1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PATRINA HARRISON, Case No. 20-cv-05178-JST
8 Plaintiff, ORDER GRANTING MOTION TO 9 v. DISMISS
10 CITY AND COUNTY OF SAN Re: ECF No. 108 FRANCISCO, 11 Defendant.
12 13 Before the Court is Defendant City and County of San Francisco’s motion to dismiss. ECF 14 No. 108. The Court will grant the motion. 15 I. BACKGROUND 16 Plaintiff Patrina Harrison is a San Francisco resident who suffers from physical disabilities. 17 ECF No. 107 ¶ 1. She resides at the Arnett Watson Apartments in the Tenderloin neighborhood of 18 San Francisco through the San Francisco Local Operating Subsidy Program, a federally funded 19 housing program. Id. ¶¶ 1, 17. 20 Harrison alleges that, in the wake of the COVID-19 pandemic, the City “purchas[ed] and 21 install[ed] homeless tent housing encampments” in the Tenderloin—including along the “walls 22 directly under the bedroom and living [room] windows” of her apartment. Id. ¶¶ 17, 18. On July 23 18, 2020, two City-installed tents caught fire, sending smoke directly into Harrison’s apartment, 24 triggering a severe asthma attack. Id. ¶ 35. Harrison submitted a request for reasonable 25 accommodation asking the City to remove the tents it installed under her window or to transfer her 26 to a building in a different neighborhood. Id. ¶ 36. Both requests were denied. Id. 27 Harrison then filed this suit against the City for violations of her rights under federal and 1 initial complaint with leave to amend. ECF No. 40. Over the following two years, Harrison filed 2 two additional amended complaints. ECF Nos. 59, 81. The City moved to dismiss each of these 3 complaints, and the Court granted both motions in part and denied both in part. ECF Nos. 80, 100. 4 On August 8, 2021, Harrison filed a second lawsuit based on similar claims, Harrison v. 5 City and County of San Francisco, 21-cv-6484-JST (Harrison II).1 On April 19, 2023, the Court 6 granted the City’s motion to consolidate both cases into Harrison I. ECF No. 100. Harrison filed 7 a consolidated amended complaint (“CAC”) on May 4, 2023. ECF No. 107. The City now moves 8 to dismiss all claims raised in the CAC except state law nuisance and negligence. ECF No. 108 at 9 6. 10 II. JURISDICTION 11 The Court has jurisdiction over Harrison’s federal law claims under 28 U.S.C. § 1331 and 12 exercises supplemental jurisdiction over Harrison’s state law claims under 28 U.S.C. § 1367. 13 III. LEGAL STANDARD 14 “Dismissal under [Federal Rule of Civil Procedure] 12(b)(6) is appropriate only where the 15 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 16 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). “To survive a 17 motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a 18 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 19 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a 20 cause of action, supported by mere conclusory statements, do not suffice.” Id. 21 When ruling on a motion to dismiss, courts “accept all factual allegations in the complaint 22 as true and construe the pleadings in the light most favorable to the nonmoving party.” Knievel v. 23 ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). Pro se complaints must be liberally construed and 24 held to a less stringent standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 25 551 U.S. 89, 94 (2007) (per curiam). 26
27 1 Because the facts of Harrison II are well-known to the parties and the Court has summarized 1 Leave to amend a complaint “shall be freely given when justice so requires.” Fed. R. Civ. 2 P. 15(a)(2). The decision of whether to grant leave to amend is “within the discretion of the 3 district court, which may deny leave due to ‘undue delay, bad faith or dilatory motive on the part 4 of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue 5 prejudice to the opposing party by virtue of allowance of the amendment, and futility of 6 amendment.’” Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008) (quoting 7 Foman v. Davis, 371 U.S. 178, 182 (1962)). 8 IV. DISCUSSION 9 The City moves to dismiss Harrison’s claims brought under 42 U.S.C. § 1983, the 10 Americans with Disabilities Act, the Rehabilitation Act, as well as her claim for violation of 11 California Civil Code § 3479. 12 A. Section 1983 13 Harrison brings claims under Section 1983 for violation of her rights under the Due 14 Process Clause and the Equal Protection Clause. 15 1. Due Process Claim 16 Harrison alleges that the City violated her due process rights pursuant to the state-created 17 danger doctrine by providing unhoused individuals with tents anchored to the sidewalk underneath 18 the windows of her apartment, and by providing these individuals with adulterated substances, 19 cigarettes, candles, and matches. ECF No. 107 ¶ 65. 20 This Court previously dismissed Harrison’s due process claims in Harrison I and Harrison 21 II with prejudice. In Harrison I, Harrison alleged that “the City violated her due process rights by 22 ‘installing the tents under her bedroom and living room windows . . . creat[ing] the danger’ to 23 her.” ECF No. 100 at 4 (quoting ECF No. 81 ¶ 48). After twice giving Harrison the opportunity 24 to amend her complaint, the Court dismissed this claim with prejudice. Id. It held that Harrison 25 failed to show “(1) that the City’s affirmative conduct exposed her to an actual, particularized 26 danger, placed her in a worse position than she would have been in had the City not acted at all, 27 and caused harm that was foreseeable; and (2) that the City acted with deliberate indifference to a 1 Similarly, in Harrison II, Harrison alleged that, by installing the tents, “Defendant acted 2 affirmatively in such a way . . . as to put [her] in a wors[e] position than that in which [she] would 3 have been . . . had the Defendant not acted at all.” ECF No. 106 at 4. Further, Harrison alleged 4 that when the City “refused [her] Reasonable Accommodation Request to move, or to relocate the 5 tents, this shows that Defendant took affirmative acts to create the condition [she] complains of.” 6 Id. The Court dismissed this claim without leave to amend because the allegation of additional 7 facts would be futile. Id. at 4–5. In so holding, it noted that when the City first installed the tents, 8 “any smoke- or explosive-related danger to Harrison was not known or obvious,” and that the 9 City’s denial of Harrison’s transfer requests was “not an affirmative act that placed Harrison in a 10 worse position than she would have been otherwise.” Id. at 4.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PATRINA HARRISON, Case No. 20-cv-05178-JST
8 Plaintiff, ORDER GRANTING MOTION TO 9 v. DISMISS
10 CITY AND COUNTY OF SAN Re: ECF No. 108 FRANCISCO, 11 Defendant.
12 13 Before the Court is Defendant City and County of San Francisco’s motion to dismiss. ECF 14 No. 108. The Court will grant the motion. 15 I. BACKGROUND 16 Plaintiff Patrina Harrison is a San Francisco resident who suffers from physical disabilities. 17 ECF No. 107 ¶ 1. She resides at the Arnett Watson Apartments in the Tenderloin neighborhood of 18 San Francisco through the San Francisco Local Operating Subsidy Program, a federally funded 19 housing program. Id. ¶¶ 1, 17. 20 Harrison alleges that, in the wake of the COVID-19 pandemic, the City “purchas[ed] and 21 install[ed] homeless tent housing encampments” in the Tenderloin—including along the “walls 22 directly under the bedroom and living [room] windows” of her apartment. Id. ¶¶ 17, 18. On July 23 18, 2020, two City-installed tents caught fire, sending smoke directly into Harrison’s apartment, 24 triggering a severe asthma attack. Id. ¶ 35. Harrison submitted a request for reasonable 25 accommodation asking the City to remove the tents it installed under her window or to transfer her 26 to a building in a different neighborhood. Id. ¶ 36. Both requests were denied. Id. 27 Harrison then filed this suit against the City for violations of her rights under federal and 1 initial complaint with leave to amend. ECF No. 40. Over the following two years, Harrison filed 2 two additional amended complaints. ECF Nos. 59, 81. The City moved to dismiss each of these 3 complaints, and the Court granted both motions in part and denied both in part. ECF Nos. 80, 100. 4 On August 8, 2021, Harrison filed a second lawsuit based on similar claims, Harrison v. 5 City and County of San Francisco, 21-cv-6484-JST (Harrison II).1 On April 19, 2023, the Court 6 granted the City’s motion to consolidate both cases into Harrison I. ECF No. 100. Harrison filed 7 a consolidated amended complaint (“CAC”) on May 4, 2023. ECF No. 107. The City now moves 8 to dismiss all claims raised in the CAC except state law nuisance and negligence. ECF No. 108 at 9 6. 10 II. JURISDICTION 11 The Court has jurisdiction over Harrison’s federal law claims under 28 U.S.C. § 1331 and 12 exercises supplemental jurisdiction over Harrison’s state law claims under 28 U.S.C. § 1367. 13 III. LEGAL STANDARD 14 “Dismissal under [Federal Rule of Civil Procedure] 12(b)(6) is appropriate only where the 15 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 16 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). “To survive a 17 motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a 18 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 19 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a 20 cause of action, supported by mere conclusory statements, do not suffice.” Id. 21 When ruling on a motion to dismiss, courts “accept all factual allegations in the complaint 22 as true and construe the pleadings in the light most favorable to the nonmoving party.” Knievel v. 23 ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). Pro se complaints must be liberally construed and 24 held to a less stringent standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 25 551 U.S. 89, 94 (2007) (per curiam). 26
27 1 Because the facts of Harrison II are well-known to the parties and the Court has summarized 1 Leave to amend a complaint “shall be freely given when justice so requires.” Fed. R. Civ. 2 P. 15(a)(2). The decision of whether to grant leave to amend is “within the discretion of the 3 district court, which may deny leave due to ‘undue delay, bad faith or dilatory motive on the part 4 of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue 5 prejudice to the opposing party by virtue of allowance of the amendment, and futility of 6 amendment.’” Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008) (quoting 7 Foman v. Davis, 371 U.S. 178, 182 (1962)). 8 IV. DISCUSSION 9 The City moves to dismiss Harrison’s claims brought under 42 U.S.C. § 1983, the 10 Americans with Disabilities Act, the Rehabilitation Act, as well as her claim for violation of 11 California Civil Code § 3479. 12 A. Section 1983 13 Harrison brings claims under Section 1983 for violation of her rights under the Due 14 Process Clause and the Equal Protection Clause. 15 1. Due Process Claim 16 Harrison alleges that the City violated her due process rights pursuant to the state-created 17 danger doctrine by providing unhoused individuals with tents anchored to the sidewalk underneath 18 the windows of her apartment, and by providing these individuals with adulterated substances, 19 cigarettes, candles, and matches. ECF No. 107 ¶ 65. 20 This Court previously dismissed Harrison’s due process claims in Harrison I and Harrison 21 II with prejudice. In Harrison I, Harrison alleged that “the City violated her due process rights by 22 ‘installing the tents under her bedroom and living room windows . . . creat[ing] the danger’ to 23 her.” ECF No. 100 at 4 (quoting ECF No. 81 ¶ 48). After twice giving Harrison the opportunity 24 to amend her complaint, the Court dismissed this claim with prejudice. Id. It held that Harrison 25 failed to show “(1) that the City’s affirmative conduct exposed her to an actual, particularized 26 danger, placed her in a worse position than she would have been in had the City not acted at all, 27 and caused harm that was foreseeable; and (2) that the City acted with deliberate indifference to a 1 Similarly, in Harrison II, Harrison alleged that, by installing the tents, “Defendant acted 2 affirmatively in such a way . . . as to put [her] in a wors[e] position than that in which [she] would 3 have been . . . had the Defendant not acted at all.” ECF No. 106 at 4. Further, Harrison alleged 4 that when the City “refused [her] Reasonable Accommodation Request to move, or to relocate the 5 tents, this shows that Defendant took affirmative acts to create the condition [she] complains of.” 6 Id. The Court dismissed this claim without leave to amend because the allegation of additional 7 facts would be futile. Id. at 4–5. In so holding, it noted that when the City first installed the tents, 8 “any smoke- or explosive-related danger to Harrison was not known or obvious,” and that the 9 City’s denial of Harrison’s transfer requests was “not an affirmative act that placed Harrison in a 10 worse position than she would have been otherwise.” Id. at 4. Further, 11 Because the Court did not grant leave to raise this claim in the CAC, the Court will dismiss 12 Harrison’s due process claim with prejudice. 13 2. Equal Protection Claim 14 Harrison alleges that the City denied her equal protection under the Fourteenth 15 Amendment because it “immediately approved” the transfer requests of thirty-five other “able- 16 bod[ied]” residents from her building. ECF No. 107 ¶ 66. She claims that the denial of her 17 transfer request “is the type of p[r]oof that may support an inference of invidious or discriminatory 18 purpose.” Id. 19 The Court finds that the CAC does not cure the deficiency in pleading the Court identified 20 in its previous order; rather, it raises an entirely new claim under the same heading of equal 21 protection. In Harrison II, Harrison alleged that “the Tenderloin was selected as a site for tents 22 because of its Black and disabled population[.]” ECF No. 106 at 5 (internal quotations omitted). 23 In denying her claim, the Court held that it could not assume the truth of Harrison’s conclusory 24 allegation of discriminatory purpose. Id. at 6. While leave to amend was granted to allege facts 25 suggesting a discriminatory intent, it was not granted to allow Harrison to raise a wholly new set 26 of allegations.2 “[W]here leave to amend is given to cure deficiencies in certain specified claims, 27 1 courts have agreed that new claims alleged for the first time in the amended pleading should be 2 dismissed or stricken.” Temple of 1001 Buddhas v. City of Fremont, No. 21-cv-4661-CRB, 2022 3 WL 1570480, at *5 (N.D. Cal. May 18, 2022) (quoting DeLeon v. Wells Fargo Bank, N.A., No. 4 10-CV-01390-LHK, 2010 WL 4285006 (N.D. Cal. Oct. 22, 2010)). 5 Because Harrison exceeded the scope of the Court’s leave to amend, her equal protection 6 claim will be dismissed with prejudice. 7 B. ADA and Rehabilitation Act Claims 8 “A plaintiff bringing suit under [S]ection 504 [of the Rehabilitation Act] or Title II of the 9 ADA must show: (1) she is a qualified individual with a disability; (2) she was denied ‘a 10 reasonable accommodation that [she] needs in order to enjoy meaningful access to the benefits of 11 public services;’ and (3) the program providing the benefit receives federal financial assistance.” 12 A.G. v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1204 (9th Cir. 2016) (quoting 13 Mark H. v. Hamamoto, 620 F.3d 1090, 1097 (9th Cir. 2010)). A plaintiff seeking damages under 14 either statute must also show deliberate indifference, which “requires both knowledge that a harm 15 to a federally protected right is substantially likely, and a failure to act upon . . . that likelihood.” 16 Id. (quoting Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001)). 17 Harrison alleges that she is a qualified individual with physical disabilities, and that the 18 San Francisco Local Operating Subsidy Program, in which she is a participant, receives federal 19 funding. ECF No. 107 ¶ 1. She alleges that “she was denied a reasonable accommodation that she 20 needs in order to enjoy meaningful access to the benefits of public services.” Id. ¶ 2. Harrison 21 also states that a transfer would have allowed her to “reside in a neighborhood” where she could 22 walk outside “without the danger of falling over tents,” and where “the danger of smoke inhalation 23 and fire explosion would not [exacerbate]” her medical conditions. Id. ¶ 3. Finally, Harrison 24 claims that the City was “deliberately indifferent to [her] disability, by failing to grant [her] 25 Reasonable Accommodation Request” and “intended to discriminate” against her “on the basis of 26 [her] disability.” Id. ¶ 77. 27 Although Harrison has adequately alleged that she has a qualifying disability and that she 1 Court to infer that a transfer was a reasonable accommodation required in order to enjoy 2 meaningful access to housing, which is the benefit provided to Harrison. And further, Harrison 3 does not provide sufficient facts to support her conclusory allegations that the City intentionally 4 discriminated against her or was deliberately indifferent to her disability when it denied her 5 transfer request. 6 Having previously dismissed Harrison’s ADA and Rehabilitation Act claims on the same 7 grounds, the Court will now dismiss these claims with prejudice. 8 C. Section 3479 9 Harrison pleads a cause of action for violation of California Civil Code § 3479, alleging 10 that the City violated the code by installing tent housing underneath her rental apartment, without 11 proper sanitation amenities. ECF No. 107 ¶ 107. The Court, however, has previously dismissed 12 with prejudice this identical Section 3479 claim. ECF No. 100 at 10 (“Because Harrison’s Section 13 3479 claim is beyond the scope of this Court’s previous order, the Court will dismiss the claim 14 with prejudice.”). Accordingly, Harrison’s Section 3479 claim will again be dismissed with 15 prejudice. 16 V. SUPPLEMENTAL JURISDICTION 17 The Court declines to retain supplemental jurisdiction over Harrison’s remaining state law 18 claims. A district court “may decline to exercise supplemental jurisdiction” if it “has dismissed all 19 claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). In deciding whether to 20 remand, courts “consider and weigh . . . the values of judicial economy, convenience, fairness, and 21 comity.” Carnegie-Mellon v. Cohill, 484 U.S. 343, 350 (1988). When federal claims are 22 eliminated at an early stage of litigation, the district court has “a powerful reason to choose not to 23 continue to exercise jurisdiction.” Id. at 351. Because Harrison’s federal claims have been 24 eliminated early in this litigation—the case has not proceeded past the pleadings stage, and no 25 discovery has taken place—the Court declines to exercise supplemental jurisdiction. Harrison’s 26 state law negligence and nuisance claims are dismissed without prejudice, and she may refile those 27 claims in state court. 1 CONCLUSION 2 For the foregoing reasons, Harrison’s claims for violations of due process and equal 3 protection, the ADA and Rehabilitation Act, and California Civil Code Section 3479 are dismissed 4 || with prejudice. Harrison’s state law negligence and nuisance claims are dismissed without 5 || prejudice, and she may refile those claims in state court. 6 IT IS SO ORDERED.
7 Dated: September 19, 2023 8 JON S. TIGAR 9 nited States District Judge 10 11 as 12
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