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 DENYING PLAINTIFF'S MOTION FOR LEAVE TO AMEND 14 Defendants.
15 16 INTRODUCTION 17 In this civil rights and torts action against defendant police officers, police department, 18 and municipality, plaintiff, who’s first complaint was dismissed, moves for leave to amend. 19 For the reasons stated below, leave is DENIED. 20 STATEMENT 21 The facts underlying this action are described in full in a prior order (Dkt. No. 42). Only 22 those facts relevant to the instant motion are recounted here. 23 Plaintiff, a self-described “victim of serial crime,” has submitted a number of criminal 24 complaints to the Hayward Police Department. At issue here is a complaint made to Hayward 25 police on May 27, 2022, wherein plaintiff reported that a “foreign object had been removed 26 from her intimate parts; that she had not consented to this penetration; that her husband was a 27 witness to its location and removal; that an engineering lab had identified the foreign object as 1 identified the lab that designed and manufactured this device” (Dkt. No. 1 at 15-16). The 2 Hayward police declined to further pursue plaintiff’s complaint and issued a disposition 3 report. Plaintiff then filed a lawsuit in state court claiming that police defendants failed to 4 investigate her complaint, harassed her while she gave her complaint on May 27, and 5 subsequently retaliated against her for making that complaint. Defendants timely removed 6 and moved to dismiss. 7 A March 2024 tentative order concluded that the complaint warranted dismissal with 8 prejudice, but afforded both sides two weeks to file a critique of that order and show cause why 9 it should not be entered (Dkt. No. 38 at 11). Plaintiff filed a supplemental brief that bolstered 10 her First Amendment claim with a new theory of retaliatory investigation (Dkt. No. 40 at 6- 11 7). In light of plaintiff’s new retaliatory investigation theory, an April 2024 final order 12 dismissed plaintiff’s claim without prejudice, and invited a motion for leave to amend (Dkt. 13 No. 42 at 9) (“The allegation of concentrated surveillance is more serious and should be further 14 explained in any motion to amend that plaintiff may file.”). 15 Plaintiff’s proposed amendment adds a single paragraph to her complaint (Dkt. No. 44 at 16 7-8). Therein, plaintiff alleges that defendants conducted (and may still be conducting) a 17 retaliatory investigation based on the same facts already presented in her supplemental 18 briefing. She adds: “[p]laintiff noticed and felt threatened by increased, conspicuous police 19 presence around her house, on the road, at the gas station, at the store and as she went about 20 her day” (id. at 29). 21 This order follows full briefing. 22 ANALYSIS 23 “Under Fed.R.Civ.P. 15(a), after twenty days from the date when the initial complaint 24 was served, a party may amend its pleading only by leave of court or by written consent of the 25 adverse party; and leave shall be freely given when justice so requires. Although the rule 26 should be interpreted with extreme liberality, leave to amend is not to be granted 27 automatically.” Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) (internal 1 whether to grant leave to amend: “(1) bad faith, (2) undue delay, (3) prejudice to the opposing 2 party, (4) futility of amendment; and (5) whether plaintiff has previously amended his 3 complaint.” In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 4 2013), aff'd sub nom. Oneok, Inc. v. Learjet, Inc., 575 U.S. 373 (2015). 5 Defendant’s original complaint brought thirteen claims for relief. Her proposed 6 amendment relates only to her First Amendment right to petition claim, and only that claim is 7 addressed here. All others remain denied for the reasons stated in the tentative and final orders 8 dismissing plaintiff’s first complaint (Dkt. Nos. 38, 42). 9 Plaintiff’s motion is denied because the proposed amendment to her First Amendment 10 claim would be futile. 11 Plaintiff’s right to petition argument, as presented in her original complaint, proceeded in 12 two parts: (1) she was denied her right to petition, and (2) she was harassed in retaliation for 13 her attempt to exercise her right to petition. Both the tentative and final orders dismissing 14 plaintiff’s complaint explained why plaintiff did not make out a First Amendment claim under 15 either theory. First, plaintiff was allowed to exercise her right to petition on May 27: she and 16 her husband were interviewed, her proffered expert reports were reviewed, and a disposition 17 report issued. That is all the right to petition promises (Dkt. No. 42 at 4). Rossi v. City of 18 Chicago, 790 F.3d 729, 735 (7th Cir. 2015) (“[Plaintiff] does not have a constitutional right to 19 have the police investigate his case at all, still less to do so to his level of satisfaction.”). 20 Second, plaintiff’s retaliation theory did not meet the high bar imposed on retaliation claims 21 grounded in government speech (Dkt. No. 42 at 5-7). Mulligan v. Nichols, 835 F.3d 983, 988 22 (9th Cir. 2016) (“[W]e have set a high bar when analyzing whether speech by government 23 officials is sufficiently adverse to give rise to a First Amendment retaliation claim.”). A viable 24 First Amendment claim against government officials’ speech requires either an impact to more 25 tangible interests or the invocation of legal sanctions or other means of coercion, persuasion, 26 intimidation, or punishment. Patton v. Cnty. of Kings, 857 F.2d 1379, 1381 (9th Cir. 1988); 27 Gini v. Las Vegas Metropolitan Police Department, 40 F.3d 1041, 1045 (9th Cir. 1994); Nunez 1 v. City of Los Angeles, 147 F.3d 867, 875-76 (9th Cir. 1998); Mulligan, 835 F.3d at 989, n.5. 2 Plaintiff pled neither. 3 The March tentative order explained the above in detail. But plaintiff’s supplemental 4 briefing introduced a third theory, this time arguing that a retaliatory investigation took place, 5 based on (1) the presence of a social worker during the taking of her complaint; (2) the use of a 6 “disposition report” for her complaint, “which on information and belief, the CA Department 7 of Justice collects once a case involving a suspect is resolved,” (3) that officers identified her 8 call as “call type: 415C,” which, “[a]s plaintiff understands it . . . is Hayward police code for 9 child harassment,” and (4) that “[p]laintiff noted concentrated surveillance at her 10 residence” (Dkt. No. 40 at 5-6). The April final order explained that, while the first three facts 11 did not move the needle, “[t]he allegation of concentrated surveillance is more serious and 12 should be further explained in any motion to amend that plaintiff may file. As it stands, 13 however, it is not enough.” (Dkt. No. 42 at 8-9). 14 Plaintiff’s proposed amended complaint adds a single paragraph to her original complaint 15 (Dkt. No. 44 at 7). Therein, plaintiff alleges that defendants conducted (and may still be 16 conducting) a retaliatory investigation on the basis of the same four facts above.
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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 DENYING PLAINTIFF'S MOTION FOR LEAVE TO AMEND 14 Defendants.
15 16 INTRODUCTION 17 In this civil rights and torts action against defendant police officers, police department, 18 and municipality, plaintiff, who’s first complaint was dismissed, moves for leave to amend. 19 For the reasons stated below, leave is DENIED. 20 STATEMENT 21 The facts underlying this action are described in full in a prior order (Dkt. No. 42). Only 22 those facts relevant to the instant motion are recounted here. 23 Plaintiff, a self-described “victim of serial crime,” has submitted a number of criminal 24 complaints to the Hayward Police Department. At issue here is a complaint made to Hayward 25 police on May 27, 2022, wherein plaintiff reported that a “foreign object had been removed 26 from her intimate parts; that she had not consented to this penetration; that her husband was a 27 witness to its location and removal; that an engineering lab had identified the foreign object as 1 identified the lab that designed and manufactured this device” (Dkt. No. 1 at 15-16). The 2 Hayward police declined to further pursue plaintiff’s complaint and issued a disposition 3 report. Plaintiff then filed a lawsuit in state court claiming that police defendants failed to 4 investigate her complaint, harassed her while she gave her complaint on May 27, and 5 subsequently retaliated against her for making that complaint. Defendants timely removed 6 and moved to dismiss. 7 A March 2024 tentative order concluded that the complaint warranted dismissal with 8 prejudice, but afforded both sides two weeks to file a critique of that order and show cause why 9 it should not be entered (Dkt. No. 38 at 11). Plaintiff filed a supplemental brief that bolstered 10 her First Amendment claim with a new theory of retaliatory investigation (Dkt. No. 40 at 6- 11 7). In light of plaintiff’s new retaliatory investigation theory, an April 2024 final order 12 dismissed plaintiff’s claim without prejudice, and invited a motion for leave to amend (Dkt. 13 No. 42 at 9) (“The allegation of concentrated surveillance is more serious and should be further 14 explained in any motion to amend that plaintiff may file.”). 15 Plaintiff’s proposed amendment adds a single paragraph to her complaint (Dkt. No. 44 at 16 7-8). Therein, plaintiff alleges that defendants conducted (and may still be conducting) a 17 retaliatory investigation based on the same facts already presented in her supplemental 18 briefing. She adds: “[p]laintiff noticed and felt threatened by increased, conspicuous police 19 presence around her house, on the road, at the gas station, at the store and as she went about 20 her day” (id. at 29). 21 This order follows full briefing. 22 ANALYSIS 23 “Under Fed.R.Civ.P. 15(a), after twenty days from the date when the initial complaint 24 was served, a party may amend its pleading only by leave of court or by written consent of the 25 adverse party; and leave shall be freely given when justice so requires. Although the rule 26 should be interpreted with extreme liberality, leave to amend is not to be granted 27 automatically.” Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) (internal 1 whether to grant leave to amend: “(1) bad faith, (2) undue delay, (3) prejudice to the opposing 2 party, (4) futility of amendment; and (5) whether plaintiff has previously amended his 3 complaint.” In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 4 2013), aff'd sub nom. Oneok, Inc. v. Learjet, Inc., 575 U.S. 373 (2015). 5 Defendant’s original complaint brought thirteen claims for relief. Her proposed 6 amendment relates only to her First Amendment right to petition claim, and only that claim is 7 addressed here. All others remain denied for the reasons stated in the tentative and final orders 8 dismissing plaintiff’s first complaint (Dkt. Nos. 38, 42). 9 Plaintiff’s motion is denied because the proposed amendment to her First Amendment 10 claim would be futile. 11 Plaintiff’s right to petition argument, as presented in her original complaint, proceeded in 12 two parts: (1) she was denied her right to petition, and (2) she was harassed in retaliation for 13 her attempt to exercise her right to petition. Both the tentative and final orders dismissing 14 plaintiff’s complaint explained why plaintiff did not make out a First Amendment claim under 15 either theory. First, plaintiff was allowed to exercise her right to petition on May 27: she and 16 her husband were interviewed, her proffered expert reports were reviewed, and a disposition 17 report issued. That is all the right to petition promises (Dkt. No. 42 at 4). Rossi v. City of 18 Chicago, 790 F.3d 729, 735 (7th Cir. 2015) (“[Plaintiff] does not have a constitutional right to 19 have the police investigate his case at all, still less to do so to his level of satisfaction.”). 20 Second, plaintiff’s retaliation theory did not meet the high bar imposed on retaliation claims 21 grounded in government speech (Dkt. No. 42 at 5-7). Mulligan v. Nichols, 835 F.3d 983, 988 22 (9th Cir. 2016) (“[W]e have set a high bar when analyzing whether speech by government 23 officials is sufficiently adverse to give rise to a First Amendment retaliation claim.”). A viable 24 First Amendment claim against government officials’ speech requires either an impact to more 25 tangible interests or the invocation of legal sanctions or other means of coercion, persuasion, 26 intimidation, or punishment. Patton v. Cnty. of Kings, 857 F.2d 1379, 1381 (9th Cir. 1988); 27 Gini v. Las Vegas Metropolitan Police Department, 40 F.3d 1041, 1045 (9th Cir. 1994); Nunez 1 v. City of Los Angeles, 147 F.3d 867, 875-76 (9th Cir. 1998); Mulligan, 835 F.3d at 989, n.5. 2 Plaintiff pled neither. 3 The March tentative order explained the above in detail. But plaintiff’s supplemental 4 briefing introduced a third theory, this time arguing that a retaliatory investigation took place, 5 based on (1) the presence of a social worker during the taking of her complaint; (2) the use of a 6 “disposition report” for her complaint, “which on information and belief, the CA Department 7 of Justice collects once a case involving a suspect is resolved,” (3) that officers identified her 8 call as “call type: 415C,” which, “[a]s plaintiff understands it . . . is Hayward police code for 9 child harassment,” and (4) that “[p]laintiff noted concentrated surveillance at her 10 residence” (Dkt. No. 40 at 5-6). The April final order explained that, while the first three facts 11 did not move the needle, “[t]he allegation of concentrated surveillance is more serious and 12 should be further explained in any motion to amend that plaintiff may file. As it stands, 13 however, it is not enough.” (Dkt. No. 42 at 8-9). 14 Plaintiff’s proposed amended complaint adds a single paragraph to her original complaint 15 (Dkt. No. 44 at 7). Therein, plaintiff alleges that defendants conducted (and may still be 16 conducting) a retaliatory investigation on the basis of the same four facts above. She 17 adds: “[p]laintiff noticed and felt threatened by increased, conspicuous police presence around 18 her house, on the road, at the gas station, at the store and as she went about her day” (Dkt. No. 19 44 at 29). 20 As before, that is not enough. In White v. Lee, cited by plaintiff, defendant HUD officials 21 conducted an investigation of individuals who expressed views in opposition to the conversion 22 of a motel to a multi-family housing unit for homeless persons. 227 F.3d 1214, 1220-1221 23 (9th Cir. 2000). Over the course of that eight-month investigation, defendants conveyed a 24 conciliation proposal requiring the plaintiffs to cease all litigation and publications regarding 25 the motel conversion, advised plaintiffs to accept the offer because they had violated the Fair 26 Housing Act, directed plaintiffs, under threat of subpoena, to produce all publications, 27 minutes, and correspondences related to the conversion project, and the names, addresses, and 1 defendants interrogated plaintiffs, again under threat of subpoena, about their views and public 2 statements in opposition to the conversion. The defendants told a major metropolitan 3 newspaper that plaintiffs had “broken the law.” Here, by contrast, plaintiff has failed to allege 4 any specific acts, only a generalized feeling that there were more police officers present in 5 public as she went about her day. 6 Plaintiff’s reply in support of her motion for leave to amend reinforces that leave is not 7 warranted (Dkt. No. 47). In reply, plaintiff states that leave is necessary so that she may “be 8 allowed to proceed with discovery, as key information is in the hands of Defendants, and this 9 information is required for her amended complaint” (id. at 1). Plaintiff goes on to list a 10 number of hypotheticals that, if confirmed through discovery, would support her retaliatory 11 investigation claim. “If the Hayward PD were to have contacted [plaintiff’s] students or 12 colleagues . . . this action would chill a person of ordinary firmness” (Dkt. No. 47 at 13 4). Similarly, “[i]f the Hayward PD were to have contacted members of her community,” or 14 “[i]f [they] were to spread their false and defamatory information to other law enforcement 15 agencies, then this would chill an ordinary victim” (ibid.). She continues, “[f]or the sake of 16 argument, if . . . Hayward PD utilized wireless sensor technology . . . such as that found to be 17 implemented in Plaintiff (and to have caused Plaintiff incredible pain) as part of an 18 investigation, that level of intrusion would threaten and intimidate a reasonable person” (id. at 19 5). Again, “[f]or the sake of argument, if the Hayward PD participated in something like 20 constant or 24-7 surveillance of plaintiff, then this would go well beyond the bounds of normal 21 policing and be intimidating” (ibid.). Finally, “[f]or the sake of argument, if the Hayward PD 22 has used informants . . . to report negative, false or misleading information and to discredit 23 Plaintiff, then any reasonable person would feel threatened and intimidated by that” 24 (ibid). Plaintiff concludes that “there are numerous plausible ways in which Plaintiff could 25 prove that the Hayward PD had acted in such a way as to chill” her speech, and that she 26 “requires discovery . . . in order to answer questions at the heart of the case and to include that 27 information in her proposed amended complaint” (ibid.). 1 Plaintiff's argument misunderstands the purpose of the present inquiry. Litigation serves 2 to test claims adequately pled in a complaint; it is not an opportunity to go fishing for a claim 3 by imposing costly discovery on a defendant. Plaintiff has now had three bites at the 4 apple: her original complaint, supplemental briefing following the tentative order, and her 5 proposed amended complaint. She has not pled any of the facts she highlights above. A fourth 6 attempt would be futile. 7 Plaintiff's proposed amended complaint does not substantively alter the remaining dozen 8 claims for relief presented in her complaint. Each fails to state a claim, as discussed in the 9 (tentative and final) orders dismissing defendant’s complaint. 10 11 CONCLUSION 12 For the foregoing reasons, leave is DENIED. Judgment shall be entered, and plaintiff will 5 13 have 30 days from the entry of judgment within which to file a notice of appeal and must then 14 timely docket her appeal at the court of appeals. Fed. R. App. P. 4(a)(1)(A). 3 15 Plaintiff may otherwise choose to abandon her federal claims and bring her state law a 16 claims (claims for relief six to thirteen) in state court. “Where a district court dismisses a 3 17 federal claim, leaving only state claims for resolution, it should decline jurisdiction over the 18 state claims and dismiss them without prejudice.” Wade v. Reg'l Credit Ass'n, 87 F.3d 1098, 19 1101 (9th Cir. 1996); 28 USC § 1367(c)(3). The April order dismissing plaintiffs state law 20 claims did so without prejudice. Nothing in this order or the forthcoming judgment disturbs 21 the declination of jurisdiction over those state law claims. They survive for the state court to 22 decide. 23 24 IT IS SO ORDERED. 25 26 Dated: September 6, 2024. Pee 27 lL ~ WILLIAM ALSUP 28 UNITED STATES DISTRICT JUDGE