Forbes v. Macchione, FACHE

• Court: District Court, S.D. California
• Decided: March 4, 2021
• Docket: 3:20-cv-00998
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 ASHTON FORBES, Case No. 20-cv-00998-BAS-JLB

13 Plaintiff, ORDER GRANTING DEFENDANTS’ 14 v. MOTIONS TO DISMISS (ECF Nos. 11, 12) 15 COUNTY OF SAN DIEGO; GAVIN

NEWSOM, in his official capacity as the 16 Governor of California; TOMÁS J. 17 ARAGÓN, in his official capacity as the State Public Health Officer, 18 Defendants. 19

20 Plaintiff Ashton Forbes brings this action against the County of San Diego, the 21 Governor of California, and California’s Public Health Officer1 to challenge the face mask 22 requirements imposed during the COVID-19 pandemic. The County moves to dismiss 23 Plaintiff’s action under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 11.) 24 California’s Governor and its Public Health Officer (collectively, the “State”) similarly 25 move to dismiss the action. (ECF No. 12.) Plaintiff opposes. (ECF No. 13.) 26 27 1 The Court substitutes Tomás J. Aragón in place of the former official, Sonia Y. Angell. See Fed. 28 1 The Court finds these motions suitable for determination on the papers submitted 2 and without oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d). For the following 3 reasons, the Court GRANTS the County’s and State’s motions. 4 I. BACKGROUND 5 As part of the State’s response to the COVID-19 pandemic, the California 6 Department of Public Health issued Guidance for the Use of Face Coverings (“Mask 7 Rules”). The Mask Rules recite: 8 The risk for COVID-19 exposure and infection remains and will continue to be in our midst for the foreseeable next several months. Since 9 the start of the pandemic, we have learned a lot about COVID-19 10 transmission, most notably that there are a large proportion of people who are infected but are asymptomatic or pre-symptomatic, and they play an important 11 part in community spread. The use of face coverings by everyone can limit 12 the release of infected droplets when talking, coughing, sneezing, singing, exercising, shouting, or other forms of increased respiration, and they can also 13 reinforce physical distancing by signaling the need to remain apart. In 14 addition, increasing evidence also demonstrates a cloth face covering or mask also offers some protection to the wearer, too. 15 16 The purpose of this guidance is to provide information about when face coverings are required. It mandates that face coverings be worn state-wide at 17 all times when outside of the home, unless one or more of the exceptions 18 outlined below apply. 19 (Mask Rules, ECF No. 17.2) The mask exceptions include “[p]ersons who are outdoors 20 and maintaining at least 6 feet of social distancing from others not in their household” and 21 those “who are working in an office or in a room alone.” (Id.) In addition, certain 22 individuals are exempt altogether, including children under two and people “with a medical 23 condition, mental health condition, or disability that prevents wearing a face covering.” 24 (Id.) The County has incorporated the Mask Rules into its Public Health Order regarding 25

26 2 Plaintiff’s pleading challenges the mask mandate issued on June 18, 2020. (Second Am. Compl. (“SAC”) ¶ 12, ECF No. 7.) California issued the revised Mask Rules on November 16, 2020. (ECF No. 27 17.) As a practical matter, both the June and November Mask Rules require individuals to wear masks in the circumstances that Plaintiff challenges. Hence, the Court considers Plaintiff’s allegations in light of 28 1 the COVID-19 pandemic. (ECF No. 18; see also SAC ¶¶ 9–10 (mentioning the County’s 2 prior health orders).) 3 “Plaintiff is a healthy individual.” (SAC ¶ 14.) His case challenging the Mask Rules 4 relies on two contentions. First, citing statements and conclusions from various sources, 5 Plaintiff claims that the spread of the virus by asymptomatic carriers “is statistically 6 insignificant.” (Id. ¶ 40; see also id. ¶¶ 23–32.) Second, similarly citing a collection of 7 statements and articles, Plaintiff alleges “the science and data do not support the use of 8 masks to stop the spread of COVID-19.” (Id. ¶ 40; see also id. ¶¶ 33–40.) Therefore, 9 Plaintiff alleges Defendants’ requirement that “healthy individuals . . . wear facial 10 coverings is not reasonably necessary or narrowly tailored to accomplish [their] purported 11 goal of stopping the spread of COVID-19.” (Id. ¶ 40.) Based on these allegations, Plaintiff 12 brings five claims against Defendants, including for violations of California’s police power 13 and his constitutional rights to privacy and travel. (Id. ¶¶ 41–85.) The County and State 14 move to dismiss every claim. 15 II. LEGAL STANDARD 16 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 17 Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. 18 P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court must accept 19 all factual allegations pleaded in the complaint as true and must construe them and draw 20 all reasonable inferences from them in favor of the non-moving party. Cahill v. Liberty 21 Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). To avoid a Rule 12(b)(6) dismissal, a 22 complaint need not contain detailed factual allegations; rather, it must plead “enough facts 23 to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 24 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content 25 that allows the court to draw the reasonable inference that the defendant is liable for the 26 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 27 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a 28 1 defendant’s liability, it ‘stops short of the line between possibility and plausibility of 2 entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). 3 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ 4 requires more than labels and conclusions, and a formulaic recitation of the elements of a 5 cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in original) (quoting 6 Papasan v. Allain, 478 U.S. 265, 286 (1986)). A court need not accept “legal conclusions” 7 as true. Iqbal, 556 U.S. at 678. Despite the deference the court must pay to the plaintiff’s 8 allegations, it is not proper for the court to assume that “the [plaintiff] can prove facts that 9 it has not alleged or that the defendants have violated the . . . law[] in ways that have not 10 been alleged.” Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 11 459 U.S. 519, 526 (1983). 12 As a general rule, a court freely grants leave to amend a complaint that has been 13 dismissed. Fed. R. Civ. P. 15(a); Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 14 F.2d 1393, 1401 (9th Cir. 1986). However, leave to amend may be denied when “the court 15 determines that the allegation of other facts consistent with the challenged pleading could 16 not possibly cure the deficiency.” Schreiber Distrib. Co., 806 F.2d at 1401 (citing Bonanno 17 v. Thomas, 309 F.2d 320, 322 (9th Cir. 1962)). 18 III. ANALYSIS 19 A. Police Power 20 Plaintiff’s first claim alleges California’s Mask Rules exceed its “police power” 21 because “the existing conditions do not warrant a facial covering to prevent the spread of 22 COVID-19.” (SAC ¶ 50.) The State argues no such constitutional claim exists. (State’s 23 Mot. 11:24–12:13.) The Court agrees. 24 “The powers not delegated to the United States by the Constitution . . . are reserved 25 to the States respectively, or to the people.” U.S. Const. amend. 10. This reservation 26 includes a state’s police power. The Supreme Court explained: 27 // 28 // 1 The Federal Government has expanded dramatically over the past two centuries, but it still must show that a constitutional grant of power authorizes 2 each of its actions. 3 The same does not apply to the States, because the Constitution is not the 4 source of their power. The Constitution may restrict state governments—as 5 it does, for example, by forbidding them to deny any person the equal protection of the laws. But where such prohibitions do not apply, state 6 governments do not need constitutional authorization to act. The States thus 7 can and do perform many of the vital functions of modern government— punishing street crime, running public schools, and zoning property for 8 development, to name but a few—even though the Constitution’s text 9 does not authorize any government to do so. Our cases refer to this general power of governing, possessed by the States but not by the Federal 10 Government, as the “police power.” 11 12 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 535–36 (2012) (citations omitted). 13 Accordingly, there is no claim for violation of a state’s police power under the 14 Constitution. A plaintiff must base his or her claim on one of the Constitution’s restrictions 15 on state governments. See id.; see also Bimber’s Delwood, Inc. v. James, No. 20-CV- 16 1043S, ---F. Supp. 3d ---, 2020 WL 6158612, at *18 (W.D.N.Y. Oct. 21, 2020) (rejecting 17 plaintiffs’ attempt to challenge COVID-19 restrictions under Ninth and Tenth 18 Amendments). And the statute Plaintiff invokes—42 U.S.C. § 1983—is not a source of 19 substantive rights. Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002). It is a mechanism 20 for vindicating rights otherwise protected by the Constitution and federal law. Id. 21 Therefore, to the extent Plaintiff attempts to plead a claim under 42 U.S.C. § 1983 for 22 violation of California’s police power (SAC ¶¶ 41–53), the Court dismisses this claim 23 without leave to amend. See Gonzalez v. Planned Parenthood, 759 F.3d 1112, 1116 (9th 24 Cir. 2014) (“Futility of amendment can, by itself, justify the denial of . . . leave to 25 amend.”). 26 B. Substantive Due Process 27 The State suggests the Court can also construe Plaintiff’s first cause of action as 28 raising a substantive due process claim. (State’s Mot. 15:17–15:4; accord County’s Mot. 1 14:4–15:22.) Plaintiff cites to the Fourteenth Amendment’s Due Process Clause while 2 discussing California’s police power and various state law cases. (SAC ¶ 43.) The Court 3 thus will consider whether he pleads a cognizable substantive due process claim. 4 Jacobson v. Massachusetts. The Court first considers what framework applies to 5 Plaintiff’s substantive due process claim. The State and County argue the correct 6 framework is the deferential standard found in Jacobson v. Massachusetts, 197 U.S. 11, 29 7 (1905). In Jacobson, the Supreme Court upheld a Massachusetts statute regarding 8 mandatory vaccination. 197 U.S. at 12. The Court recognized that laws protecting the 9 public health “when endangered by epidemics of disease” fall within a state’s broad police 10 power. Id. at 24–25, 37. Jacobson indicates these laws should survive constitutional 11 scrutiny so long as they have a “real or substantial relation to” protecting the public health 12 and the regulations are not “beyond all question, a plain, palpable invasion of rights secured 13 by [ ] fundamental law.” See id. at 31. 14 Since the COVID-19 pandemic began, various courts have invoked Jacobson to 15 apply a deferential standard of review to claims challenging restrictions on abortion, 16 churches, businesses, and other matters.3 This approach has its fair share of critics, 17 particularly in the Free Exercise Clause context. See Roman Catholic Diocese of Brooklyn 18 v. Cuomo, 141 S. Ct. 63, 70 (2020) (Gorsuch, J., concurring) (“Jacobson hardly supports 19 cutting the Constitution loose during a pandemic. That decision involved an entirely 20 different mode of analysis, an entirely different right, and an entirely different kind of 21 restriction.”); Agudath Israel of Am. v. Cuomo, 983 F.3d 620, 635 (2d Cir. 2020) (reasoning 22 Jacobson should not be relied upon “for the notion that courts should defer to the executive 23 3 See, e.g., In re Abbott, 954 F.3d 772, 784–87 (5th Cir. 2020) (abortion-related challenge to 24 executive order postponing certain surgeries and procedures), vacated and ordered dismissed as moot, 25 2021 WL 231539 (U.S. Jan. 25, 2021); In re Rutledge, 956 F.3d 1018, 1028 (8th Cir. 2020) (same); Gish v. Newsom, No. EDCV 20-755 JGB (KKx), 2020 WL 1979970, at *4–5 (C.D. Cal. Apr. 23, 2020) 26 (challenge concerning free exercise of religion); Six v. Newsom, 462 F. Supp. 3d 1060, 1066 (C.D. Cal. 2020) (challenges concerning travel, weddings, free association, and employment); Page v. Cuomo, 478 27 F. Supp. 3d 355, 364–369 (N.D.N.Y. 2020) (challenge to fourteen-day self-quarantine requirement); Luke’s Catering Serv., LLC v. Cuomo, No. 20-CV-1086S, --- F. Supp. 3d. ---, 2020 WL 5425008, at *8– 28 1 in the face of the COVID-19 pandemic”). That said, because the Supreme Court has not 2 overruled Jacobson, courts have continued to apply the decision. See, e.g., Hopkins 3 Hawley LLC v. Cuomo, No. 20-CV-10932 (PAC), 2021 WL 465437, at *3–6 (S.D.N.Y. 4 Feb. 9, 2021); Tandon v. Newsom, No. 20-CV-07108-LHK, 2021 WL 411375, at *16–19 5 (N.D. Cal. Feb. 5, 2021); Delaney v. Baker, No. CV 20-11154-WGY, 2021 WL 42340, at 6 *13–14 (D. Mass. Jan. 6, 2021). Moreover, this case does not involve the Free Exercise 7 Clause. Because Jacobson remains good law, the Court will apply it to Plaintiff’s 8 substantive due process claim. 9 Under Jacobson, the Mask Rules survive scrutiny unless: (A) the rules have no real 10 or substantial relation to public health, or (B) the rules are “beyond all question, a plain, 11 palpable invasion of rights secured by [ ] fundamental law.” See 197 U.S. at 37. As 12 mentioned above, in issuing the Mask Rules, the State explained that: 13 Since the start of the pandemic, we have learned a lot about COVID-19 14 transmission, most notably that there are a large proportion of people who are infected but are asymptomatic or pre-symptomatic, and they play an important 15 part in community spread. The use of face coverings by everyone can limit 16 the release of infected droplets when talking, coughing, sneezing, singing, exercising, shouting, or other forms of increased respiration, and they can also 17 reinforce physical distancing by signaling the need to remain apart. In 18 addition, increasing evidence also demonstrates a cloth face covering or mask also offers some protection to the wearer, too. 19 20 (Mask Rules 1.) 21 Plaintiff does not plausibly plead that the Mask Rules have no real or substantial 22 relation to public health. The Court accepts almost all Plaintiff’s factual allegations as 23 true.4 When construed in his favor, these allegations provide there is a dispute over the 24

25 4 The Court is not required to “accept as true allegations that contradict matters properly subject to judicial notice.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). In support of his 26 claims, Plaintiff cites to statements made by the CDC and others, including a February 2020 tweet that the “CDC does not currently recommend the use of facemasks to help prevent” COVID-19. (SAC ¶ 35.) 27 The State asks the Court to take judicial notice of the CDC’s press release that shows the agency now recommends mask usage. (ECF No. 12-2, Ex. 8.) The Court grants the request. Although statements in 28 1 need for masks to prevent asymptomatic spread of COVID-19 and doubts as to masks’ 2 effectiveness. Plaintiff’s complaint does not address the other benefit of masks cited by 3 the State in its Mask Rules—that “they can also reinforce physical distancing by signaling 4 the need to remain apart.” (Id.) Regardless, however, Jacobson forbids the type of second- 5 guessing that Plaintiff’s complaint seeks in the context of a public health emergency. See 6 197 U.S. at 30 (“It is no part of the function of a court or a jury to determine which one of 7 two modes was likely to be the most effective for the protection of the public against 8 disease.”). And Plaintiff’s allegations do not plausibly state the Mask Rules lack a real or 9 substantial relation to public health under Jacobson. 10 Nor does Plaintiff’s pleading plausibly allege the Mask Rules are “beyond all 11 question, a plain, palpable invasion of rights secured by [] fundamental 12 law.” See Jacobson, 197 U.S. at 37. “The substantive component of the Due Process 13 Clause forbids the government from depriving a person of life, liberty, or property in such 14 a way that . . . interferes with rights implicit in the concept of ordered liberty.” Engquist 15 v. Oregon Dep’t of Agric., 478 F.3d 985, 996 (9th Cir. 2007) (quotation omitted). As the 16 Ninth Circuit explained, “[s]ubstantive due process has . . . been largely confined to 17 protecting fundamental liberty interests such as marriage, procreation, contraception, 18 family relationships, child rearing, education and a person’s bodily integrity, which are 19 ‘deeply rooted in this Nation’s history and tradition.’” Franceschi v. Yee, 887 F.3d 927, 20 937 (9th Cir. 2018) (quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977)). 21 Plaintiff’s first claim does not identify a fundamental liberty interest protected by 22 the substantive component of the Due Process Clause. Other cases involving COVID-19 23 restrictions have considered whether the pursuit of one’s profession, the right to marry, and 24 other concerns are fundamental liberty interests that fall under Jacobson’s test. See, e.g., 25 Tandon v. Newsom, No. 20-CV-07108-LHK, 2021 WL 411375, at *16 (N.D. Cal. Feb. 5, 26 2021); Six, 462 F. Supp. 3d at 1070–72. Here, Plaintiff’s first claim concerns only whether 27 recommends mask usage is not subject to reasonable dispute. See DeHoog v. Anheuser-Busch InBev 28 1 he must wear a mask during the pandemic as a healthy individual. He does not plausibly 2 allege that this interest is “deeply rooted in this Nation’s history and tradition.” See 3 Franceschi, 887 F.3d at 937. And as the Supreme Court noted, 4 in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at 5 times, under the pressure of great dangers, be subjected to such restraint, to be 6 enforced by reasonable regulations, as the safety of the general public may demand. 7 8 Jacobson, 197 U.S. at 29. Consequently, Plaintiff fails to state a substantive due process 9 claim under Jacobson. 10 Rational Basis Review. In addition, even if Jacobson did not apply, the Court would 11 apply traditional rational basis review to this claim. “Substantive due process ‘forbids the 12 government from depriving a person of life, liberty, or property in such a way that ‘shocks 13 the conscience’ or ‘interferes with the rights implicit in the concept of ordered liberty.’” 14 Corales v. Bennett, 567 F.3d 554, 568 (9th Cir. 2009) (quoting Nunez v. City of Los 15 Angeles, 147 F.3d 867, 871 (9th Cir. 1998)). Plaintiff does not plausibly state the Mask 16 Rules shock the conscience. Cf. Rochin v. California, 342 U.S. 165, 172 (1952) (reasoning 17 officers’ forcible pumping of suspect’s stomach for morphine capsules shocked the 18 conscience). 19 Moreover, because Plaintiff does not identify a fundamental right underpinning his 20 substantive due process claim, the Mask Rules survive scrutiny “so long as they are 21 ‘rationally related to legitimate government interests.’” Stormans, Inc. v. Wiesman, 794 22 F.3d 1064, 1085 (9th Cir. 2015) (quoting Washington v. Glucksberg, 521 U.S. 702, 728 23 (1997)). “Rational basis review is highly deferential to the government, allowing any 24 conceivable rational basis to suffice.” Erotic Serv. Provider Legal Educ. & Research 25 Project v. Gascon, 880 F.3d 450, 457 (9th Cir.), amended, 881 F.3d 792 (9th Cir. 2018). 26 Under this test, the Mask Rules are “not subject to courtroom fact-finding and may be based 27 on rational speculation unsupported by evidence or empirical data.” See F.C.C. v. Beach 28 Commc’ns, Inc., 508 U.S. 307, 315 (1993). 1 Plaintiff’s first claim does not plausibly plead that the Mask Rules lack any rational 2 basis. His contentions disputing the scientific basis for the Mask Rules are simply not 3 enough to state a plausible clam that the rules are not rationally related to a legitimate 4 government interest. See, e.g., Hopkins Hawley LLC v. Cuomo, No. 20-CV-10932 (PAC), 5 2021 WL 465437, at *7 (S.D.N.Y. Feb. 9, 2021) (reasoning plaintiffs averments that 6 COVID-19 policy “went against the grain of scientific proof” did not satisfy the high bar 7 for rational basis review). At minimum, “rational speculation” could support the use of 8 masks to reinforce physical distancing and limit the spread of infected droplets during a 9 pandemic. See Beach Commc’ns, 508 U.S. at 315. 10 Accordingly, to the extent Plaintiff’s first cause of action raises a substantive due 11 process claim, the Court dismisses the claim. The Court is doubtful that Plaintiff can state 12 an amended claim that survives scrutiny under Rule 12(b)(6). Also, Plaintiff has previously 13 amended his pleading. However, this order is the first time the Court has addressed the 14 legal sufficiency of Plaintiff’s claims. Therefore, given the liberal policy favoring 15 amendment, the Court will dismiss this claim with leave to amend. See Johnson v. Buckley, 16 356 F.3d 1067, 1077 (9th Cir. 2004) (listing the leave to amend factors). 17 C. Privacy 18 Plaintiff’s second claim alleges the Mask Rules violate his constitutional right to 19 privacy. (SAC ¶¶ 54–62.) He alleges his privacy is being violated because the rules 20 “forc[e] him to wear a facial covering.” (Id. ¶ 60.) Defendants argue this claim is 21 implausible because it is conclusory, and the right to privacy includes only fundamental 22 personal rights. (State’s Mot. 15:5–27; County’s Mot. 15:23–16:17.) 23 “The Supreme Court has recognized that one aspect of the ‘liberty’ protected by the 24 Due Process Clause of the Fourteenth Amendment is ‘a right of personal privacy, or a 25 guarantee of certain areas or zones of privacy.’” Parents for Privacy v. Barr, 949 F.3d 26 1210, 1222 (9th Cir. 2020) (quotation marks omitted) (quoting Carey v. Population Servs. 27 Int’l, 431 U.S. 678, 684 (1977)). The right to privacy “includes ‘at least two 28 constitutionally protected privacy interests: the right to control the disclosure of sensitive 1 information and the right to ‘independence [in] making certain kinds of important 2 decisions.’” Id. at 1222 (quoting Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1207 (9th 3 Cir. 2005)). These important decisions are those related to “the most intimate of human 4 activities and relationships,” such as marriage, procreation, contraception, family 5 relationships, raising children, and education. See Carey, 431 U.S. at 684–85. 6 Plaintiff’s privacy claim largely overlaps with his substantive due process claim. 7 The Court finds it is implausible for the same reasons expressed above. Further, as 8 Defendants argue, Plaintiff’s pleading does not identify a constitutionally protected privacy 9 interest. The requirement that an individual wear a mask in public within six feet of persons 10 from other households during a pandemic does not concern the disclosure of “sensitive 11 information.” See Parents for Privacy, 949 F.3d at 1222. Nor does Plaintiff plausibly 12 allege that this requirement interferes with the “certain kinds of important decisions” 13 covered by Fourteenth Amendment privacy jurisprudence—those related to the most 14 intimate of human activities and relationships. See id.; see also Carey, 431 U.S. at 684– 15 85. 16 Hence, the Court grants Defendants’ request to dismiss Plaintiff’s second claim. The 17 Court dismisses this claim with leave to amend for the same reasons as his substantive due 18 process claim. 19 D. Travel 20 Plaintiff’s third claim invokes the right to travel. (SAC ¶¶ 63–71.) He alleges the 21 Mask Rules restrict “his right to travel within the County by forcing him to make a decision 22 between wearing a facial covering which provides no medical benefit and in fact creates 23 other collateral health risks, or remain a prisoner in his own home.” (Id. ¶ 67.) Plaintiff 24 further claims that requiring him to choose “between violating his right to travel and move 25 freely or his right to privacy violates his rights under the Fourteenth Amendment, Section 26 1 of the United States Constitution.” (Id. ¶ 69.) The State and County argue this claim is 27 defective because the constitutional right to travel concerns interstate travel, and the Mask 28 1 Rules do not otherwise violate this right. (State’s Mot. 16:1–26; County’s Mot. 16:18– 2 18:2.) 3 In rejecting a travel-related challenge to California’s COVID-19 regulations, Judge 4 Staton aptly summarized the relevant law: 5 “The word ‘travel’ is not found in the text of the Constitution. Yet the ‘constitutional right to travel from one State to another’ is firmly embedded 6 in [Supreme Court] jurisprudence.” Saenz v. Roe, 526 U.S. 489, 498 (1999) 7 (emphasis added) (quoting United States v. Guest, 383 U.S. 745, 757 (1966)). As recognized by the Supreme Court, the right to travel “embraces at least 8 three different components.” Saenz, 526 U.S. at 500. 9 It protects the right of a citizen of one State to enter and to leave 10 another State, the right to be treated as a welcome visitor rather 11 than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent 12 residents, the right to be treated like other citizens of that State. 13 Id. But neither the Supreme Court nor the Ninth Circuit have recognized as a 14 protected component the right to intrastate travel, which Plaintiffs invoke. 15 See Nunez by Nunez v. City of San Diego, 114 F.3d 935, 944, 944 n.7 (9th Cir. 1997) . . . . Because any restrictions on Plaintiffs’ (and California residents’) 16 right to travel involve intrastate travel, Plaintiffs’ claim for violation of the 17 right to travel is not likely to succeed on the merits, nor does it raise a serious question going to the merits. 18

19 Six, 462 F. Supp. 3d at 1069 (record citation omitted). 20 Plaintiff does not state a plausible claim based on his right to travel. The Mask Rules 21 do not prevent him from engaging in interstate travel. And even if there is a constitutional 22 right to travel within the State, Plaintiff includes no facts to explain how the Mask Rules 23 restrict his ability to travel within the State. Thus, the Court dismisses this claim and grants 24 leave to amend for the same reasons expressed above. 25 E. Medical Decisions 26 Plaintiff’s fourth claim similarly arises under the Fourteenth Amendment’s Due 27 Process Clause. He alleges the Mask Rules violate his right to make personal medical 28 decisions. (SAC ¶¶ 72–79.) That is, the Mask Rules allegedly force Plaintiff to “make a 1 medical choice for his person by requiring the wearing of a facial covering when in public.” 2 (Id. ¶ 76.) And as an informed citizen, Plaintiff alleges that he “understands the wearing 3 of a facial covering does not effectively protect him from COVID-19 nor does it effectively 4 protect others in his immediate vicinity.” (Id.) Defendants argue this claim fails because 5 the Mask Rules do not force Plaintiff to receive unwanted medical treatment, and 6 Defendants further argue any intrusion on Plaintiff’s right to decline unwanted medical 7 treatment is minor and does not violate his right. (State’s Mot. 17:3–23; County’s Mot. 8 18:3–15.) 9 Individuals have a constitutional liberty interest under the Due Process Clause to 10 refuse medical treatment. Cruzan by Cruzan v. Dir., Missouri Dep’t of Health, 497 U.S. 11 261, 278 (1990). For example, the forced administration of antipsychotic drugs, 12 Washington v. Harper, 494 U.S. 210, 221–22 (1990), and the transfer to a mental hospital 13 along with mandatory behavior modification treatment, Vitek v. Jones, 445 U.S. 480, 487 14 (1980), implicate this interest. And Jacobson itself can be viewed as a substantive due 15 process case concerning medical decisions; the Supreme Court rejected the claim that the 16 Constitution prevented Massachusetts from enforcing its compulsory vaccination law 17 against an individual’s will. 197 U.S. at 39; see also Zucht v. King, 260 U.S. 174, 176 18 (1922) (noting Jacobson settled that it is within the police power of a state to provide for 19 compulsory vaccination). 20 The Court agrees that Plaintiff’s fourth claim is untenable. It is implausible for the 21 same reasons as his generalized substantive due process claim considered above. 22 Moreover, Plaintiff does not sufficiently allege that the Mask Rules implicate the type of 23 unwanted medical treatment that falls under the Fourteenth Amendment’s Due Process 24 Clause. The requirement that an individual wear a mask in public within six feet of persons 25 from other households during a pandemic is a far cry from compulsory vaccination, 26 mandatory behavior modification treatment in a mental hospital, and other comparable 27 intrusions into personal autonomy. The Court also doubts that requiring people to wear a 28 mask qualifies as “medical treatment” within the meaning of the Due Process Clause. 1 Because Plaintiff's fourth claim lacks plausibility, the Court similarly dismisses it with 2 || leave to amend. 3 F. California Constitution 4 Plaintiff's fifth and final claim alleges the Mask Rules violate Article 1, Section 1 of 5 || the California Constitution “by depriving him of his liberty to freely move about in public” 6 || and invading “the privacy of his person by requiring him to wear a facial covering that does 7 ||not accomplish the state’s goal of stopping the spread of COVID-19.” (SAC 4§ 80-85.) 8 || However, because the Court has dismissed Plaintiff’s federal claims, the Court declines to 9 reach this state law claim. See 28 U.S.C. § 1367(c)(3) (providing the court may decline to 10 exercise supplemental jurisdiction over a claim if it “has dismissed all the claims over 11 || which it has original jurisdiction’). 12 CONCLUSION 13 For the foregoing reasons, the Court GRANTS Defendants’ motions to dismiss. 14 || (ECF Nos. 11, 12.) Specifically, the Court dismisses Plaintiffs first claim for violation of 15 || California’s police power with prejudice. The Court, however, dismisses without prejudice 16 || Plaintiff's first claim to the extent it raises a substantive due process challenge to the Mask 17 ||Rules. Further, the Court dismisses without prejudice Plaintiff's second, third, and fourth 18 |/claims. Finally, the Court declines to exercise supplemental jurisdiction over Plaintiffs 19 || fifth claim and dismisses it without prejudice. If Plaintiff wishes to file a Third Amended 20 Complaint, he must do so no later than March 26, 2021. 21 IT IS SO ORDERED. 22 /\ yy 23 || DATED: March 4, 2021 ( itl A (Lohan 6 24 United States District Judge 25 26 27 28 4A.