Hashim Al Balad Muhammad v. City of Moreno Valley Code Enforcement

Opinion

Case 5:21-cv-01204-JGB-SP Document 19 Filed 03/21/22 Page 1 of 15 Page ID #:141

1 2 3 4 5 6 7 10 11 HASHIM AL’BALAD MUHAMMAD, ) Case No. 5:21-cv-01204-JGB (SP) ) 12 Plaintiff, ) ) ORDER FINDING COMPLAINT 13 v. ) SUBJECT TO DISMISSAL BUT ) GRANTING LEAVE TO AMEND 14 ) CITY OF MORENO VALLEY CODE ) 15 ENFORCEMENT, et al., ) ) 16 Defendants. ) ) 17 18 I. 20 On July 20, 2021, plaintiff Hashim Al’Balad Muhammad, proceeding pro se 21 and in forma pauperis, filed a complaint against the City of Moreno Valley, 22 alleging that defendant was negligent and violated his Fourth, Fifth, and Fourteenth 23 Amendment rights when it inspected, issued citations and fines against, and 24 restricted usage of his property (“Complaint”).1 25 26 1 Plaintiff also named City of Moreno Valley Code Enforcement and City of 27 Moreno Valley Citation Processing Center as defendants, but neither is an actual 28 entity. Thus, the only proper defendant is the City of Moreno Valley. 1 Case 5:21-cv-01204-JGB-SP Document 19 Filed 03/21/22 Page 2 of 15 Page ID #:142

1 On August 16, 2021, defendant filed: (1) a motion to dismiss pursuant to 28 2 U.S.C. § 1915(e)(2)(B) on the bases that the Complaint is frivolous, the Complaint 3 fails to state a claim, and defendant has immunity (“§ 1915 MTD”); and (2) a 4 motion to dismiss pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil 5 Procedure (“Rules”) on the bases that the court lacks subject matter jurisdiction, 6 plaintiff lacks standing, the Complaint fails to state a claim, and defendant has 7 immunity (“Rule 12(b) MTD”). Docket nos. 8, 9. On August 25, 2021, defendant 8 refiled the same motions to dismiss. Docket nos. 10, 11. Plaintiff filed a “Notice 9 of Motion to Amend Complaint” on August 31, 2021, which the court considers 10 plaintiff’s response to the motions to dismiss (“motion to amend/opposition”).2 11 Docket no. 16. Defendant filed an Objection and Opposition to plaintiff’s motion 12 to amend on September 8, 2021. 13 Liberally construing the Complaint’s allegations, the court finds the 14 Complaint fails to state a claim upon which relief can be granted, and is therefore 15 subject to dismissal. But the court grants plaintiff leave to amend, as discussed 16 below. 17 II. 19 The Complaint contains few actual factual allegations, and those few are 20 confusing and disjointed. To the extent it can, the court has attempted to 21 summarize the pertinent allegations as follows. 22 Plaintiff is a co-owner (with his in-laws) of property located in the City of 23 24 2 As the court previously stated, plaintiff had a right to amend as a matter of 25 course because he filed the motion to amend within 21 days after service of the 26 motions to dismiss. See docket no. 18; Fed. R. Civ. P. 15(a)(1)(B). But the amended complaint did not comply with the Federal Rules of Civil Procedure and 27 the court therefore found plaintiff had not filed an amended complaint as a matter 28 of course. See id. 2 Case 5:21-cv-01204-JGB-SP Document 19 Filed 03/21/22 Page 3 of 15 Page ID #:143

1 Moreno Valley, California. Plaintiff maintains a trailer, aluminum command tent, 2 and garden on the property. Plaintiff was fined for “vegetation and rubbish” 3 immediately after purchase of the property. Additional citations and fines dated 4 approximately May, June, and July 2021 were issued against the property, but 5 plaintiff did not receive notice of them until July 2021. 6 Based on these allegations, plaintiff claims defendant conducted an 7 unreasonable search and seizure, engaged in “warrantless spying,” levied fines 8 without due process, and limited his rights to use his property. 11 A. 28 U.S.C. 1915(e)(2)(B) 12 Under 28 U.S.C. § 1915(e)(2)(B), the court may sua sponte dismiss, “at any 13 time,” any in forma pauperis complaint that is frivolous or malicious, fails to state 14 a claim, or seeks damages from defendants who are immune. See also Lopez v. 15 Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). 16 B. Rule 12(b)(1) 17 A motion to dismiss pursuant to Rule 12(b)(1) challenges the subject matter 18 jurisdiction of the court. Fed. R. Civ. P. 12(b)(1); Neitzke v. Williams, 490 U.S. 19 319, 327, n.6, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989). A federal court is one of 20 limited jurisdiction and is presumed to lack jurisdiction. Kokkonen v. Guardian 21 Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994). 22 In considering a Rule 12(b)(1) motion to dismiss, a court takes the allegations in 23 the complaint as true. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). A 24 court, however, is not restricted to the pleadings and may review other evidence to 25 resolve factual disputes regarding jurisdiction. See Warren v. Fox Family 26 Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (“A jurisdictional challenge 27 under Rule 12(b)(1) may be either on the face of the pleadings or by presenting 28 3 Case 5:21-cv-01204-JGB-SP Document 19 Filed 03/21/22 Page 4 of 15 Page ID #:144

1 extrinsic evidence.”); McCarthy v. U.S., 850 F.2d 558, 560 (9th Cir. 1988). When 2 a defendant challenges the jurisdiction of the court, plaintiff bears the burden of 3 establishing jurisdiction. Sopcak v. N. Mountain Helicopter Serv., 52 F.3d 817, 4 818 (9th Cir. 1995). 5 C. Rule 12(b)(6) 6 Under Rule 12(b)(6), a defendant may move to dismiss a complaint for 7 “failure to state a claim upon which relief can be granted.” A motion to dismiss 8 under Rule 12(b)(6) “tests the legal sufficiency of a claim.” Navarro v. Block, 250 9 F.3d 729, 732 (9th Cir. 2001). Dismissal for failure to state a claim “can be based 10 on the lack of a cognizable legal theory or the absence of sufficient facts alleged 11 under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 12 696, 699 (9th Cir. 1990) (as amended). A court may not dismiss a complaint under 13 Rule 12(b)(6) “unless it appears beyond doubt that the plaintiff can prove no set of 14 facts in support of his claims which would entitle him to relief.” Barnett v. 15 Centoni, 31 F.3d 813, 816 (9th Cir. 1994). 16 “When there are well-pleaded factual allegations, a court should assume 17 their veracity and then determine whether they plausibly give rise to an entitlement 18 to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 173 L. Ed. 2d 868 19 (2009). A claim “has facial plausibility when the plaintiff pleads factual content 20 that allows the court to draw the reasonable inference that the defendant is liable 21 for the misconduct alleged.” Id. at 678. This plausibility standard does not amount 22 to a probability requirement, “but it asks for more than a sheer possibility that a 23 defendant has acted unlawfully.” Id. 24 “[T]he tenet that a court must accept as true all of the allegations contained 25 in a complaint is inapplicable to legal conclusions. Threadbare recitals of the 26 elements of a cause of action, supported by mere conclusory statements, do not 27 suffice.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 28 4 Case 5:21-cv-01204-JGB-SP Document 19 Filed 03/21/22 Page 5 of 15 Page ID #:145

1 1955, 167 L. Ed. 2d 929 (2007)). The complaint must both “contain sufficient 2 allegations of underlying facts to give fair notice and to enable the opposing party 3 to defend itself effectively . . . [and] must plausibly suggest an entitlement to relief, 4 such that it is not unfair to require the opposing party to be subjected to the 5 expense of discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 6 1216 (9th Cir. 2011). 7 Where a plaintiff appears pro se in a civil rights case, the court must 8 construe the pleadings liberally and afford the plaintiff any benefit of the doubt. 9 Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The rule of 10 liberal construction is “particularly important in civil rights cases.” Ferdik v. 11 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Nonetheless, in giving liberal 12 interpretation to a pro se civil rights complaint, courts may not “supply essential 13 elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. 14 of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “Vague and conclusory allegations 15 of official participation in civil rights violations are not sufficient to withstand a 16 motion to dismiss.” Id.; see also Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 17 (9th Cir. 1984) (finding conclusory allegations unsupported by facts insufficient to 18 state a claim under § 1983). “The plaintiff must allege with at least some degree of 19 particularity overt acts which defendants engaged in that support the plaintiff’s 20 claim.” Jones, 733 F.2d at 649 (internal quotation marks and citation omitted). 21 The court generally must give a pro se litigant leave to amend her complaint 22 “unless it determines that the pleading could not possibly be cured by the 23 allegation of other facts.” Lopez, 203 F.3d at 1127 (quotation marks and citations 24 omitted). Thus, before a pro se civil rights complaint may be dismissed, the court 25 must provide the plaintiff with a statement of the complaint’s deficiencies. Karim- 26 Panahi, 839 F.2d at 623-24. But where amendment of a pro se litigant’s complaint 27 would be futile, denial of leave to amend is appropriate. See James v. Giles, 221 28 5 Case 5:21-cv-01204-JGB-SP Document 19 Filed 03/21/22 Page 6 of 15 Page ID #:146

1 F.3d 1074, 1077 (9th Cir. 2000). 2 IV. 4 A. The Court Has Subject Matter Jurisdiction Over the Colorable Claims 5 “A plaintiff properly invokes § 1331 jurisdiction when she pleads a 6 colorable claim ‘arising under’ the Constitution or laws of the United States.” 7 Arbaugh v. Y&H Corp., 546 U.S. 500, 513, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 8 (2006). The “[f]ailure to state a claim under federal law is not the same thing as 9 failure to establish federal question jurisdiction under 28 U.S.C. § 1331.” Bollard 10 v. Cal. Province of the Society of Jesus, 196 F.3d 940, 951 (9th Cir. 1999); see 11 Shapiro v. McManus, 577 U.S. 39, 45, 136 S. Ct. 450, 193 L. Ed. 2d 279 (2015) 12 (the Supreme Court has “long distinguished between failing to raise a substantial 13 federal question for jurisdictional purposes . . . and failing to state a claim for relief 14 on the merits”). Rather, “[a]ny non-frivolous assertion of a federal claim suffices 15 to establish federal question jurisdiction, even if that claim is later dismissed on the 16 merits under Rule 12(b)(6).” Bollard, 196 F.3d at 951. “A claim invoking 17 federal-question jurisdiction under 28 U.S.C. § 1331 [] may be dismissed for want 18 of subject-matter jurisdiction if it is not colorable, i.e., if it is ‘immaterial and made 19 solely for the purpose of obtaining jurisdiction’ or is ‘wholly insubstantial and 20 frivolous.’” Arbaugh, 546 U.S. at 513 n.10 (quoting Bell v. Hood, 327 U.S. 678, 21 682-83, 66 S. Ct. 773, 90 L. Ed. 939 (1946)); Shapiro, 577 U.S. at 45. 22 A complaint “is frivolous where it lacks an arguable basis either in law or 23 fact.” Neitzke, 490 U.S. at 325. “It is hard to show frivolousness.” Cook Inlet 24 Region, Inc. v. Rude, 690 F.3d 1127, 1131 (9th Cir. 2012); see Shapiro, 577 U.S. at 25 46 (the use of “wholly” has legal significance). The federal claim must be “so 26 insubstantial, implausible, . . . or otherwise completely devoid of merit as to not 27 involve a federal controversy.” Id. (quotation marks and citation omitted); see, 28 6 Case 5:21-cv-01204-JGB-SP Document 19 Filed 03/21/22 Page 7 of 15 Page ID #:147

1 e.g., Trust v. Am. Honda Fin. Corp., 2016 WL 756461, at *2 (C.D. Cal. Feb. 25, 2 2016) (“A federal claim which is so insubstantial as to be patently without merit 3 cannot serve as the basis for federal jurisdiction.”). 4 The court recognizes that many of plaintiff’s allegations and 5 characterizations are fanciful. For example, plaintiff characterizes defendant as the 6 “Third Section of His Imperial Majesty’s Own Chancellery” and acting as the 7 “judge jury and executioner.” Complaint at 2, 5.3 The Complaint also primarily 8 consists of plaintiff’s own analysis of property rights rather than factual 9 allegations, and seeks not only injunctive and monetary relief, but also 40 acres 10 and two government mules. Id. at 5, 7-10. Nevertheless, the Complaint, on its 11 face, also asserts violations of the Fourth, Fifth, and Fourteenth Amendments. The 12 question then is whether the claims are colorable or instead wholly insubstantial 13 and frivolous. Shapiro, 577 U.S. at 45; Arbaugh, 546 U.S. at 513 n.10. 14 Plaintiff’s allegations appear insubstantial, but the court cannot state that 15 they are “wholly insubstantial,” “completely devoid of merit,” or lack an arguable 16 basis in law. Liberally construing the Complaint, plaintiff alleges defendants 17 conducted illegal searches of his property, issued fines without due process, and 18 restricted the usage of his property. Notwithstanding whether the allegations state 19 a claim upon which relief can be granted, the claims are sufficient to confer 20 jurisdiction. See Murr v. Wisconsin, __ U.S. __ , 137 S. Ct. 1933, 1942, 198 L. Ed. 21 2d 497 (2017) (the Takings Clause of the Fifth Amendment applies to the states 22 through the Fourteenth Amendment); Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 23 1684, 6 L. Ed. 2d 1081 (1961) (the Fourth Amendment applies to the states 24 through the Due Process Clause of the Fourteenth Amendment); Colorado v. 25 Bannister, 449 U.S. 1, 2-3, 101 S. Ct. 42, 66 L. Ed. 2d 1 (1980) (“The provisions 26 27 3 All citations to the Complaint refer to the page numbers designated by the 28 CM/ECF system. 7 Case 5:21-cv-01204-JGB-SP Document 19 Filed 03/21/22 Page 8 of 15 Page ID #:148

1 of the Fourth Amendment are enforceable against the States through the 2 Fourteenth, and it is axiomatic that ‘searches conducted outside the judicial 3 process, without prior approval by judge or magistrate, are per se unreasonable 4 under the Fourth Amendment – subject only to a few specifically established and 5 well delineated exceptions.’”) (citation omitted). 6 Because the claims are colorable, the court will not dismiss the Complaint 7 on the grounds that the court lacks subject matter jurisdiction and the Complaint is 8 frivolous. 9 B. Plaintiff Has Standing 10 Defendant contends the Complaint should be dismissed because plaintiff 11 lacks standing. Rule 12(b) MTD at 5-8. Defendant argues plaintiff has not alleged 12 any actual or threatened injury caused by defendant. Id. at 6-7. 13 To satisfy Article III’s standing requirements, a plaintiff must show: (1) he 14 suffered an injury in fact; (2) there is a causal connection between the injury and 15 the defendant’s conduct; and (3) it is likely that the injury will be redressed by a 16 favorable decision. Lujan v Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 17 2130, 119 L. Ed. 2d 351 (1992). Plaintiff makes few factual allegations in the 18 Complaint. Nevertheless, liberally construing the Complaint, plaintiff meets the 19 standing requirements. Plaintiff alleges defendant, through enforcement of 20 municipal codes, searched his property without his consent or a warrant, he was 21 fined without due process, and defendant has restricted his usage of his property. 22 See Complaint at 5, 9. This is sufficient at this stage for standing. 23 Nonetheless, to the extent plaintiff asks the court to generally “define” a 24 property owner’s constitutional rights, it appears plaintiff seeks an advisory 25 opinion, which the Constitution prohibits. McQuillion v. Schwarzeneggar, 369 26 F.3d 1091, 1095 (9th Cir. 2004). 27 28 8 Case 5:21-cv-01204-JGB-SP Document 19 Filed 03/21/22 Page 9 of 15 Page ID #:149

1 C. Plaintiff Fails to State a Claim 2 Plaintiff fails to state facts sufficient to support any federal constitutional or 3 tort claim against defendants. The Complaint comprises plaintiff’s musings on 4 property rights and the Constitution, but is bereft of factual allegations. Plaintiff 5 does not plead any facts that could plausibly state any claim. Among other things, 6 plaintiff fails to allege the identification of the property at issue, when defendant 7 issued citations against him, what violations were cited, and what restrictions were 8 placed on the use of his property. Although plaintiff identifies the property and 9 code violations in the motion to amend/opposition, that does not cure the 10 deficiencies in the Complaint. 11 As for each claim specifically, the Fourth Amendment prohibits illegal 12 searches and seizures. U.S. Const. amend. IV. Graham v. Connor, 490 U.S. 386, 13 394, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) (The Fourth Amendment 14 “guarantees citizens the ‘right to be secure in their persons … against unreasonable 15 … seizures.’”). Plaintiff makes vague and conclusory allegations of an 16 “unreasonable search and seizure” and ‘warrantless spying,” but fails to allege any 17 facts that establish defendant conducted an unreasonable search or seizure of his 18 property. See Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001) 19 (“Conclusory allegations of law, however, are insufficient to defeat a motion to 20 dismiss.”); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) 21 (the court is not required to accept as true merely conclusory allegations). 22 “The Takings Clause of the Fifth Amendment . . . provides that private 23 property shall not be taken for public use, without just compensation.” Lingle v. 24 Chevron U.S.A., Inc., 544 U.S. 528, 536, 125 S. Ct. 2074, 161 L. Ed. 2d 876 25 (2005) (internal quotation marks and citation omitted). A taking may be a physical 26 appropriation or regulatory prohibition of a private use that categorically deprives 27 the property of its value or non-categorically interferes with property interests to an 28 9 Case 5:21-cv-01204-JGB-SP Document 19 Filed 03/21/22 Page 10 of 15 Page ID #:150

1 adverse degree. Id. at 537-40; Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l 2 Planning Agency, 535 U.S. 302, 330-31, 122 S. Ct. 1465, 152 L. Ed. 2d 517 3 (2002). Neither a physical taking nor a public use are necessary components of a 4 regulatory taking. Tahoe-Sierra Pres. Council, Inc., 535 U.S. at 326. Plaintiff 5 fails to state a Takings Clause claim because he has not identified the property at 6 issue, any municipal code, or how the regulatory action deprived the property of its 7 value or interfered with his property interest. 8 “The Fourteenth Amendment provides that no State shall ‘deprive any 9 person of life, liberty, or property, without due process of law.’” Lavan v. City of 10 Los Angeles, 693 F.3d 1022, 1031 (9th Cir. 2012) (quoting U.S. Const. amend. 11 XIV, § 1); see Dash, Inc. v. Alcoholic Beverage Control Appeals Bd., 683 F.2d 12 1229 1233 (9th Cir. 1982) (“Procedural due process imposes constraints on 13 governmental decisions which deprive individuals of liberty or property interests 14 within the meaning of the Due Process Clause of the Fifth or Fourteenth 15 Amendment.”). In order to state a procedural due process claim, a plaintiff must 16 establish: (1) a protected liberty or property interest; (2) the governmental 17 deprivation of that interest; and (3) a lack of process. Shanks v. Dressel, 540 F.3d 18 1097, 1090 (9th Cir. 2008). Plaintiff again neither identifies the property he owns 19 nor the ordinances depriving him of his property interest. Moreover, to the extent 20 plaintiff alleges he has a protected liberty interest in an unfettered right to use his 21 property in any matter he intends, no such liberty interest exists. See Lingle, 544 22 U.S. at 537-38 (government may regulate property to a certain extent); see, e.g., 23 Krage v. City of Lakewood, 2020 WL 6694327, at *14 (C.D. Cal. Sept. 18, 2020) 24 (“[A] property owner does not have a constitutionally protected right to maintain 25 her property in a manner that constitutes a nuisance.”). As for the alleged lack of 26 process, although plaintiff alleges that defendant levied fines “without due 27 process,” he also admits he may appeal the fines. See Complaint at 7, 9. 28 10 Case 5:21-cv-01204-JGB-SP Document 19 Filed 03/21/22 Page 11 of 15 Page ID #:151

1 Finally, plaintiff alleges defendant was negligent “when [it] issued citations 2 based on false observations.” Complaint at 4. It appears plaintiff is arguing 3 defendant violated his constitutional rights through its negligent issuance of 4 citations or negligent searches. Putting aside plaintiff’s failure to plead any 5 elements of a negligence claim, to the extent plaintiff is arguing defendant 6 negligently violated his constitutional rights, he “must still prove a violation of the 7 underlying constitutional right; and depending on the right, merely negligent 8 conduct may not be enough to state a claim.” Daniels v. Williams, 474 U.S. 327, 9 330 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986); see Mayall ex rel. H.C. v. USA Water 10 Polo, Inc., 909 F.3d 1055, 1060 (9th Cir. 2018) (under California law, the elements 11 of a negligence claim are a duty, a breach of that duty, and damages proximately 12 caused by the breach). As stated above, plaintiff has failed to state a constitutional 13 violation and therefore he has also failed to state a negligent violation of his 14 constitutional rights. Moreover, with respect to any due process violation claim, 15 negligent “conduct does not implicate the Due Process Clause of the Fourteenth 16 Amendment.” Id. at 334. 17 Plaintiff’s claims therefore are all subject to dismissal for failure to state a 18 claim. 19 D. Defendant Is Not Entitled to Legislative Immunity and the Facts Are 20 Insufficient to Reach a Prosecutorial Immunity Determination 21 Defendant contends the Complaint should be dismissed because it is entitled 22 to absolute prosecutorial or legislative immunity. § 1915 MTD at 14-17; Rule 23 12(b) MTD at 10-13. Specifically, defendant argues the decision to issue citations 24 “are acts ‘inextricably intertwined’ with its authority to initiate and prosecute 25 violations of its Municipal Codes” and local legislators are entitled to absolute 26 immunity for legislative acts under certain circumstances. § 1915 MTD at 16-17; 27 Rule 12(b) MTD at 12-13. 28 11 Case 5:21-cv-01204-JGB-SP Document 19 Filed 03/21/22 Page 12 of 15 Page ID #:152

1 As discussed above, plaintiff has not pled sufficient facts to state a claim. It 2 is unclear what exact acts plaintiff alleges violated his constitutional rights, who 3 committed such acts, and which municipal codes are at issue. Without such facts, 4 the court cannot determine whether defendant is entitled to absolute prosecutorial 5 immunity. 6 Nevertheless, it does not appear that defendant will be entitled to absolute 7 prosecutorial immunity. Claims for monetary damages against prosecutors are 8 barred by absolute prosecutorial immunity, provided the claimed violations are 9 based on their activities as legal advocates in criminal proceedings. Van de Kamp 10 v. Goldstein, 555 U.S. 335, 341-44, 129 S. Ct. 855, 172 L. Ed. 2d 706 (2009). 11 Absolute prosecutorial immunity has been extended to prosecutorial acts during 12 civil and administrative proceedings. Butz v. Economou, 438 U.S. 578, 516-17, 98 13 S. Ct. 2894, 57 L. Ed. 2d 895 (1978). “[A]gency officials performing certain 14 functions analogous to those of a prosecutor,” or quasi-prosecutorial functions, 15 may also be able to claim absolute immunity with respect to such acts. Id. at 515. 16 “Absolute immunity flows not from rank or title or ‘location within the 17 Government,’ but from the nature of the responsibilities of the individual official.” 18 Cleavinger v. Saxner, 474 U.S. 193, 201, 106 S. Ct. 496, 88 L Ed. 2d 507 (1985). 19 “While the line between the functions is not entirely clear, it is clear that ‘absolute 20 prosecutorial immunity [is justified] only for actions that are connected with the 21 prosecutor’s role in judicial proceedings, not for every litigation-inducing 22 conduct.’” Ceballos v. Garcetti, 316 F.3d 1168, 1183-84 (9th Cir. 2004) (reversed 23 on other grounds) (quoting Burns v. Reed, 500 U.S. 478, 494, 111 S. Ct. 1934, 114 24 L. Ed. 2d 547 (1991) (internal citation omitted)). 25 Here, assuming the function at issue is the inspection of the property and 26 issuance of citations by a code enforcement officer, defendant would likely not be 27 entitled to prosecutorial immunity because the code enforcement officer’s actions 28 12 Case 5:21-cv-01204-JGB-SP Document 19 Filed 03/21/22 Page 13 of 15 Page ID #:153

1 appear to be solely administrative and investigative in nature. See Van de Kamp, 2 555 U.S. at 342 (absolute immunity does not extent to administrative or 3 investigative tasks); see, e.g., Autotek, Inc. v. Cnty. of Sacramento, 2020 WL 4 4059564, at *14 (E.D. Cal. Jul. 20, 2020) (declining to find code enforcement 5 officer’s actions were prosecutorial); VNT Property 1, LLC v. City of Buena Park, 6 2015 WL 12762257, at *6 (C.D. Cal. Aug. 11, 2015) (no relevant legal support to 7 extend prosecutorial immunity to city officials who enforce the municipal code). 8 That defendant is not entitled to legislative immunity is clearer. “It is well 9 established that federal, state, and regional legislators are entitled to absolute 10 immunity from civil liability for their legislative activities.” Bogan v. Scott Harris, 11 523 U.S. 44, 46, 118 S. Ct. 966, 140 L. Ed. 2d 79 (1998). But legislative immunity 12 does not extend to municipalities. See Owen v. City of Independence, 445.U.S. 13 622, 651-53, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980) (municipalities are not 14 entitled to a qualified immunity defense). 15 Accordingly, defendant is not entitled to legislative immunity and the factual 16 allegations are insufficient for the court to reach a determination on prosecutorial 17 immunity. 18 E. Leave to Amend Is Granted 19 As discussed above, the court finds the Complaint is subject to dismissal. 20 Although the undersigned is skeptical as to plaintiff’s ability to cure the 21 deficiencies in the Complaint, the court is unable to determine at this juncture 22 whether amendment would be futile. Accordingly, leave to amend is granted. See 23 Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); Noll v. 24 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (pro se litigant must be given leave 25 to amend her complaint unless it is absolutely clear that deficiencies of complaint 26 cannot be cured by amendment). 27 On amendment, neither something similar to the original Complaint nor 28 13 Case 5:21-cv-01204-JGB-SP Document 19 Filed 03/21/22 Page 14 of 15 Page ID #:154

1 what plaintiff filed in his motion to amend/opposition will suffice. Plaintiff must 2 address the Complaint’s deficiencies and comply with the Federal Rules of Civil 3 Procedure and Local Rules. Plaintiff must confine himself to a “short and plain 4 statement” of his claims, with “simple, concise, and direct” allegations, showing 5 that he is entitled to relief. See Fed. R. Civ. P. 8(a)(2), (e); see also Iqbal, 556 U.S. 6 at 678-79. Plaintiff must state each of his claims separately, each identifying a 7 discrete alleged legal violation. See Fed. R. Civ. P. 10(b) (“If doing so would 8 promote clarity, each claim founded on a separate transaction or occurrence . . . 9 must be stated in a separate count . . . .”). Plaintiff must also clearly identify the 10 proper defendants and the factual basis supporting each claim. 11 V. 13 For the foregoing reasons, the court finds the Complaint is subject to 14 dismissal, and therefore defendant’s motions to dismiss (docket nos. 8, 9, 10, 11) 15 should be granted. Further, because the court is unable to determine for certain at 16 this juncture that amendment would be futile, plaintiff is granted leave to amend, 17 and thus to that extent plaintiff’s motion to amend/opposition (docket no. 16) is 18 granted. Accordingly, IT IS ORDERED THAT: 19 1) Within 30 days of the date of this order, or by April 20, 2022, 20 plaintiff may file a First Amended Complaint to attempt to cure the 21 deficiencies discussed above. The Clerk of Court is directed to mail 22 plaintiff a blank Central District civil rights complaint form to use for 23 filing the First Amended Complaint. 24 2) If plaintiff chooses to file a First Amended Complaint, plaintiff must 25 clearly designate on the face of the document that it is the “First 26 Amended Complaint,” it must bear the docket number assigned to this 27 case, and it must be retyped or rewritten in its entirety, preferably on 28 14 ase 5:21-cv-01204-JGB-SP Document 19 Filed 03/21/22 Page15o0f15 Page ID #:15

1 the court-approved form CV-66. The First Amended Complaint must 2 be complete in and of itself, without reference to the original 3 Complaint, or any other pleading, attachment, or document. 4 3) The court’s finding here that the Complaint is subject to dismissal is 5 not dispositive of the claims in the Complaint. Accordingly, if 6 plaintiff disagrees with the court’s determination that the Complaint is 7 subject to dismissal, he may stand on the Complaint as it is. If 8 plaintiff chooses to stand on the Complaint without further 9 amendment, he should file a notice with the court by April 20, 2022 10 stating he wishes to stand on the Complaint without amendment. But 11 plaintiff should be aware that in such case the court will likely submit 12 a recommendation to the assigned district judge that the Complaint be 13 dismissed without leave to amend, subject to plaintiff's right at that 14 time to file objections to such recommendation with the district judge. 15 An amended complaint supersedes the preceding complaint. Ferdik v. 16 || Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the court will 17 | treat all preceding complaints as nonexistent. /d. Because the court grants plaintiff 18 || leave to amend as to all claims raised here, any claim that was raised in a preceding 19 || complaint is waived if it is not raised again in the First Amended Complaint. 20 || Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012). 21 Plaintiff is cautioned that his failure to timely comply with this Order 22 || may result in a recommendation that this action, or portions thereof, be 23 || dismissed. PP 25 || DATED: March 21, 2022 26 Cinited States Magistrate Judge 27 28 15