Naseri v. City and County of San Francisco

Opinion

1 2 3 6 7 ZAHIR NASERI, Case No. 24-cv-05413-TSH

8 Plaintiff, ORDER DISMISSING FEDERAL 9 v. CLAIMS WITHOUT LEAVE TO AMEND; ORDER REMANDING NON- FRANCISCO, FRANCISCO SUPERIOR COURT 11 Defendant. Re: Dkt. No. 45 12 14 Pending before the Court is Defendant City and County of San Francisco’s Motion to 15 Dismiss Plaintiff’s Third Amended Complaint pursuant to Federal Rule of Civil Procedure 16 12(b)(6). ECF No. 45. Plaintiff Zahir Naseri filed an Opposition (ECF No. 46) and Defendant 17 filed a Reply (ECF No. 47). The Court finds this matter suitable for disposition without oral 18 argument. See Civ. L.R. 7-1(b). For the reasons stated below, the Court GRANTS the motion as 19 to the federal claims and REMANDS the non-federal claims to state court.1 21 Plaintiff Zahir Naseri has worked as a “TNC” (transportation network company) driver for 22 Uber and Lyft in the San Francisco Bay Area for over nine years, including in the City and County 23 of San Francisco and at the San Francisco International Airport (“SFO”). Third Am. Compl. 24 (“TAC”) at 2, Factual Allegations ¶ 1, ECF No. 44. 25 Mr. Naseri alleges that on June 24, 2023, he was driving for Uber at SFO with the Lyft 26 application turned off. Id. at 3, ¶ 2. Mr. Naseri alleges he was “properly displaying an Uber 27 1 placard.” Id. An SFO enforcement officer and an unidentified coworker stopped Mr. Naseri and 2 told him that his Lyft placard was not in compliance with airport policy because it was a red color, 3 and that a purple placard was required. Id. Mr. Naseri alleges that he told these SFO staff 4 members that the Lyft permit for SFO does not mention the color of the placard. Id. ¶¶ 3, 4. Mr. 5 Naseri alleges that the SFO enforcement officer2 “lost his temper,” seized Mr. Naseri’s Lyft and 6 Uber placards and emblems without his consent, ordered Mr. Naseri to exit his car and told him 7 that he was under arrest. Id. ¶ 3. Mr. Naseri alleges that during this encounter, the SFO 8 enforcement officer called Mr. Naseri a “Middle Eastern driver.” Id. ¶ 3. 9 On June 24, 2024, an SFO staff member contacted Uber and Lyft to have Mr. Naseri and 10 his vehicle permanently removed from SFO. Id. ¶ 6 and Ex. A to TAC (ECF No. 44 at 37–39). In 11 response, Lyft permanently banned Mr. Naseri and his vehicle from SFO and Uber banned Mr. 12 Naseri from all California airports. TAC ¶ 6. Mr. Naseri received no prior notice or opportunity 13 to contest these bans. Id. Mr. Naseri alleges Defendant “impos[ed] harsher penalties on Plaintiff 14 than on other Transportation Network Company (TNC) drivers who committed similar or lesser 15 infractions.” Id. ¶ 50. Mr. Naseri alleges that while he received a permanent ban, “[o]ther TNC 16 drivers committing similar or lesser infractions, such as displaying incorrect placards, were given 17 warnings or fines rather than a permanent ban.” Id. ¶ 51. 18 Mr. Naseri filed this action against Defendant City and County of San Francisco 19 (“Defendant” or “the City”) in Superior Court for the City and County of San Francisco on July 20 15, 2024, alleging violations of Title VII of the Civil Rights Act of 1964 and violation of Article 1, 21 Section 13 of the California State Constitution. Compl. ¶¶ 9–12, ECF No. 1 at 7–8. Defendant 22 was properly served on July 19, 2024. ECF No. 1 (Notice of Removal). On August 19, 2024, 23 Defendant removed the action to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. Id. 24 On September 9, 2024, Mr. Naseri filed his First Amended Complaint (FAC). In his FAC, 25 Mr. Naseri alleged violations of Title VII of the Civil Rights Act of 1964; Article I, Section 13 of 26 the California Constitution; the Fair Labor Standards Act; 42 U.S.C. § 12203, California Fair 27 1 Employment and Housing Act (“FEHA”), and California Unruh Civil Rights Act. See Am. 2 Compl. ¶¶ 12–20, ECF No. 23. On September 23, 2024, Defendant filed a motion to dismiss 3 Plaintiff’s FAC. ECF No. 27. On November 13, 2024, the Court granted Defendant’s motion to 4 dismiss Plaintiff’s claims without leave to amend and granted Plaintiff leave to amend to assert 5 other legal claims. ECF No. 32 at 10. 6 On November 22, 2024, Mr. Naseri filed his Second Amended Complaint (“SAC”). ECF 7 No 33, SAC. In his SAC, Mr. Naseri alleged violations of San Francisco’s City Transportation 8 Policy; San Francisco Airport Rules and Regulations; San Francisco Airport TNC Policies; 42 9 U.S.C. § 1983; violations of the Equal Protection and Due Process Clauses of the Fourteenth 10 Amendment of the U.S. Constitution; the Fourth Amendment of the U.S. Constitution; 11 California’s Unfair Competition Law (UCL); San Francisco Non-Discrimination Ordinances; 12 Article 1, Section 7 of the California Constitution; and the California Administrative Procedure 13 Act (Cal. Gov. Code § 11340). See SAC ¶¶ 16–26. On December 18, 2024, Defendant filed a 14 motion to dismiss Plaintiff’s SAC. ECF No. 37. On January 22, 2025, the Court granted 15 Defendant’s motion to dismiss with leave for Plaintiff to amend his federal claims and to allege 16 claims under municipal law and without leave to amend his state law claims. ECF No. 43 at 14– 17 15. 18 On January 24, 2025, Mr. Naseri filed his Third Amended Complaint (“TAC”), which is 19 now the operative complaint in this action. ECF No 44, TAC. In his TAC, Mr. Naseri alleges 20 eighteen claims. Mr. Naseri alleges violation of the First Amendment of the U.S. Constitution 21 (Claims 1 and 16); violation of the Due Process Clause of the Fourteenth Amendment of the U.S. 22 Constitution (Claim 2); violation of the Equal Protection Clause of the Fourteenth Amendment 23 (Claim 3); excessive fines in violation of the Eighth Amendment (Claim 4); unlawful search and 24 seizure in violation of the Fourth Amendment (Claim 5); violation of Article 33 of the San 25 Francisco Police Code (Claims 6–9); violation of the California Public Records Act (Claim 10); 26 destruction of evidence in violation of California Penal Code § 135 (Claim 11); misuse of the 27 discovery process in violation of California Code of Civil Procedure § 2023.010 (Claim 12); “Due 1 California Evidence Code § 413 (Claim 14); Destruction of Public Records in violation of 2 California Government Code § 34090 (Claim 15); violation of the San Francisco Records 3 Management Policy, Admin. Code Ch. 67 (Claim 17); and obstruction of justice, 18 U.S.C. § 1505 4 (Claim 18). See TAC ¶¶ 24–133. Mr. Naseri seeks, inter alia, compensatory and punitive 5 damages, monetary remuneration for pain and suffering, and that he be reinstated as a driver at 6 SFO. Id. at 34–35 (Demand for Relief). On February 7, 2025, Defendant filed a motion to 7 dismiss Plaintiff’s TAC. ECF No. 45. On February 9, Plaintiff filed an Opposition (ECF No. 46) 8 and on February 28, 2025, Defendant filed a Reply (ECF No. 47). 10 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 11 sufficiency of a claim. A claim may be dismissed only if it appears beyond doubt that the plaintiff 12 can prove no set of facts in support of his claim which would entitle him to relief.” Cook v. 13 Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (citation and quotation marks omitted). Rule 8 14 provides that a complaint must contain a “short and plain statement of the claim showing that the 15 pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). Thus, a complaint must plead “enough 16 facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 17 544, 570 (2007). Plausibility does not mean probability, but it requires “more than a sheer 18 possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A 19 complaint must therefore provide a defendant with “fair notice” of the claims against it and the 20 grounds for relief. Twombly, 550 U.S. at 555 (quotations and citation omitted). 21 In considering a motion to dismiss, the court accepts factual allegations in the complaint as 22 true and construes the pleadings in the light most favorable to the nonmoving party. Manzarek v. 23 St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008); Erickson v. Pardus, 551 24 U.S. 89, 93–94 (2007). However, “the tenet that a court must accept as true all of the allegations 25 contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements 26 of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 27 678. 1 request to amend the pleading was made, unless it determines that the pleading could not possibly 2 be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en 3 banc) (citations and quotations omitted). A court “may exercise its discretion to deny leave to 4 amend due to ‘undue delay, bad faith or dilatory motive on part of the movant, repeated failure to 5 cure deficiencies by amendments previously allowed, undue prejudice to the opposing party . . ., 6 [and] futility of amendment.’” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892–93 (9th 7 Cir. 2010) (alterations in original) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). 9 A. Federal Claims 10 Plaintiff alleges eight claims under federal law. Mr. Naseri alleges violation of the First 11 Amendment of the U.S. Constitution (Claims 1 and 16); violation of the Due Process Clause of the 12 Fourteenth Amendment of the U.S. Constitution (Claim 2); violation of the Equal Protection 13 Clause of the Fourteenth Amendment (Claim 3); excessive fines in violation of the Eighth 14 Amendment (Claim 4); and unlawful search and seizure in violation of the Fourth Amendment 15 (Claim 5); “Due Process Rights Violations” (Claim 13); and obstruction of justice, 18 U.S.C. § 16 1505 (Claim 18). TAC ¶¶ 24–85, 122–23, 128–29, 132–33. 17 1. Constitutional Claims 18 “[A] litigant complaining of a violation of a constitutional right does not have a direct 19 cause of action under the United States Constitution but must utilize 42 U.S.C. § 1983.” Arpin v. 20 Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001). The Civil Rights Act, 21 codified at 42 U.S.C. § 1983, provides in relevant part:

22 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States or other person within 23 the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party 24 injured in an action at law, suit in equity, or other proper proceeding for redress . . . 25 26 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method 27 for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 393–94 1 local government units . . . [are] among those persons to whom § 1983 applies.” Monell v. Dep't 2 of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978). 3 The City and County of San Francisco, a municipality, is the sole Defendant in this action. 4 Plaintiff repeatedly refers to the plural “Defendants” in his TAC (TAC ¶¶ 2, 24–26, 28–33, 35, 37, 5 38, 40–43, 49–55, 57–62, 64–69, 71–77, 79–85). Plaintiff’s TAC also repeatedly alleges that the 6 defendant or defendants are individuals who work for the City and County of San Francisco. TAC 7 Factual Allegations ¶¶ 3, 5, 6, 35, 40(c), 43(b), 49, 64(a), 68(c), 68(d), 71, 76(c), 76(d), 79, 84(c), 8 84(d). However, Plaintiff names as a defendant only “San Francisco International Airport[,]” 9 “operat[ing] under the authority of the City and County of San Francisco.” TAC “Parties” ¶ 3; see 10 also TAC caption page (“Zahir Naseri, Plaintiff. vs. City and County of San Francisco, 11 Defendant.”). 12 To establish municipal liability for a constitutional violation under Section 1983, a plaintiff 13 “must prove that ‘action pursuant to official municipal policy’ caused their injury.” Connick v. 14 Thompson, 563 U.S. 51, 60 (2011) (quoting Monell, 563 U.S. at 691). “The ‘official policy’ 15 requirement was intended to distinguish acts of the municipality from acts of employees of the 16 municipality, and thereby make clear that municipal liability is limited to action for which the 17 municipality is actually responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (emphasis 18 in original). Official municipal policy includes “the decisions of a government’s lawmakers, the 19 acts of its policymaking officials, and practices so persistent and widespread as to practically have 20 the force of law.” Connick, 563 U.S. at 61 (citations omitted). Such policy or practice must be a 21 “moving force behind a violation of constitutional rights.” Dougherty v. City of Covina, 654 F.3d 22 892, 900 (9th Cir. 2011) (citing Monell, 436 U.S. at 694). An official municipal policy may be 23 either formal or informal. City of St. Louis v. Praprotnik, 485 U.S. 112, 131 (1988) 24 (acknowledging that a plaintiff could show that “a municipality’s actual policies were different 25 from the ones that had been announced.”). 26 In the Ninth Circuit, a municipality may be liable under section 1983 under three possible 27 theories. Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776, 802 (9th Cir. 2018). The first is where 1 edicts or acts may fairly be said to represent official policy, inflict[ed] the injury.” Id. (quoting 2 Monell, 436 U.S. at 694). “A policy or custom may be found either in an affirmative proclamation 3 of policy or in the failure of an official ‘to take any remedial steps after [constitutional] 4 violations.’” Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) (quoting Larez v. City of Los 5 Angeles, 946 F.2d 630, 647 (9th Cir. 1991) (holding that a jury could find a policy or custom of 6 using excessive force from the police chief’s failure to discipline officers for such conduct)); see 7 also Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1235 (9th Cir. 2011) (holding “evidence of a 8 recurring failure to investigate and discipline municipal officers for constitutional violations can 9 help establish the existence of an unconstitutional practice or custom” of using excessive force). 10 Second, “a local government can fail to train employees in a manner that amounts to ‘deliberate 11 indifference’ to a constitutional right, such that ‘the need for more or different training is so 12 obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the 13 policymakers of the city can reasonably be said to have been deliberately indifferent to the need.’” 14 Rodriguez, 891 F.3d at 802 (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)). Third, a 15 municipality may be liable under section 1983 if “the individual who committed the constitutional 16 tort was an official with final policy-making authority or such an official ratified a subordinate's 17 unconstitutional decision or action and the basis for it.” Id. at 802–03 (quoting Gravelet-Blondin 18 v. Shelton, 728 F.3d 1086, 1097 (9th Cir. 2013) (internal quotation marks and citation omitted)). 19 Plaintiff repeatedly alleges that Defendant’s “actions . . . reflect a policy, custom, or 20 practice of . . . imposing disproportionate penalties and denying due process to individuals accused 21 of minor infractions” (TAC ¶ 40(a)), as well as an “established pattern of disparate enforcement” 22 under which the City “selectively impos[es] harsher penalties based on race, ethnicity, or other 23 protected characteristics.” TAC ¶¶ 40(a), 53(a). See also id. ¶¶ 60(a) (alleging pattern or practice 24 of imposing excessive penalties without justification), 68(a) (alleging policy, custom or practice of 25 tolerating or encouraging excessive enforcement actions, including unlawful searches and seizures 26 at SFO), 76(a) (same), 84(a) (same). But these allegations are entirely conclusory. The TAC does 27 not contain specific factual allegations supporting the existence of a policy, custom, or practice of 1 beyond Plaintiff’s own experiences. Accordingly, Plaintiff fails to state a Monell claim against the 2 City based on the existence of an alleged unconstitutional policy or custom. 3 Plaintiff also alleges that Defendant “failed to adequately train and supervise [SFO] 4 enforcement officers.” TAC ¶ 40(d); see also id. ¶¶ 40(e), 53(b), 68(b), 76(b), 84(b). “A plaintiff 5 alleging a failure to train claim under Monell must show: (1) she was deprived of a constitutional 6 right, (2) the municipality had a training policy that amounts to deliberate indifference to the 7 constitutional rights of the persons with whom its police officers are likely to come into contact, 8 and (3) her constitutional injury would have been avoided had the municipality properly trained 9 those officers.” Bryant v. City of Antioch, No. 21-Ccv-00590-TSH, 2021 WL 3565443, at *7 10 (N.D. Cal. Aug. 12, 2021) (citing Young v. City of Visalia, 687 F. Supp. 2d 1141, 1148 (E.D. Cal. 11 2009)). Plaintiff alleges that “the SFO enforcement officer” with whom Plaintiff interacted 12 demonstrated a lack of knowledge about the date, color, and nature of the alleged infraction” and 13 that Defendant’s “actual enforcement practices diverged from its announced policies, 14 demonstrating a failure to ensure consistent training and supervision.” TAC ¶¶ 40(d), 40(e). 15 Plaintiff further alleges that Defendant “failed to implement adequate training, oversight, or 16 safeguards to prevent discriminatory practices, exhibiting deliberate indifference to individuals’ 17 constitutional rights.’ Id. ¶ 53(b). See also id. ¶¶ 60(b), 68(b), 76(b), 84(b). These allegations of 18 deliberate indifference are threadbare and conclusory, and Plaintiff’s factual allegations are 19 insufficient to establish the existence of a training policy that amounted to deliberate indifference 20 to the constitutional rights of persons with whom SFO enforcement officers were likely to come 21 into contact. Plaintiff further does not show that his alleged constitutional injuries would have 22 been avoided had Defendant properly trained the officers. Plaintiff therefore has not established 23 municipal liability for a constitutional violation under Section 1983 based on a failure to train SFO 24 enforcement officers. 25 Accordingly, Mr. Naseri’s constitutional claims must be dismissed. 26 2. Obstruction of Justice, 18 U.S.C. § 1505 27 Mr. Naseri alleges that Defendant “may have obstructed justice under 18 U.S.C. § 1505” 1 ¶¶ 132–33. 18 U.S.C. § 1505 is a federal criminal law regarding obstruction of agency 2 proceedings; it concerns evading compliance with civil investigative demands brought by the 3 government agencies. Mr. Naseri does not allege that Defendant engaged in any conduct 4 prohibited by Section 1505. Moreover, Section 1505 cannot form the basis for a civil lawsuit 5 brought by Mr. Naseri, as it is a criminal statute that does not provide a private right of action. 6 See, e.g., Hamilton v. Reed, 29 F. App’x 202, 204 (6th Cir. 2002). Accordingly, Mr. Naseri 7 cannot state a claim for violation of 18 U.S.C. § 1505. 8 Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s federal claims 9 against the City and County of San Francisco. 10 3. Leave to Amend 11 The Ninth Circuit has “repeatedly held that a district court should grant leave to amend 12 even if no request to amend the pleading was made, unless it determines that the pleading could 13 not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th 14 Cir. 2000). Courts have broader discretion in denying motions for leave to amend after leave to 15 amend has already been granted. See Rich v. Shrader, 823 F.3d 1205, 1209 (9th Cir. 2016) 16 (“[W]hen the district court has already afforded a plaintiff an opportunity to amend the complaint, 17 it has wide discretion in granting or refusing leave to amend after the first amendment, and only 18 upon gross abuse will its rulings be disturbed.”); Chodos v. W. Publ’g Co., 292 F.3d 992, 1003 19 (9th Cir. 2002). 20 The Court has twice dismissed Plaintiff’s federal claims and twice given him leave to 21 amend those claims. ECF No. 32 at 10; ECF No. 43 at 15. The previous dismissal order 22 dismissed Plaintiff’s federal claims for failure to satisfy Monell, and as discussed above, the 23 Monell allegations in the third amended complaint are devoid of any factual content. The Court 24 thinks that three attempts at pleading federal claims, including two attempts at pleading federal 25 constitutional claims, are a sufficient opportunity, especially when Plaintiff’s third amended 26 complaint came nowhere close to satisfying Monell. Moreover, no leave to amend is warranted 27 for Plaintiff’s claim under 18 U.S.C. § 1505, as he cannot sue for violation of a federal criminal 1 Accordingly, the Court DENIES Plaintiff leave to amend his federal claims. 2 || B. State and Municipal Law Claims 3 28 U.S.C. § 1367(c)(3) states that “[t]he district courts may decline to exercise 4 supplemental jurisdiction over a claim under subsection (a) if . . . the district court has dismissed 5 all claims over which it has original jurisdiction .. .” The Court has dismissed all claims over 6 || which it has original jurisdiction. The Court has original jurisdiction over Plaintiff's federal 7 claims under 28 U.S.C. § 1331, and those claims have now been dismissed without leave to 8 || amend. The Court does not have original jurisdiction over Plaintiffs claims under state or 9 municipal law, as there is no diversity of citizenship between the parties. TAC Parties □□ 2-3; 10 || Compl., ECF No. 1 2-3 (no diversity of citizenship when lawsuit first filed). 11 Accordingly, the Court declines to exercise supplemental jurisdiction and REMANDS 12 || Plaintiff's non-federal claims to San Francisco Superior Court. 14 15 || Dated: May 29, 2025 2 16 LY \.- Lj-~— 5 Ur se S. HIXSON nited States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28