Makiyah Lumont Kiyoi v. NXP Semiconductors, et al.

• Court: District Court, N.D. California
• Decided: May 18, 2026
• Docket: 5:26-cv-03655
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 MAKIYAH LUMONT KIYOI, Case No. 26-cv-03655-BLF

8 Plaintiff, ORDER GRANTING MOTION FOR 9 v. LEAVE TO PROCEED IN FORMA PAUPERIS; SCREENING 10 NXP SEMICONDUCTORS, et al., COMPLAINT; AND DISMISSING COMPLAINT IN PART WITH LEAVE 11 Defendants. TO AMEND

12 [Re: ECF Nos. 1, 3]

13 14 Before the Court is Plaintiff Makiyah Lumont Kiyoi’s motion for leave to proceed in 15 forma pauperis (“IFP”). ECF No. 3. For the reasons set forth below, Plaintiff’s IFP application is 16 GRANTED and the complaint is DISMISSED IN PART WITH LEAVE TO AMEND. 17 I. BACKGROUND 18 This civil rights action arises out of an allegedly unlawful search of Plaintiff’s room. 19 According to the allegations in the complaint, on March 7, 2025, two San Jose Police Department 20 Officers, Defendants Officer Montez (#5034) and Officer Reed (#4945), responded to a report of 21 felony vandalism at Defendant NXP Semiconductors (“NXP”). ECF No. 1 (“Compl.”) ¶ 12. NXP 22 identified Plaintiff as the suspect because a white scooter with a black top matched one Plaintiff 23 had previously used. Id.¶ 13. NXP provided the Officers with Plaintiff’s address, showed them 24 the camera footage, and offered background information regarding Plaintiff’s previous 25 employment with NXP security and existing workplace restraining order. Id. ¶ 13. The Officers 26 went to Plaintiff’s address for a “knock and talk,” where they spoke with Plaintiff’s landlord’s 27 boyfriend, David Kern. Id. ¶¶ 14–15. Mr. Kern consented to the Officer’s looking inside 1 warrant, probable cause, or Plaintiff’s consent. Id. ¶¶ 15–16. Plaintiff alleges that the Officers 2 “conducted a visual search and seizure of [his] personal effects and living space,” including 3 observing his white scooter. Id. ¶ 16. Plaintiff states that in related criminal proceedings, the 4 Santa Clara District Attorney “conceded” a motion to suppress evidence obtained from this 5 allegedly illegal detention, arrest, search, and seizure, “confirming that the warrantless conduct 6 violated Plaintiff’s Fourth Amendment Rights.” Id. ¶ 17. 7 Plaintiff brings six claims: (1) a 42 U.S.C. § 1983 claim for violation of his Fourth 8 Amendment rights due to illegal detention, arrest, search, and seizure; (2) trespass to land and 9 chattels; (3) invasion of privacy (intrusion upon seclusion); (4) intentional infliction of emotional 10 distress; (5) negligence; and (6) violation of the Bane Act (Cal. Civ. Code § 52.1). Id. ¶¶ 21–39. 11 Plaintiff names eight defendants: (i) NXP; (ii) Elinor Gagante, NXP’s building manager; (iii) Dan 12 Porter, NXP’s head of security; (iv) Garda World Security (“Garda World”), a corporation that 13 provides security services at NXP; (v) Tara Grady, a human resources manager for Garda World; 14 (vi) Miguel Lomelli, a security supervisor at Garda World; (vii) Officer Montez; and (viii) Officer 15 Reed. Id. ¶¶ 4–11. Plaintiff seeks compensatory and punitive damages, attorney’s fees and costs, 16 injunctive relief, a declaratory judgment, and pre- and post-judgment interest. Id. at Prayer for 17 Relief. 18 II. LEGAL STANDARD 19 IFP applications are governed by 28 U.S.C. § 1915, which provides in relevant part that 20 “any court of the United States may authorize the commencement, prosecution or defense of any 21 suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees . . . by a 22 person who submits an affidavit . . . that the person is unable to pay such fees.” 28 U.S.C. 23 § 1915(a). 24 When a district court grants IFP status, it must screen the complaint and dismiss the action 25 if it “is frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks 26 monetary relief against a defendant who is immune from relief.” 28 U.S.C. § 1915(e)(2)(B). If 27 the complaint survives the initial screening, the court must “order that service be made by a United 1 P. 4(c)(3). The Court will screen Plaintiff’s complaint and order service only if the Court 2 determines that the complaint survives initial screening. 3 The IFP statute accords district judges “not only the authority to dismiss a claim based on 4 an indisputably meritless legal theory, but also the unusual power to pierce the veil of the 5 complaint’s factual allegations and dismiss those claims whose factual contentions are clearly 6 baseless.” Denton v. Hernandez, 504 U.S. 25, 32 (1992) (quoting Neitzke v. Williams, 490 U.S. 7 319, 327 (1989)). “Examples of the latter class are claims describing fantastic or delusional 8 scenarios, claims with which federal district judges are all too familiar.” Neitzke, 490 U.S. at 328; 9 see also Andrews v. King, 398 F.3d 1113, 1118 (9th Cir. 2005). A complaint that does not state 10 enough facts to state a claim to relief that is plausible on its face is deficient. See Bell Atlantic 11 Corp. v. Twombly, 550 U.S. 544, 555 (2007). 12 III. DISCUSSION 13 As a threshold matter, the Court is satisfied that IFP status is warranted based on Plaintiff’s 14 affidavit describing his lack of financial resources. Accordingly, Plaintiff’s application to proceed 15 IFP is GRANTED. The Court thus turns to screening the complaint. 16 A. Government Claims Act 17 Before reaching the merits of Plaintiff’s claims, the Court begins with Plaintiff’s failure to 18 allege compliance with the California Government Claims Act, which is required before Plaintiff 19 may sue a public entity or its officers for tort violations and claims under state law. The California 20 Government Claims Act, California Government Code §§ 810 et seq., provides that a plaintiff may 21 not bring a suit for monetary damages against a public entity or employee unless the plaintiff first 22 presented the claim to the public entity, and the entity acted on the claim, or failed to act on the 23 claim before time expired. In particular, California Government Code section 950.2 “provides that 24 ‘a cause of action against a public employee . . . for injury resulting from an act or omission in the 25 scope of his employment as a public employee is barred’ unless a timely claim has been filed 26 against the employing public entity.” Fowler v. Howell, 42 Cal. App. 4th 1746, 1750 (1996). 27 Indeed, compliance with this “claim presentation requirement” is an element of a cause of action 1 (2004). 2 Here, Plaintiff has not alleged facts that either demonstrate or excuse compliance with the 3 Government Claims Act. Thus, Plaintiff’s Bane Act, invasion of privacy, intentional infliction of 4 emotional distress, and negligence claims against the Officers are subject to dismissal. See 5 Karim–Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 627 (9th Cir.1988); see also Greene 6 v. City of San Francisco, No. 25-cv-06556-JCS, 2025 WL 2653644, at *7 (N.D. Cal. Sept. 16, 7 2025). 8 B. Civil Rights Claims 9 1. Section 1983 (Claim 1) 10 As to the merits, the Court begins with Plaintiff’s 42 U.S.C. § 1983 claim arising from the 11 warrantless “visual search and seizure” of Plaintiff’s room. See Compl. ¶¶ 15–16, 21–24. This 12 claim is brought against the two Officers and the NXP Defendants and Garda World Defendants 13 under a joint action theory. Compl. ¶¶ 21–24. To state a section 1983 claim, a plaintiff must 14 allege that (1) a person violated a right secured by the Constitution or laws of the United States 15 and (2) said person acted under the color of state law when they committed the alleged violation. 16 West v. Atkins, 487 U.S. 42, 48 (1988). While “private parties are not generally acting under color 17 of state law,” Price v. State of Haw., 939 F.2d 702, 707–08 (9th Cir. 2011), “a § 1983 action can 18 lie against a private party when ‘he is a willful participant in joint action with the State or its 19 agents.’” Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (quoting Dennis v. Sparks, 20 449 U.S. 24, 27 (1980)). 21 Under the “low threshold for proceeding past the screening stage,” Wilhelm v. Rotman, 22 680 F.3d 1113, 1123 (9th Cir. 2012), the Court finds that Plaintiff has stated a plausibly non- 23 frivolous section1983 claim against the Officers, including because the District Attorney’s office 24 allegedly conceded a motion to suppress the fruits of the challenged conduct. See Compl. ¶ 17. 25 However, Plaintiff’s vague assertions regarding the NXP and Garda World Defendants do 26 not satisfy the state action requirement. The joint action test for state action is satisfied where 27 “state officials and private parties have acted in concert in effecting a particular deprivation of 1 Franklin v. Fox, 312 F.3d 423, 445 (9th Cir. 2002)). This requirement can be met “either ‘by 2 proving the existence of a conspiracy or by showing that the private party was a willful participant 3 in joint action with the State or its agents.’” Id. (quoting Franklin, 312 F.3d at 445). Although 4 Plaintiff alleges that the NXP and Garda World Defendants “acted jointly with state actors and 5 thereby under color of state law,” the complaint includes no facts that make this conclusion 6 plausible. Id. ¶ 24. The allegation that the NXP and Garda World Defendants “direct[ed], 7 request[ed], facilitate[ed], and actively participat[ed] in the detention, arrest, search, and seizure 8 alongside or at the behest” of the Officers is not sufficient to transform Plaintiff’s conclusion of 9 law into a plausible inference of joint action. Nor are the allegations that the NXP and Garda 10 World Defendants provided the Officers with information sufficient to establish action under color 11 of state law. See Manda v. Albin, No. 19-cv-01947-EJD, 2019 WL 6311380, at *11 (N.D. Cal. 12 Nov. 25, 2019) (“[T]he mere furnishing of information to police officers does not constitute a 13 conspiracy or ‘joint action’ under color of state law.”). While the Court is mindful of Plaintiff’s 14 status as a pro se litigant and its concomitant obligation to construe the pleadings liberally, the 15 complaint is utterly devoid of any factual allegations plausibly suggesting that the NXP and Garda 16 World Defendants acted under color of state law with respect to the underlying alleged 17 constitutional violation. Accordingly, the section 1983 claim is subject to dismissal as to the NXP 18 and Garda World Defendants with leave to amend to allege facts demonstrating that they were 19 state actors. 20 2. Bane Act (Claim 6) 21 The Bane Act punishes any “person or persons, whether or not acting under color of law, 22 [who] interferes by threat, intimidation, or coercion, or attempts to interfere by threat, 23 intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights 24 secured by the Constitution or laws of the United States, or of the rights secured by the 25 Constitution or laws of this state.” Cal Civ. Code § 52.1(a). In order to state a claim under the 26 Bane Act, a plaintiff must allege “(1) interference with or attempted interference with a state or 27 federal constitutional or legal right, and (2) the interference or attempted interference was by 1 Plaintiff’s sixth cause of action is largely duplicative of his federal civil rights claim but 2 additionally alleges that the predicate acts underlying those claims violated his rights under 3 Article I, Section 13 of the California Constitution. Compl. ¶¶ 38–39. The claim is subject to 4 dismissal because it does not plead threats, intimidation, or coercion. See, e.g., Sanchez v. City of 5 Fresno, 914 F. Supp. 2d 1079, 1118 (E.D. Cal. 2012) (“Although a complaint need not use the 6 statutory terms ‘threats, intimidation, or coercion,’ it must allege facts from which the presence of 7 threats, intimidation, or coercion may be inferred.”). 8 C. Tort Claims 9 1. Trespass to Land and Chattels (Claim 2) 10 Plaintiff asserts a trespass to land and chattels claim against the NXP and Garda World 11 Defendants. Compl. ¶¶ 25–27. He alleges that he had “the exclusive right to possession and quiet 12 enjoyment” of his room and possessions, and the NXP and Garda World Defendants intentionally 13 entered, or directed others “to enter and interfere with his chattels.” Id. ¶¶ 26–27. “[T]he tort of 14 trespass to chattels allows recovery for interferences with possession of personal property.” Intel 15 Corp. v. Hamidi, 30 Cal. 4th 1342, 1350 (2003). “The essence of the cause of action for trespass 16 is an unauthorized entry onto the land of another.” Miller v. Nat’l Broad. Co., 187 Cal. App. 3d 17 1463, 1480 (1986). Nowhere does Plaintiff allege that the NXP or Garda World Defendants 18 entered into Plaintiff’s residence or directed law enforcement to do so. Instead, Plaintiff alleges 19 only that the Officers went to Plaintiff’s residence. Compl. ¶¶ 15–16. Thus, Plaintiff’s trespass 20 claim is subject to dismissal. 21 2. Invasion of Privacy (Intrusion Upon Seclusion) (Claim 3) 22 “To state a claim for intrusion upon seclusion under California common law, a plaintiff 23 must plead that (1) a defendant ‘intentionally intruded into a place, conversation, or matter as to 24 which the plaintiff has a reasonable expectation of privacy,’ and (2) the intrusion ‘occurred in a 25 manner highly offensive to a reasonable person.’” In re Facebook, Inc. Intern. Tracking Litig, 26 956 F.3d 589, 601 (9th Cir. 2020) (quoting Hernandez v. Hillsides, Inc., 47 Cal. 4th 272, 286 27 (2009) (alterations omitted)). Here, Plaintiff alleges that all Defendants intentionally intruded 1 expectation of privacy. Compl. ¶¶ 28–30. Setting aside failure to allege compliance with the 2 Government Claims Act, the Court finds that, at this early stage, Plaintiff has met the low 3 threshold to plead an intrusion upon seclusion claim against the Officers. But as there are no facts 4 sufficient to illustrate that the NXP and Garda World Defendants went to his residence or directed 5 the Officers to do so, the intrusion upon seclusion claim is subject to dismissal as to the NXP and 6 Garda World Defendants. 7 3. Intentional Infliction of Emotional Distress (Claim 4) 8 To state a claim for intentional infliction of emotional distress (“IIED”), a plaintiff must 9 allege facts to sufficient to show “(1) extreme and outrageous conduct by the defendant with the 10 intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the 11 plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation 12 of the emotional distress by the defendant’s outrageous conduct.’” Corales v. Bennett, 567 F.3d 13 554, 571 (9th Cir. 2009) (quoting Tekle v. United States, 511 F.3d 839, 855 (9th Cir. 2007)). 14 Here, Plaintiff asserts an IIED claim against all Defendants, alleging that their conduct “in 15 orchestrating and executing the illegal detention, arrest, search, and seizure of Plaintiff’s most 16 private living space was extreme and outrageous, exceeding all bounds of decency in a civilized 17 society.” Compl. ¶ 32. As Plaintiff’s fourth cause of action simply recites the elements of an 18 IIED claim, it is subject to dismissal for failure to adduce any supporting factual allegations. 19 4. Negligence (Claim 5) 20 To state a claim for negligence, a plaintiff “must establish four required elements: (1) duty; 21 (2) breach; (3) causation; and (4) damages.” Ileto v. Glock Inc., 349 F.3d 1191, 1203 (9th Cir. 22 2003). Plaintiff brings a negligence claim against all Defendants, asserting that they owed 23 Plaintiff a duty of reasonable care with respect to his rights that they breached through the 24 allegedly unlawful arrest, search, and seizure. Compl. ¶¶ 34–36. The Court finds that Plaintiff has 25 failed to plead a cognizable basis for the alleged duty of care, and thus the negligence claim is 26 subject to dismissal. 27 IV. ORDER ] (1) Plaintiff's application to proceed IFP, ECF No. 3, is GRANTED. 2 (2) Plaintiff's section 1983 claim is DISMISSED WITH LEAVE TO AMEND as to the 3 NXP and Garda World Defendants. Plaintiff's section 1983 claim against the Officer 4 Defendants may proceed. 5 (3) Plaintiff's Bane Act, trespass to land and chattels, invasion of privacy, intentional 6 infliction of emotional distress, and negligence claims are DISMISSED WITH LEAVE 7 TO AMEND. 8 (4) Plaintiff SHALL file a first amended complaint within 30 days of the date of this 9 Order, on or before June 17, 2026. 10 (5) No new claims or parties may be added without express leave of the Court. 11 Amendment shall be limited to remedying the deficiencies identified in this Order. a 12 Dated: May 18, 2026

13 failuipacdian TH LABSON FREEMAN Y 14 United States District Judge

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