1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 IRVINE H. LEEN and ALETA No. 2:12-cv-01627-TLN-DMC LEEN 9 Plaintiffs, 10 v. 11 ORDER HAROLD M. THOMAS; MICHAEL 12 RAMSEY; JOHN LANE; and DOES 1-20, inclusive, 13 Defendants. 14 15 16 17 This matter is before the Court on remand from the Ninth Circuit regarding Defendants 18 Michael Ramsey (“Ramsey”), John Lane (“Lane”), and Harold Thomas’s (“Thomas”) 19 (collectively, “Defendants”) Motion to Dismiss the Fourth Amended Complaint (“FAC”). (ECF 20 No. 116.) This Court previously granted Defendants’ motion and dismissed the FAC with 21 prejudice. (ECF No. 120.) Plaintiffs Irvine and Aleta Leen (collectively, “Plaintiffs”) appealed. 22 (ECF No. 122.) The Ninth Circuit vacated the judgment and remanded the matter to this Court 23 with instructions. (ECF No. 127.) After carefully considering the Ninth Circuit’s instructions 24 and the parties’ arguments, the Court again GRANTS Defendants’ Motion to Dismiss with 25 prejudice. 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiffs own property where they graze cattle. (ECF No. 113 at ¶ 13.) The property 3 contains an irrigation ditch, fed from upstream properties. (Id.) Plaintiffs have a water license 4 from the California State Water Resources Control Board, Division of Water Rights (the 5 “Board”), which allows them to divert water from the irrigation ditch at a location specified in the 6 license for the purpose of irrigating their property. (Id.) 7 In October 2002, a California Department of Fish and Wildlife (“CDFW”) deputy 8 reported observing individuals clearing out debris and brush from the irrigation ditch. (Id. at ¶ 9 15.) Thomas, an employee of CDFW, and Ramsey, the Butte County District Attorney, were 10 involved in the investigation. (Id.) On October 15, 2003, Thomas and Ramsey filed a criminal 11 complaint against Plaintiff Irvine Leen (“Leen”) related to the incident. (Id.) 12 Leen alleges that even after he was acquitted of all charges in 2011, Thomas attempted to 13 misuse his authority to convince the Board to unlawfully withhold an amendment to Plaintiffs’ 14 water license, for which Plaintiffs had submitted a petition for change in June 2008. (ECF No. 15 113 at ¶ 16.) Plaintiffs’ goal in the petition was to amend the point of diversion and place of use 16 conferred by the existing water license.1 (ECF No. 72 at 38–44.) In July 2009, the CDFW filed a 17 protest to the petition. (Id.) This protest and Defendants’ alleged actions opposing Plaintiffs’ 18 petition for change are the subject of the instant action. 19 In May 2012, Plaintiffs brought the instant 42 U.S.C. § 1983 action against Defendants in 20 their individual capacities based on alleged constitutional violations.2 (ECF No. 113.) In a 21 1 In a June 2, 2014 order (ECF No. 82 at 2–3), the Court granted a request for judicial 22 notice of several extrinsic documents, including the Board decision and petition for change (ECF 23 No. 72). Generally, “a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) 24 (quoting Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994)). However, a court may consider extrinsic documents on a Rule 12(b)(6) motion when the parties do not contest the authenticity of 25 the documents and the complaint necessarily relies on their contents. Id. Here, the petition for change is central to Plaintiffs’ claims. Further, the Court notes that there is no apparent dispute as 26 to the authenticity of the documents provided. Therefore, the Court will consider the relevant 27 extrinsic evidence when necessary. 2 Since the commencement of this action, Plaintiffs have resolved all disputes with the 28 Board and CDFW. (ECF No. 113 at ¶ 17.) 1 previous, uncontested order, this Court found that any events occurring prior to May 16, 2010, 2 were barred by the statute of limitations. (ECF No. 110 at 11.) In their FAC, Plaintiffs take issue 3 with Defendants’ actions opposing the amendment for the period between March 2011, when 4 Leen was acquitted of the criminal charges, and “potentially” concluding in February 2013, when 5 the Board finally granted the change petition. (Id. at ¶ 18.) 6 On November 4, 2015, Defendants filed the instant motion to dismiss. (ECF No. 116.) 7 Plaintiffs filed an opposition on November 25, 2015. (ECF No. 117.) Defendants replied on 8 December 3, 2015. (ECF No. 118.) As discussed, this Court previously granted Defendants’ 9 motion and dismissed the FAC with prejudice. (ECF No. 120.) Plaintiffs appealed, and the Ninth 10 Circuit vacated the judgment and remanded the matter to this Court with instructions. (ECF No. 11 127.) 12 II. STANDARD OF LAW 13 A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal 14 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Federal Rule of 15 Civil Procedure 8(a) requires that a pleading contain “a short and plain statement of the claim 16 showing that the pleader is entitled to relief.” See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 17 (2009). Under notice pleading in federal court, the complaint must “give the defendant fair notice 18 of what the claim … is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 19 544, 555 (2007) (internal quotations omitted). “This simplified notice pleading standard relies on 20 liberal discovery rules and summary judgment motions to define disputed facts and issues and to 21 dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). 22 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 23 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court is bound to give plaintiff the benefit of every 24 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 25 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege 26 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 27 relief.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads 28 factual content that allows the court to draw the reasonable inference that the defendant is liable 1 for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. 544, 556 (2007)). 2 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 3 factual allegations.” United States ex rel. Chunie v. Ringrose, 788 F. 2d 638, 643 n.2 (9th Cir. 4 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an 5 unadorned, the defendant–unlawfully–harmed–me accusation.” Iqbal, 556 U.S. at 678. A 6 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 7 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 8 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 9 statements, do not suffice.”). Moreover, it is inappropriate to assume the plaintiff “can prove 10 facts that it has not alleged or that the defendants have violated the … laws in ways that have not 11 been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 12 U.S. 519, 526 (1983). 13 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 14 facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 697 (quoting 15 Twombly, 550 U.S. at 570). Only where a plaintiff has failed to “nudge[] [his or her] claims … 16 across the line from conceivable to plausible,” is the complaint properly dismissed. Id. at 680. 17 While the plausibility requirement is not akin to a probability requirement, it demands more than 18 “a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility inquiry is 19 “a context–specific task that requires the reviewing court to draw on its judicial experience and 20 common sense.” Id. at 679. 21 If a complaint fails to state a plausible claim, “[a] district court should grant leave to 22 amend even if no request to amend the pleading was made, unless it determines the pleading 23 could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 24 (Ninth Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 484, 497 (9th Cir. 1995)); see 25 also Gardner v. Marino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in 26 denying leave to amend when amendment would be futile). Although a district court should 27 freely give leave to amend when justice so requires under Rule 15(a)(2), “the court’s discretion to 28 deny such leave is ‘particularly broad’ where the plaintiff has previously amended its complaint.” 1 Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013) (quoting 2 Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)). 3 III. ANALYSIS 4 Plaintiffs allege Defendants violated their procedural due process, substantive due 5 process, and equal protection rights under the Fourteenth Amendment. In its mandate, the Ninth 6 Circuit instructs this Court to discuss (1) Plaintiffs’ procedural due process claim, (2) Plaintiffs’ 7 substantive due process claim, (3) Plaintiffs’ equal protection claim, (4) Ramsey’s individual 8 liability, and (5) qualified immunity. (ECF No. 127.) The Court will address each issue in turn. 9 A. Procedural Due Process Claim 10 “A procedural due process claim has two distinct elements: (1) a deprivation of a 11 constitutionally protected liberty or property interest, and (2) a denial of adequate procedural 12 protections.” Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 13 1998). 14 Defendants argue Plaintiffs cannot succeed in their due process claims because Plaintiffs 15 cannot allege a property interest in a water license or in an amendment to a water license. In 16 opposition, Plaintiffs argue that they have a property interest in their validly approved water 17 license. This Court previously agreed with Defendants and found that Plaintiffs did not possess a 18 constitutionally protected property interest in either their water license or an amendment to that 19 license. On remand, the Ninth Circuit instructs this Court to revisit the issue and “consider 20 whether [Plaintiffs’] application for a change of point of diversion is different for due-process 21 purposes from the water license underlying it.” (ECF No. 127 at 3–4.) 22 As a general matter, a person may have a constitutionally protected property interest in a 23 government benefit, such as a license or permit. Bd. of Regents of State Colleges v. Roth, 408 24 U.S. 564, 577 (1972); see also Groten v. California, 251 F.3d 844, 850 (9th Cir. 2001). There 25 must, however, be more than “an abstract need or desire” for the benefit to have a property 26 interest in a government benefit. Roth, 408 U.S. at 577. There must be “more than a unilateral 27 expectation of it. [A plaintiff] must, instead have a legitimate claim of entitlement to it.” Id. 28 “State law creates a legitimate claim of entitlement when it imposes significant limitations on the 1 discretion of the decision maker.” Gerhart v. Lake Cty., Mont., 637 F.3d 1013, 1019 (9th Cir. 2 2011) (citations and internal quotation marks omitted). The Ninth Circuit has “held that such an 3 entitlement to a government permit exists when a state law or regulation requires that the permit 4 be issued once certain requirements are satisfied.” Id. 5 Plaintiffs’ due process arguments lack clarity, largely because Plaintiffs continually refer 6 to alleged harms that occurred outside the statute of limitations period. For example, Plaintiffs 7 argue that the Board approved a prior amendment then rescinded that approval three months later, 8 “set[ing] in motion a chain of events which resulted in [Plaintiffs’] inability to use their water 9 rights for almost five years.” (ECF No. 117 at 15.) But the alleged rescission of that prior 10 amendment took place in April 2008 and is time-barred. Looking only to harm that occurred 11 within the limitations period — May 16, 2010 through the present — Plaintiffs allege that after 12 Leen’s acquittal in 2011, they were deprived of their right to make beneficial use of the irrigation 13 ditch water for their ranching and other irrigation needs. (ECF No. 113 at ¶ 46.) Plaintiffs allege 14 that they believed, “based on repeated threats by Mr. Thomas and representatives of CDFW, that 15 if they used, maintained, or otherwise improved their irrigation ditch, they would be subjected to 16 civil fines and penalties and possibly criminal charges.” (Id. at ¶ 37.) As the Court understands 17 it, Plaintiffs seem to allege they were effectively deprived of their existing water license while 18 their petition for change was pending.3 19 There is sparse authority on the specific question of whether a person can have a property 20 interest in a water license. In fact, the Court is only aware of one case that involves a water 21 3 It is unclear whether Plaintiffs also claim a property interest in their desired amendment to 22 their water license, the approval of which Defendants allegedly delayed. To the extent that 23 Plaintiffs’ claim a property interest in the amendment sought by their petition for change, the Court rejects such an argument. Plaintiffs do not argue that there are “significant limitations” on 24 the Board’s discretion in granting a petition for change, nor do they argue that submitting a petition for change “requires that the permit be issued once certain requirements are satisfied.” 25 Gerhart, 637 F.3d at 1019. To the contrary, it appears that the Board wields considerable discretion in granting or denying petitions for change. See Cal. Water Code § 1701 (“At any time 26 after notice of an application is given, an applicant, permittee, or licensee may change the point of 27 diversion, place of use, or purpose of use from that specified in the application, permit, or license; but such change may be made only upon permission of the board.”). Thus, the Court concludes 28 that Plaintiffs do not have a property interest in an amendment that has not yet been granted. 1 license in the due process context. In Morongo Band of Mission Indians v. State Water Res. 2 Control Bd., 45 Cal. 4th 731 (2009), a case the Ninth Circuit cited in its mandate, the California 3 Supreme Court analyzed whether a state water board violated due process by revoking a water 4 license allegedly without a fair tribunal. Notably, the Morongo court did not explicitly find or 5 even mention that there was a property interest in the water license. Rather than address the 6 threshold question, the court apparently accepted that the plaintiff had a property interest in the 7 water license and proceeded to the next question of whether the water board denied adequate 8 procedures in revoking the water license. As such, Morongo arguably supports the conclusion — 9 or at least the implication — that a water license is a property interest protected by due process. 10 Yet even assuming that Defendants deprived Plaintiffs of a protected property interest in 11 their water license, Plaintiffs fail to provide any factual allegations as to how Defendants denied 12 Plaintiffs adequate procedures after May 16, 2010. (See ECF No. 117 at 17.) Plaintiffs allege 13 only that they were unable to present evidence before the Board rescinded the prior amendment in 14 2008, however, claims related to that rescission are time-barred. (Id.) For these reasons, 15 Plaintiffs fail to plausibly allege that they were denied adequate procedures within the statute of 16 limitations period, and the Court GRANTS Defendants’ motion to dismiss Plaintiffs’ procedural 17 due process claim. 18 B. Substantive Due Process Claim 19 “To establish a substantive due process claim, a plaintiff must, as a threshold matter, show 20 a government deprivation of life, liberty, or property.” Nunez v. City of Los Angeles, 147 F.3d 21 867, 871 (9th Cir. 1998). “To constitute a violation of substantive due process, the alleged 22 deprivation must “shock the conscience and offend the community’s sense of fair play and 23 decency.” Id.; Marsh v. Cty. of San Diego, 680 F.3d 1148, 1154 (9th Cir. 2012) (citation and 24 internal quotation marks omitted). “Where, as here, circumstances afford reasonable time for 25 deliberation before acting, we consider conduct to be conscience-shocking if it was taken with 26 deliberate indifference toward a plaintiff’s constitutional rights.” Lewis, 523 U.S. 833 at 846; 27 Sylvia Landfield Tr. v. City of Los Angeles, 729 F.3d 1189, 1195 (9th Cir. 2013). 28 Plaintiffs refer to several allegations about Defendants’ conduct within the limitations 1 period to support their substantive due process claims. Plaintiffs allege the Board refused to act 2 on Plaintiffs’ petition for change until 2012 because in April 2011, Thomas “continued with his 3 behind-the-scenes campaign to disparage” and made “false statements, improper threats, and 4 demands.” (ECF No. 113 at ¶ 34.) Plaintiffs allege that following Leen’s acquittal in 2011, 5 helicopters typically circled Plaintiffs’ house for ten minutes and passengers appeared to take 6 pictures of the irrigation ditch in an attempt “to draw the [Board] into a new criminal 7 prosecution” against Leen. (Id.) Plaintiffs allege Thomas falsely informed the Board that Leen 8 was unlawfully impounding water in a dam and attached a photograph from a helicopter flyover 9 taken that month. (Id.) Plaintiffs allege that in late May 2011, Thomas again emailed the Board a 10 false accusation that Leen “was caught rebuilding the dam” in 2002. (Id.) Plaintiffs allege that 11 Thomas informed them he would not withdraw his protests unless they agreed to unwarranted 12 concessions, and then Thomas later denied that he demanded such concessions. (Id. at ¶¶ 35–36.) 13 Plaintiffs allege Thomas and representatives of CDFW threatened Plaintiffs with civil fines, 14 penalties, and criminal charges if they used, maintained, or otherwise improved their irrigation 15 ditch. (Id. at ¶ 37.) Finally, Plaintiffs allege Ramsey knew of and ratified Thomas’s unlawful 16 conduct. (Id. at ¶ 38.) 17 On June 20, 2012, the Board contacted Plaintiffs’ counsel to schedule a field investigation 18 to resolve the issues raised by the District Attorney’s office and CDFW. (ECF No. 72 at 14–15.) 19 Plaintiffs allege that on the day before the site investigation, Lane and Thomas tried “one last 20 time to improperly influence” the Board: (1) Thomas allegedly sent a Board member an email in 21 which he attributed another individual’s guilt to Leen; and (2) Lane sent a letter to a Board 22 member asking her to order that the “streambed be restored to its former (pre 2002) condition.” 23 (ECF No. 113 at ¶ 40.) Plaintiffs add that on November 13, 2012, Thomas urged another 24 colleague at CDFW to write to the Board about CDFW’s continued protest to the amendment and 25 request that further conditions be placed on the amended water license. (Id. at ¶ 41.) Plaintiffs 26 contend that Thomas and Lane’s communications were improper, served no legitimate purpose, 27 and have no basis in fact. (Id. at ¶ 40.) 28 Defendants dispute some of the factual allegations in the FAC. However, even taking the 1 FAC as true, Plaintiffs’ allegations do not shock the conscience. Although Plaintiffs repeatedly 2 allege that Defendants made false statements, Plaintiffs only give a single example: Plaintiffs 3 allege that in May 2011, Thomas falsely emailed the Board informing them that Leen had been 4 caught rebuilding a dam in 2002. (ECF No. 113 ¶ 35.) Moreover, Plaintiffs only offer 5 conclusory allegations that Defendants’ protests were unsupported and brought with ill motive. 6 Notably, it is lawful for any interested person to protest a petition for change. See Cal. Water 7 Code § 1703.1 (“Any interested person, within the time allowed in the notice of petition, or 8 within the time the board may allow for good cause shown, may file with the board a written 9 protest against approval of the petition.”). As a whole, it does not shock the conscience that 10 county prosecutors and CDFW employees filed protests, investigated Leen’s property, threatened 11 to “aggressively prosecute” illegal acts, and informed the Board about the investigation. 12 Plaintiffs’ factual allegations do not support a plausible claim that Defendants acted “with 13 deliberate indifference toward a plaintiff’s constitutional rights.” Lewis, 523 U.S. 833 at 846. 14 Accordingly, Plaintiffs fail to plausibly allege Defendants’ conduct shocked the conscience, and 15 the Court GRANTS Defendants’ motion to dismiss Plaintiffs’ substantive due process claim. 16 C. Equal Protection Claim 17 “The Equal Protection Clause of the Fourteenth Amendment commands that no state shall 18 ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a 19 direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne 20 Living Ctr., Inc., 473 U.S. 432, 439 (1985). Normally, to state an equal protection claim “a 21 plaintiff must show that the defendants acted with an intent or purpose to discriminate against the 22 plaintiff based upon membership in a protected class.” Lee v. City of Los Angeles, 250 F.3d 668, 23 686 (9th Cir. 2001) (citing Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). The 24 Supreme Court has also “recognized successful equal protection claims brought by a ‘class of 25 one,’ where the plaintiff alleges that she has been intentionally treated differently from others 26 similarly situated and that there is no rational basis for the difference in treatment.” Vill. of 27 Willowbrook v. Olech, 528 U.S. 562, 564 (2000). 28 Defendants argue that Plaintiffs fail to identify a sufficiently similar individual. In 1 opposition, Plaintiffs invoke the “class of one” theory. More specifically, Plaintiffs allege 2 Defendants targeted them “in order to harass and punish” them for “refusing to bend to Mr. 3 Thomas’s will and for prevailing in the criminal case.” (ECF No. 113 at ¶ 49.) Plaintiffs also 4 assert Defendants lacked a rational basis for their protests to the Board, alleging Defendants made 5 protests they “knew or should have known” were false or meritless and did so to punish Plaintiffs 6 for failing to “consent to improper regulatory demands.” (Id. at ¶ 54.) Plaintiffs allege the Board 7 has not refused to process applications or denied water licensing rights to other similarly situated 8 persons in farming regions of California, and that the process is typically a simple, prompt, and 9 routine procedure. (Id. at ¶¶ 47, 49, 52.) 10 Plaintiff relies primarily on two Seventh Circuit cases to support their “class of one” 11 theory. In Geinosky v. City of Chicago, 675 F.3d 743, 745 (7th Cir. 2012), the plaintiff brought a 12 “class of one” discrimination claim after receiving twenty-four bogus parking tickets within a 13 year, all written by officers from a specific unit of the Chicago Police Department. Id. at 749. 14 Because the plaintiff failed to identify a similarly situated individual, the district court granted 15 judgment for the City. Id. The Seventh Circuit reversed, explaining, “On these unusual facts — 16 many baseless tickets that were highly unlikely to have been a product of random mistakes — 17 [plaintiff’s] general assertion that other persons were not similarly abused does not require names 18 or descriptions in support.” Id. at 748–49. 19 In Swanson v. City of Chetek, 719 F.3d 780, 783 (7th Cir. 2013), the court reiterated that 20 “a clear showing of animus, absent a robust comparison to a similarly situated individual, may 21 sustain a class-of-one equal protection claim.” In Swanson, the plaintiff moved next door to the 22 mayor of the city. Id. at 781. Plaintiff obtained a building permit and decided to build a three- 23 foot fence between his property and the mayor’s property. Id. The mayor “did not like this 24 situation and used his position to harass” the plaintiff. Id. at 782. Even though the plaintiff had 25 identified a similarly situated individual, the court found that all the plaintiff needed to show was 26 “that harassment, yelling, arbitrary denials and frivolous litigation do not normally follow 27 requests for fence permits.” Id. at 785. 28 Plaintiffs essentially argue that it is unnecessary under Seventh Circuit precedent to allege 1 specific facts about similarly situated individuals because Defendants’ animus is clear. The Court 2 disagrees for two reasons. 3 First, Plaintiffs fail to cite any Ninth Circuit authority on point. To the contrary, courts in 4 this circuit have “enforce[d] the similarly-situated requirement with particular strictness when the 5 plaintiff invokes the class-of-one theory.” Warkentine v. Soria, 152 F. Supp. 3d 1269, 1294 (E.D. 6 Cal. 2016) (citation omitted) (“Class-of-one plaintiffs must show an extremely high degree of 7 similarity between themselves and the persons to whom they compare themselves.”); compare 8 Hardesty v. Sacramento Metro. Air Quality Mgmt. Dist., 935 F. Supp. 2d 968, 983–84 (E.D. Cal. 9 2013) (concluding that plaintiff mining operators adequately pleaded a “class of one” equal 10 protection claim because “[i]nstead of asserting generally that they were treated differently, 11 plaintiffs have described two other [mining] operators who were treated differently as to the 12 salient characteristics”); with Jardine-Byrne v. Santa Cruz Cty., No. 5:16-CV-03253-EJD, 2017 13 WL 5525900, at *4 (N.D. Cal. Nov. 17, 2017) (finding allegations that other library patrons were 14 allowed to bring in office equipment without losing their library privileges were “conclusory and 15 fail to establish that the other Library patrons were identical in all relevant respects to Plaintiff or 16 directly comparable in all material respects”). Indeed, “[s]trict enforcement of the similarly- 17 situated requirement is a vital way of minimizing the risk that . . . the concept of a class-of-one 18 equal protection claim could effectively provide a federal cause of action for review of almost 19 every executive and administrative decision made by state actors.” Warkentine, 152 F. Supp. 3d 20 at 1294 (citation and internal quotation marks omitted). 21 Second, even if the Court considers Plaintiffs’ Seventh Circuit precedent, this case is 22 distinct from the unusual factual scenarios in Geinosky and Swanson where animus could be 23 inferred by the defendants’ extreme, overt conduct. The Court has already described Plaintiffs’ 24 factual allegations about Defendants’ relevant conduct at length. Those factual allegations do not 25 support even a reasonable inference that Defendants’ conduct lacked a rational basis, much less 26 that Defendants acted with blatant animus. As such, Plaintiffs’ reliance on Geinosky and 27 Swanson is unavailing. 28 In sum, Plaintiffs fail to identify even one other similarly situated individual. Therefore, 1 Defendants’ motion to dismiss the equal protection claim is GRANTED. 2 D. Individual Liability for Ramsey 3 Defendants argue Plaintiffs have failed to plead sufficient facts to recover against Ramsey 4 in his individual capacity. In opposition, Plaintiffs argue that Ramsey, Thomas’s supervisor, 5 ratified and supported Thomas’s open, known, and unlawful interference with Plaintiffs’ use and 6 enjoyment of their property. 7 “Liability is imposed against a supervisory official in his individual capacity for his own 8 culpable action or inaction in the training, supervision, or control of his subordinates, for his 9 acquiescence in the constitutional deprivations of which the complaint is made, or for conduct 10 that showed a reckless or callous indifference to the rights of others.” Johnson v. City of Vallejo, 11 99 F. Supp. 3d 1212, 1219 (E.D. Cal. 2015) (quoting Menotti v. City of Seattle, 409 F.3d 1113, 12 1149 (9th Cir. 2005)). While respondeat superior liability does not attach to a § 1983 claim, 13 “a supervisor is liable for the acts of his subordinates ‘if the supervisor participated in or directed 14 the violations, or knew of the violation [of subordinates] and failed to act to prevent 15 them.’” Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1182 (9th Cir. 2007) 16 (quoting Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)). 17 Here, the bare accusation that Ramsey knew of Thomas’s actions is insufficient to state a 18 plausible claim that he authorized, directed, or ratified any of the allegedly unlawful conduct. 19 The Court also notes that Plaintiffs have had numerous chances to bring a cognizant claim against 20 Ramsey and have repeatedly failed to allege sufficient facts to state a claim against him. 21 Accordingly, Defendants’ motion to dismiss Plaintiffs’ claims against Ramsey in his 22 individual capacity is GRANTED. 23 E. Qualified Immunity 24 Even if Plaintiffs adequately pleaded their constitutional claims, the claims must be 25 dismissed with prejudice based on qualified immunity. 26 A court may grant a dismissal if it can determine, based on the complaint itself, that 27 qualified immunity applies. O’Brien v. Welty, 818 F.3d 920, 936 (9th Cir. 2016). “In § 1983 28 actions, the doctrine of qualified immunity protects city officials from personal liability in their 1 individual capacities for their official conduct so long as that conduct is objectively reasonable 2 and does not violate clearly-established federal rights.” Cmty. House, Inc. v. City of Boise, Idaho, 3 623 F.3d 945, 964 (9th Cir. 2010). Qualified immunity is evaluated under a two-step test: (1) 4 whether facts alleged, taken in the light most favorable to the injured party, show the defendants’ 5 conduct violated a constitutional right; and (2) whether the right was clearly established. Lacey v. 6 Maricopa County, 693 F.3d 896, 915 (9th Cir. 2012) (en banc). 7 “The inquiry of whether a right is clearly established ‘must be undertaken in light of the 8 specific context of the case, not as a broad general proposition.’” Cmty. House, Inc, 623 F.3d at 9 967 (citation omitted). “For the law to be clearly established, ‘[t]he contours of the right must be 10 sufficiently clear that a reasonable official would understand that what he is doing violates that 11 right.’” Id. (citation omitted). “To determine whether a right was clearly established, a court 12 turns to Supreme Court and Ninth Circuit law existing at the time of the alleged act.” Id. “In the 13 absence of binding precedent, courts should look to available decisions of other circuits and 14 district courts to ascertain whether the law is clearly established.” Id. “It is not necessary that the 15 very action in question has previously been held unlawful, but in the light of preexisting law the 16 unlawfulness must be apparent.” Id. (citation and internal quotation marks omitted). “The 17 relevant, dispositive inquiry . . . is whether it would be clear to a reasonable [official] that his 18 conduct was unlawful in the situation he confronted.” Id. at 967–68. 19 This case involves novel issues. Neither party cites — nor can the Court locate — any 20 authority that mirrors the specific facts or legal issues in this case. As discussed, Morongo 21 appears to be the only case that touches on whether a water license even qualifies as a property 22 interest for due process purposes, and Morongo is factually distinct from this case and does not 23 address the property interest issue explicitly. There is a similar lack of authority as to the equal 24 protection claim. Based on the lack of any preexisting law as to these specific claims, the alleged 25 unlawfulness of Defendants’ conduct is not apparent. Further, the fact that Defendants were 26 legally allowed to protest the amendment to the water license weighs in favor of finding that the 27 rights at issue were not clearly established. Grossman, 33 F.3d at 1209 (“Courts have . . . held 28 that the existence of a statute or an ordinance authorizing particular conduct is a factor which 1 militates in favor of the conclusion that a reasonable official would find that conduct 2 constitutional.”). Put simply, it would not have been clear to a reasonable official that it was 3 unlawful to take the alleged actions that purportedly interfered with the issuance of an 4 amendment to a water license and restricted the use of the underlying water license while the 5 amendment was pending. Therefore, it is apparent from the FAC that Defendants are entitled to 6 qualified immunity as to all Plaintiffs’ claims. 7 Having already determined that Plaintiffs fail to state a plausible procedural due process, 8 substantive due process, or equal protection claim, the Court also finds that qualified immunity 9 provides an independent basis to grant Defendants’ motion to dismiss. Moreover, “[a] district 10 court acts within its discretion to deny leave to amend when amendment would be futile.” 11 Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725–26 (9th Cir. 2000). The Court notes that this is 12 Plaintiffs’ Fourth Amended Complaint, and the thrust of Plaintiffs’ claims is largely unchanged 13 despite several amendments. Based on the novelty of Plaintiffs’ claims, the Court finds that 14 further amendment would be futile because qualified immunity inevitably will shield Defendants 15 from liability. Therefore, the Court declines to grant leave to amend. 16 IV. CONCLUSION 17 For the foregoing reasons, the Court hereby GRANTS Defendants’ Motion to Dismiss 18 Plaintiffs’ Fourth Amended Complaint with prejudice. (ECF No. 116.) The Clerk of the Court is 19 directed to close the case. 20 IT IS SO ORDERED. 21 Dated: March 23, 2020 22 23 24 25 26 27 28