1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROGER GIFFORD, No. 2:21-CV-0119-DJC-DMC 12 Plaintiff, 13 v. ORDER 14 MICHELE HANSON, et al., 15 Defendants. 16 17 Plaintiff, who is proceeding pro se, brings this civil action. The matter was 18 referred to a United States Magistrate Judge pursuant to Eastern District of California 19 local rules. 20 On March 18, 2024, the Magistrate Judge filed findings and recommendations 21 herein which were served on the parties, and which contained notice that the parties 22 may file objections within the time specified therein. (ECF No. 48.) Timely objections 23 to the findings and recommendations have been filed. (ECF No. 52.) 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 25 304(f), this Court has conducted a de novo review of this case. Having carefully 26 reviewed the entire file, the Court will adopt the findings and recommendation in part 27 and decline to adopt them in part. 28 //// 1 I. PLAINTIFF’S FEDERAL CLAIMS 2 Concerning Plaintiff’s federal claims, the Court agrees that Plaintiff’s procedural 3 due process, retaliation, and equal protection claims, Counts IV–VII, should proceed to 4 discovery. Thus, the Court will adopt the Magistrate Judge’s recommendations as to 5 those claims. 6 The Court will also adopt the Magistrate Judge’s recommendation to dismiss 7 federal Count I with prejudice. Plaintiff brings a substantive due process claim 8 alleging he was deprived of his right to vote provided for in the Hornbrook 9 Community Services District (“HCSD”) Bylaws, which state that any changes the HCSD 10 Board makes to certain mandatory fees, charges, and procedures are subject to voter 11 approval. (ECF No. 39 ¶¶ 24–32, 55–59.) “To state a substantive due process claim, 12 the plaintiff must show as a threshold matter that a state actor deprived [him] of a 13 constitutionally protected life, liberty or property interest.” Shanks v. Dressel, 540 F.3d 14 1082, 1087 (9th Cir. 2008). “A liberty interest may arise from the Constitution itself, by 15 reason of guarantees implicit in the word ‘liberty,’ or it may arise from an expectation 16 or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 17 (2005). “Undeniably the Constitution of the United States protects the right of all 18 qualified citizens to vote, in state as well as in federal elections and to have their votes 19 counted.” Reynolds v. Sims, 377 U.S. 533, 554 (1964). Plaintiff does not allege he was 20 deprived of the right to vote in any election, only in HCSD Board Meetings. Thus, 21 Plaintiff has not pled a liberty interest protected by the Constitution. 22 However, Plaintiff alleges that his right to vote here was conferred by the HCSD 23 Bylaws. (ECF No. 39 ¶¶ 55-56.) “States may under certain circumstances create 24 liberty interests which are protected by the Due Process Clause.” Sandin v. Conner, 25 515 U.S. 472, 483–84 (1995). “State law can create a right that the Due Process Clause 26 will protect only if the state law contains ‘(1) substantive predicates governing official 27 decision-making, and (2) explicitly mandatory language specifying the outcome that 28 must be reached if the substantive predicates have been met.’” James v. Rowlands, 1 606 F.3d 646, 656 (9th Cir. 2010) (quoting Bonin v. Calderon, 59 F.3d 815, 842 (9th 2 Cir. 1995)). In order to contain the requisite “substantive predicates,” “the state law at 3 issue must provide more than merely procedure, it must protect some substantive 4 end.” Bonin, 59 F.3d at 842 (internal citations and quotation marks omitted). Here, 5 the HCSD Bylaws provide that the Board may not take certain actions without voter 6 approval, a purely procedural requirement. Thus, the Bylaws do not create any 7 substantive rights, as they do not include substantive provisions that the Board must 8 consider before taking action. Plaintiff has failed to state a claim. 9 However, the Court declines to adopt the Magistrate Judge’s recommendation 10 to dismiss federal Count II, violation of the Clean Water Act, as the Court concludes 11 that Plaintiff has standing. To demonstrate standing, “a plaintiff must show (1) it has 12 suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or 13 imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the 14 challenged action of the defendant; and (3) it is likely, as opposed to merely 15 speculative, that the injury will be redressed by a favorable decision.” Friends of the 16 Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180–81 (2000). An “injury in fact” 17 is shown “if an individual adequately shows that she has an aesthetic or recreational 18 interest in a particular place, or animal, or plant species and that that interest is 19 impaired by a defendant's conduct.” Ecological Rights Found. v. Pac. Lumber Co., 230 20 F.3d 1141, 1147 (9th Cir. 2000). Importantly, “[t]he relevant showing for purposes of 21 Article III standing . . . is not injury to the environment but injury to the plaintiff.” 22 Laidlaw, 528 U.S. at 181. 23 Here, Plaintiff alleges that he became aware of toxic Boron leaking from HCSD’s 24 “well #3” while he was an HCSD Board Member and personally inspected the well. 25 (ECF No. 39 ¶ 62.) Plaintiff alleges that the toxins leak from well #3 into Rancheria 26 Creek each year, where they then flow to Cottonwood Creek. (Id. ¶ 60.) Plaintiff 27 alleges that Cottonwood Creek passes behind his residential property, and that he 28 has lost use and enjoyment of his property because he has been forced to cease 1 hunting, fishing, and flying falconry birds near both creeks out of concern that the 2 birds might drink the contaminated water or eat prey with large amounts of Boron. 3 (Id. ¶ 61.) Thus, Plaintiff has adequately pled injury, as he has shown a recreational 4 interest in his property that is impaired by the leak from well #3. Plaintiff has also pled 5 causation, as he alleges Defendants are aware of the situation, yet have failed to take 6 any corrective measures to cease the leak from well #3. (Id. ¶¶ 60, 62.) Finally, 7 Plaintiff alleges he is aware of many viable plans to capture and store the toxic well #3 8 water and asks that Defendants be enjoined from permitting the leak to continue, 9 satisfying redressability. (Id. ¶ 62.) Thus, Plaintiff has alleged standing as to Count II. 10 Finally, the Court declines to adopt the Magistrate Judge’s recommendation to 11 dismiss federal Count III, violation of the Safe Drinking Water Act, for lack of standing. 12 The Magistrate Judge concluded that Plaintiff lacked standing because “Plaintiff offers 13 no specific factual allegations whatsoever regarding injury relating to his Safe Drinking 14 Water Act claim.” (ECF No. 48 at 9.) Liberally construing the Complaint, however, the 15 Court disagrees. Plaintiff alleges that Defendants have permitted Chlorine to be 16 added to HCSD’s drinking water “to the point of unlawful toxicity,” and that he has 17 been harmed by drinking this Chlorine-contaminated water on several occasions. 18 (ECF No.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROGER GIFFORD, No. 2:21-CV-0119-DJC-DMC 12 Plaintiff, 13 v. ORDER 14 MICHELE HANSON, et al., 15 Defendants. 16 17 Plaintiff, who is proceeding pro se, brings this civil action. The matter was 18 referred to a United States Magistrate Judge pursuant to Eastern District of California 19 local rules. 20 On March 18, 2024, the Magistrate Judge filed findings and recommendations 21 herein which were served on the parties, and which contained notice that the parties 22 may file objections within the time specified therein. (ECF No. 48.) Timely objections 23 to the findings and recommendations have been filed. (ECF No. 52.) 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 25 304(f), this Court has conducted a de novo review of this case. Having carefully 26 reviewed the entire file, the Court will adopt the findings and recommendation in part 27 and decline to adopt them in part. 28 //// 1 I. PLAINTIFF’S FEDERAL CLAIMS 2 Concerning Plaintiff’s federal claims, the Court agrees that Plaintiff’s procedural 3 due process, retaliation, and equal protection claims, Counts IV–VII, should proceed to 4 discovery. Thus, the Court will adopt the Magistrate Judge’s recommendations as to 5 those claims. 6 The Court will also adopt the Magistrate Judge’s recommendation to dismiss 7 federal Count I with prejudice. Plaintiff brings a substantive due process claim 8 alleging he was deprived of his right to vote provided for in the Hornbrook 9 Community Services District (“HCSD”) Bylaws, which state that any changes the HCSD 10 Board makes to certain mandatory fees, charges, and procedures are subject to voter 11 approval. (ECF No. 39 ¶¶ 24–32, 55–59.) “To state a substantive due process claim, 12 the plaintiff must show as a threshold matter that a state actor deprived [him] of a 13 constitutionally protected life, liberty or property interest.” Shanks v. Dressel, 540 F.3d 14 1082, 1087 (9th Cir. 2008). “A liberty interest may arise from the Constitution itself, by 15 reason of guarantees implicit in the word ‘liberty,’ or it may arise from an expectation 16 or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 17 (2005). “Undeniably the Constitution of the United States protects the right of all 18 qualified citizens to vote, in state as well as in federal elections and to have their votes 19 counted.” Reynolds v. Sims, 377 U.S. 533, 554 (1964). Plaintiff does not allege he was 20 deprived of the right to vote in any election, only in HCSD Board Meetings. Thus, 21 Plaintiff has not pled a liberty interest protected by the Constitution. 22 However, Plaintiff alleges that his right to vote here was conferred by the HCSD 23 Bylaws. (ECF No. 39 ¶¶ 55-56.) “States may under certain circumstances create 24 liberty interests which are protected by the Due Process Clause.” Sandin v. Conner, 25 515 U.S. 472, 483–84 (1995). “State law can create a right that the Due Process Clause 26 will protect only if the state law contains ‘(1) substantive predicates governing official 27 decision-making, and (2) explicitly mandatory language specifying the outcome that 28 must be reached if the substantive predicates have been met.’” James v. Rowlands, 1 606 F.3d 646, 656 (9th Cir. 2010) (quoting Bonin v. Calderon, 59 F.3d 815, 842 (9th 2 Cir. 1995)). In order to contain the requisite “substantive predicates,” “the state law at 3 issue must provide more than merely procedure, it must protect some substantive 4 end.” Bonin, 59 F.3d at 842 (internal citations and quotation marks omitted). Here, 5 the HCSD Bylaws provide that the Board may not take certain actions without voter 6 approval, a purely procedural requirement. Thus, the Bylaws do not create any 7 substantive rights, as they do not include substantive provisions that the Board must 8 consider before taking action. Plaintiff has failed to state a claim. 9 However, the Court declines to adopt the Magistrate Judge’s recommendation 10 to dismiss federal Count II, violation of the Clean Water Act, as the Court concludes 11 that Plaintiff has standing. To demonstrate standing, “a plaintiff must show (1) it has 12 suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or 13 imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the 14 challenged action of the defendant; and (3) it is likely, as opposed to merely 15 speculative, that the injury will be redressed by a favorable decision.” Friends of the 16 Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180–81 (2000). An “injury in fact” 17 is shown “if an individual adequately shows that she has an aesthetic or recreational 18 interest in a particular place, or animal, or plant species and that that interest is 19 impaired by a defendant's conduct.” Ecological Rights Found. v. Pac. Lumber Co., 230 20 F.3d 1141, 1147 (9th Cir. 2000). Importantly, “[t]he relevant showing for purposes of 21 Article III standing . . . is not injury to the environment but injury to the plaintiff.” 22 Laidlaw, 528 U.S. at 181. 23 Here, Plaintiff alleges that he became aware of toxic Boron leaking from HCSD’s 24 “well #3” while he was an HCSD Board Member and personally inspected the well. 25 (ECF No. 39 ¶ 62.) Plaintiff alleges that the toxins leak from well #3 into Rancheria 26 Creek each year, where they then flow to Cottonwood Creek. (Id. ¶ 60.) Plaintiff 27 alleges that Cottonwood Creek passes behind his residential property, and that he 28 has lost use and enjoyment of his property because he has been forced to cease 1 hunting, fishing, and flying falconry birds near both creeks out of concern that the 2 birds might drink the contaminated water or eat prey with large amounts of Boron. 3 (Id. ¶ 61.) Thus, Plaintiff has adequately pled injury, as he has shown a recreational 4 interest in his property that is impaired by the leak from well #3. Plaintiff has also pled 5 causation, as he alleges Defendants are aware of the situation, yet have failed to take 6 any corrective measures to cease the leak from well #3. (Id. ¶¶ 60, 62.) Finally, 7 Plaintiff alleges he is aware of many viable plans to capture and store the toxic well #3 8 water and asks that Defendants be enjoined from permitting the leak to continue, 9 satisfying redressability. (Id. ¶ 62.) Thus, Plaintiff has alleged standing as to Count II. 10 Finally, the Court declines to adopt the Magistrate Judge’s recommendation to 11 dismiss federal Count III, violation of the Safe Drinking Water Act, for lack of standing. 12 The Magistrate Judge concluded that Plaintiff lacked standing because “Plaintiff offers 13 no specific factual allegations whatsoever regarding injury relating to his Safe Drinking 14 Water Act claim.” (ECF No. 48 at 9.) Liberally construing the Complaint, however, the 15 Court disagrees. Plaintiff alleges that Defendants have permitted Chlorine to be 16 added to HCSD’s drinking water “to the point of unlawful toxicity,” and that he has 17 been harmed by drinking this Chlorine-contaminated water on several occasions. 18 (ECF No. 39 ¶¶ 22, 45, 63.) Plaintiff’s claims of harm due to drinking this water are 19 somewhat conclusory, in that he does not allege any specific injury he suffered as a 20 result of drinking the Chlorinated water. However, Defendants do not address 21 Plaintiff’s allegations concerning his Safe Drinking Water Act whatsoever in their 22 Motion to Dismiss. (See ECF No. 40.) Thus, given Plaintiff’s allegations of harm, his 23 status as a pro se litigant, and Defendants failure to challenge the sufficiency of his 24 pleadings, the Court declines to dismiss Plaintiff’s claim at this juncture. 25 II. PLAINTIFF’S STATE LAW CLAIMS 26 The Magistrate Judge recommends the Court exercise supplemental 27 jurisdiction over Plaintiff’s state law Counts VI–VII, and decline to exercise 28 1 supplemental jurisdiction over Plaintiff’s state law Counts I–V. (ECF No. 48 at 9–10.) 2 The Court agrees and will adopt the Magistrate Judge’s recommendation. 3 Plaintiff’s state law claims Counts I–V include: (1) Waste/Gifts of Public Funds: 4 Unlawful Use of HCSD Facility by Dingman, (2) Diversion of, and Gifts of, Public Funds 5 as to Michele Hanson, (3) Gifts, and Waste of, Public Funds as to John Does, (4) Gifts, 6 and Waste of, Public Funds as to John Does, and (5) Breach of Fiduciary Duty to 7 Impose Standby, Availability Fees. (ECF No. 39 ¶¶ 84–91.) As held above, Plaintiff 8 has presented cognizable federal procedural due process, equal protection, 9 retaliation, Clean Water Act, and Safe Drinking Water Act claims. 10 Pursuant to 28 U.S.C. § 1367, the Court may exercise supplemental jurisdiction 11 “over all other claims that are so related to claims in the action within such original 12 jurisdiction that they form part of the same case or controversy under Article III of the 13 United States Constitution.” 28 U.S.C. § 1367(a). “A state law claim is part of the same 14 case or controversy when it shares a ‘common nucleus of operative fact’ with the 15 federal claims and the state and federal claims would normally be tried together.” 16 Bahrampour v. Lampert, 356 F.3d 969, 978 (9th Cir. 2004). 17 Plaintiff’s state law claims concern (1) Defendant Dingman’s unlawful residence 18 in an HCSD waste treatment facility, (2) diversion of public funds to Defendant 19 Hanson, (3) improper billing of water rates, fees, assessment, and/or other charges, 20 and (4) Defendant’s failure to collect “standby” and “availability” fees. (ECF No. 39 21 ¶¶ 84–91.) Meanwhile, Plaintiff’s federal claims concern (1) his inability to bid on 22 HCSD public works jobs, (2) his indemnification for work-related injuries, (3) his access 23 to public records, (4) connection of his residence to the HCSD water distribution 24 system, (5) pollution of the Rancheria and Cottonwood Creeks, and (6) pollution of 25 HCSD’s drinking water. (Id. ¶¶ 60–83.) Having considered the facts underlying each 26 claims, the Court finds that the state and federal claims clearly do not involve a 27 common nucleus of operative fact. Accordingly, the Court will adopt the Magistrate 28 1 | Judge’s recommendation and decline to exercise supplemental jurisdiction over 2 | Plaintiff's state Counts I-V. 3 | Ill CONCLUSION 4 Accordingly, IT IS HEREBY ORDERED as follows: 5 1. The findings and recommendations filed March 18, 2024, ECF No. 48, 6 || are adopted in part. 7 2. Defendants’ motion to dismiss, ECF No. 40, is GRANTED in part and 8 | DENIED in part. 9 3. Defendants’ motion to dismiss is DENIED as to Plaintiff's procedural due 10 | process, retaliation, equal protection claims, and statutory claims, which shall 11 | proceed. 12 4. Defendants’ motion to dismiss is GRANTED as to Plaintiff's substantive 13 | due process claim, and such claim is DISMISSED with prejudice. 14 5. The Court DECLINES to exercise supplemental jurisdiction of all state 15 | law claims, except state law Counts VI and VII. 16 6. State law Counts | through V are DISMISSED without prejudice. 17 7. Defendants shall file an answer to Plaintiff's first amended complaint on 18 | Plaintiff's federal Counts Il, Ill, IV, V, VI, and VII, and Plaintiff's state law Counts VI and 19 | Vil within 30 days of the date of this order. 20 8. This matter is referred back to the assigned Magistrate Judge for further 21 || proceedings. 22 53 IT IS SO ORDERED. 24 | Dated: _September 27, 2024 Donel J CoD tto— Hon. Daniel alabretta 25 UNITED STATES DISTRICT JUDGE 26 27 28