Joseph v. City of San Jose

• Court: District Court, N.D. California
• Decided: March 3, 2020
• Docket: 1:19-cv-01294
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11

12 RHAWN JOSEPH, Case No. 19-CV-01294-LHK

13 Plaintiff, ORDER DENYING MOTION TO RECUSE; DENYING MOTION FOR 14 v. DISQUALIFICATION; DENYING MOTION FOR DEFAULT JUDGMENT; 15 CITY OF SAN JOSE, et al., GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS; 16 Defendants. STAYING IN PART 17 Re: Dkt. Nos. 48, 49, 52

18 Plaintiff Rhawn Joseph (“Plaintiff”) brings the instant action against Defendants City of 19 San Jose, City Manager Dave Sykes, City Attorney Richard Doyle, Director of San Jose Code 20 Enforcement Rosalynn Hughey, San Jose Code Enforcement Division Manager and 21 Administrative Hearing Officer Mollie McLeod, Code Enforcement Inspector Sean Flanagan, and 22 Code Enforcement Inspector and Supervisor Jason Gibilesco (collectively, the “Named 23 Defendants”); and Does 1–10. ECF No. 45. Before the Court is Plaintiff’s motion to recuse, 24 motion for disqualification, and motion for default judgment. Before the Court is also the Named 25 Defendants’ motion to dismiss Plaintiff’s Second Amended Complaint (“SAC”). The Court 26 27 1 Case No. 19-CV-01294-LHK 1 DENIES Plaintiff’s motion to recuse, motion for disqualification, and motion for default 2 judgment. The Court GRANTS in part and DENIES in part the Named Defendants’ motion to 3 dismiss. The Court also STAYS the instant case in part. 4 I. BACKGROUND 5 A. Factual Background 6 Plaintiff Rhawn Joseph (“Plaintiff”) appears to be party to a long-running dispute with his 7 neighbor, Gene Kasrel (“Kasrel”). ECF No. 45 (“SAC”) ¶ 8. Kasrel is not a party to this lawsuit. 8 According to Plaintiff, during the time that Plaintiff and Kasrel have been neighbors in San Jose, 9 California, Kasrel engaged in a lengthy campaign of harassment and abuse. Among other things, 10 Plaintiff alleges that Kasrel “has repeatedly harassed, threatened, and physically assaulted 11 Plaintiff”; climbed onto the adjoining fence and threatened Plaintiff; and threw rocks and dog 12 feces into Joseph’s yard. See id. Eventually, in 2016, Kasrel erected two bright floodlights near 13 the fence adjoining Plaintiff’s yard. Id. Although Plaintiff repeatedly complained to the City of 14 San Jose about Kasrel’s floodlights, which Plaintiff alleges were in violation of municipal code, 15 the City of San Jose took no action. Id. ¶ 12. 16 In response to these indignities, on October 16, 2018, Plaintiff erected an “abatement 17 consisting of three sheets of 24 inch polyurethane which Plaintiff erected in Plaintiff’s yard, 18 thereby legally abating Kasrel’s illegal lights and preventing Kasrel from harassing, threatening, or 19 harming Plaintiff and his property.” Id. ¶ 14. On October 19, 2018, Named Defendant Jason 20 Gibilesco (“Gibilesco”), “acting under ‘color of authority’ and without a search warrant and in the 21 absence of exigent circumstances or statutory authority,” searched Plaintiff’s locked and gated 22 yard. Id. ¶ 2. On October 22, 2018, Plaintiff delivered letters that complained of the October 19, 23 2018 search to the offices of Named Defendants Sean Flanagan (“Flanagan”) and Rosalynn 24 Hughey (“Hughey”). Id. ¶ 3. On that same day, October 22, 2018, however, Named Defendants 25 Flanagan and Gibilesco again searched Plaintiff’s locked, gated yard. Id. ¶ 4. In doing so, Named 26 Defendants Flanagan and Gibilesco “dislodged and knocked down a portion of Plaintiff’s fencing 27 2 Case No. 19-CV-01294-LHK 1 and a six foot tall, three panel-hand carved wooden screen thereby damaging property.” Id. 2 On October 24, 2018, Named Defendant Gibilesco spoke with Plaintiff over the phone and 3 indicated that “if Plaintiff had enough money, Plaintiff could avoid fines and problems with the 4 city and maybe obtain a ‘variance’” for the abatement. Id. ¶ 5. Plaintiff construed this as a 5 solicitation for a bribe. Id. ¶ 6. According to Plaintiff, when Plaintiff rejected the bribe, Named 6 Defendant “Gibilesco likely solicited and accepted money from and entered into a conspiracy with 7 Kasrel” to violate many of Plaintiff’s constitutional rights. Id. ¶ 17. 8 Specifically, Plaintiff claims that the Named Defendants “filed fake code violations against 9 Plaintiff” notwithstanding numerous municipal code violations committed by Plaintiff’s 10 neighbors. Id. ¶ 19. According to Plaintiff, on November 6, 2018, Named Defendant Gibilesco 11 filed a compliance order that warned “if Plaintiff’s trees were not destroyed and his legal 12 abatement removed, Plaintiff would be fined $2,500 a day for each fake violation, plus 13 administrative costs.” Id. ¶ 25. Additionally, the compliance order demanded that Plaintiff cut his 14 wrought iron fence to a height of three feet or less or Plaintiff would be fined $2,500 each day. Id. 15 ¶ 27. To support the order, Plaintiff argues that the Named Defendants altered evidence and 16 backdated alleged violations. Id. ¶ 26. 17 Later in the month of November 2018, and in response to the Compliance Order, Plaintiff 18 claims that Plaintiff sawed the wrought iron fence to below three feet and notified Named 19 Defendant Gibilesco of this fact. Id. ¶ 28. Plaintiff also “filed official complaints with [Named] 20 Defendants Hughey, Sykes and City of San Jose, documenting that [Named Defendants] Gibilesco 21 and Flanagan were harassing Plaintiff, and conspiring with and faking and backdating fraudulent 22 code violations,” but “[n]o investigation took place.” Id. ¶ 29. 23 In February 2019, Plaintiff received another letter from Named Defendant Gibilesco 24 indicating that Plaintiff’s trees and wrought iron fence still exceeded the maximum height under 25 the municipal code. Id. ¶ 31. In response, Plaintiff demanded an administrative hearing to address 26 the alleged violations, see id. ¶ 35, and an enforcement proceeding concerning the alleged 27 3 Case No. 19-CV-01294-LHK 1 violations indeed occurred on May 1, 2019. Id. ¶ 40. At the hearing, Plaintiff avers that Plaintiff 2 was not permitted to present certain evidence or cross-examine witnesses, and Plaintiff complains 3 that the enforcement proceeding was tainted by fabricated evidence and ex parte communications. 4 Id. ¶¶ 40–52. The enforcement proceeding has yet to result in a final decision. Id. ¶ 54. 5 B. Procedural History 6 On March 11, 2019, Plaintiff filed an initial complaint in this Court. See ECF No. 1. 7 Several weeks later, on March 29, 2019, the Named Defendants requested a thirty-day extension 8 to respond to the original complaint. See ECF No. 5. On April 1, 2019, the Court issued an order 9 extending the deadline to respond to the original complaint until May 2, 2019. ECF No. 6. On 10 May 1, 2019, the Named Defendants filed a motion to dismiss the original complaint. ECF No. 11 11. 12 On June 10, 2019, Plaintiff then requested leave to file a First Amended Complaint 13 (“FAC”), ECF No. 27, which the Court granted on June 24, 2019. ECF No. 29. Upon doing so, 14 the Court also denied the Named Defendants’ motion to dismiss the original complaint as moot. 15 Id. 16 Plaintiff filed the FAC on June 28, 2019. ECF No. 30 (“FAC”). The Named Defendants 17 filed their motion to dismiss the FAC several weeks later, on July 10, 2019. ECF No. 31. On 18 August 12, 2019, Plaintiff filed a motion for default judgment. ECF No. 36. 19 On August 23, 2019, the Court denied Plaintiff’s motion for summary judgment and 20 granted the Named Defendant’s motion to dismiss the FAC with leave to amend. ECF No. 43. 21 The Court determined that Plaintiff’s FAC violated Federal Rule of Civil Procedure 8 and failed to 22 give the Named Defendants notice of the claims pleaded against them. Id. at 7. The Court gave 23 Plaintiff thirty days to file an amended complaint. Id. at 10. 24 On September 10, 2019, Plaintiff filed a Second Amended Complaint (“SAC”). ECF No. 25 45 (“SAC”). The SAC alleges twelve Claims for Relief: (1) “Violation of the First Amendment, 26 Civil Rights Claim (42 U.S.C. § 1981)”; (2) “Conspiracy, Hate Crimes (CPS Part 1, Title 2 27 4 Case No. 19-CV-01294-LHK 1 Section 31, CPS §§ 182 422.6; 42 U.S.C. § 1981)”; (3) Violation of the Fourth Amendment; (4) 2 Violation of the Fifth Amendment; (5) Violation of the Sixth Amendment; (6) Violation of the 3 Eighth Amendment; (7) Violation of the Fourteenth Amendment; (8) “Monell Liability, 4 Constitutional Torts, Violation of Fourteenth Amendment (42 U.S.C. § 1983)”; (9) “Violations of 5 Bane Act (Cal. Civ. Code § 52.1), and Ralph Act (Cal. Civ. Code § 51.7)”; (10) “Negligence (42 6 U.S.C. § 1983) ‘Willful Indifference’”; (11) “Intentional Infliction of Emotional Distress, Malice, 7 Harassment”; and (12) “Demand for Declarative and Injunctive Relief.” SAC ¶¶ 182–325. The 8 parties stipulated that the Named Defendants would have until October 14, 2019 to respond to the 9 SAC. ECF No. 47. 10 On September 17, 2019, Plaintiff filed a declaration that the Court construes as a motion 11 for recusal or disqualification of the Court. ECF No. 48. On September 23, 2019, Plaintiff then 12 filed a “motion for summary judgment,” which the Court construes as another motion for default 13 judgment. ECF No. 49. The Named Defendants opposed the motion for default judgment on 14 October 14, 2019, ECF No. 56, and Plaintiff replied on October 18, 2019, ECF No. 62. 15 On October 11, 2019, the Named Defendants filed a motion to dismiss the SAC. ECF No. 16 52. On October 18, 2019, Plaintiff opposed the Named Defendants’ motion to dismiss the SAC, 17 ECF No. 61, and on October 31, 2019, Named Defendants replied, ECF No. 64. 18 II. LEGAL STANDARD 19 A. Default Judgment 20 Pursuant to Federal Rule of Civil Procedure 55(b)(2), the Court may enter a default 21 judgment when the Clerk of the Court, under Rule 55(a), has previously entered the party’s 22 default. Fed. R. Civ. P. 55(b). “The district court’s decision whether to enter a default judgment 23 is a discretionary one.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). “Factors which 24 may be considered by courts in exercising discretion as to the entry of a default judgment include: 25 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) 26 the sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the possibility of 27 5 Case No. 19-CV-01294-LHK 1 a dispute concerning material facts; (6) whether the default was due to excusable neglect, and (7) 2 the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the 3 merits.” Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). 4 B. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6) 5 Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include “a 6 short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint 7 that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 8 12(b)(6). The U.S. Supreme Court has held that Rule 8(a) requires a plaintiff to plead “enough 9 facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 10 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content 11 that allows the court to draw the reasonable inference that the defendant is liable for the 12 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is 13 not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant 14 has acted unlawfully.” Id. (internal quotation marks omitted). For purposes of ruling on a Rule 15 12(b)(6) motion, the Court “accept[s] factual allegations in the complaint as true and construe[s] 16 the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & 17 Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 18 The Court, however, need not “assume the truth of legal conclusions merely because they 19 are cast in the form of factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) 20 (per curiam) (internal quotation marks omitted). Mere “conclusory allegations of law and 21 unwarranted inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 22 F.3d 1179, 1183 (9th Cir. 2004). 23 III. DISCUSSION 24 In the instant Order, the Court resolves three filings. The Court begins with a declaration 25 filed by Plaintiff that the Court liberally construes as a motion to recuse under 28 U.S.C. § 144 and 26 a motion for disqualification under 28 U.S.C. § 455. The Court then turns to Plaintiff’s motion for 27 6 Case No. 19-CV-01294-LHK 1 default judgment. Third, and finally, the Court resolves the Named Defendants’ motion to dismiss 2 the SAC. 3 A. Motion to Recuse and Motion for Disqualification 4 On September 17, 2019, Plaintiff filed a declaration that asserted that the Court must be 5 “disqualified pursuant to 28 U.S. § 351, § 352, § 455.” ECF No. 48 at 1.1 The Court liberally 6 construes this declaration as a motion to recuse under 28 U.S.C. § 144 and a motion for 7 disqualification under 28 U.S.C. § 455. First, the Court addresses the motion to recuse under 28 8 U.S.C. § 144. The Court then turns to the motion for disqualification under 28 U.S.C. § 455. 9 1. Motion to Recuse under 28 U.S.C. § 144 10 First, as to Plaintiff’s motion to recuse under 28 U.S.C. § 144, “Section 144 expressly 11 conditions relief upon the filing of a timely and legally sufficient affidavit.” United States v. Sibla, 12 624 F.2d 864, 867 (9th Cir. 1980). “An affidavit filed pursuant to that section is not legally sufficient 13 unless it specifically alleges facts that fairly support the contention that the judge exhibits bias or 14 prejudice directed toward a party that stems from an extrajudicial source.” Id. at 868. “[A] 15 determination of the sufficiency of the facts and reasons given in the sworn statement must be made 16 by the judge to whom the affidavit is presented.” Grimes v. United States, 396 F.2d 331, 333 (9th 17 Cir. 1968) (citing Berger v. United States, 255 U.S. 22, 36 (1921)); see also United States v. 18 Azhocar, 581 F.2d 735, 738 (9th Cir. 1978) (rejecting argument that affidavit must be referred to 19 another judge to determine legal sufficiency). “If the judge to whom a timely motion is directed 20 determines that the accompanying affidavit specifically alleges facts stating grounds for recusal 21 under section 144, the legal sufficiency of the affidavit has been established, and the motion must 22 be referred to another judge for determination of its merits.” Sibla, 624 F.2d at 868. Thus, this 23 Court’s review “is addressed to the facial sufficiency of the affidavit[,] not to the truth or falsity of 24 the facts stated therein.” Azhocar, 581 F.2d at 738. 25

26 1 Plaintiff then filed a subsequent declaration on November 12, 2019, which contains substantially overlapping allegations. ECF No. 65. 27 7 Case No. 19-CV-01294-LHK 1 As best the Court can discern, Plaintiff asserts three reasons that recusal under 28 U.S.C. § 2 144 is warranted. First, Plaintiff argues that the Court “is protecting and serving the interests of [the 3 Named Defendants’] politically powerful criminal enterprise” because the Named Defendants “can 4 do favors for those promoting [the Court’s] ambitions.” ECF No. 48 ¶¶ 8–10. Plaintiff’s assertions 5 that the Court “is protecting and serving the interests” of the Named Defendants because of the 6 alleged influence wielded by the Named Defendants is speculative. In support, Plaintiff muses that 7 the Named Defendants “can do favors” for the Court, because “[i]t is highly probable” that “the 8 businesses in which [the husband of Dianne Feinstein] has invested, have had, or will have, direct 9 dealings with” the Named Defendants. Id. ¶ 9. Recusal under 28 U.S.C. § 144 is not warranted 10 based on speculation of this nature. Yagman v. Republic Ins., 987 F.2d 622, 626 (9th Cir. 1993) 11 (recusal not warranted under 28 U.S.C. § 144 or § 455 based on speculation); see also United States 12 v. Kubon, No. 18-cv-04788-PJH, 2019 WL 3387651, at *3 (N.D. Cal. July 10, 2019) (“And the 13 fourth, defendants’ ‘conspiracy’ assertion, amounts to rank speculation that lacks any factual 14 support and thus is insufficient to support recusal or disqualification.”). 15 Second, Plaintiff argues that “this relationship sets the stage for ex parte communications, 16 between [the Court] an intermediary [sic] and the [Named] Defendants.” According to Plaintiff, 17 “there is evidence [of ex parte communications] between the hours of 1:35 to 3:00 PM on 3/29/19; 18 i.e. soon after [the Court] received Defendants’ ‘Administrative Motion’, the Defendants were 19 advised to amend and change the wording thereby giving Judge Koh and the Defendants greater 20 leeway to obtain more time to file a motion to dismiss thus circumventing the rule 12 deadline.” 21 ECF No. 48 ¶¶ 8–10. 22 Plaintiff’s declaration studiously and conspicuously avoids ever actually alleging that the 23 Court engaged in ex parte communications with the Named Defendants. Instead, Plaintiff resorts 24 to vague conjecture. Plaintiff asserts that the Court’s alleged relationship with the Named 25 Defendants “sets the stage for ex parte communications,” that “there is evidence” of unspecified 26 ex parte communications, and that the Court “has likely engaged in ex parte communications.” Id. 27 8 Case No. 19-CV-01294-LHK 1 ¶¶ 8–10, 16. The thrust of Plaintiff’s argument appears to be that the Named Defendants “were 2 advised [by an unspecified individual] to amend and change the wording” of an administrative 3 motion that the Named Defendants filed on March 29, 2019. Id. Plaintiff seems to refer to the 4 fact that on March 29, 2019, the Named Defendants refiled an administrative motion for an 5 extension of time they had made an hour-and-a-half earlier that day in order to correct “a 6 typographical error in the caption.” ECF No. 5 at 1 n.1. Specifically, the Named Defendants 7 changed the caption of the administrative motion to clarify that it was a motion to extend the time 8 for filing a “responsive pleading,” not just for filing a “dispositive motion.” Id. Because Plaintiff 9 does not actually allege ex parte communications by the Court, Plaintiff’s argument on this score 10 is legally insufficient. See, e.g., Hiramanek v. Loftus, No. 5:13-CV-00228-RMW, 2015 WL 11 4881469, at *2 (N.D. Cal. Aug. 14, 2015) (“First, plaintiff’s declaration contains no legally 12 sufficient allegations of any ex parte communications. The allegations are entirely conclusory and 13 not supported by facts relevant to the conclusion plaintiff seeks to draw.”).2 14 Third, Plaintiff argues that the Court has misrepresented Plaintiff’s briefing, “adopted the 15 Defendants’ talking points and distorted the material facts of this case,” “refused to reprimand or 16 levy sanctions or strike,” “refused this Plaintiff’s Fifth Amendment right to be ‘heard,’ refused to 17 allow Plaintiff to engage in Discovery, and refused to hear a motion that Defendants are in default 18 because of their brazen violation of American Bar Association and California Bar Association 19 Rule 1.7.” ECF No. 48 ¶¶ 2–4, 13–17. Assertions of this nature amount to arguments about the 20 Court’s prior rulings in the instant case. However, it is well established that a “judge’s prior 21 adverse ruling is not sufficient cause for recusal.”3 Taylor v. Regents of Univ. of Cal., 993 F.2d 22

23 2 Further, although the Court need not address “the truth or falsity of the facts stated” in Plaintiff’s declaration, Azhocar, 581 F.2d at 738, the Court nevertheless notes that the Court did not engage 24 in any ex parte communications with the Named Defendants concerning the administrative motion for an extension of time. 25 3 To the extent that Plaintiff’s subsequent declaration makes any new allegations, these allegations concern the Court’s rulings in other, unrelated cases. ECF No. 65. These, too, are legally 26 insufficient to warrant recusal. See, e.g., Price v. City of Red Lodge, Mont., No. CV 14-00058- BLG-SPW-CSO, 2014 WL 4656479, at *2 (D. Mont. Sept. 17, 2014) (allegations of bias from 27 9 Case No. 19-CV-01294-LHK 1 710, 712 (9th Cir. 1993) (per curiam) (internal quotation marks omitted). 2 In sum, and as outlined in the foregoing, Plaintiff fails to make any legally sufficient 3 allegations that state adequate grounds for recusal under 28 U.S.C. § 144. Accordingly, the Court 4 need not refer Plaintiff’s motion to another judge, and the Court DENIES the motion for recusal. 5 See, e.g., Sibla, 624 F.2d at 868 (“An affidavit filed pursuant to that section is not legally 6 sufficient unless it specifically alleges facts that fairly support the contention that the judge 7 exhibits bias or prejudice directed toward a party that stems from an extrajudicial source.”). The 8 Court now proceeds to address Plaintiff’s motion for disqualification under 28 U.S.C. § 455. 9 2. Motion for Disqualification under 28 U.S.C. § 455 10 Second, the Court addresses Plaintiff’s motion for disqualification under 28 U.S.C. § 455. 11 Under 28 U.S.C. § 455, a judge must be disqualified “in any proceeding in which [her] 12 impartiality might reasonably be questioned,” 28 U.S.C. § 455(a), including where the judge “has 13 a personal bias or prejudice concerning a party,” id. § 455(b)(1). Unlike 28 U.S.C. § 144, 28 14 U.S.C. § 455 is “directed to the judge, rather than the parties, and is self-enforcing on the part of 15 the judge.” Sibla, 624 F.2d at 867–68. Section 455 does not provide a procedural mechanism to 16 refer the recusal question to another judge. Id. at 868 (“Moreover, section 455 includes no 17 provision for referral of the question of recusal to another judge; if the judge sitting on a case is 18 aware of grounds for recusal under section 455, that judge has a duty to recuse himself or 19 herself.”). 20 Plaintiff’s motion for disqualification under 28 U.S.C. § 455 fares no better than plaintiff’s 21 motion to recuse under 28 U.S.C. § 144. This is so because the same substantive standard applies 22 to motions made under 28 U.S.C. § 144 and motions made under 28 U.S.C. § 455. Id. at 867 23 (noting that “[t]he same substantive standard” applies to both 28 U.S.C. § 144 and 28 U.S.C. § 24 455). Because the Court previously determined that Plaintiff’s declaration does not make any 25 26 “prior rulings in this and other prior proceedings” inadequate to warrant recusal). 27 10 Case No. 19-CV-01294-LHK 1 legally sufficient allegations to warrant recusal, the Court necessarily concludes that Plaintiff does 2 not make any legally sufficient allegations to warrant disqualification under 28 U.S.C. § 455. 3 Accordingly, the Court DENIES Plaintiff’s motion for disqualification. 4 Next, the Court turns to Plaintiff’s motion for default judgment. 5 B. Motion for Default Judgment 6 On September 23, 2019, Plaintiff filed a “motion for summary judgment” against 7 Defendants Sykes, Hughey, McLeod, Flanagan, and Gibilesco. ECF No. 49. Although Plaintiff 8 styles this motion as a motion for summary judgment, it is clear that the motion is in actuality a 9 motion for default judgment. As an initial matter, discovery in the instant case has been stayed 10 pending the Court’s decision on the Named Defendants’ motion to dismiss the SAC. ECF No. 63; 11 see, e.g., Iverson v. Johnson Gas Appliance Co., 172 F.3d 524, 530 (8th Cir. 1999) (“As a general 12 rule, summary judgment is proper ‘only after the nonmovant has had adequate time for 13 discovery.’” (quoting In re TMJ Litig., 113 F.3d 1484, 1490 (8th Cir.1997)). 14 Thus, tellingly, Plaintiff does not argue that the record contains no genuine issue of 15 material fact as to the allegations made in Plaintiff’s SAC. Instead, Plaintiff simply argues that the 16 Named Defendants “failed to file responsive pleadings by April 3, 2019.” ECF No. 63 ¶ 10. 17 Indeed, Plaintiff specifically cites “Rule 55(a)(b)(1)(2)” at various points in Plaintiff’s motion, and 18 Federal Rule of Civil Procedure 55 is the rule that governs default and default judgment. Id. ¶¶ 1, 19 2. Plaintiff also claims that the basis of the motion is that “Defendants Dave Sykes, Rosalynn 20 Hughey, Mollie Mcleod, Sean Flanagan, [and] Jason Gibilesco were in default as of April 3, 21 2019.” Id. ¶ 1 (emphasis added). Accordingly, the Court construes Plaintiff’s motion as a motion 22 for default judgment. 23 Default judgment is improper in the instant case. The Court reconstructs Plaintiff’s default 24 judgment theory as follows. “Rule 1.7 of the American Bar Association and California Bar 25 Association . . . requires attorneys to obtain ‘informed consent, confirmed in writing,’ from any 26 and all clients, before they can represent these clients, when there is a probability of a conflict of 27 11 Case No. 19-CV-01294-LHK 1 interest.” Id. According to Plaintiff, in the instant case, “there are obvious conflicts of interest as 2 to who authorized or initiated the conspiracy, what pressures were placed on the different 3 Defendants to participate, who orchestrated the cover up of these crimes, who might be fired 4 because of or held responsible for this conduct and for each individual crime, and so on.” Id. ¶ 3. 5 Hence, Plaintiff argues that counsel for the Named Defendants should be disqualified. 6 Plaintiff asserts that Plaintiff requested “proof that conflict of interest waivers were signed” from 7 counsel for the Named Defendants, but that Named Defendants declined to supply the requested 8 proof to him. Id. ¶¶ 4, 5. Accordingly, in the absence of such proof, Plaintiff now claims that the 9 Court must determine that counsel for the allegedly conflicted Named Defendants was “never 10 legally authorized” to file responsive pleadings. Id. ¶ 6. Because the responsive pleadings are 11 “null and void,” Plaintiff appears to believe that default judgment logically follows. Id. ¶ 10. 12 First, and most fundamentally, Plaintiff fails to demonstrate that counsel for the Named 13 Defendants must be disqualified. As an initial matter, it is highly unclear whether Plaintiff even 14 has standing to raise an argument concerning disqualification of counsel for the Named 15 Defendants. See Great Lakes Constr., Inc. v. Burman, 186 Cal. App. 4th 1347, 1356 (2010) 16 (“Generally, before the disqualification of an attorney is proper, the complaining party must have 17 or must have had an attorney-client relationship with that attorney.”); Colyer v. Smith, 50 F. Supp. 18 2d 966, 972 (C.D. Cal. 1999) (“The majority view is that only a current or former client of an 19 attorney has standing to complain of that attorney’s representation of interests adverse to that 20 current or former client.”). 21 Even assuming that Plaintiff has standing to raise the argument, however, disqualification 22 of counsel for the Named Defendants is unnecessary. Disqualification of counsel is strongly 23 disfavored and is considered a “drastic measure.” Yumul v. Smart Balance, Inc., No. CV 10– 24 00927 MMM (AJWx), 2010 WL 4352723, at *3 (C.D. Cal. Oct. 8, 2010). This is so because 25 arguments for disqualification are often made for improper purposes. See Optyl Eyewear Fashion 26 Int’l Corp. v. Style Cos., Ltd., 760 F.2d 1045, 1050 (9th Cir. 1985) (noting concern for the “misuse 27 12 Case No. 19-CV-01294-LHK 1 of the rules for tactical purposes”); Multimedia Patent Trust v. Apple, Inc., No. 10–CV–2618 2 H(CAB), 2011 WL 1636928, at *1 (S.D. Cal. Apr. 29, 2011) (“Because a motion to disqualify is 3 often tactically motivated and can be disruptive to the litigation process, disqualification is 4 considered to be a drastic measure that is generally disfavored and imposed only when absolutely 5 necessary.”). Plaintiff therefore must bear the “heavy burden” required to show that 6 disqualification is necessary. SEC v. King Chuen Tang, 831 F. Supp. 2d 1130, 1139 (N.D. Cal. 7 2011) (referring to “the heavy burden that must be met to justify disqualification of opposing 8 counsel”). 9 Under Civil Local Rule 11-4, attorneys that practice in the Northern District of California 10 must “[b]e familiar and comply with the standards of professional conduct required of members of 11 the State Bar of California.” L.R. 11-4(a)(1). California has not adopted the American Bar 12 Association model rules. See, e.g., Real Estate Training Internat’l, LLC v. Nick Vertucci Cos., 13 Inc., 124 F. Supp. 3d 1005, 1006 (C.D. Cal. 2015) (“Much to the chagrin of countless practitioners 14 inside and outside of California, however, California has not adopted the ABA model rules.”). 15 Thus, the California Rules of Professional Conduct provide the operative framework for the 16 ethical issue Plaintiff raises here. 17 “[T]he fact that an attorney is jointly representing multiple clients—either in the same or 18 different litigations—does not necessarily mean that an actual conflict exists.” Frank Gari Prods., 19 Inc. v. Smith, No. CV 12–248–GHK (FFMx), 2012 WL 12895903, at *3 (C.D. Cal. June 15, 20 2012). However, California law imposes on counsel the duty to secure informed consent from 21 parties “when a single attorney represents two parties in a matter because of the very real 22 possibility that the interests of the clients in the litigation may at some point diverge and come into 23 conflict.” In re GFI Mortgage LLP, No. C 12–03956 SI, 2013 WL 4647300, at *4 (N.D. Cal. 24 Aug. 29, 2013) (internal quotation marks and citations omitted). Specifically, under Rule 1.7(b) of 25 the California Rules of Professional Conduct, “[a] lawyer shall not, without informed written 26 consent from each affected client and compliance with paragraph (d), represent a client if there is a 27 13 Case No. 19-CV-01294-LHK 1 significant risk the lawyer’s representation of the client will be materially limited by the lawyer’s 2 responsibilities to or relationships with another client, a former client or a third person, or by the 3 lawyer’s own interests.” Cal. Prof. Conduct, 1.7(b). 4 Here, counsel for the Named Defendants has filed a declaration under penalty of perjury 5 that counsel is unaware of any current conflicts between the Named Defendants, and that each of 6 the Named Defendants has signed an engagement agreement with a conflict waiver provision. 7 ECF No. 56-1 ¶¶ 2–4. The Court is satisfied that in light of the early stage of litigation in the 8 instant case, and the fact that counsel for the Named Defendants has sworn under penalty of 9 perjury that each of the Named Defendants has provided informed written consent to counsel’s 10 concurrent representation, the actual engagement agreements need not be filed on the docket. In 11 the event that an actual conflict develops between the various Named Defendants such that 12 counsel’s representation of one Named Defendant is “directly adverse” to others, counsel for the 13 Named Defendants is advised that further informed written consent is required. Cal. Prof. 14 Conduct 1.7(a), cmt. 2 (“If a lawyer initially represents multiple clients with the informed written 15 consent as required under paragraph (b), and circumstances later develop indicating that direct 16 adversity exists between the clients, the lawyer must obtain further informed written consent of the 17 clients under paragraph (a).”). 18 Second, the Court notes that disqualification of counsel, even in the event it were 19 warranted, would not automatically result in the Named Defendants’ responsive pleadings 20 becoming “null and void” such that default judgment would then be appropriate. Indeed, other 21 courts have squarely rejected this sweeping assertion. See Cal Pure Pistachios, Inc. v. Primex 22 Farms, LLC, No. CV 09–7874–GW(RCx), 2010 WL 11523590, at *1 (C.D. Cal. Jan. 7, 2010) 23 (“Defendants have not cited any case authority that supports granting the relief they request—i.e., 24 disqualifying counsel, striking all of the pleadings they have filed, and granting all of Defendants’ 25 motions.”). Further, as the Court previously explained in an order denying Plaintiff’s earlier 26 motion for default judgment, the Court’s decision whether to grant a default judgment is 27 14 Case No. 19-CV-01294-LHK 1 discretionary, not automatic. Aldabe, 616 F.2d at 1092. This discretion is constrained by the 2 “general rule that default judgments are ordinarily disfavored,” and that “[c]ases should be decided 3 upon their merits whenever reasonably possible.” Eitel, 782 F.2d at 1471. When “a defendant 4 demonstrates a clear purpose to defend themselves, a court may not enter default against them.” 5 Best Deals on TV, Inc. v. Naveed, No. C 07-01610 SBA, 2008 WL 2477390, at *7 (N.D. Cal. June 6 18, 2008). In this case, the Named Defendants have repeatedly demonstrated a clear purpose to 7 defend themselves by filing motions to dismiss the original complaint, the FAC, and the SAC. 8 ECF Nos. 11, 31, 52. Plaintiff’s motion for default judgment contains virtually no argument that 9 this case represents the appropriate circumstance for the Court to exercise its discretion to grant 10 default judgment. 11 Moreover, Plaintiff filed the SAC on September 10, 2019, before Plaintiff filed the instant 12 motion for default judgment, and Plaintiff does not allege that the Named Defendants were 13 untimely in responding to the SAC. See ECF Nos. 45, 49. Instead, as in Plaintiff’s earlier motion 14 for default judgment, Plaintiff appears to focus on a failure to respond to Plaintiff’s original 15 complaint. Id. ¶ 7 (“Defendants failed to file any motion or responsive pleading within the 21 16 days Rule 12 deadline (i.e. April 3, 2019).”). However, the effect of Plaintiff filing the SAC is 17 that Plaintiff’s original complaint and FAC have been superseded. Therefore, any “default based 18 on the original complaint must also be rendered ineffectual and non-existent.” ThermoLife Intern., 19 LLC v. Sechel Holdings, Inc., 2015 WL 1521779, at *1 (D. Ariz. Apr. 3, 2015); accord Ferdik v. 20 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (explaining that an amended pleading supersedes 21 the original pleading such that “after amendment the original pleading no longer performs any 22 function and is treated ‘thereafter as nonexistent’”). Thus, Plaintiff may not rely on the Named 23 Defendants’ alleged failure to timely respond to his original complaint to move for default 24 judgment. 25 Moreover, as the Court previously explained, it is the Clerk of the Court, not the Court, 26 who must determine that a party has defaulted as an initial matter. See Fed. R. Civ. P. 55(a) 27 15 Case No. 19-CV-01294-LHK 1 (“When a party against whom a judgment for affirmative relief is sought has failed to plead or 2 otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the 3 party’s default.” (emphasis added)). Here, the Clerk of the Court has not entered default against 4 the Named Defendants, so the Court lacks any authority to grant default judgment. See Eitel 782 5 F.2d at 1471 (explaining the two-step default process required by Rule 55). 6 In sum, for all of the reasons outlined above, the Court must DENY Plaintiff’s motion for 7 default judgment. The Court now turns to the Named Defendants’ motion to dismiss. 8 C. Motion to Dismiss the SAC 9 Next, the Court turns to the Named Defendants’ motion to dismiss the SAC. The SAC 10 alleges twelve Claims for Relief: (1) “Violation of the First Amendment, Civil Rights Claim (42 11 U.S.C. § 1981)”; (2) “Conspiracy, Hate Crimes (CPS Part 1, Title 2 Section 31, CPS §§ 182 12 422.6; 42 U.S.C. § 1981)”; (3) Violation of the Fourth Amendment; (4) Violation of the Fifth 13 Amendment; (5) Violation of the Sixth Amendment; (6) Violation of the Eighth Amendment; (7) 14 Violation of the Fourteenth Amendment; (8) “Monell Liability, Constitutional Torts, Violation of 15 Fourteenth Amendment (42 U.S.C. § 1983)”; (9) “Violations of Bane Act (Cal. Civ. Code § 52.1), 16 and Ralph Act (Cal. Civ. Code § 51.7)”; (10) “Negligence (42 U.S.C. § 1983) ‘Willful 17 Indifference’”; (11) “Intentional Infliction of Emotional Distress, Malice, Harassment”; and (12) 18 “Demand for Declarative and Injunctive Relief.” SAC ¶¶ 182–325. 19 First, the Court concludes that dismissal of much of the SAC is warranted because Plaintiff 20 fails to state a claim under Federal Rule of Civil Procedure 12(b)(6). Second, the Court concludes 21 that Younger abstention applies to the instant case to the extent that Plaintiff’s SAC challenges an 22 ongoing state enforcement proceeding. Third, the Court concludes that Younger abstention does 23 not apply to the extent that Plaintiff asserts a 42 U.S.C. § 1983 claim for damages under the Fourth 24 Amendment that arises from the allegedly unlawful search of Plaintiff’s fenced yard. The Court 25 discusses these issues in turn. 26 1. The SAC Fails to State a Claim as to Numerous Causes of Action 27 16 Case No. 19-CV-01294-LHK 1 As the Court noted in the previous order dismissing Plaintiff’s initial complaint, it is 2 difficult to discern the causes of action that Plaintiff asserts in the instant case. Mindful that the 3 Court must “construe pro se filings liberally when evaluating them” under Federal Rule of Civil 4 Procedure 12(b)(6), Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), the Court nevertheless 5 concludes that much of Plaintiff’s SAC fails to state a claim. 6 a. First Claim for Relief: Civil Rights Claims under 42 U.S.C. § 1981 7 In Plaintiff’s First Claim for Relief, Plaintiff repeatedly asserts a claim under 42 U.S.C. § 8 1981. See, e.g. SAC ¶¶ 182–197, 242. Under 42 U.S.C. § 1981, “[a]ll persons within the 9 jurisdiction of the United States shall have the same right in every State and Territory to make and 10 enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and 11 proceedings for the security of persons and property as is enjoyed by white citizens, and shall be 12 subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no 13 other.” 42 U.S.C. § 1981(a). 14 “To establish a claim under § 1981, a plaintiff must allege facts in support of the following 15 elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the 16 basis of race by the defendant; and (3) the discrimination concerned one or more of the activities 17 enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence, etc.).” 18 Mercer v. Sw. Airlines Co., No. 13-CV-05057-MEJ, 2014 WL 4681788, at *7 (N.D. Cal. Sept. 19, 19 2014) (internal quotation marks and citation omitted). A plaintiff must also make a “showing of 20 intentional racial discrimination.” Id. (internal quotation marks and citation omitted). 21 Here, Plaintiff never alleges that Plaintiff is a member of a racial minority. Plaintiff also 22 does not adequately allege that any of the Named Defendants acted with an intent to discriminate 23 against Plaintiff. Instead, Plaintiff focuses only on the alleged racial animus of Plaintiff’s 24 neighbor, Kasrel, who is not a defendant in the instant case. E.g., SAC ¶¶ 15, 20 (alleging “hatred 25 of Plaintiff [] based on Kasrel’s perceptions of Plaintiff’s race, religion, and sexual orientation”). 26 Accordingly, the Court GRANTS the Named Defendants’ motion to dismiss the SAC to the extent 27 17 Case No. 19-CV-01294-LHK 1 that the SAC alleges a claim under 42 U.S.C. § 1981. 2 b. Second Claim for Relief: “Conspiracy, Hate Crimes” 3 Plaintiff’s Second Claim for Relief alleges a claim for “conspiracy [and] hate crimes.” 4 SAC ¶¶ 191–97. To the extent that Plaintiff attempts to allege a claim under 42 U.S.C. § 1981, 5 Plaintiff fails for the reasons outlined above. However, Plaintiff also invokes several state 6 criminal laws, namely California Penal Code §§ 31, 182, 422.55, and 422.6. Two of these 7 statutes, California Penal Code §§ 31 and 422.55, are merely definitional, and they provide the 8 meaning of “principals” and “hate crime” under California criminal law, respectively. Cal. Penal 9 Code §§ 31, 422.55. Neither provision contains any cause of action. Accordingly, dismissal is 10 warranted. See, e.g., Sepehry-Fard v. Dept. Stores Nat’l Bank, No. 13–cv–03131–WHO, 2013 11 WL 5537126, at *9 (N.D. Cal. Oct. 4, 2013) (“As to the 10th Cause of Action, for violation of 18 12 U.S.C. section 1961, section 1961 is simply the definitional section of RICO and not a cause of 13 action. Therefore, this claim is DISMISSED WITH PREJUDICE.”). 14 The other two statutes cited by Plaintiff define criminal offenses. California Penal Code § 15 182 is California’s conspiracy statute. Cal. Penal Code § 182. California Penal Code § 422.6 is a 16 California hate-crime statute. Neither statute contains a private right of action; only the 17 government can prosecute criminal cases. See Hoffman v. Lassen Adult Detention Facility, No. 2: 18 15-cv-1558 JAM KJN P, 2017 WL 2535461, at *3 n.1 (E.D. Cal. June 12, 2017) (explaining that 19 “California Penal Code section 422.6 provides no private right of action”); Harvey v. City of South 20 Lake Tahoe, No. CIV S–10–1653 KJM EFB PS, 2011 WL 3501687, at *7 (E.D. Cal. Aug. 9, 21 2011) (“To the extent plaintiff seeks to state a claim against the City defendants for conspiracy 22 pursuant to Penal Code section 182, that claim should be dismissed without leave to amend. A 23 private right of action under a criminal statute has rarely been implied.”). 24 Accordingly, the Court also dismisses Plaintiff’s claims under the foregoing statutes. See, 25 e.g., Allen v. Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006) (affirming dismissal of 26 criminal causes of action “because these are criminal statutes that do not give rise to civil 27 18 Case No. 19-CV-01294-LHK 1 liability”); see also, e.g., Williams v. Ortega, No. 3:18-cv-00547-LAB-MDD, 2019 WL 5704684 2 (S.D. Cal. Nov. 4, 2019) (“Williams argues that falsifying medical records violates California 3 Penal Code sections 132 and 134. The R&R correctly points out that these sections are not 4 privately actionable.”). 5 Accordingly, the Court GRANTS the Named Defendants’ motion to dismiss the SAC to 6 the extent that the SAC alleges a claim under California Penal Code §§ 31, 182, 422.55, and 7 422.6. 8 c. Ninth Claim for Relief: Violations of the Ralph Act 9 Plaintiff’s Ninth Claim for Relief alleges violations of two California state laws: the Bane 10 Act, Cal. Civ. Code § 52.1, and the Ralph Act, Cal. Civ. Code § 51.7. The Court addresses the 11 latter here. 12 The Ralph Act, California Civil Code § 51.7, states that persons within California have the 13 right to be free from any “violence, or intimidation by threat of violence, committed against their 14 persons or property because of political affiliation, or on account of any characteristic listed or 15 defined in subdivision (b) or (e) of Section 51.” Cal. Civ. Code § 51.7(a). When claiming a 16 violation of section 51.7, a plaintiff must show: “(1) the defendant threatened or committed violent 17 acts against the plaintiff; (2) the defendant was motivated by his perception of plaintiff’s 18 [protected characteristic]; (3) the plaintiff was harmed; and (4) the defendant’s conduct was a 19 substantial factor in causing the plaintiff’s harm.” I.H. v. Oakland School for Arts, 234 F. Supp. 20 3d 987, 995 (N.D. Cal. 2017) (internal quotation marks omitted). 21 As discussed, Plaintiff’s SAC fails to adequately plead that the Named Defendants, as 22 opposed to Kasrel, Plaintiff’s non-defendant neighbor, were motivated by the perception of any 23 protected characteristics under California law. E.g., SAC ¶¶ 15, 20 (alleging “hatred of Plaintiff [] 24 based on Kasrel’s perceptions of Plaintiff’s race, religion, and sexual orientation”). Hence, 25 Plaintiff’s claim under the Ralph Act fails as a matter of law. 26 d. Conclusion and No Leave to Amend 27 19 Case No. 19-CV-01294-LHK 1 In sum, and in light of the foregoing analysis, the Court GRANTS the Named County 2 Defendants’ motion to dismiss the SAC as to the following causes of action: 3 • Plaintiff’s First Claim for Relief to the extent that it asserts a claim under 42 U.S.C. § 4 1981; 5 • Plaintiff’s Second Claim for Relief in its entirety; 6 • Plaintiff’s Seventh Claim for Relief to the extent that it asserts a claim under 42 U.S.C. 7 § 1981; 8 • Plaintiff’s Ninth Claim for Relief to the extent that it asserts a claim under the Ralph 9 Act, Cal. Civ. Code § 51.7. 10 The Court may deny leave to amend “due to undue delay, bad faith or dilatory motive on 11 the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, 12 undue prejudice to the opposing party by virtue of allowance of the amendment, and futility of 13 amendment.” Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008) (internal 14 quotation marks and alteration omitted). 15 Here, the Court previously dismissed Plaintiff’s FAC because Plaintiff “fail[ed] to give the 16 Named Defendants ‘fair notice’” of the nature of Plaintiff’s claims. ECF No. 43 at 7. The Court 17 notified Plaintiff that failure to “cure the deficiencies identified” by the Court and the Named 18 Defendants would result in “dismissal of [Plaintiff’s] claims with prejudice.” Id. at 10. The 19 Named Defendants also previously explained that Plaintiff’s FAC was “devoid of any facts that 20 Defendants discriminated against Plaintiff because of race or ethnicity.” ECF No. 31 at 6. 21 Because Plaintiff’s SAC fares no better in this regard, and because Plaintiff’s claims under 22 criminal statutes fail as a matter of law, the Court concludes that further amendment would be 23 futile. Accordingly, the Court DENIES leave to amend the foregoing claims. 24 2. Younger Abstention Applies 25 The Court now turns to Plaintiff’s remaining claims. The claims consist of 42 U.S.C. § 26 1983 claims under the First, Fourth, Fifth, Fifth, Sixth, Eighth, and Fourteenth Amendments, as 27 20 Case No. 19-CV-01294-LHK 1 well as a California state law claim under the Bane Act, Cal. Civ. Code § 52.1, and a California 2 state tort claim for intentional infliction of emotional distress. SAC ¶ 198–321. 3 The Named Defendants argue that “administrative exhaustion” bars all of Plaintiff’s 42 4 U.S.C. § 1983 claims. The Named Defendants are incorrect. As the Ninth Circuit has explained, 5 “[g]iven th[e] unique legislative intent to provide a federal forum for the vindication of federal 6 rights, courts historically declined to require § 1983 plaintiffs to exhaust state remedies.” Ramirez 7 v. Galaza, 334 F.3d 850, 854 (9th Cir. 2003). It is true that Congress “altered this tradition in 8 1996 with the enactment of the Prison Litigation Reform Act by requiring prisoners to exhaust all 9 administrative remedies before filing a § 1983 action.” Id. (emphasis added). However, Plaintiff 10 is not a prisoner and is not subject to the Prison Litigation Reform Act. Hence, “exhaustion of 11 state administrative remedies should not be required as a prerequisite to bringing an action 12 pursuant to § 1983.” Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 516 (1982). 13 While exhaustion does not bar Plaintiff’s claims, the Court nevertheless concludes that 14 Younger abstention does apply to almost all of Plaintiff’s remaining claims. Younger abstention 15 “is a jurisprudential doctrine rooted in overlapping principles of equity, comity, and federalism.” 16 San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose, 546 17 F.3d 1087, 1091 (9th Cir. 2008). Federal courts may sua sponte consider whether Younger 18 abstention is appropriate at any stage of the proceedings. See, e.g., Bellotti v. Baird, 428 U.S. 132, 19 143 (1976) (“Indeed, it would appear that abstention may be raised by the court [s]ua sponte.”). 20 Here, at the heart of Plaintiff’s SAC is a San Jose administrative proceeding that involves 21 municipal code violations, which code enforcement officials allegedly assessed against Plaintiff. 22 Younger abstention may apply to civil enforcement proceedings of this nature. See, e.g., San Jose 23 Silicon Valley Chamber of Commerce Political Action Comm., 546 F.3d at 1091 (explaining that 24 enforcement proceeding undertaken by San Jose Elections Commission required Younger 25 abstention). The Court must undertake the analysis to determine whether abstention is required in 26 the instant case. 27 21 Case No. 19-CV-01294-LHK 1 Under Ninth Circuit precedent, Younger abstention applies if the four Middlesex factors are 2 met: “(1) a state-initiated proceeding is ongoing; (2) the proceeding implicates important state 3 interests; (3) the federal plaintiff is not barred from litigating federal constitutional issues in the 4 state proceeding; and (4) the federal court action would enjoin the proceeding or have the practical 5 effect of doing so, i.e., would interfere with the state proceeding in a way that Younger 6 disapproves.” Id. at 1092. In the event that the Middlesex factors are met, abstention is 7 mandatory. See, e.g., Canatella v. California, 404 F.3d 1106, 1113 (9th Cir. 2005) (explaining 8 that “Younger abstention imposes mandatory limits on the federal courts’ ability to exercise 9 jurisdiction”). 10 In the instant case, as explained below, the Court concludes that all four requirements are 11 met with respect to almost all of Plaintiff’s claims in the instant case. 12 a. A State-Initiated Proceeding Is Ongoing 13 First, it is clear that in the instant case, the state-initiated proceeding is ongoing. Indeed, 14 Plaintiff specifically alleges that the “administrative hearing officer” involved in Plaintiff’s case 15 has not yet made a decision on Plaintiff’s case. SAC ¶ 54. Plaintiff further acknowledges that 16 once the administrative hearing does produce a decision, then Plaintiff will also have resort to “an 17 appeals board.” Id.; see also San Jose Municipal Code section 1.14.050 (“If full compliance is not 18 achieved within the time specified in the compliance order, or the person subject to the compliance 19 order has filed a timely request for hearing from the decision of the director, the director shall 20 advise the secretary to the appeals board to set a hearing before the [appeals] board.”).4 21 The Court thus has little difficulty concluding that a state-initiated proceeding is ongoing 22 in the instant case. See San Jose Silicon Valley Chamber of Commerce Political Action Comm., 23 24 4 The applicable city ordinances are the proper subject of judicial notice, which the Named 25 Defendants request here. ECF No. 53; see Newcomb v. Brennan, 558 F.2d 825 (7th Cir. 1977) (“[C]ity ordinances fall within the category of ‘common knowledge’ and are therefore proper 26 subjects for judicial notice.”); Hansen v. City of San Francisco, 2014 WL 1310282 (N.D. Cal. Mar. 31, 2014) (relying on Newcomb to take judicial notice of San Francisco city regulations). 27 22 Case No. 19-CV-01294-LHK 1 546 F.3d at 1093 (“There is no principled distinction between finality of judgments for purposes 2 of appellate review and finality of state-initiated proceedings for purposes of Younger abstention. 3 We therefore hold that the administrative proceeding is ‘ongoing’ for purposes of Younger 4 abstention.”). 5 Hence, the first requirement for the application of Younger abstention is met. Next, the 6 Court must determine whether the state proceeding implicates important state interests. 7 b. The State Proceeding Implicates Important State Interests. 8 Second, in order for Younger abstention to apply, the ongoing state proceeding must also 9 implicate “important state interests.” Gilbertson v. Albright, 381 F.3d 965, 978 (9th Cir. 2004) (en 10 banc). The importance of a state’s interest “is measured by considering its significance broadly, 11 rather than by focusing on the state’s interest in the resolution of an individual case.” Baffert v. 12 Cal. Horse Racing Bd., 332 F.3d 613, 618 (9th Cir. 2003). Here, the ongoing administrative 13 proceeding concerns Plaintiff’s compliance with local zoning regulations that involve Plaintiff’s 14 fence and trees. See, e.g., SAC ¶ 31 (alleging that one Named Defendant “falsely claimed 15 Plaintiff’s wrought-iron fence was still above code requirements and must be destroyed in 30 days 16 or Plaintiff would be fined $2,500 a day and falsely claimed Plaintiff’s trees were a ‘fence’ and 17 must be destroyed in 30 days or he’d be fined $2,500 a day plus administrative costs”); see also 18 San Jose Municipal Code section 20.30.600 (“All fences on lots with a single one-family dwelling 19 in any zoning district shall conform to the development regulations set forth below in Table 20- 20 80.”). 21 Courts have routinely held that cities’ actions to enforce zoning ordinances implicate 22 important state interests. See, e.g., World Famous Drinking Emporium, Inc. v. City of Tempe, 820 23 F.2d 1079, 1083 (9th Cir. 1987) (explaining that “a civil action in order to obtain compliance with 24 an ordinance which aims at avoidance of public nuisances” implicated important state interests); 25 see also Harper v. Public Serv. Comm’n of W. Va., 396 F.3d 348, 352 (4th Cir. 2005) (“Similarly, 26 property law concerns, such as land use and zoning questions, are frequently ‘important’ state 27 23 Case No. 19-CV-01294-LHK 1 interests justifying Younger abstention.”). 2 Additionally, if an ongoing proceeding is “judicial in nature,” that fact also supports a 3 finding that the proceeding implicates important state interests. See Baffert, 332 F.3d at 618 4 (explaining that “[w]hether the state proceedings are ‘judicial in nature’ or ‘quasi-criminal’ also 5 plays a role in assessing the significance of the state interest”). Here, Plaintiff allegedly 6 participated in “an adjudicatory hearing, which is quasi-judicial.” Id. This fact, too, supports the 7 conclusion that the ongoing state proceeding implicates important state interests. 8 Thus, the Court concludes that the second requirement for the application of Younger 9 abstention is met. The Court now turns to the third requirement for Younger abstention. 10 c. The Federal Plaintiff Is Not Barred from Litigating Federal Constitutional Issues in the State Proceeding. 11 Third, the Court must determine whether Plaintiff is barred from litigation of federal 12 constitutional issues in the state proceeding. The Ninth Circuit has explained that whether 13 Plaintiff may raise federal constitutional issues in the administrative proceeding itself does not 14 resolve the inquiry. See San Jose Silicon Valley Chamber of Commerce Political Action Comm., 15 546 F.3d at 1093 (“Plaintiffs correctly observe that the Elections Commission did not consider, 16 and likely could not have considered, federal constitutional questions. But that observation does 17 not resolve the inquiry.”). Instead, the Ninth Circuit has held that it is sufficient that a plaintiff 18 may “petition for a writ of mandate to challenge the administrative action in state court” under 19 California Civil Code § 1094.5. Id. “That procedure suffices for purposes of Younger 20 abstention.” Id. 21 As Plaintiff himself appears to recognize, Plaintiff may invoke a writ of mandate under 22 California Civil Code § 1094.5 to challenge alleged federal constitutional violations here. See, 23 e.g., SAC ¶ 105; J. Arthur Props., II, LLC v. San Jose, 21 Cal. App. 5th 480, 485 (2018) 24 (examining writ of mandate from San Jose code enforcement proceeding involving municipal 25 zoning). The Ninth Circuit has held this procedure to be sufficient to satisfy the third Middlesex 26 27 24 Case No. 19-CV-01294-LHK 1 factor. See Kenneally v. Lungren, 967 F.2d 329, 333 (9th Cir. 1992) (“This statutory framework 2 [established by California Civil Code § 1094.5] provides a meaningful opportunity for Kenneally 3 to present his constitutional claims for independent judicial review prior to the Board's decision 4 becoming effective.”). Accordingly, the Court concludes that Plaintiff is not barred from litigating 5 federal constitutional issues in the ongoing proceeding. 6 Thus, the third requirement for the application of Younger abstention is met. The Court 7 proceeds to consider the fourth requirement. 8 d. The Federal Court Action Would Enjoin the Proceeding or Have the Practical Effect of Doing So. 9 Finally, the Court must determine whether the requested relief in the instant action would 10 “enjoin—or have the practical effect of enjoining—ongoing state proceedings.” ReadyLink 11 Healthcare, Inc. v. State Compensation Ins. Fund, 754 F.3d 754, 758 (9th Cir. 2014). Under 12 Ninth Circuit case law, “‘direct interference’ is not required as a precondition for Younger 13 abstention.” Gilbertson, 381 F.3d at 978. Hence, “Younger principles may apply to claims for 14 damages under § 1983.” Id. at 979. 15 Almost all of Plaintiff’s claims meet the fourth requirement for abstention. First, Plaintiff 16 specifically seeks the following “declarative and injunctive relief”: “(A) [] the Court declares the 17 Administrative Hearing was illegal, and (B) violated CAPA [i.e., California Administrative 18 Procedure Act] statutes and (C) violated Plaintiff’s Constitutional Rights and (D) that Plaintiff’s 19 wrought iron fence, Cypress trees, and abatement are legal and not in violation of code, and (E) 20 Plaintiff[] owes no fines, and (F) due to Defendants’ criminal misconduct Defendant San Jose 21 can[]not, for a period of 10 years[,] file or charge Plaintiff and his property with any additional 22 code violations.” SAC ¶ 324; see also SAC ¶¶ 328–30. 23 In other words, Plaintiff specifically asks the Court to enjoin the ongoing enforcement 24 proceeding and to issue declaratory relief that the enforcement proceeding is illegal. This 25 represents the very paradigm of interference with an ongoing state proceeding that Younger 26 27 25 Case No. 19-CV-01294-LHK 1 abstention is designed to prevent. See, e.g., Gilbertson, 381 F.3d at 975 (explaining that “federal 2 courts should almost never enjoin state criminal proceedings; federal courts should also refrain 3 from exercising jurisdiction in actions for declaratory relief because declaratory relief has the 4 same practical impact as injunctive relief on a pending state proceeding as a result of the 5 preclusive effect of the federal court judgment”). 6 Plaintiff’s SAC also seeks money damages under 42 U.S.C. § 1983 and state law. The 7 Ninth Circuit has repeatedly explained that Younger abstention is required in claims for damages 8 where “a determination that the federal plaintiff’s [] rights have been violated would have the 9 same practical effect as a declaration or injunction on pending state proceedings.” Gilbertson, 381 10 F.3d at 968. Here, almost all of Plaintiff’s claims for money damages meet this test. Plaintiff’s 11 claims under the First, Fourth, Fifth, Sixth, and Fourteenth Amendments would generally require[] 12 the district court to determine first whether violations of [Plaintiff’s] civil rights have occurred in 13 the course of the state enforcement proceeding.” Herrera, 918 F.3d at 1048. Specifically, 14 Plaintiff’s constitutional claims would require determinations as to whether the enforcement 15 proceeding violates Plaintiff’s freedom of religion; whether the enforcement proceeding violates 16 procedural due process; whether the enforcement proceeding constitutes an unlawful seizure of 17 Plaintiff’s property; whether the enforcement proceeding will result in excessive fines; whether the 18 enforcement proceeding will result in a state-created danger to Plaintiff; whether the enforcement 19 proceeding discriminates against Plaintiff on the basis of a protected characteristic; whether the 20 enforcement proceeding constitutes malicious or selective prosecution; and whether these alleged 21 constitutional violations arose from the City of San Jose’s failure to train. SAC ¶¶ 182–281, 302– 22 314. If the Court made determinations on any of these issues, the Court’s decision would have 23 preclusive effect on the enforcement proceeding. Accordingly, Younger requires that the Court 24 abstain from resolving the foregoing questions. 25 Moreover, the Court concludes that resolution of Plaintiff’s Bane Act and intentional 26 infliction of emotional distress state law claims for money damages would also have the effect of a 27 26 Case No. 19-CV-01294-LHK 1 declaration or injunction on pending state proceedings. Plaintiff’s theory under the Bane Act 2 appears to depend on the same alleged constitutional violations connected to the enforcement 3 proceeding outlined above. SAC ¶ 284 (“Although the Bane and Ral[ph] acts are rooted in state 4 law claims, the branches, in this case, are entangled with violations of the U.S. Constitution . . . 5 .”). Similarly, Plaintiff’s intentional infliction of emotional distress claim would require the Court 6 to determine whether the Named County Defendants’ conduct in connection with the enforcement 7 proceeding was sufficiently “outrageous” to warrant relief under state tort law. SAC ¶ 320 8 (asserting that because of the Named County Defendants’ conduct related to enforcement 9 proceeding, “Plaintiff fears destruction of his property, has suffered emotional stress and injury to 10 his health and emotional well being”). Such a determination would require assessing whether the 11 Named County Defendants’ conduct “exceed[ed] all bounds of decency usually tolerated by a 12 decent society,” and whether Plaintiff’s civil rights were violated in connection with the 13 enforcement proceeding. See, e.g., Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 14 617 (1989) (deeming conduct “outrageous” in light of “an employee’s fundamental, civil right” to 15 be free from discrimination).5 16 In light of the foregoing analysis, the Court concludes that the four Middlesex factors apply 17 to almost all of Plaintiff’s claims. Thus, under Younger, the Court is required to abstain as to these 18 claims. See San Jose Silicon Valley Chamber of Commerce Political Action Comm., 546 F.3d at 19 1089 (noting that because Younger applied, the district court “was required to abstain”). However, 20 “[i]f state proceedings are conducted in bad faith or to harass the litigant, or other extraordinary 21 circumstances exist, the district court may exercise jurisdiction even when the criteria for Younger 22 abstention are met.” Baffert, 332 F.3d at 632. Accordingly, the Court must also address the 23 question of whether any exception to Younger applies such that the Court may nevertheless opt to 24 25 5 The sole claim Plaintiff asserts that does not satisfy the fourth Middlesex factor, which the Court 26 discusses further infra Section III.C.5, consists of Plaintiff’s 42 U.S.C. § 1983 claim that arises from the allegedly unlawful searches conducted by two of the Named Defendants. 27 27 Case No. 19-CV-01294-LHK 1 exercise jurisdiction. 2 e. No Exception to Younger Abstention Applies. 3 In some cases, a district court may exercise jurisdiction even when Younger abstention 4 would otherwise be warranted. The United States Supreme Court has explained that “[o]nly in 5 cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope 6 of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable 7 injury can be shown is federal injunctive relief appropriate.” Perez v. Ledesma, 401 U.S. 82, 85 8 (1971). “[T]he bad-faith and harassment exceptions to Younger abstention are narrow.” Hason v. 9 Superior Court, No. CV 14-8446-SVW (JPR), 2015 WL 10607561, at *4 (C.D. Cal. Dec. 18, 10 2015). A plaintiff must provide something more than conclusory allegations that the state 11 proceeding is the product of bad faith or harassment. See, e.g., Anderson v. McKim, No. C-14- 12 4463 EMC, 2015 WL 831227, at *4 (N.D. Cal. Feb. 23, 2015) (applying Younger abstention when 13 petitioner did “not make any plausible non-conclusory allegation of irreparable harm, bad faith, 14 harassment, or bias of the tribunal”). Moreover, “a claim of constitutional error during the 15 ongoing state proceeding, by itself, is insufficient to invoke an exception to Younger abstention.” 16 Bautista v. California, No. CV 16-07068 PSG (AFM), 2016 WL 5661861, at *2 (C.D. Cal. Sept. 17 28, 2016). 18 Here, Plaintiff does assert that the enforcement proceeding was brought in bad faith, but 19 the Court finds Plaintiff’s claims to be conclusory and implausible. For instance, Plaintiff asserts 20 that one of the Named County Defendants “explained if Plaintiff had enough money, Plaintiff 21 could avoid fines and problems with the city and maybe obtain a ‘variance’ for Plaintiff’s legal 22 abatement.” SAC ¶ 5. From this conversation, Plaintiff appears to infer that the Named County 23 Defendant “solicited a bribe and attempted to extort money and was threatening to file a code 24 violation if Plaintiff did not pay money.” Id. ¶ 6. Plaintiff later goes on to assert that Plaintiff’s 25 neighbor, Gene Kasrel, “has (allegedly) claimed he has power and influence at San Jose Code. 26 Thus, it can be assumed that [one Named County Defendant] received a bribe from Kasrel and 27 28 Case No. 19-CV-01294-LHK 1 agreed to act as Kasrel’s agent, to act on Kasrel’s hatred, and to harm Plaintiff on behalf of Kasrel 2 because Plaintiff refused to pay a bribe for protection.” Id. ¶ 18. 3 Based on allegations of this nature, Plaintiff appears to assert that the enforcement 4 proceeding is the product of “a conspiracy to extort money and violate Plaintiff’s rights.” Id. ¶ 65. 5 Conclusory allegations like the foregoing, however, do not meet the high threshold to make the 6 instant case an “extraordinary circumstance” in which abstention is inappropriate. See, e.g., 7 Kihagi v. Francisco, No. 15-cv-01168-KAW, 2016 WL 5682575, at *4 (N.D. Cal. Oct. 3, 2016) 8 (“Evidence of bad-faith harassment must be more than multiple prosecutions, must be more than 9 conclusory statements about motive, must be more than a weak claim of selective prosecution, and 10 must be more than the prosecution of close cases.” (internal quotation marks omitted)); Hason, 11 2015 WL 10607561, at *4 (explaining that bad-faith and harassment exceptions to Younger 12 abstention “require more than mere conclusory allegations, . . . which is all Petitioner has 13 provided”). 14 Moreover, Plaintiff has not demonstrated that Plaintiff will suffer “irreparable injury” 15 absent immediate federal intervention. Ledesma, 401 U.S. at 85. In order to show irreparable 16 injury, “a plaintiff must be facing an irreparable injury that is both ‘great’ and ‘immediate.’” 17 Choudhry v. Regents of the Univ. of Cal., No. 16-cv-05281-RS, 2016 WL 6611067, at *7 (N.D. 18 Cal. Nov. 9, 2016). In the instant case, there is no indication that any threatened injury to 19 Plaintiff, either in the form of potential fines or destruction of property, is “immediate.” 20 Accordingly, the Court concludes that no exception to Younger abstention exists such that 21 the Court may exercise federal jurisdiction. The Court therefore finally turns to the impact of 22 Younger abstention in the instant case. 23 f. Application of Younger to the Instant Case. 24 The Ninth Circuit has explained that the application of Younger abstention depends on the 25 nature of Plaintiff’s claims. Specifically, “when a court abstains under Younger, claims for 26 injunctive and declaratory relief are typically dismissed.” Herrera, 918 F.3d at 1042. However, 27 29 Case No. 19-CV-01294-LHK 1 the Ninth Circuit “has also recognized that, when a district court abstains from considering a 2 damages claim under Younger, it must stay—rather than dismiss—the damages action until state 3 proceedings conclude.” Id. 4 As noted, here, Plaintiff brings claims for injunctive, declaratory, and monetary relief. 5 Accordingly, in light of the foregoing Ninth Circuit case law, the Court must GRANT without 6 prejudice the Named County Defendant’s motion to dismiss Plaintiff’s twelfth Claim for Relief, 7 which constitutes Plaintiff’s request for “Declarative and Injunctive Relief.” SAC ¶¶ 322–25. By 8 contrast, the Court must STAY the following Claims for Relief, which seek monetary relief and 9 which would require the Court to “to determine first whether violations of [Plaintiff’s] civil rights 10 have occurred in the course of the state enforcement proceeding,” Herrera, 918 F.3d at 1048: 11 • Plaintiff’s First Claim for Relief to the extent that it asserts a claim under the First 12 Amendment; 13 • Plaintiff’s Third Claim for Relief to the extent that it asserts a claim under an 14 unconstitutional seizure or malicious prosecution theory of the Fourth Amendment; 15 • Plaintiff’s Fourth Claim for Relief in its entirety; 16 • Plaintiff’s Fifth Claim for Relief in its entirety; 17 • Plaintiff’s Sixth Claim for Relief in its entirety; 18 • Plaintiff’s Seventh Claim for Relief in its entirety; 19 • Plaintiff’s Eighth Claim for Relief in its entirety; 20 • Plaintiff’s Ninth Claim for Relief to the extent that it asserts a violation of the Bane 21 Act, Cal. Civ. Code § 52.1; 22 • Plaintiff’s Tenth Claim for Relief in its entirety; and 23 • Plaintiff’s Eleventh Claim for Relief in its entirety. 24 The Court now turns to Plaintiff’s Fourth Amendment unlawful search claim, which is the 25 sole remaining claim for relief to which Younger abstention does not apply. 26 3. Plaintiff Alleges a Fourth Amendment Unlawful Search Claim as to Defendants 27 30 Case No. 19-CV-01294-LHK Flanagan and Gibilesco 1 Notwithstanding the foregoing analysis, the Court concludes that Plaintiff adequately states 2 one claim under 42 U.S.C. § 1983 to which Younger abstention does not apply. Specifically, 3 Plaintiff argues that “Gibilesco and Flanagan, acting under ‘color of authority,’ without a search 4 warrant, in absence of exigent circumstances or statutory authority, twice trespassed into 5 Plaintiff’s locked and gated yard, [and] damaged property” during an allegedly unlawful search. 6 SAC ¶ 201. 7 a. Plaintiff Adequately States a Fourth Amendment Illegal Search Claim as 8 to Defendants Flanagan and Gibilesco 9 Plaintiff adequately asserts a Fourth Amendment violation. The interior of a “locked and 10 gated yard” represents Plaintiff’s curtilage, which is “subject to Fourth Amendment protection.” 11 United States v. Struckman, 603 F.3d 731, 739 (9th Cir. 2010); see also Shafer v. City of Boulder, 12 896 F. Supp. 2d 915, 929 (D. Nev. 2012) (“Shafer’s backyard constitutes the curtilage of his 13 home.”). “When a law enforcement officer physically intrudes on the curtilage to gather evidence, 14 a search within the meaning of the Fourth Amendment has occurred.” Collins v. Virginia, 138 S. 15 Ct. 1663, 1670 (2018). “Such conduct thus is presumptively unreasonable absent a warrant.” Id. 16 Plaintiff clearly asserts that Defendants Flanagan and Gibilesco searched the interior of Plaintiff’s 17 yard without a warrant and caused damage to Plaintiff’s fence. SAC ¶¶ 2–4, 201. Plaintiff also 18 asserts that Named Defendants Flanagan and Gibilesco acted in the absence of exigent 19 circumstances. Id. The Named Defendants provide no argument whatsoever that these allegations 20 should be dismissed. 21 To the extent that Plaintiff alleges that Defendants Hughey and City of San Jose were also 22 involved in the allegedly illegal search, however, the Court finds such allegations to be 23 inadequate. Specifically, Plaintiff merely asserts that Defendant Hughey “overtly or tacitly 24 authorized Flanagan and Gibilesco” to conduct one of the searches. “Section 1983 suits, like 25 Bivens suits, do not support vicarious liability.” OSU Student Alliance v. Ray, 699 F.3d 1053, 26 1069 (9th Cir. 2012). The rote claim that Defendant Hughey “overtly or tacitly authorized” one of 27 31 Case No. 19-CV-01294-LHK 1 the searches, without more, is thus insufficient to state a claim based on Defendant Hughey’s own 2 unconstitutional conduct. See, e.g., Hopkins v. Bonvicino, 573 F.3d 752, 770 (9th Cir. 2009) 3 (explaining that “a police officer’s ‘[b]eing a mere bystander [to his colleagues’ conduct] was 4 insufficient’ to support § 1983 liability”). 5 Similarly, Plaintiff appears to assert that Defendant City of San Jose “engaged in a 6 criminal conspiracy” to violate Plaintiff’s Fourth Amendment rights. SAC ¶ 4. To the extent 7 Plaintiff seeks to assert a Monell claim, such a claim “may not simply recite the elements of a 8 cause of action, but must contain sufficient allegations of underlying facts to give fair notice and 9 to enable the opposing party to defend itself effectively,” and the “factual allegations that are taken 10 as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the 11 opposing party to be subjected to the expense of discovery and continued litigation.” AE ex rel. 12 Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (citing Starr v. Baca, 652 F.3d 13 1202, 1216 (9th Cir. 2011)). In the SAC, Plaintiff provides little more than a recitation of the 14 elements of various Monell theories. See SAC ¶¶ 256–81. Moreover, Plaintiff does not link the 15 alleged policies to the allegedly unlawful searches. Instead, Plaintiff simply refers generically to 16 policies and practices that led to violations of unspecified “constitutional rights.” Id. In light of 17 the sheer volume of constitutional deprivations alleged by Plaintiff in the SAC, an allegation of 18 this nature is insufficient to provide “fair notice and enable the opposing party to defend itself 19 effectively” against a Monell claim that arises from the allegedly unlawful searches. Starr, 652 20 F.3d at 1216. Hence, to the extent that Plaintiff alleges a Monell claim against Defendant City of 21 San Jose that arises from the allegedly unlawful searches conducted by Defendants Flanagan and 22 Gibilesco, the Court must conclude that Plaintiff fails to state a claim. 23 Thus, the Court GRANTS the Named Defendants’ motion to dismiss the SAC as to 24 Plaintiff’s Fourth Amendment unlawful search claim against Defendants Hughey and City of San 25 Jose. The Court previously dismissed Plaintiff’s FAC because Plaintiff “fail[ed] to give the 26 Named Defendants ‘fair notice’” of the nature of Plaintiff’s claims. ECF No. 43 at 7. The Court 27 32 Case No. 19-CV-01294-LHK 1 notified Plaintiff that failure to “cure the deficiencies identified” by the Court would result in 2 “dismissal of [Plaintiff’s] claims with prejudice.” Thus, the Court concludes that granting Plaintiff 3 another leave to amend to plead with further specificity would be futile. The Court therefore 4 DENIES leave to amend. 5 By contrast, for the reasons outlined above, the Court DENIES the Named Defendants’ 6 motion to dismiss the SAC as to Plaintiff’s Fourth Amendment unlawful search claim against 7 Named Defendants Flanagan and Gibilesco. 8 b. Younger Abstention Does Not Apply to Plaintiff’s Unlawful Search Claim 9 The Ninth Circuit has explained that when a plaintiff brings a Fourth Amendment claim 10 that arises from an allegedly unlawful search made in the course of investigation of a municipal 11 code violation, abstention with respect to that claim is improper. This is so because a “ruling in 12 favor of [plaintiffs] on such claims would presumably not invalidate the basis for the code- 13 violation enforcement proceedings, and the Fourth Amendment claims themselves are not at issue 14 in such proceedings.” Herrera, 918 F.3d at 1049. In other words, the fourth Middlesex prong is 15 not satisfied as to Plaintiff’s 42 U.S.C. § 1983 Fourth Amendment unlawful search claim against 16 Named Defendants Flanagan and Gibilesco. Id. (“Thus, unlike a determination that the civil 17 proceeding itself is constitutionally deficient, a determination that a Fourth Amendment violation 18 occurred and that the Herreras are entitled to monetary damages would not have the same practical 19 effect as a declaration or injunction on pending state proceedings.” (internal quotation marks 20 omitted)). 21 Accordingly, the Court also concludes that Younger abstention as to Plaintiff’s 42 U.S.C. § 22 1983 Fourth Amendment unlawful search claim against Named Defendants Flanagan and 23 Gibilesco is improper. Because Younger abstention is required as to all of the undismissed claims 24 alleged in the SAC, the Court recognizes that the instant Order may result in “piecemeal 25 litigation.” Id. Because the Court is obligated to decide cases within the scope of federal 26 jurisdiction, however, this conclusion is unavoidable. 27 33 Case No. 19-CV-01294-LHK IV. CONCLUSION 1 For the foregoing reasons, the Court resolves the Plaintiff’s motion to recuse, motion for 2 disqualification, motion for default judgment, and the Named Defendant’s motion to dismiss the 3 SAC as follows. 4 First, the Court DENIES Plaintiff’s motion to recuse and motion for disqualification. 5 Second, the Court DENIES Plaintiff’s motion for default judgment. 6 Third, the Court rules as follows on the Named Defendant’s motion to dismiss the SAC: 7 • The Court GRANTS without leave to amend the Named Defendants’ motion to dismiss 8 the SAC with respect to Plaintiff’s First Claim for Relief to the extent that it asserts a 9 claim under 42 U.S.C. § 1981; 10 • The Court STAYS Plaintiff’s First Claim for Relief to the extent that it asserts a claim 11 under the First Amendment; 12 • The Court GRANTS without leave to amend the Named Defendants’ motion to dismiss 13 the SAC with respect to Plaintiff’s Second Claim for Relief in its entirety; 14 • The Court STAYS Plaintiff’s Third Claim for Relief to the extent that it asserts a 15 Fourth Amendment unlawful seizure or malicious prosecution claim; 16 • The Court GRANTS without leave to amend the Named Defendants’ motion to dismiss 17 the SAC with respect to Plaintiff’s Third Claim for Relief to the extent that it asserts a 18 Fourth Amendment unlawful search claim against Named Defendants Hughey and City 19 of San Jose; 20 • The Court DENIES Named Defendants’ motion to dismiss the SAC with respect to 21 Plaintiff’s Third Claim for Relief to the extent that it asserts a Fourth Amendment 22 unlawful search claim against Named Defendants Flanagan and Gibilesco; 23 • The Court STAYS Plaintiff’s Fourth Claim for Relief in its entirety; 24 • The Court STAYS Plaintiff’s Fifth Claim for Relief in its entirety; 25 • The Court STAYS Plaintiff’s Sixth Claim for Relief in its entirety; 26 27 34 Case No. 19-CV-01294-LHK 1 • The Court STAYS Plaintiff’s Seventh Claim for Relief in its entirety; 2 • The Court STAYS Plaintiff’s Eighth Claim for Relief in its entirety; 3 • The Court GRANTS without leave to amend the Named Defendants’ motion to dismiss 4 the SAC with respect to Plaintiff’s Ninth Claim for Relief to the extent that it asserts a 5 violation of the Ralph Act, Cal. Civ. Code § 51.7; 6 • The Court STAYS Plaintiff’s Ninth Claim for Relief to the extent that it asserts a 7 violation of the Bane Act, Cal. Civ. Code § 52.1; 8 • The Court STAYS Plaintiff’s Tenth Claim for Relief in its entirety; 9 • The Court STAYS Plaintiff’s Eleventh Claim for Relief in its entirety; 10 • The Court GRANTS without prejudice the Named Defendants’ motion to dismiss the 11 SAC with respect to Plaintiff’s Twelfth Claim for Relief in its entirety. 12 The sole claim that the Court has not dismissed or stayed with the instant Order is 13 Plaintiff’s 42 U.S.C. § 1983 Fourth Amendment unlawful search claim against Named Defendants 14 Flanagan and Gibilesco. 15 The claims that the Court stays in the instant Order shall remain stayed until the Court 16 orders otherwise. The parties shall notify the Court when the underlying state proceedings are no 17 longer ongoing and explain why Younger abstention is no longer warranted in light of the instant 18 Order. 19 IT IS SO ORDERED. 20 21 Dated: March 3, 2020 22 ______________________________________ LUCY H. KOH 23 United States District Judge

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