctor he “had been locked in a cell for a few days 14 with no running water, no water for approx[imately] 4 days, [and] no food for 17–19 15 [hours].” (Id.) Plaintiff was later transported back to GBDF. (Id.) 16 B. Procedural Background 17 Plaintiff filed his Complaint in San Diego Superior Court on December 12, 2019. 18 (ECF No. 1-2 at 2.) Plaintiff names Sheriff William D. Gore, Captain Lovelace, Captain 19 Buchanan, Corporal C. Webster, and Does 1 through 5 as Defendants. (Id.) The Complaint 20 alleges seven different causes of action: (1) general negligence against Defendant Webster; 21 (2) intentional tort against Defendant Webster; (3) premises liability; (4) a violation of 42 22 U.S.C. § 1981; (5) a violation of 42 U.S.C. § 1983; (6) a violation of 42 U.S.C. § 1985; 23 and (7) a violation 42 U.S.C. § 1986. (Id. at 4.) Plaintiff seeks both compensatory and 24 punitive damages. (Id.) 25 On December 20, 2019, Johnny D. Dears, a detainee at the San Diego Central Jail, 26 mailed a copy of the Complaint and summons address to each named Defendant in a single 27 envelope addressed to: William D. Gore, Sheriff of San Diego County, Sheriff Department, 28 /// 1 P.O. Box 939062, San Diego, CA 92193-9062. (ECF No. 1-3 at 4, 16–17.) An unspecified 2 individual received the envelope on December 27, 2019. (ECF No. 1 at 2.) 3 On January 24, 2020, Defendant Gore removed this case to the United States District 4 Court for the Southern District of California. (Id. at 3.) On January 31, 2020, Defendants 5 Gore, Lovelace, Buchanan, and Webster filed the instant motion. (ECF No. 3.) Defendants 6 move to: (1) quash service pursuant to Federal Rule of Civil Procedure 12(b)(2) on the 7 ground that Plaintiff did not properly serve any Defendant; and (2) dismiss the Complaint 8 pursuant to Federal Rule of Civil Procedure 12(b)(5) on the ground that—due to Plaintiff’s 9 failure to effectuate service—the Court lacks personal jurisdiction over Defendants. (ECF 10 No. 3-1 at 8.) Alternatively, Defendants move to dismiss the Complaint pursuant to Federal 11 Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Id. at 9–10.) Plaintiff filed 12 an opposition to Defendants’ motion on February 26, 2020. (ECF No. 5.) Defendants filed 13 a reply on March 6, 2020. (ECF No. 6.) 14 III. MOTION TO QUASH SERVICE AND DISMISS FOR LACK OF 15 PERSONAL JURISDICTION 16 A. Insufficient Service of Process 17 Specially-appearing2 Defendants Webster, Gore, Lovelace, and Buchanan move to 18 quash service and argue that Plaintiff failed to properly serve any Defendant under both 19 the Federal Rules of Civil Procedure and the California Code of Civil Procedure. (ECF 20 No. 3-1 at 8.) Plaintiff does not respond to Defendants’ challenge regarding the validity of 21 service in his opposition. (See ECF No. 5.) 22 1. Legal Standards 23 a. Sufficiency of Service After Removal from State Court 24 A defendant may challenge the sufficiency of the plaintiff’s service of process by 25 filing a motion pursuant to Federal Rule of Civil Procedure 12(b)(5). Once a defendant 26 27 2 The Court notes that Defendant Gore’s Notice of Removal specifically preserved his 28 1 challenges the sufficiency of service, the plaintiff bears the burden of establishing that 2 service was valid. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). “When a case 3 is removed from state court to federal court, the question [of] whether service of process 4 was sufficient prior to removal is governed by state law.” Whidbee v. Pierce County, 857 5 F.3d 1019, 1023 (9th Cir. 2017) (citing Lee v. City of Beaumont, 12 F.3d 933, 936–37 (9th 6 Cir. 1993) (“The issue of the sufficiency of service of process prior to removal is strictly a 7 state law issue.”), overruled on other grounds by Cal. Dep’t of Water Res. v. Powerex 8 Corp., 533 F.3d 1087 (9th Cir. 2008)); see also Wright & Miller, Federal Practice and 9 Procedure § 1082 (2020) (“In determining the validity of service in the state court prior to 10 removal, a federal court must apply the law of the state under which the service was 11 made.”). 12 b. Service by Mail Under California Law 13 Service under California law is governed by §§ 413–417 of the California Code of 14 Civil Procedure (“CCP”). Under § 413.30, a plaintiff can effectuate service by mail by 15 mailing a copy of the summons and complaint by first-class mail or airmail to the person 16 to be served, together with two copies of a specific notice and acknowledgement, and a 17 pre-paid return envelope addressed to the sender. Cal. Civ. Proc. Code § 415.30(a). 18 Service by mail is only deemed complete on the date the written acknowledgment of a 19 receipt of summons is executed by the person to be served and the acknowledgment is 20 returned to the sender. Cal. Civ. Proc. Code § 415.30(c). 21 California courts, however, do not require strict compliance with service of process 22 statues. Gibble v. Car-Lene Rsch., Inc., 67 Cal. App. 4th 296, 313 (1998). If the defendant 23 receives actual notice of the lawsuit, courts hold that substantial compliance with the 24 statutory requirements is generally sufficient. See Pasadena Medi-Center Assocs. v. 25 Superior Ct., 9 Cal. 3d 773, 778 (1973). “‘Substantial compliance . . . means actual 26 compliance in respect to the substance essential to every reasonable objective of the 27 statute.’ Where there is compliance as to all matters of substance[,] technical deviations 28 are not to be given the stature of noncompliance.” S. Pac. Transp. Co. v. State Bd. of 1 Equalization, 221 Cal. App. 3d 438, 442 (1985) (citations omitted) (quoting Stasher v. 2 Harger-Haldeman, 58 Cal. 2d 23, 29 (1962)). Yet, “[s]ubstantial compliance with the 3 [California] rules regarding service of process requires at least some degree of compliance 4 with the statutory requirements.” Colley v. Vierra, No. CV 19-1988-FMO (AGR), 2020 5 WL 1216753, at *4 (C.D. Cal. Feb. 5, 2020) (citing Carol Gilbert, Inc. v. Haller, 179 Cal. 6 App. 852, 866 (2009)); see also Abers v. Rohrs, 217 Cal. App. 4th 1199, 1206 (2013) (“The 7 obligation to serve a party with process is not coextensive with merely providing the party 8 with notice of the proceeding. Even undisputed actual notice of a proceeding does not 9 substitute for proper service of the . . . complaint.”). 10 2. Discussion 11 Here, Plaintiff enlisted Mr. Dears, a detainee at the San Diego County Jail, to execute 12 service of process by mail, seemingly pursuant to CCP § 415.30. Mr. Dears partially 13 executed a summons as to each named Defendant, and the proofs of service attached to 14 each summons indicate that service was executed “by other means.” (ECF No. 1-3 at 2– 15 13.) A handwritten document executed by Mr. Dears and titled “Proof of Service By U.S. 16 Mail” provides that on December 20, 2019, Mr. Dears attempted to serve Defendants by 17 mailing a copy of each summons, the Complaint, an Alternative Dispute Resolution (ADR) 18 Package, and a Notice of Case Assignment and Case Management Conference in a single 19 envelope addressed to: William D. Gore, Sheriff of San Diego County, Sheriff Department, 20 P.O. Box 939062, San Diego, CA 92193-9062. (Id. at 16.) 21 Defendants argue that the Court should quash service because neither the Federal 22 Rules of Civil Procedure nor the CCP permit a plaintiff to serve an individual in-state 23 defendant by mailing documents to that individual’s employer at a post office box.3 (ECF 24 25 3 The Court notes that the Complaint does not specify whether Plaintiff is suing 26 Defendants in their official or individual capacities. However, Plaintiff seeks only 27 monetary relief (ECF No. 1-2 at 4) and each named Defendant is a state employee. State employees sued for damages in their official capacities are entitled to immunity under the 28 1 No. 3-1 at 8–9.) However, whether Plaintiff’s service of process was sufficient under the 2 Federal Rules of Civil Procedure is irrelevant. Because Plaintiff attempted to serve 3 Defendants prior to removal, the Court must apply California law to determine whether 4 Plaintiff properly effectuated service of process. Whidbee, 857 F.3d at 1023. 5 Defendants cite only to CCP §§ 415.10–30 for the proposition that California law 6 does not permit service of an individual in-state defendant by mailing process to the post 7 office box of the defendant’s place of employment. Although § 415.30 sets forth the 8 requirements for service by mail, nothing in § 415.30 or the other CCP sections cited by 9 Defendants provide that service to such an address is improper. Defendants do not provide 10 any authority as to what types of addresses are proper for service by mail. 11 Contrary to Defendants’ position, California law does not clearly prohibit service by 12 mail to an individual’s place of employment or to a post office box. Although the CCP 13 does not provide what types of addresses are sufficient for service by mail under § 415.30, 14 at least one California appellate court has found that a post office box is a proper address. 15 See TransAmerica Title Ins. Co. v Hendrix, 34 Cal. App. 4th 740, 745 (1995). In 16 TransAmerica, the court reasoned that a post office box was a sufficient address for service 17 by mail by looking to case law interpreting a statutory predecessor to CCP § 415.50, which 18 required a copy of the summons and complaint to be mailed to the person to be served at 19 his or her place of residence. Id. The court reasoned that: 20 At least two courts defined the term “residence” not as the defendant’s abode, but rather as “the address at which letters would be most likely to reach the 21 defendant.” This interpretation of “residence” is relevant to our holding a post 22 office box is a sufficient address for service under Code of Civil Procedure 415.30 because it demonstrates how statutory language and judicial comments 23 should be read to achieve the statute’s fundamental objective of serving notice 24 on the defendant. Whenever possible, a statute should be interpreted as broadly as necessary to effectuate the statute’s purpose. 25

26 27 Procunier, 641 F.2d 1295, 1301 n.13 (9th Cir. 1981). Thus, the Court construes the Complaint to assert allegations against each named Defendant in their individual capacities 28 1 Id. (citations omitted) (quoting Sousa v. Freitas, 10 Cal. App. 3d 660, 663 (1970)). 2 Following the approach in TransAmerica, the Court here cannot find that the San Diego 3 County Sheriff’s Department’s post office box was an insufficient address for service by 4 mail under § 415.30. 5 However, to properly serve a defendant by mail under § 415.30, a plaintiff must mail 6 not only a copy of the complaint and summons, but two copies of a notice and 7 acknowledgement form and a pre-addressed return envelope with postage paid. There is 8 no dispute here that Plaintiff failed to provide two copies of a notice and acknowledgment 9 form and a pre-paid, pre-addressed return envelope for each Defendant. Without the 10 inclusion of two copies of a notice and acknowledgment form and a pre-paid, pre-addressed 11 return envelope, the Court cannot find that Plaintiff substantially complied with § 415.30. 12 The Court is mindful that Plaintiff is a pro se litigant, but at least one other court in this 13 District has reached the same conclusion when applying California law to a motion to 14 quash a pro se plaintiff’s service for failure to substantially comply with § 415.30. In 15 Bovier v. Bridgepoint Education/Ashford University, the pro se plaintiff attempted to serve 16 the defendants by mail pursuant to CCP § 415.30 but failed to include “two copies of the 17 notice and acknowledgment form and a return envelope.” No.: 3:17-cv-01052-GPC-JMA, 18 2017 WL 4922978, at *2 (S.D. Cal. Oct. 30, 2017). The pro se plaintiff argued that “a 19 certifying acceptance official” had signed the postal return receipts, but the court found 20 that return receipts were “not a substitute for an executed acknowledgment of return of 21 summons,” and the plaintiff had not otherwise demonstrated compliance with § 415.30. 22 Id. Accordingly, the court quashed service due to the plaintiff’s “failure to strictly comply 23 with the notice and acknowledgment and return envelope requirements of § 415.30.” Id. 24 Like in Bovier, Plaintiff here omitted the required two copies of the notice and 25 acknowledgment form and a pre-paid, pre-addressed return envelope for each Defendant. 26 Furthermore, in addition to omitting these documents, there were other issues with 27 Plaintiff’s attempted service. For example, Mr. Dears mailed a copy of the Complaint and 28 1 each summons in an envelope addressed only to Defendant Gore. (ECF No. 1-3 at 16–17.) 2 Further, Mr. Dears only partially executed a summons with respect to each named 3 Defendant, for the “Notice to the Person Served” section on each summons is incomplete. 4 (See id. at 2, 5, 8, 11.) Even assuming Defendants received actual notice of this action,4 5 Plaintiff has not demonstrated substantial compliance with the California service of process 6 statutes and has instead “crafted [his] own rule for service by mail.” See DH Holdings, 7 LLC v. Meridian Link, Inc., No. CV 09-9117 ABC, 2010 WL 11597616, at *4–5 (C.D. Cal. 8 Apr. 9, 2010) (“There is no dispute that Plaintiff did not include the required 9 acknowledgment under [§] 415.30, so service was not effective under California law. . . . 10 [T]he Court will not rewrite the state statutes under the guise of ‘substantial compliance’ 11 to provide for a method of service not already included in those previsions.”). Moreover, 12 Plaintiff bears the burden of establishing the validity of service on a Rule 12(b)(5) motion, 13 Brockmeyer, 383 F.3d at 801, and Plaintiff’s opposition is silent as to the issue of service. 14 3. Conclusion 15 Because Plaintiff did not substantially comply with California’s service of process 16 requirements, Plaintiff has not properly served any Defendant. Thus, the Court 17 RECOMMENDS that Defendants’ motion be GRANTED with respect to their challenge 18 to service and that the Complaint be DISMISSED.5 19 /// 20 /// 21

22 23 4 Defendants do not argue that they did not receive actual notice of this action from Plaintiff’s attempted service. 24 5 “When a court finds that service was insufficient, it has discretion to either dismiss 25 the action or quash service of process and give an opportunity to serve the defendant effectively.” Colley, 2020 WL 1216753, at *2. Given Plaintiff’s pro se status, the Court 26 would under ordinarily recommend that he be given an additional opportunity to properly 27 serve Defendants. However, as discussed below, the Court also finds that the Complaint fails to state a claim upon which relief can be granted. Therefore, allowing Plaintiff another 28 1 B. Lack of Personal Jurisdiction 2 Specially-appearing6 Defendants Webster, Gore, Lovelace, and Buchanan move to 3 dismiss the Complaint on the basis that the Court lacks personal jurisdiction over them 4 because Plaintiff failed to effectuate service. (ECF No. 3-1 at 9.) Plaintiff does not respond 5 to Defendants’ personal jurisdiction challenge in his opposition. (See ECF No. 5.) 6 A defendant may move to dismiss the complaint pursuant to Federal Rule of Civil 7 Procedure 12(b)(2) for lack of personal jurisdiction. “A federal court does not have 8 jurisdiction over a defendant unless the defendant has been served properly under [Federal 9 Rule of Civil Procedure] 4.” Direct Mail Specialists, Inc. v. Eclat Computerized Techs., 10 Inc., 840 F.2d 685, 688 (9th Cir. 1988) (citing Jackson v. Hayakawa, 682 F.2d 1344, 1347 11 (9th Cir. 1982)). Rule 4(e) provides that an individual may effectuate service by: 12 (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where 13 service is made; or 14 (2) doing any of the following: 15

16 (A) delivering a copy of the summons and of the complaint to the individual personally; 17

18 19 6 The Court notes that although Defendant Gore’s Notice of Removal did not specifically preserve objections to personal jurisdiction, as it did with insufficient service 20 of process objections (ECF No. 1 ¶ 8), Defendant Gore did not waive objections to personal 21 jurisdiction by filing the Notice of Removal. See Tribank Cap. Invs., Inc. v. Orient Paper, Inc., No. CV11–3708–R, 2013 WL 4200898, at *4 (C.D. Cal. Aug. 14, 2013) (“In 22 removing a case, a [d]efendant does not waive challenges to personal jurisdiction, subject 23 matter jurisdiction, venue, service of process, etc.; removal merely places the resolution of those questions in the hands of a federal judge in the first instance.”); Maplebrook 24 Townhomes LLC v. Greenbank, No. 10–CV–03688–LHK, 2010 WL 4704472, at *4 (N.D. 25 Cal. Nov. 12, 2010) (“[T]he United States Supreme Court has held that a removal to federal court counts as a special appearance and does not waive the right to object to personal 26 jurisdiction. Therefore, [a defendant] is within its rights to object to personal jurisdiction 27 although it removed this case to federal court.” (citing Wabash W. Ry. v. Brow, 164 U.S. 271, 278–79 (1896))). 28 1 (B) leaving a copy of each at the individual’s dwelling or usual place 2 of abode with someone of suitable age and discretion who resides there; 3 or

4 (C) delivering a copy of each to an agent authorized by appointment or 5 by law to receive service of process. 6 Fed. R. Civ. P. 4(e). “[W]ithout substantial compliance with Rule 4, ‘neither actual notice 7 nor simply naming the defendant in the complaint will provide personal jurisdiction.’” Id. 8 (quoting Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986)). 9 Here, Plaintiff did not properly serve any Defendant in compliance with Rule 10 4(e)(2)(A), (B), or (C), as none of these subsections permit service by mail. And, as 11 discussed above, Plaintiff did not properly serve any Defendant under California law, so 12 Plaintiff has not complied with Rule 4(e)(1) either. Because Plaintiff did not substantially 13 comply with Rule 4, the Court does not have personal jurisdiction over any Defendant. 14 Accordingly, the Court RECOMMENDS that Defendants’ motion be GRANTED with 15 respect to Defendants’ personal jurisdiction challenge and the Complaint DISMISSED for 16 lack of personal jurisdiction. 17 IV. MOTION TO DISMISS 18 Specially-appearing Defendants Webster, Gore, Lovelace, and Buchanan also move 19 to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure 20 to state a claim. (ECF No. 3-1 at 10.) 21 A. Legal Standards 22 1. Motion to Dismiss 23 The Federal Rules of Civil Procedure require the complaint to provide a “short and 24 plain statement of the claim showing that the [plaintiff] is entitled to relief.” Fed. R. Civ. 25 P. 8(a)(2). The pleading standard that Rule 8 imposes does not require detailed factual 26 allegations, and the statement need only “give the defendant fair notice of what the . . . 27 claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 28 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, “[t]hreadbare 1 recitals of the elements of a cause of action, supported by mere conclusory statements, do 2 not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (citing Twombly, 550 U.S. at 3 555). Rule 8 may be violated when a pleading “says too little” and “when a pleading says 4 too much.” Knapp v. Hogan, 738 F.3d 1106, 1108 (9th Cir. 2013) (emphasis in original); 5 see also Cafasso, United States ex rel. v. General Dynamics C4 Sys., Inc., 637 F.3d 1047, 6 1058 (9th Cir. 2011) (stating that a complaint violates Rule 8 if a defendant would have 7 difficulty understanding and responding to the complaint). 8 A motion to dismiss for failure to state a claim upon which relief can be granted is 9 brought under Federal Rule of Civil Procedure 12(b)(6), which tests the legal sufficiency 10 of the claims in the complaint. See Twombly, 550 U.S. at 555. “To survive a motion to 11 dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a 12 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 13 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that 14 allows the court to draw the reasonable inference that the defendant is liable for the 15 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “Determining whether a 16 complaint states a plausible claim for relief [is] . . . a context-specific task that requires the 17 reviewing court to draw on its judicial experience and common sense.” Cooney v. Rossiter, 18 583 F.3d 967, 971 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 679). The mere possibility 19 of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678–79. 20 In ruling on a Rule 12(b)(6) motion to dismiss, the court does not look at whether 21 the plaintiff will “ultimately prevail but whether the [plaintiff] is entitled to offer evidence 22 to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The court may 23 consider allegations contained in the pleadings, exhibits attached to the complaint, and 24 documents and matters properly subject to judicial notice. Outdoor Media Grp., Inc. v. 25 City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007); Roth v. Garcia Marquez, 942 F.2d 26 617, 625 n.1 (9th Cir. 1991). The court must assume the truth of the facts presented and 27 construe all inferences from them in the light most favorable to the nonmoving party. 28 Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). However, the court 1 is “not required to accept legal conclusions cast in the form of factual allegations if those 2 conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness 3 Network, 18 F.3d 752, 754–55 (9th Cir. 1994). In addition, when an allegation in the 4 complaint is refuted by an attached document, the court need not accept the allegation as 5 true. Roth, 942 F.2d at 625 n.1. 6 2. Pro Se Litigants 7 With respect to a pro se plaintiff’s pleadings, the factual allegations, “however 8 inartfully pleaded,” must be held “to less stringent standards than formal pleadings drafted 9 by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Erickson v. Pardus, 10 551 U.S. 89, 94 (2007) (reaffirming that the less-stringent standard applies to pro se 11 pleadings post-Twombly). Thus, when a plaintiff proceeds pro se in a civil rights case, the 12 court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. 13 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, in giving liberal 14 interpretation to a pro se civil rights complaint, the court may not “supply essential 15 elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of 16 Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “The plaintiff must ‘allege with at least some 17 degree of particularity overt acts which defendants engaged in’ that support the plaintiff’s 18 claim.” Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (quoting Powell 19 v. Workmen’s Comp. Bd., 327 F.2d 131, 137 (2d Cir. 1964)). 20 B. Discussion 21 1. Dismissal Pursuant to Rule 8 22 As an initial matter, the Court finds that the Complaint violates Rule 8’s requirement 23 that a pleading set forth “a short and plain statement of the claim showing that [Plaintiff] 24 is entitled to relief.” Fed. R. Civ. P. 8(a)(1). The Complaint does not clearly identify the 25 nature of each of Plaintiff’s causes of action, the specific facts giving rise to each cause of 26 action, or, with the exception of Plaintiff simply listing Defendant Webster under his 27 general negligence and intentional tort causes of action, the specific Defendant or 28 Defendants against whom each cause of action is brought. As Defendants highlight, 1 Plaintiff does not include Defendants Gore, Lovelace, and Buchanan in any of the 2 Complaint’s factual allegations. These three Defendants are mentioned solely in the 3 Complaint’s list of defendants. (See ECF No. 1-2 ¶ 1.) Plaintiff’s fifty-eight-page 4 opposition details many allegations absent from the Complaint, some concerning these 5 Defendants. (See ECF No. 5.) However, because Plaintiff raises these new allegations in 6 his opposition, and not the Complaint, the Court may not appropriately consider them for 7 purposes of Defendants’ motion. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 8 2001) (“[A] district court may not consider any material beyond the pleadings in ruling on 9 a Rule 12(b)(6) motion.”). 10 Although a pro se litigant is held to less stringent pleading standards, Plaintiff must 11 still “allege with at least some degree of particularity overt acts which Defendants engaged 12 in” that support his claims. Jones, 733 F.2d at 649 (quoting Powell, 327 F.2d at 137). 13 Absent specific allegations identifying what actions Defendants Gore, Lovelace, and 14 Buchanan took against Plaintiff and how such actions violated Plaintiff’s rights, the 15 Complaint fails to provide these three Defendants with fair notice of the claims against 16 them or the grounds upon which the claims rest. 17 As to Defendant Webster, he is the only Defendant that Plaintiff includes in the 18 Complaint’s factual allegations. However, Plaintiff does not connect any factual allegation 19 concerning Defendant Webster to any specific cause of action. As Defendants argue, “[t]he 20 Complaint contains a factual narrative involving multiple verbal exchanges between 21 [Defendant] Webster and Plaintiff, but does not describe which interactions are the basis 22 for [Plaintiff’s] claim[s], or the legal theories behind the Complaint.” (ECF No. 3-1 at 12.) 23 The Court agrees with Defendants that the Complaint fails to provide Defendant Webster 24 with notice pursuant to Rule 8 with respect to all causes of action, except for Plaintiff’s 25 § 1983 cause of action. 26 The Court disagrees with Defendants that the Complaint “fails to give [Defendant 27 Webster] notice of the legal basis for any of the claims against him” and that “[h]ow 28 [Defendant] Webster’s actions are linked to a [constitutional] deprivation is not . . . 1 apparent from the factual recitation in the Complaint.” (Id. at 12, 15 (emphasis added).) 2 Because Plaintiff is a pro se litigant, the Court must liberally interpret the Complaint and 3 afford Plaintiff the benefit of any doubt. Hebbe, 627 F.3d at 342. Although “[t]he 4 constitutional right that is the basis for the [§] 1983 claim is not listed,” as Defendants 5 argue, the Complaint details several verbal requests by Plaintiff to Defendant Webster for 6 medical care that Defendant Webster seemingly disregarded, apparently resulting in 7 Plaintiff being denied necessary medical care. (ECF No. 1-2 at 9–10.) The Court finds 8 Plaintiff’s allegations surrounding his requests for medical care are sufficient to put 9 Defendant Webster on notice of a § 1983 claim for inadequate medical care under the 10 Fourteenth Amendment’s Due Process Clause. Additionally, Plaintiff’s allegations that 11 Defendant Webster confiscated and then threw away his “food, cosmetics, and paperwork” 12 are sufficient to put Defendant Webster on notice of a § 1983 claim for deprivation of 13 property also under the Fourteenth Amendment’s Due Process Clause. 14 Accordingly, the Court RECOMMENDS that Defendants’ Motion to Dismiss for a 15 violation of Rule 8 be GRANTED and the Complaint DISMISSED as to Defendants Gore, 16 Lovelace, and Buchanan. The Court further RECOMMENDS that Defendants’ Motion 17 to Dismiss for violation of Rule 8 be DENIED as to Plaintiff’s § 1983 claims against 18 Defendant Webster and GRANTED and the Complaint DISMISSED as to all other claims 19 against Defendant Webster. 20 2. Dismissal Pursuant to Rule 12(b)(6) 21 a. § 1983 Cause of Action Against Defendant Webster 22 i. Fourteenth Amendment Claim for Inadequate Medical Care 23 A. Legal Standard 24 Claims for inadequate medical care by a pretrial detainee arise out of the Fourteenth 25 Amendment’s Due Process Clause. Castro v. County of Los Angeles, 833 F.3d 1060, 1067– 26 68 (9th Cir. 2016) (en banc) (“Inmates who sue prison officials for injuries suffered while 27 in custody may do so under the Eighth Amendment’s Cruel and Unusual Punishment 28 Clause, or if not yet convicted, under the Fourteenth Amendment’s Due Process Clause.”). 1 A plaintiff asserting a Fourteenth Amendment claim for inadequate medical care must 2 show that the officials who denied medical care acted with deliberate indifference. Id. at 3 1068. 4 “In the Ninth Circuit, the test for deliberate indifference consists of two parts.” Jett 5 v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). The plaintiff “must first ‘show a “serious 6 medical need” by demonstrating that failure to treat [his] condition could result in further 7 significant injury or the “unnecessary and wanton infliction of pain.”’” Edmo v. Corizon, 8 Inc., 935 F.3d 757, 785 (9th Cir. 2019) (quoting Jett, 439 F.3d at 1096). Upon 9 demonstration of a serious medical need, the plaintiff must then show that the defendant’s 10 response was deliberately indifferent. Id. at 786. 11 The deliberate indifference standard with respect to a pretrial detainee’s Fourteenth 12 Amendment claim for inadequate medical care is an objective one. Gordon v. County of 13 Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018) (citing Castro, 833 F.3d at 1070). The 14 Ninth Circuit recently enumerated the objective deliberate indifference components as: 15 (1) the defendant made an intentional decision with respect to the conditions 16 under which the plaintiff was confined; (2) those conditions put the plaintiff 17 at substantial risk of suffering serious harm; (3) the defendant did not take reasonable available measures to abate that risk, even though a reasonable 18 official in the circumstances would have appreciated the high degree of risk 19 involved—making the consequences of the defendant’s conduct obvious; and (4) by not taking such measures, the defendant caused the plaintiff’s injuries. 20

21 Id. at 1125; see also Narcisse v. Tafesse, No. 5:16-CV-00682-EJD, 2019 WL 4417635, at 22 *5 (N.D. Cal. Sept. 16, 2019) (finding that Gordon focused only on the requisite state of 23 mind for a defendant’s conduct and did not eliminate the requirement that plaintiffs also 24 show the existence of a serious medical need). The Ninth Circuit previously explained that 25 “[w]ith respect to the third element, the defendant’s conduct must be objectively 26 unreasonable, a test that will necessarily ‘turn[] on the “facts and circumstances of each 27 particular case.”’” Castro, 833 F.3d at 1071 (quoting Kingsley v. Hendrickson, 135 S. Ct. 28 2466, 2473 (2015)). The “‘mere lack of due care by a state official’ does not ‘deprive an 1 individual of life, liberty, or property under the Fourteenth Amendment.’” Id. (quoting 2 Daniels v. Williams, 474 U.S. 327, 330–31 (1986)). Thus, a plaintiff asserting an 3 inadequate medical care claim under the Fourteenth Amendment must “prove more than 4 negligence but less than subjective intent—something akin to reckless disregard.” Id. 5 B. Analysis 6 As provided above, Plaintiff alleges that he made “several verbal requests for 7 medical and psychiatric care and treatment” to Defendant Webster, who responded by 8 saying, “Yah, you’ll see someone soon,” “Not right now,” “In a little while,” “Should be 9 soon,” “I said later,” and “Any time now Buckelew.” (ECF No. 1-2 at 9.) Plaintiff further 10 alleges that he “pleaded with [Defendant] Webster to see medical and mental health 11 [providers] due to pain, M.S. symptoms, di[zz]iness, migra[i]ne, depression, extreme 12 anxiety, chest pains, nausea[,] and insomnia.” (Id.) Plaintiff seemingly never received the 13 medical care he requested, for he alleges that Defendant Webster “[lied] to [him] “in 14 regards to medical and mental healthcare treatment.” (Id. at 10.) 15 Defendants do not dispute that multiple sclerosis, migraines, depression, anxiety, 16 and insomnia are serious medical needs that meet the first prong of a deliberate indifference 17 claim. However, even assuming that these conditions, alone or in combination, constitute 18 a serious medical need, the facts as Plaintiff alleges them do not objectively demonstrate 19 that Defendant Webster was deliberately indifferent to these needs. Plaintiff does not 20 clearly allege that he told Defendant Webster that he was in pain or that Defendant Webster 21 knew Plaintiff was experiencing multiple sclerosis symptoms, dizziness, migraines, 22 depression, anxiety, chest pains, nausea, and insomnia. The reasonableness of an officer’s 23 actions and whether he acted with deliberate indifference is viewed in light of “what the 24 officer knew at the time.” Kingsley, 135 S. Ct. at 2473. The lack of any facts plausibly 25 supporting the conclusion that Defendant Webster had knowledge of the conditions that 26 spurred Plaintiff’s requests for medical care makes Defendant Webster’s actions—or 27 inaction—objectively reasonable. 28 /// 1 Moreover, the facts as Plaintiff alleges them do not plausibly support the conclusion 2 that Defendant Webster made an intentional decision to deny Plaintiff’s requests for 3 medical care. Plaintiff therefore fails to meet the first deliberate indifference element 4 articulated in Gordon. Plaintiff alleges only that Defendant Webster responded to his 5 requests for medical care by stating that Plaintiff would see someone “soon,” or “in a little 6 while.” Plaintiff does not allege that it was because of an intentional inaction by Defendant 7 Webster that he failed to receive medical assistance. 8 Although Plaintiff may be able to allege additional facts to support a Fourteenth 9 Amendment claim for inadequate medical care against Defendant Webster, the Court finds 10 that, without more, the Complaint does not plausibly allege that Defendant Webster was 11 deliberately indifferent to any one of Plaintiff’s serious medical needs. 12 ii. Fourteenth Amendment Claim for Deprivation of Property 13 A. Legal Standard 14 The Fourteenth Amendment’s Due Process Clause protects prisoners’ interests in 15 their personal property. Hanson v. May, 502 F.2d 728, 720 (9th Cir. 1974). However, the 16 Due Process Clause does not protect against all deprivations of property by the state; it 17 only protects against deprivations “without due process of law.” Const. Amend. XIV; 18 Baker v. McCollan, 443 U.S. 137, 145 (1979). Where the state must act quickly out of 19 necessity, or where providing pre-deprivation process may be impractical, a meaningful 20 post-deprivation process satisfies the Due Process Clause. Parratt v. Taylor, 451 U.S. 527, 21 538–39 (1981), overruled on other grounds by Daniels, 474 U.S. 327. Where a deprivation 22 of property is caused by conduct pursuant to established state procedure, post-deprivation 23 remedies do not satisfy due process. Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982). 24 In contrast, an intentional but unauthorized or a negligent deprivation of property by a state 25 employee “does not constitute a violation of the procedural requirements of the Due 26 Process Clause of the Fourteenth Amendment if a meaningful post[-]deprivation remedy 27 is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984); accord Barnett v. Centoni, 31 28 F.3d 813, 816–17 (9th Cir. 1994) (“[A] negligent or intentional deprivation of a prisoner’s 1 property fails to state a claim under [§] 1983 if the state has an adequate post[-]deprivation 2 remedy.” (citing Hudson, 468 U.S. at 533)). The California Tort Claims Act, commonly 3 referred to as the California Government Claims Act, provides an adequate post- 4 deprivation state remedy for the random and unauthorized taking of property. Barnett, 31 5 F.3d at 816–17 (“California [l]aw provides an adequate post-deprivation remedy for any 6 property deprivations.”). 7 B. Analysis 8 Here, Plaintiff alleges that Defendant Webster “took [his] food, cosmetics and 9 paperwork” from his cell “while laughing and saying[,] ‘This is all trash.’” (ECF No. 1-2 10 at 10.) Defendant Webster then allegedly threw these items in a garbage can. (Id.) To the 11 extent Plaintiff challenges Defendant Webster’s unauthorized and intentional taking of his 12 personal property under § 1983, the California Government Claims Act provides Plaintiff 13 with an adequate state post-deprivation remedy. Therefore, any substantive or procedural 14 due process claims by Plaintiff challenging the loss of his property are not cognizable under 15 § 1983 and fail to state a claim as a matter of law. See, e.g., Nible v. Fink, No. 16-cv- 16 02849-BAS-RBM, 2019 WL 2242075, at *3 (S.D. Cal. May 23, 2019) (finding that the 17 inmate plaintiff’s allegations concerning the defendant’s confiscation of his rune set 18 “fail[ed] to state a claim . . . for a violation of his due process rights because the alleged 19 deprivation was unauthorized, and California provides adequate post-deprivation 20 remedies”). 21 iii. Conclusion 22 For the foregoing reasons, the Court RECOMMENDS that Defendants’ Motion to 23 Dismiss pursuant to Rule 12(b)(6) be GRANTED and the Complaint DISMISSED as to 24 Plaintiff’s § 1983 claims against Defendant Webster. 25 b. Supervisor Liability of Defendants Gore, Lovelace, and Buchanan 26 As stated, Plaintiff does not include Defendants Gore, Lovelace, and Buchanan in 27 any of the Complaint’s factual allegations. However, to the extent Plaintiff names these 28 individuals as defendants because he believes that they are liable for Defendant Webster’s 1 actions, supervisory personnel are generally not liable under § 1983 for the actions of their 2 subordinates on a theory of respondeat superior. Jones v. Williams, 297 F.3d 930, 934 3 (9th Cir. 2002) (“[T]here is no respondeat superior liability under [§] 1983.”). Instead, a 4 supervisor is liable under § 1983 only if he or she was personally involved in the 5 constitutional deprivation or there is a sufficient causal connection between the 6 supervisor’s wrongful conduct and the constitutional violation. Hansen v. Black, 885 F.2d 7 642, 646 (9th Cir. 1989). 8 As an initial matter, the Complaint does not establish the relationship between the 9 four named Defendants or make clear whether Defendant Webster was a subordinate of 10 Defendants Gore, Lovelace, and Buchanan. However, even assuming Defendant Webster 11 did report to any of these three defendants—given his title as “corporal”—the Complaint 12 does not plausibly allege that Defendant Webster violated Plaintiff’s constitutional rights. 13 Accordingly, to the extent Plaintiff believes and attempts to allege that Defendants Gore, 14 Lovelace, and Buchanan are responsible for the actions of Defendant Webster in a 15 supervisory capacity, the Complaint fails to state a claim upon which relief can be granted. 16 c. Federal Causes of Action Pursuant to §§ 1981, 1985, and 1986 17 In the Complaint, Plaintiff generically lists violations of 42 U.S.C. §§ 1981, 1985, 18 and 1986 as the fourth, sixth, and seventh causes of actions, respectively. (ECF No. 1-2 at 19 4.) As stated above, the Court finds that the only cause of action that does not violate Rule 20 8’s notice requirement is Plaintiff’s § 1983 cause of action against Defendant Webster. 21 Moreover, besides violating Rule 8, these additional federal causes of action fail to state a 22 claim and must be dismissed pursuant to Rule 12(b)(6). 23 i. § 1981 24 Section 1981 gives all citizens of the United States “the same right in every State or 25 Territory to make and enforce contracts . . . as enjoyed by white citizens.” 42 U.S.C. 26 § 1981. The purpose of §1981 was “meant, by its broad terms, to proscribe discrimination 27 in the making or enforcement of contracts against, or in favor of, any race.” Gratz v. 28 Bollinger, 539 U.S. 244, 276 n.23 (2003) (quoting McDonald v. Santa Fe Trail Transp. 1 Co., 427 U.S. 273, 295–96 (1976)); see also Karim–Panahi v. L.A. Police Dep’t, 839 F.2d 2 621, 625 (9th Cir. 1988) (“Section 1981 forbids all racial discrimination in the making of 3 both public and private contracts.”). “Any claim brought under § 1981 . . . must initially 4 identify an impaired contractual relationship under which the plaintiff has rights.” 5 Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 474 (2006). A viable § 1981 claim also 6 requires the plaintiff to allege facts showing “intentional discrimination on account of 7 race.” Evans v. McKay, 869 F.2d 1341, 1344 (9th Cir. 1989). 8 Here, the Complaint does not allege any facts to support a plausible § 1981 claim. 9 Plaintiff does not allege that any Defendant acted with discriminatory intent on account of 10 his race or any facts pertaining to contract formation and enforcement. Accordingly, the 11 Court RECOMMENDS that Defendants’ motion be GRANTED and the Complaint 12 DISMISSED as to Plaintiff’s § 1981 cause of action. 13 ii. §§ 1985 and 1986 14 Section 1985(3) prohibits conspiracies to interfere with an individual’s civil rights. 15 See 42 U.S.C. § 1985(3). To state a claim under § 1985(3), a plaintiff must allege: (1) a 16 conspiracy; (2) to deprive any person or class of persons of the equal protection of the laws; 17 (3) an act done by one of the conspirators in furtherance of the conspiracy; and (4) a 18 personal injury, property damage, or deprivation of any right or privilege of a citizen of the 19 United States. Gillispie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980). “The language 20 requiring intent to deprive of equal protection, or equal privileges and immunities, means 21 that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory 22 animus behind the conspirators’ action.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). 23 “A § 1985 claim ‘must allege facts to support the allegation that defendants conspired 24 together. A mere allegation of conspiracy without factual specificity is insufficient.’” 25 Hamilton v. Hurtado, No. 12cv1940 JAH (RBB), 2013 WL 3964755, at *7–8 (S.D. Cal. 26 July 31, 2013) (citations omitted) (quoting Karim–Panahi, 839 F.2d at 626). Section 1986 27 imposes liability on every person who knows of an impending violation of § 1985 but 28 neglects or refuses to prevent the violation. Karim–Panahi, 839 F.2d at 626. 1 Here, Plaintiff does not allege any facts to support a plausible § 1985 claim. The 2 Court’s analysis begins and ends with the first Gillespie factor, for Plaintiff has not alleged 3 any facts that give rise to a plausible conspiracy. And without a viable § 1985 claim, 4 Plaintiff’s § 1986 claim necessarily fails. Accordingly, the Court RECOMMENDS that 5 Defendants’ motion be GRANTED and the Complaint DISMISSED as to Plaintiff’s 6 § 1985 and § 1986 causes of action. 7 d. State Law Causes of Action 8 In the Complaint, Plaintiff generically lists three California state law causes of 9 action: (1) general negligence against Defendant Webster; (2) intentional tort against 10 Defendant Webster; and (3) premises liability. (ECF No. 1-2 at 5–7.) As stated above, the 11 Court finds that the only cause of action that does not violate Rule 8’s notice requirement 12 is Plaintiff’s § 1983 cause of action and only as to Defendant Webster. However, like with 13 Plaintiff’s §§ 1981, 1985, and 1986 causes of action, Plaintiff’s state law causes of action 14 not only violate Rule 8, but fail to state a claim and must be dismissed pursuant to Rule 15 12(b)(6). 16 i. California Government Claims Act 17 Defendants argue that Plaintiff’s state law claims should be dismissed on the basis 18 that the Complaint fails to allege compliance with the claims-presentation requirements of 19 the California Government Claims Act (“CGCA”). (ECF No. 3-1 at 17.) Defendants 20 further argue that Plaintiff’s time to file a government claim has lapsed, so Plaintiff cannot 21 cure this defect. (Id. at 19.) Plaintiff makes no argument in his opposition with respect to 22 his non-compliance with the claims-presentation requirements of the CGCA. 23 A. Legal Standard 24 The CGCA requires a person asserting a tort claim against a California governmental 25 entity or employee to present his claim to the California Victim Compensation and 26 Government Claims Board before filing an action for damages against that entity or 27 employee. See Cal. Gov’t Code §§ 905.2, 911.2, 945.4, 950–950.2. The California 28 Government Claims Act has strict time limits for both presenting a claim to the Claims 1 Board and filing a court action after the Claims Board rejects the claim. First, a person 2 must present his tort claim to the Claims Board within six months of the accrual of the 3 claim. Cal. Gov’t Code § 911.2. Presentation of a written claim, and action on or rejection 4 of the claim by the Claims Board, are conditions precedent to filing a suit. Shirk v. Vista 5 Unified Sch. Dist., 42 Cal. 4th 201, 208–09 (2007). Thereafter, any suit based on the claim 6 presented to the Claims Board must be commenced within six months from the date the 7 Claims Board’s written notice of rejection is deposited in the mail. Cal. Gov’t Code 8 § 945.6(a)(1); Clark v. Upton, 703 F. Supp. 2d 1037, 1043 (E.D. Cal. 2010). “Compliance 9 with the Government Claims Act is an element of the cause of action, . . . and a failure to 10 file a claim is fatal to a cause of action.” King v. Chokatos, No. 1:12-cv-01936-LJO-GSA- 11 PC, 2014 WL 3362237, at *5 (E.D. Cal. July 9, 2014) (citations omitted) (quoting 12 Hacienda La Puente Unified Sch. Dist. of L.A. v. Honig, 976 F.2d 487, 495 (9th Cir. 1992) 13 (citing State v. Superior Ct. of King Cnty. (Bodde), 32 Cal. 4th 1234, 1243 (2004)). “A 14 plaintiff ‘must allege facts demonstrating or excusing compliance with the claim 15 presentation requirement.’” Id. (quoting Bodde, 32 Cal. 4th at 1243). 16 B. Analysis 17 The Court agrees with Defendants that Plaintiff was required to comply with the 18 CGCA’s claims-presentation requirements, as the events alleged in the Complaint are 19 claimed to be within Defendants’ duties as employees of the San Diego Sheriff’s 20 Department. The Complaint, however, does not allege compliance with the CGCA, and 21 therefore, fails to state a claim for general negligence and intentional tort against Defendant 22 Webster and premises liability. 23 Defendants contend that Plaintiff cannot cure this defect because a government 24 claim is due within six months after the cause of action accrues, and Plaintiff’s six months 25 to file a claim as to the events alleged in the Complaint lapsed in November 2019. (ECF 26 No. 3-1 at 19.) Defendants provide that as of January 2020, Plaintiff had not filed any 27 claim with the County of San Diego as to the events alleged in the Complaint. To their 28 motion, Defendants attach the declaration of Brett Barnes, the Claims and Investigation 1 Supervisor of the County of San Diego. (ECF No. 3-2.) Mr. Barnes, as the custodian of 2 claims records for the County of San Diego, declares that he conducted a diligent search 3 through the County’s claims records database and determined that “the Claims Division 4 has no record of any government tort claim presented by Plaintiff” against any of the named 5 Defendants “for the May 2019 events that are the subject” of the Complaint. (Id. ¶¶ 1, 3– 6 4.) Mr. Barnes further declares that the Claims Division “has no record of any government 7 tort claim presented by [Plaintiff] regarding” any of the named Defendants. (Id. ¶ 5.) 8 Based on Mr. Barnes’ declaration, Defendants request that the Court take judicial notice of 9 the fact that “Plaintiff did not file a claim with the County of San Diego regarding the May 10 14–24, 2019, events that are the subject of the Complaint.” (ECF No. 3-3 at 2.) In his 11 opposition, Plaintiff does not address Defendants’ request for judicial notice. He does not 12 oppose the request, nor does he dispute Defendants’ factual assertion that Plaintiff failed 13 to file a claim within the mandated time period. (See ECF No. 5.) 14 “[A]s a general rule, a district court may not consider any material beyond the 15 pleadings in ruling on a Rule 12(b)(6) motion.” Lee, 250 F.3d at 688. However, a court 16 may consider matters of judicial notice when ruling on a motion to dismiss without 17 converting the motion into a motion for summary judgment. Id. Judicial notice under 18 Federal Rule of Evidence 201 permits a court to notice an adjudicative fact if it is “not 19 subject to reasonable dispute.” Fed. R. Evid. 201(b). A fact is “not subject to reasonable 20 dispute” if it is “generally known” or “can be accurately and readily determined from 21 sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(1)–(2). 22 A court may, therefore, “‘take judicial notice of matters of public record outside the 23 pleadings’ and consider them for purposes of [a] motion to dismiss.” Mir v. Little Co. of 24 Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988). 25 The Court finds that the absence of any government claim filed by Plaintiff against 26 Defendants in the County of San Diego’s claims records is a matter of public record that is 27 not reasonably subject to dispute. See, e.g., Pearson v. Baughman, No. CV 18-5065 28 CJC(JC), 2018 WL 3869464, at *2 n.3 (C.D. Cal. July 16, 2018) (taking judicial notice of 1 the absence of court records); Lee v. L.A. Police Dep’t, No. CV 08–5165 JVS (FFM), 2011 2 WL 1691940, at *5 (C.D. Cal. Mar. 21, 2011) (noting that the court had previously taken 3 “judicial notice of the absence in the public record of any [government] claim filed by the 4 plaintiff with the City of Los Angeles” and dismissing the plaintiff’s state law claims for 5 noncompliance with the CGCA), adopted by 2011 WL 1671937 (C.D. Cal. May 3, 2011). 6 Therefore, the Court grants in part Defendants’ request for judicial notice. The Court will 7 take judicial notice of the fact that there is no record of a claim filed by Plaintiff in the 8 County of San Diego’s Claims Division database against any of the Defendants during the 9 relevant time period. However, the Court does not take judicial notice of the next 10 inferential fact, urged by Defendants, that “Plaintiff did not file a claim with the County of 11 San Diego regarding the May 14–24, 2019, events that are the subject of the Complaint.” 12 (ECF No. 3-3 at 2.) 13 Accordingly, because the Complaint does not allege compliance with the CGCA, 14 and Defendants have submitted undisputed evidence, subject to judicial notice, that there 15 are no claims filed by Plaintiff against any of the Defendants in the County of San Diego’s 16 claims records database, the Court RECOMMENDS that Defendants’ Motion to Dismiss 17 be GRANTED and Plaintiff’s state law causes of action for general negligence, intentional 18 tort, and premises liability be DISMISSED. 19 ii. Supplemental Jurisdiction over State Law Causes of Action 20 In light of the recommended dismissal of all of Plaintiff’s federal causes of action,7 21 there exists an additional ground to dismiss Plaintiff’s state law causes of action, regardless 22 of whether Plaintiff complied with the claims-presentation requirements of the CGCA. 23 Because the parties in this case are non-diverse, the federal law claims that the Court 24 recommends dismissal of provide the only basis for federal subject matter jurisdiction. 25 Although a federal court may exercise supplemental jurisdiction over state law claims “that 26 27 7 As addressed in Section V. below, the Court recommends sua sponte dismissal of 28 1 are so related to claims in the action within [the court’s] original jurisdiction that they form 2 part of the same case or controversy under Article III of the United States Constitution,” 3 28 U.S.C. § 1367(a), a court may decline to exercise supplemental jurisdiction where it 4 “has dismissed all claims over which it has original jurisdiction,” 28 U.S.C. § 1367(c)(3). 5 When considering whether to retain supplemental jurisdiction over state law claims, a court 6 should consider factors such as “economy, convenience, fairness, and comity.” Acri v. 7 Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (en banc). The U.S. Supreme 8 Court has stated that “in the usual case in which all federal-law claims are eliminated before 9 trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the 10 remaining state law claims.” Id. (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 11 350 n.7 (1988)). 12 Here, the Court finds that the balance of factors weighs in favor of declining 13 supplemental jurisdiction over Plaintiff’s state law causes of action. This case has yet to 14 proceed beyond the initial pleadings stage and few judicial resources have been expended 15 thus far. Therefore, if the District Court adopts the recommendation to dismiss Plaintiff’s 16 federal causes of action, the Court RECOMMENDS that the District Court decline to 17 exercise supplemental jurisdiction over Plaintiff’s state law causes of action and DISMISS 18 them accordingly. 19 V. SUA SPONTE DISMISSAL OF DOE DEFENDANTS 20 Plaintiff has yet to identify and serve Doe Defendants 1–5, and as such, they have 21 not joined in Defendants’ Motion to Dismiss. Nevertheless, “[a] trial court may dismiss a 22 claim sua sponte under Fed. R. Civ. P. 12(b)(6),” provided proper notice is given to the 23 Plaintiff. Omar v. Sea-Land Ser., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (“Such a dismissal 24 may be made without notice where the claimant cannot possibly win relief.”); accord Wong 25 v. Bell, 642 F.2d 359, 361 (9th Cir. 1981) (“A trial court may act on its own initiative to 26 note the inadequacy of a complaint and dismiss it for failure to state a claim, but the court 27 must give notice of its sua sponte intention to invoke Rule 12(b)(6) and afford plaintiffs 28 ‘an opportunity to at least submit a written memorandum in opposition to such motion.’” 1 (citations omitted) (quoting Crawford v. Bell, 599 F.2d 890, 893 (9th Cir. 1979))). The 2 Court here finds that, after proper notice is given to Plaintiff, his claims against the Doe 3 Defendants should be dismissed sua sponte, for they fail to state a claim. 4 As stated above, Plaintiff alleges that on or about May 19, 2019, Doe Defendant 1 5 “denied [him] church service.” (ECF No. 1-2 at 11.) Plaintiff further alleges that when he 6 questioned “[d]eputies” about being denied church service and requested phone access to 7 call his attorney, he was moved a new cell. (Id.) Plaintiff asserts that he was “locked in 8 this cell for approximately four[] days without running water,” despite making “numerous 9 complaints” to Doe Defendants 2, 3, 4, and 5. (Id.) Plaintiff was then transferred to GBDF 10 on or about May 24, 2019, and “lost consciousness” while a deputy was escorting him to 11 housing. (Id. at 11–12.) Seemingly that same day, Plaintiff was transported to Sharp Chula 12 Vista Hospital, where he received intravenous fluids and a doctor told him he was “severely 13 dehydrated.” (Id. at 14.) Plaintiff explained to the doctor that he “had been locked in a 14 cell for a few days with no running water, no water for approx[imately] [four] days.” (Id.) 15 A. Doe Defendant 1 16 The Court finds that Plaintiff’s allegation that Doe Defendant 1 “denied [him] church 17 service” on one occasion fails to state a claim. The Court construes Plaintiff’s claim against 18 Doe Defendant 1 as a violation of the First Amendment’s Free Exercise Clause. To state 19 a claim under the Free Exercise Clause, a prisoner must plausibly allege that a prison 20 official’s actions (a) “substantially burden[]” the exercise of a sincerely-held religious 21 belief, and (b) were not “rationally related to legitimate penological interests.” Jones v. 22 Williams, 791 F.3d 1023, 1031, 1033 (9th Cir. 2015). “[G]overnment action places a 23 substantial burden on an individual’s right to free exercise of religion when it tends to 24 coerce the individual to forego [his or] her sincerely held religious beliefs or to engage in 25 conduct that violates those beliefs.” Id. An intrusion that is “relatively short-term and 26 sporadic” does not constitute a substantial burden under the First Amendment. Canell v. 27 Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998); accord Brown v. Washington, 752 F. App’x 28 402, 405 (9th Cir. 2018) (providing that a “one time set of circumstances” or an “isolated 1 incident” is insufficient to constitute a “substantial burden of [a] plaintiff’s religious 2 beliefs” under the First Amendment). 3 Here, Plaintiff’s allegation that Doe Defendant 1 denied him “church service” on a 4 single occasion, without any facts surrounding the denial, does not give rise to viable First 5 Amendment claim.8 As alleged, Doe Defendant 1’s denial of church service appears to 6 have been an isolated incident, and thus, did not amount to a substantial burden on any 7 purported religious belief of Plaintiff’s. Accordingly, the Court RECOMMENDS that 8 after proper notice is given to Plaintiff by way of this Report and Recommendation, the 9 Complaint be DISMISSED as to Doe Defendant 1. 10 B. Doe Defendants 2, 3, 4, and 5 11 The Court finds that Plaintiff’s allegations against Doe Defendants 2, 3, 4, and 5 12 likewise fail to state a claim. The Court construes Plaintiff’s allegations against these Doe 13 Defendants as a conditions-of-confinement claim under the Fourteenth Amendment’s Due 14 Process Clause. Although the law in this area remains somewhat unsettled, the Ninth 15 Circuit has indicated that claims brought by pretrial detainees for inhumane conditions of 16 confinement under the Fourteenth Amendment should be evaluated under the objectively 17 unreasonable standard articulated by the Supreme Court in Kingsley v. Hendrickson, 135 18 S. Ct. 2466, 2473 (2015). See Castro, 833 F.3d at 1069–70. “Prior to Kingsley, a pretrial 19 detainee complaining of conditions of confinement had to allege facts that, if true, would 20 satisfy both prongs of a bifurcated test under the Eighth Amendment.” King v. County of 21 Los Angeles, No. CV 15-07072-SVW (AFM), 2016 WL 6902097, at *8 (C.D. Cal. Oct. 7, 22 2016). Under this test, the plaintiff is required to allege that (1) objectively, he was 23 subjected to conditions that “are or were serious enough to be considered cruel and 24 25 8 The Court notes that there is nothing in the Complaint to suggest that Doe Defendant 26 1 had any involvement in Plaintiff’s alleged subsequent deprivation of access to running 27 water. According to the Complaint, Plaintiff’s transfer to the cell without running water was made after he complained to unspecified deputies (so, presumably not any of the Doe 28 1 unusual,” and (2) subjectively, the defendants acted with “a sufficiently culpable state of 2 mind (i.e., with ‘deliberate indifference’).” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 3 298–99 (1991)). Subsequent to Kingsley, and in consideration of the Ninth Circuit’s 4 application and extension of Kingsley to a pretrial detainee’s failure-to-protect claim in 5 Castro and an inadequate medical care claim in Gordon, it appears to this Court that a 6 pretrial detainee need only allege that defendants engaged in “objectively unreasonable” 7 conduct to satisfy the second prong of a conditions-of-confinement claim. See Castro, 833 8 F.3d at 1071. 9 The Court finds that Plaintiff’s allegation that he was confined to a cell for four days 10 without water9 may be sufficiently serious to constitute a constitutional violation. See 11 Harris v. Lake Cnty. Sheriff’s Dep’t, No. 15-CV-00850 NJV, 2015 WL 5138388, at *6 12 (N.D. Cal. Sept. 1, 2015) (“Substantial deprivations of shelter, food, drinking water or 13 sanitation for four days, for example, are sufficiently serious to satisfy the objective 14 component of an Eighth Amendment claim.”); see also Vasquez v. County of Kern, 949 15 F.3d 1153, 1163–64 (9th Cir. 2020) (“[T]he Fourteenth Amendment is more protective 16 than the Eighth Amendment ‘because the Fourteenth Amendment prohibits all punishment 17 of pretrial detainees, while the Eighth amendment only prevents the impositions of cruel 18 and unusual punishment of convicted prisoners.”). Nevertheless, as currently alleged in 19 the Complaint, Plaintiff’s allegation is too lacking in detail for the Court to find the actions 20 of Doe Defendants 2, 3, 4, 5 “objectively unreasonable.” There are no facts providing who 21 these Doe Defendants are and the circumstances surrounding the “numerous complaints” 22 that Plaintiff made to each of them, including how Plaintiff made his complaints. 23 Plaintiff’s allegation against Doe Defendants 2, 3, 4, and 5 also fail to state a claim 24 even if the Court construes it as a First Amendment retaliation claim. To the extent Plaintiff 25

26 27 9 The Court notes that the Complaint is ambiguous with respect to whether Plaintiff was without “running” water in his cell—which is what he alleges he complained to Doe 28 1 intends to implicitly suggest that his being placed in a cell for “approximately four[] days 2 without running water” was a consequence of his questioning unspecified “deputies” about 3 being denied church service and requesting phone access to call his attorney, he fails to 4 connect any such alleged retaliation to Doe Defendants 2, 3, 4 and 5. The Complaint does 5 not allege that these Doe Defendants were aware of Plaintiff’s complaints about being 6 denied church service or, in fact, any events preceding Plaintiff’s confinement to this cell. 7 The Complaint alleges only that Plaintiff made “numerous complaints” to Doe Defendants 8 2, 3, 4, and 5 about the lack of running water in the cell. (ECF No. 1-2 at 11.) 9 Accordingly, the Court RECOMMENDS that after proper notice is given to 10 Plaintiff by way of this Report and Recommendation, the Complaint be DISMISSED as 11 to Doe Defendants 2, 3, 4, and 5. 12 VI. LEAVE TO AMEND 13 When dismissing a pro se plaintiff’s civil rights complaint for failure to state a claim, 14 the court should ordinarily provide the plaintiff an opportunity to cure. Karim–Panahi, 15 839 F.2d at 624–25. However, if the complaint’s deficiencies cannot be cured by 16 amendment, the court should dismiss the complaint without leave to amend. Id.; James v. 17 Giles, 221 F.3d 1074, 1077 (9th Cir. 2000). In other words, where leave to amend would 18 be futile, the court may deny leave to amend. Desoto v. Yellow Freights Sys., Inc., 957 19 F.2d 655, 658 (9th Cir. 1992) (citing Reddy v. Litton Indus., 912 F.2d 291, 296 (9th Cir. 20 1990)). 21 Defendants here argue that Plaintiff’s opposition does not demonstrate how the 22 Complaint is capable of amendment. (ECF No. 6 at 3–4.) Although true, regardless of 23 what Plaintiff has included in his opposition, pursuant to Federal Rule of Civil Procedure 24 15(a)(2), a court should grant leave to amend when justice so requires, “even if no request 25 to amend the pleading was made.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 26 It is not absolutely clear to the Court that Plaintiff could not cure the deficiencies in the 27 Complaint, and Plaintiff has not yet had an opportunity to amend. Justice therefore requires 28 that the Court grant Plaintiff leave to amend all causes of action in the Complaint. 1 Accordingly, the Court RECOMMENDS that the Complaint be DISMISSED in its 2 || entirety WITHOUT PREJUDICE and with leave to amend. 3 VU. CONCLUSION 4 For the reasons discussed above, IT IS HEREBY RECOMMENDED that the 5 District Court issue an Order: (1) approving and adopting this Report and 6 || Recommendation; (2) GRANTING Defendants’ Motion to Quash Service and Dismiss for 7 || Lack of Personal Jurisdiction, or alternatively, Dismiss for Failure to State a Claim (ECF 8 || No. 10); and DISMISSING the Complaint without prejudice and with leave to amend. 9 IT IS ORDERED that no later than August 10, 2020, any party to this action may 10 || file written objections with the Court and serve a copy on all parties. The document should 11 ||be captioned “Objections to Report and Recommendation.” Any objections filed by 12 either party must not exceed 15 pages total, including attachments and exhibits. 13 IT IS FURTHER ORDERED that any reply to any objections shall be filed with 14 || the district court and served on all parties no later than August 17, 2020. The parties are 15 || advised that failure to file objections within the specified time may waive the right to raise 16 || those objections on appeal of the Court’s order. See Martinez v. Yist, 951 F.2d 1153, 1156 17 || (9th Cir. 1991). 18 Dated: July 20, 2020 -

n. Jill L. Burkhardt 20 ited States Magistrate Judge 21 22 23 24 25 26 27 28