Doe v. City of Hayward

• Court: District Court, N.D. California
• Decided: April 18, 2024
• Docket: 3:23-cv-05007
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8

10 JANE DOE, 11 Plaintiff, No. C 23-05007 WHA

12 v.

13 CITY OF HAYWARD, et al., ORDER RE DEFENDANT’S MOTION TO DISMISS 14 Defendants. 15

16 17 INTRODUCTION 18 In this civil rights and torts action, defendant police officers, police department, and 19 municipality move to dismiss plaintiff’s claims, which stem from a criminal complaint plaintiff 20 filed against unknown third parties, and police defendants’ subsequent disposition report and 21 decision not to further investigate. For the reasons stated below, plaintiff’s complaint is 22 DISMISSED WITHOUT PREJUDICE. 23 24 STATEMENT 25 Plaintiff, a professor in the Bay Area, describes herself as “a victim of serial crime” (Dkt. 26 No. 20 at 5). Between July 2010 and June 2016, plaintiff submitted seven criminal complaints, 27 while members of her household submitted five more (Dkt. No. 20 Exh. A at 36). Although 1 other crimes: “heavy metal poisoning; a dog attack; tampering with [redacted] car; attempted 2 carjacking/robbery; [and] attempted kidnapping of [redacted] son” (Dkt. No. 20 Exh. B at 3 43). Many, if not all, of these criminal complaints were submitted to the Hayward Police 4 Department (Compl. 2). 5 Plaintiff has appended two reports to her opposition. The first, from Bardwell 6 Consulting, concludes that “[plaintiff] and her household has [sic] been subjected to a level of 7 crime that cannot be explained by chance” (Dkt. No. 20 Exh. A at 38). The second, attributed 8 to Phyllis Gerstenfeld, concludes that “[plaintiff] was targeted due to her gender,” and that the 9 “the technology [used by the perpetrators] implies a sophistication more often seen in 10 organized political schemes than in personal vendettas” (Dkt. No. 20 Exh. B at 45- 11 46). Gerstenfeld concludes that “[plaintiff] has been the victim of hate crimes” and that 12 “domestic terrorism charges could be successfully levied against the person who victimized 13 [plaintiff] and her family” (ibid.). A third report, referenced but not on record, is attributed to a 14 Dr. Liu and is said to analyze the origins of the technology used by those victimizing plaintiff. 15 At issue here is plaintiff’s most recent criminal complaint to HPD. On May 27, 2022, 16 plaintiff traveled to a HPD station to file a police report regarding an alleged sexual assault, 17 battery, and hate crime. Plaintiff reported that “a foreign object had been removed from her 18 intimate parts; that she had not consented to this penetration; that her husband was a witness to 19 its location and removal; that an engineering lab had identified the foreign object as an 20 electronic device/semiconductor; that a PhD in electrical engineering . . . Dr. Liu had identified 21 the lab that designed and manufactured this device” (Compl. 8-9). 22 Plaintiff now claims that police defendants harassed her while she gave her report on 23 May 27, and subsequently retaliated against her for making that report (Compl. 1-2). These 24 allegations fall into three categories: actions taken on May 27, inaccuracies in the resulting 25 report, and subsequent inaction despite plaintiff’s repeated follow-up requests. 26 First, on May 27, plaintiff had to wait an hour and a half at the police station before her 27 statement was taken (Compl. 2). Defendants then “caused [plaintiff] to feel surrounded with 3 1 approaching her in what Plaintiff viewed as some sort of formation as she sat in her car” 2 (ibid.) The officers took plaintiff’s statement in the parking lot, interviewed her husband, who 3 was nearby, and reviewed the reports provided by plaintiff. Plaintiff then spoke with social 4 worker Henry, who provided her with a pamphlet outlining available mental health 5 services. Plaintiff alleges that these acts were intended to harass her. 6 Second, plaintiff alleges that the resulting police disposition report contained several 7 inaccuracies and falsehoods. For example, the report stated that “[a]ll the reports [plaintiff] 8 downloaded from the Internet could not tell me the simple fact of how these tiny (half-inch 9 resistors) appeared in her vagina. These reports were not useful or relevant.” Plaintiff, 10 however, states that these reports evaluated evidence specific to her case and to “her status as a 11 victim of crime” (id. at 10). The report stated that Officer Morgan “found no new evidence of 12 a crime” after speaking to plaintiff’s husband; plaintiff, however, asserts that her husband 13 provided new evidence of the crime at hand (ibid.). The report stated that plaintiff “offered no 14 rational explanation (i.e., recent surgeries, a sexual assault, or suspects) for possible causes,” 15 and was only interested in “researching the company who manufactured the electronics to 16 support her conspiracy theory” (id. at 11). Plaintiff states that she is in fact in a “systematic 17 investigation . . . NOT only . . . in researching the company who manufactured the 18 electronics,” and that she never mentioned any “conspiracy theory” (id. at 12). Finally, the 19 report allegedly stated that “the Alameda County Mental Health Clinician listened to [plaintiff] 20 and later made his assessment as delusional behavior, similar to Schizophrenia” (ibid.). 21 Plaintiff alleges that this characterization of her mental health is false, and that Alameda 22 County Behavior Services later stated that its clinician (presumably social worker Henry) 23 “never made a negative assessment” about her mental health (ibid.). 24 Third, plaintiff alleges that defendants retaliated against her after she submitted her 25 report. Plaintiff sent emails to various defendants on May 27, June 1, June 4, November 27, 26 and December 26 of 2022, as well as January 3 and February 14 of 2023. In these emails, 27 plaintiff asked defendants to make various changes to the May 27 report and to attach her own 1 communication included a complaint to HPD internal affairs, which was forwarded to the City 2 Attorney’s Office. 3 Plaintiff then filed the present suit, and defendants promptly removed. Defendants now 4 move to dismiss. This order follows full briefing and lengthy oral argument. After oral 5 argument, a tentative order was issued to the parties, and further briefing was invited (Dkt. No. 6 38). Plaintiff submitted a further brief and supporting declaration (Dkt. Nos. 40, 41). This 7 order carefully considered the arguments made in those supplemental filings and, where 8 necessary, addresses them. 9 10 ANALYSIS 11 1. DEFENDANT’S MOTION TO DISMISS. 12 In sum, plaintiff has failed to state a federal claim for relief. 13 First, plaintiff fails to claim that her First Amendment right to petition for the redress of a 14 grievance was violated. Our court of appeals has held that the filing of criminal complaints 15 falls within the First Amendment’s right to petition. Entler v. Gregoire, 872 F.3d 1031, 1043 16 (9th Cir. 2017). Plaintiff was allowed to exercise that right on May 27. Defendants 17 interviewed plaintiff and her husband, reviewed her proffered expert reports, and issued a 18 disposition report. That is all the right to petition promises. Plaintiff does not have a right to 19 any particular investigation or prosecution. Rossi v. City of Chicago, 790 F.3d 729, 735 (7th 20 Cir. 2015) (“[Plaintiff] does not have a constitutional right to have the police investigate his 21 case at all, still less to do so to his level of satisfaction.”). Plaintiff’s later petitions were also 22 heard. Plaintiff’s November 27 complaint to HPD internal affairs was promptly forwarded to 23 the City Attorney’s Office, which investigated and determined it to be unfounded. Plaintiff’s 24 complaint to Alameda County Behavioral Health Care Services was also investigated: plaintiff 25 was interviewed by Chief Compliance Officer Dr. Ravi Mehta, who reviewed plaintiff’s claims 26 with a crisis team and reached the conclusion that his staff followed proper procedures and did 27 not engage in wrongdoing (Dkt. No. 20 Exh. C). 1 Plaintiff’s right to petition includes the right to do so without retaliation: 2 “The First Amendment forbids government officials from retaliating against individuals for speaking out. To recover under § 3 1983 for such retaliation, a plaintiff must prove: (1) he engaged in constitutionally protected activity; (2) as a result, he was subjected 4 to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected 5 activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action.” 6 Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010) (citations omitted). As noted 7 above, defendants’ actions on May 27 and after were entirely unremarkable and fail the second 8 prong above. 9 However, plaintiff’s allegation that defendants’ disposition report made false statements 10 attacking plaintiff’s mental health and credibility in order to dissuade further complaints merits 11 discussion (Compl. ¶ 35). First Amendment retaliation claims generally concern “exercises of 12 governmental power that are regulatory, proscriptive, or compulsory in nature and have the 13 effect of punishing someone for his or her speech.” Mulligan v. Nichols, 835 F.3d 983, 988 14 (9th Cir. 2016) (cleaned up). Here, plaintiff instead alleges that defendants chilled her right to 15 petition through speech of their own (i.e., the statements within the disposition report). 16 The bar for retaliation claims grounded in government speech is a high one. As our court 17 of appeals explained in Mulligan: 18 19 Retaliation claims involving government speech warrant a cautious approach by courts. Restricting the ability of government 20 decisionmakers to engage in speech risks interfering with their ability to effectively perform their duties. It also ignores the 21 competing First Amendment rights of the officials themselves. The First Amendment is intended to preserve an 22 uninhibited marketplace of ideas in which truth will ultimately prevail. That marketplace of ideas is undermined if public officials 23 are prevented from responding to speech of citizens with speech of their own. In accordance with these principles, we have set a high 24 bar when analyzing whether speech by government officials is sufficiently adverse to give rise to a First Amendment retaliation 25 claim. 26 Id. at 989 (cleaned up). 27 It is beyond cavil “that damage to reputation is not actionable under § 1983 unless it is 1 (9th Cir. 1988). Our court of appeals held in Gini v. Las Vegas Metropolitan Police 2 Department that this basic limitation on Section 1983 “cannot be avoided by alleging that 3 defamation by a public official occurred in retaliation for the exercise of a First Amendment 4 right.” 40 F.3d 1041, 1045 (9th Cir. 1994). There, the plaintiff alleged that the defendant 5 police officers retaliated against her filing of an internal affairs complaint by making 6 defamatory statements about her to her employer (a federal judge), thereby causing her to be 7 terminated. Id. at 1043-44. Our court of appeals affirmed the dismissal of her retaliation 8 claim against the city, holding that defamation by government officials does not establish a 9 First Amendment claim in the absence of “state action affecting [plaintiff’s] rights, benefits, 10 relationship or status with the state.” Id. at 1045; see Nunez v. City of Los Angeles, 147 F.3d 11 867, 875-76 (9th Cir. 1998) (holding that allegations of “mere threats and harsh words” did not 12 suffice to state a First Amendment employment claim against defendant government employer 13 absent “the loss of a valuable governmental benefit or privilege”) (internal quotation omitted). 14 Mulligan confirmed once more that a First Amendment retaliation claim based on government 15 speech must be accompanied by a “decision or . . . state action affecting [plaintiff’s] rights, 16 benefits, relationship or status with the state” or a “threat of invoking legal sanctions [or] other 17 means of coercion, persuasion, and intimidation.” 835 F.3d at 989, n. 5 (internal quotations 18 omitted). In Mendocino Environmental Center v. Mendocino County, for example, evidence 19 that police officers made false accusations of criminal activity against plaintiffs established a 20 First Amendment claim because those accusations were made in the context of an ongoing 21 police investigation and contributed to arrests and warrants, thereby “intimat[ing] that 22 punishment would imminently follow.” Ibid. (citing Mendocino Environmental Center v. 23 Mendocino County, 192 F.3d 1283, 1289-91 (9th Cir. 1999)). 24 District courts applying the above have dismissed allegations similar to those made in the 25 present action. In Alderman v. City of Cotati, for example, the plaintiff alleged that the 26 defendant government officials retaliated against her participation in city council hearings by 27 “paint[ing her] as mentally ill” and calling her “crazy,” a “psycho,” and “bat shit crazy,” both 1 City of Cotati, No. 19-CV-05844-KAW, 2020 WL 553883, at *1-2 (N.D. Cal. Feb. 4, 2020). 2 Judge Kandis Westmore dismissed plaintiff's claim. While defendants’ behavior was 3 “problematic as a matter of common courtesy” and may have made her feel less welcome at 4 city council hearings, it was not accompanied by an impact to more tangible interests and did 5 not invoke legal sanctions or other means of coercion, persuasion, intimidation, or 6 punishment. Id. at 3. 7 Here, plaintiff similarly alleges that defendants, through the disposition report, made 8 defamatory remarks regarding her mental health in retaliation for her filing of a 9 complaint. There is little doubt that plaintiff’s allegations, taken as true, would reflect poorly 10 on defendants and constitute unprofessional and regrettable behavior on the part of public 11 officials. Nevertheless, in light of the high threshold imposed on retaliation claims based on 12 government speech, plaintiff’s allegations do not give rise to a federal claim. Plaintiff does not 13 allege that any statements or actions by any defendant intimated that any form of punishment, 14 sanction, or adverse action would imminently follow. Nor does she suggest that defendants’ 15 speech had any negative impact on her “rights, benefits, relationship, or status with the 16 state.” Mulligan, 835 F.3d at 989. 17 Plaintiff does allege that “[w]ithout provocation, Defendants called in a crisis or mental 18 health worker, thereby threatening Plaintiff with a 5150, prior to speaking with her in order to 19 take her report” (Compl. ¶ 26). “5150” refers to California Welfare and Institutions Code 20 Section 5150, which allows for the involuntary detention of individuals deemed a danger due 21 to mental health disorders. The use of involuntary detention as a threat would bolster 22 plaintiff’s claim. However, plaintiff’s complaint does not allege facts supporting her 23 conclusion that the involvement of a mental health worker intimated that punishment, sanction, 24 or adverse action would imminently follow. Given the nature of her grievance, a police 25 department would act reasonably in calling in an impartial health expert to assist. Both sides 26 agree that a social worker was among the group that interviewed plaintiff, and that he handed 27 her a pamphlet outlining available mental health services. The decision to involve a social 1 (rightly or wrongly) to be experiencing a mental health issue is, standing alone, an entirely 2 appropriate exercise of police discretion. Plaintiff, in her supplemental briefing, argues that the 3 presence of a social worker was retaliatory because officers engaged the social worker before 4 speaking with her, and therefore could not have suspected that a mental health issue exists 5 (Dkt. No. 40 at 5). True. However, plaintiff and HPD share a lengthy history (id. at 9). It is 6 reasonable to draw on past encounters with an individual when determining the necessity of a 7 social worker. Moreover, even if officers had no prior information regarding plaintiff or her 8 claims, the argument that the mere presence of a social worker evidences retaliation, 9 intimidation, or other bad acts on the part of the police simply fails. 10 The complaint also states that “[d]efendants [Morgan and Iwanicki] and Social Worker 11 Tim Henry approached Plaintiff while she was seated in her car, making Plaintiff feel 12 surrounded and intimidating Plaintiff” (Compl. 8). The act of approaching plaintiff was a 13 reasonable and unavoidable prerequisite to taking her criminal complaint, which she had come 14 to the station to lodge. Nor does the fact that plaintiff perceived the three to be “white males” 15 suggest the presence of intimidation or threats of sanction (Compl. 2). No threatening or 16 adverse act or statement is alleged beyond the above, which falls well short of the high bar in 17 our circuit. 18 Finally, plaintiff’s supplemental briefing fleshes out a theory of retaliatory investigation, 19 citing White v. Lee (Dkt. No. 40 at 2-8). 227 F.3d 1214 (9th Cir. 2000). In White, which came 20 up on appeal of summary judgment, defendant HUD officials explicitly told plaintiffs that they 21 had violated the Fair Housing Act by engaging in speech critical of HUD activities, directed 22 plaintiffs to produce their publications and personal contact information under threat of 23 subpoena, interrogated plaintiffs under threat of subpoena, explicitly asserted HUD’s purported 24 authority to investigate “speech advocating illegal acts,” and told a major newspaper that 25 plaintiffs had “broken the law.” White, 227 F.3d at 1228-29. Those actions constituted a 26 “threat of invoking legal sanctions [or] other means of coercion, persuasion, and intimidation.” 27 Mulligan, 835 F.3d at 989, n. 5. Here, in stark contrast, plaintiff alleges a retaliatory 1 complaint; (2) the use of a “disposition report” for her complaint, “which on information and 2 belief, the CA Department of Justice collects once a case involving a suspect is resolved,” (3) 3 that officers identified her call as “call type: 415C,” which, “[a]s plaintiff understands it . . . is 4 Hayward police code for child harassment,” and (4) that “[p]laintiff noted concentrated 5 surveillance at her residence,” (Dkt. No. 40 at 2-3). The first three facts do not cut a figure. 6 While plaintiff is correct that all reasonable inferences must be drawn in her favor, those 7 inferences must be reasonable. The allegation of concentrated surveillance is more serious and 8 should be further explained in any motion to amend that plaintiff may file. As it stands, 9 however, it is not enough. The allegations made in plaintiff’s supplemental briefing do not 10 give rise to a reasonably inference that defendants intended to or did in fact threaten plaintiff 11 with legal sanction or other means of coercion, persuasion, and intimidation. To so hold would 12 render much of everyday policing a threat. 13 Plaintiff has voiced her view that HPD officers have long been apathetic to her 14 complaints, that they have denied her redress against bad actors, and that they have, in the most 15 recent instance, retaliated against her in order to dissuade further complaints. Nevertheless, the 16 appropriate remedy does not lie in the federal courts. As our court of appeals stated in Gini, 17 “[f]or any defamation and damage flowing from it, [plaintiff] has a tort remedy under state 18 law, not under the First Amendment.” 40 F.3d at 1045. 19 Second, plaintiff’s Fourth Amendment claim fails because she does not claim that a 20 search or seizure took place. Cnty of Sacramento v. Lewis, 523 U.S. 833, 833 (1998) (“[The 21 Fourth] Amendment covers only searches and seizures.”). 22 Third, plaintiff’s Fourteenth Amendment equal protection claim fails to allege that 23 defendants acted with intent or purpose to discriminate against the plaintiff based upon 24 membership in a protected class. Shavelson v. Hawaii C.R. Comm’n, 740 F. App’x 532, 534 25 (9th Cir. 2018). At oral argument, plaintiff offered only that “something felt off” and that no 26 other explanation made sense to her, and pointed to the Supreme Court’s decision in Jackson v. 27 Birmingham Board of Education. 544 U.S. 167 (2005). Plaintiff’s argument on this point 1 Jane Doe’s attempt to report a grievance tied to her membership in a protected class, then a 2 court may presume that the retaliating party is themselves discriminating against Doe due to 3 her protected identity. However, Jackson concerned the boundaries of Title IX’s implied 4 private right of action, and held that “[r]etaliation against a person because that person has 5 complained of sex discrimination is another form of intentional sex discrimination 6 encompassed by Title IX’s private cause of action.” Id. at 173. The present action does not 7 bring a Title IX claim, and our court of appeals has never cited Jackson outside the Title IX 8 context. Moreover, even plaintiff’s impermissibly broad reading of the Jackson holding does 9 not obviate the need to adequately plead retaliation. As discussed above, plaintiff has 10 not. Davis v. Folsom Cordova Unified Sch. Dist., 674 F. App'x 699, 702 (9th Cir. 2017) (citing 11 Jackson in affirming dismissal of a Title IX retaliation claim because plaintiff failed to allege 12 retaliation against him). 13 Fourth, plaintiff’s due process claim fails because she fails (1) to identify a deprivation of 14 a liberty or property interest protected by the Constitution or a lack of due process (procedural 15 due process), and (2) to plead conduct that shocks the conscience (substantive due 16 process). Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993) (elements of 17 procedural due process); Leen v. Thomas, 708 F. App’x 331, 332 (9th Cir. 2017) (elements of 18 substantive due process). 19 Fifth, plaintiff’s Monell claim must fail because she has not adequately pled that she was 20 deprived of a constitutional right. Lockett v. Cnty. of Los Angeles, 977 F.3d 737, 741 (9th Cir. 21 2020) (elements of Monell claim). Plaintiff’s complaint likewise does not plead facts sufficient 22 to allege that a municipal policy was the moving force behind defendants’ actions, whether or 23 not those actions resulted in a constitutional violation. 24 Sixth, plaintiff’s Section 1985 claim fails to allege the deprivation of a legally protected 25 right on the basis of “invidiously discriminatory class-based animus.” A & A Concrete, Inc. v. 26 White Mountain Apache Tribe, 676 F.2d 1330, 1333 (9th Cir. 1982). Again, no deprivation 27 has been plead, and the only allegation of “discriminatory class-based animus” is based on 1 plaintiff’s own belief that no other explanation made sense, and a misunderstanding of Title IX 2 case law. 3 Seventh, plaintiff’s Section 1981 claim fails because “Section 1981 establishes 4 substantive rights that a state actor may violate. It does not itself contain a remedy against a 5 state actor for such violations. A plaintiff seeking to enforce rights secured by § 1981 against a 6 state actor must bring a cause of action under § 1983.” Yoshikawa v. Seguirant, 74 F.4th 1042, 7 1047 (9th Cir. 2023). Nor does the substance of plaintiff’s complaint make out a claim. “To 8 state a claim pursuant to section 1981, a plaintiff must allege (1) the plaintiff is a member of a 9 racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the 10 discrimination concerns one or more of the activities enumerated in the statute.” Keum v. 11 Virgin America Inc., 781 F.Supp.2d 944, 954 (N.D. Cal. 2011) (Judge Illston). The complaint 12 fails to state any facts linking defendants’ activity to an intent to discriminate. See Mesumbe v. 13 Howard University, 706 F.Supp.2d 86, 92 (D.D.C.2010) (“To plead intentional discrimination, 14 plaintiff cannot merely invoke his race in the course of a claim's narrative and automatically be 15 entitled to pursue relief. Rather, plaintiff must allege some facts that demonstrate that race was 16 the reason for defendant's action.”). 17 Each of plaintiff’s federal claims (claims for relief one through five) are accordingly 18 DISMISSED. 19 Finally, “[w]here a district court dismisses a federal claim, leaving only state claims for 20 resolution, it should decline jurisdiction over the state claims and dismiss them without 21 prejudice.” Wade v. Reg'l Credit Ass'n, 87 F.3d 1098, 1101 (9th Cir. 1996); 28 USC § 22 1367(c)(3). Plaintiff’s state law claims (claims for relief six to thirteen) are DISMISSED. 23 2. PLAINTIFF’S MOTION TO PROCEED UNDER A PSEUDONYM 24 Plaintiff has filed a separate motion to proceed under a pseudonym (Dkt. No. 25 7). “Plaintiffs’ use of fictitious names runs afoul of the public's common law right of access to 26 judicial proceedings and Rule 10(a)'s command that the title of every complaint ‘include the 27 names of all the parties.” Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067 1 cases.” Ibid. The record as it stands is insufficient for plaintiff to proceed by pseudonym 2 given the important public right to know who is seeking relief via the federal courts. This 3 order, however, permits plaintiff to proceed via pseudonym for present purposes. If the case is 4 resurrected in some form, the issue will be revisited. 5 6 CONCLUSION 7 Plaintiff's complaint is DISMISSED WITHOUT PREJUDICE. Plaintiff may seek leave to 8 amend her complaint by motion, noticed on a normal thirty-five-day calendar, by MAY 10, 9 2024, AT NOON. Note, plaintiff must seek leave to amend prior to filing an amended 10 complaint; her request to file an amended complaint, made at the conclusion of her 11 supplemental briefing, is not yet granted because of its brevity and significant doubts regarding 12 the efficacy of any amendment. Plaintiff is advised that she may appeal this matter to the 5 13 Court of Appeals for the Ninth Circuit within thirty days of the entry of judgment. Fed. R. 14 |] App. P. 4(a)(1)(A). 15 16 IT IS SO ORDERED.

| dated: April 18, 2024 19 20 A mee LLIAM ALSUP 21 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28