(PS) Gifford v. Kampa

Opinion

ROGER GIFFORD, No. 2:17-CV-2421-TLN-DMC Plaintiff, v. FINDINGS AND RECOMMENDATIONS PETER KAMPA, et al., Defendants. Plaintiff, who is proceeding pro se, brings this civil action. Pending before the court are the following motions:

ECF No. 24 Defendant Winston’s motion to dismiss.

ECF No. 25 Defendant Winston’s motion to strike.

ECF No. 26 Hornbrook Community Services District (HCSD) Defendants’ amended motion to dismiss. ECF No. 39 Defendant Winston’s motion to revoke Plaintiff’s in forma pauperis status, declare Plaintiff a vexatious litigant, require Plaintiff to post security. The HCSD Defendants’ motion is brought on behalf of: The HCSD, Peter Kampa, Robert Puckett, Sr., Melissa Tulledo, Julie Bowles, Clint Dingman, and Ernest Goff. See ECF No. 26, pg. 1. Plaintiff filed various responses on July 12, 2019. See ECF Nos. 42-47. / / / This action proceeds on plaintiff’s first amended complaint. See ECF No. 17. Plaintiff alleges his claims arise under the First, Fourth, and Fourteenth Amendments to the United States Constitution, as well as various federal statutes, including the Clean Water Act and the Safe Drinking Water Act. See id. at 1. Plaintiff also alleges various state law claims. See id. The following are named as defendants: Peter Kampa Robert Puckett, Sr. Patricia Slote1 Melissa Tulledo Robert Winston Julie Bowles Clint Dingman Ernest Goff Kevin Dixon2 The Hornbrook Community Services District (HCSD) The Hornbrook Community Bible Church (HCBC)3 Steven Crittenden4 Duke Martin5 James Soares6 See id. / / / / / /

1 Default entered on May 23, 2019. See ECF No. 30. 2 Default entered on May 23, 2019. See ECF No. 29. 3 Default entered on May 23, 2019. See ECF No. 33. 4 Default entered on May 23, 2019. See ECF No. 31. 5 Default entered on May 23, 2019. See ECF No. 32. Plaintiff collectively refers to Defendants Puckett, Tulledo, and Slote, who are alleged to be former members of the board of directors of Defendant HCSD, as the “Board Defendants.” Id. at 3. Plaintiff collectively refers to Defendants Bowles, Dingman, Winston, Goff, Kampa, and Dixon, who are alleged to be employees and/or contractors of Defendant HCSD, as the “employee and contractor Defendants.” ECF No. 17, pg. 3. According to Plaintiff: “The ‘Board Defendants’ took wrongful actions in their official capacities as public officials and officers, and/or under color of law of their positions, and also failed to properly supervise, train, and/or control, the HCSD employee and contractor Defendants. . . .” Id. A. Allegations as to Each Defendant Plaintiff does not outline any specific allegations as against defendant Tulledo, who is alleged to be among the “Board Defendants.” Defaults have been entered as to Defendants Dixon, Slote, Crittenden, Martin, Soares, and the Hornbrook Community Bible Church. See ECF Nos. 29-34; but see ECF No. 62 (return of process as to defendant Soares, filed on February 3, 2020). Plaintiff has filed motions for default judgments. See ECF Nos. 65 and 66. Plaintiff’s allegations as to these defendants are not before the Court and are not summarized here. Defendant Robert Puckett, Sr. Plaintiff alleges Defendant Puckett was the president of the HCSD board and initiated the “common plan” which was ratified by Defendants Tulledo, Winston, Kampa, Dingman, Goff, and Dixon. ECF No. 17, pg. 6. According to Plaintiff, this “common plan” was adopted to allow for operation of the HCSD in an “unsafe manner which failed to comply with Federal, State, and Local laws; and to create, institute, and enforce policies, customs, and practices, all in violation of Federal, State, and local laws. . . .” Id. Plaintiff claims Defendant Puckett’s conduct resulted in undercharging and waiving fees and charges for certain customers, failing to impose and collect the “standby fee” as to each parcel, and failing to comply with provisions of the California Water Code. Id. Plaintiff also claims Defendant Puckett conspired with Defendant Winston to “approve Winston’s intervention in several HCSD administrative matters, and/or Siskiyou County Superior Court matters being prosecuted by Plaintiff and other persons, as well as matters in the Third District Court of Appeals, without any BOD [board of directors] approval prior to Winston’s appearing therein.” Id. at 6-7. Plaintiff alleges these appearances violated provisions of the California Business and Professions Code. See id. at 7. Finally, Plaintiff outlines a number of allegations of further wrongdoing on the part of Defendant Puckett, including: an unpermitted and improperly altered septic system; derelict vehicles leaking toxic oils and fluids onto the ground and public streets, rivers, and creeks; decrepit sheds, lean-tos, outbuildings, trailers, fifth wheels, “and the like in a manner harboring rodents and vermin”; improperly stored pesticides, rodenticides, and fungicides in trailers in which Defendant Puckett permits people to live; maintaining a fire hazard in the form of an improperly modified residential electrical system; and maintaining large amounts of debris. Id. at 7-8. Defendant Hornbrook Community Services District Plaintiff assigns liability to the HCSD based on the conduct of its officers and directors. See id. at 11-12. Plaintiff contends Defendant HCSD “had inadequate facilities that violate the federal Clean Water Act and Safe Drinking Water Act. See id. According to Plaintiff, defendant HCSD is also liable for improperly waiving or reducing water fees for friends. See id. Plaintiff also alleges violations of California’s Brown Act. See id. at 13-15. Defendant Julie Bowles Plaintiff claims Defendant Bowles was an officer and employee of Defendant HCSD, serving as its treasurer. See id. at 15. According to Plaintiff: “No agreement exists to indemnify Bowles pursuant to Govt. Code § 995 (or otherwise) in her contract with the HCSD.” Id. Plaintiff alleges Defendant Bowles collaborated with other defendants in the “improper conduct of illegally non- and/or improperly agendized, and/or non-public meetings by improperly meeting with them individually and serially, as a group (or portions thereof) via personal contact. . . . for the purpose of discussing official HCSD-related ‘public business,’ including how HCSD funds would be (improperly) diverted to Winston, Bowles, and Dingman; which HCSD customers should get (wrongfully) reduced and/or waived fees and charges and how to alter the billing to affect and conceal those reductions and waivers; and, how to submit time sheets and ‘pay stubs’ for Dingman that were in excess of his contracted rate of pay and hours, and/or which contained false claims for hours and/or jobs worked (and how to prevent all those documents, and the associated timesheets, from being revealed to Plaintiff, and the public).” Id. Plaintiff further claims Defendant Bowles improperly diverted public funds to friends and acquaintances. See id. Plaintiff alleges:

These accts by Bowles in the operation of the HCSD was part of the conspiracy with the Board Defendants to cause disruption and upset of the operation of the HCSD, and of Plaintiff’s position and duties as a Director and Secretary, and was undertaken in part as retaliation for Plaintiff’s complaints to the HCSD Board and government agencies about violation of law concerning the HCSD’s operations, and Bowles’ lack of competence. ECF No. 17, pgs. 15-16. Finally, Plaintiff alleges Defendant Bowles submitted $2,250.00 worth of false claims for payment for services for HCSD she did not perform. See id. at 16. Defendant Clint Dingman Plaintiff alleges Defendant Dingman was the “Systems Trainee” and “Shift Operator” for defendant HCSD’s water production and treatment facilities. See id. According to Plaintiff, Defendant Dingman lacked the certifications for this position required under state law. See id. Plaintiff claims the Board Defendants, Kampa, Goff, and Dixon “conspired, agreed, and acted to wrongfully provide compensation, benefits, indemnification, and/or other pecuniary and/or non-pecuniary benefits to Dingman which were not contractually specified, and/or which were granted outside of an agendized, public meeting of the Board of the HCSD. . . .” Id. In particular, Plaintiff complains that other defendants allowed Defendant Dingman “to reside, with his dog, at the HCSD water plant, while also utilizing that facility for his personal purposes (including as a dog run – permitting the animal to defecate all over the property without Dingman cleaning it up), to store belongings, etc – all without any payment by Dingman for those uses.” Id. Plaintiff further contends Defendant Dingman and other defendants conspired to arrange for Defendant Dingman to receive payments for services he did not actually perform. See id. at 16-17. Finally, Plaintiff alleges Defendant Dingman conspired with other defendants to carry out the “common plan.” Id. at 17. Under the heading “V. Defendant Robert Puckett, Sr.,” Plaintiff adds that the “Board Defendants, Kampa, Dingman, Goff, Dixon, and Winston” acted to allow defendant Dingman to “work on, and operate (including by the addition of chemicals to the water supply) the HCSD water production, treatment, and distribution facilities without any certification, or license to do so,” in violation of provisions of the California Health and Safety Code. Id. at 7. Plaintiff adds:

. . .These same Defendants agreed, conspired, and acted to allow Dingman to occupy and utilize for his personal purposes, the water production, treatment facilities, and real property of the HCSD free of charge, and without compensation for the costs incurred to the HCSD and the public by his doing so.”

Id. Plaintiff further claims the Board Defendants conspired with Defendant Winston to “wrongfully and corruptly have the HCSD divert public funds to Winston for former Board member Michelle Hanson’s private legal fees in Siskiyou County Superior Court cases. . . .” Id. Defendant Ernest Goff According to Plaintiff, Defendants Goff and Dixon “represented themselves as independent contractors, as the Chief Systems Operator(s) for the HCSD, as agents of the HCSD and Board Defendants, and supervisors of Dingman.” Id. at 18. Plaintiff claims that, in these capacities, Defendant Goff and Dixon “had a duty to regularly inspect, oversee, supervise, perform, and directly control the daily operations of the water treatment plant and distribution system as provided by Federal and Sate law. . . .” Id. (emphasis in original). Plaintiff alleges Defendants Goff and Dixon are liable to him for failing to do so. See ECF No. 17, pg. 18. / / / / / / / / / Plaintiff further claims:

During the times material to this complaint, Goff and Dixon acted in concert with the Board Defendants, Bowles, and Dingman to extract improper payments from the HCSD, to create and distribute false public documents and reports to state enforcement agencies concerning the operation of the HCSD, to operate the HCSD in a manner contrary to law and thus causing a nuisance per se to Plaintiff and the public, and to wrongfully prevent inspections and oversight of the HCSD facilities. Goff and Dixon, despite their insistence as being classified “contractors” to the HCSD, also wrongfully obtained indemnification, defense, and other expenses of public money from the HCSD to which they were not entitles, and which were thus improper gifts of public funds.

Id. at 18-19. Plaintiff alleges that the actions of Defendants Goff and Dixon were ratified by Slote, Puckett, Kampa, and the HCSD. See id. at 19. Defendant Peter Kampa Plaintiff alleges Defendant Kampa was the General Manager of the HCSD and, as such, was the direct supervisor of Dingman, Goff, and Dixon. See id. at 20. According to Plaintiff, Defendant Kampa is liable because he “agreed, assisted, aided, and abetted Slote, Puckett, Goff, Dixon, Dingman, and the HCSD in the common plan to create, file with the State Water Board, and distribute, false public records, consisting of documents, logs, and reports concerning the operation of the HCSD and its facilities.” Id. Plaintiff additionally claims: “At no time has Kampa actually performed any of his General Manager duties within the boundaries of the HCSD, instead simply ignoring those duties in favor of using the phone to make calls to the HCSD Board meetings as well as ex parte communications via phone and email to the individual Board members, Goff, Dixon, Dingman, and/or Winston in violation of the Brown Act, and to plan and/or facilitate such violations by the other Defendants.” Id. at 20-21. Defendant Robert Winston Plaintiff alleges that Defendant Winston is a private attorney who conspired with other defendants, specifically the Board Defendants, to violate HCSD bylaws, the Brown Act, as well as other provisions of California law. See id. at 23. Plaintiff further claims that Winston engaged in unprofessional conduct, in violation of provisions of the California Business and Professions Code. See id. It appears that Plaintiff’s claims against Winston stem from Winston’s work as counsel for the HCSD board of directors. See id. at 23-25. Plaintiff adds:

Plaintiff only seeks monetary damages of any sort against Winston for his Federal and Constitutional claims. Plaintiff seeks no personal damages or benefit from this action as to Winston for any pendent State law or tort-based claims. ECF No. 17, pgs. 27-28 (emphasis in original). B. Claims for Relief Plaintiff alleges the facts set forth in the amended complaint give rise to 14 federal claims and 25 state law claims. See id. at 31-44. 1. Federal Claims Plaintiff asserts the following claims for relief (referred to as “Counts”) under federal law:

Count I First Amendment – Violations of right to freedom of speech and petition (against the Board Defendants, HCSD, Winston, Kampa, and Dingman).

Count II 42 U.S.C. § 1985 – Deprivation of right to vote (against the Board Defendants, HCSD, and Kampa). Count III 33 U.S.C. § 1251, et seq., and 42 U.S.C. § 300f, et seq. – Violations of the Clean Water Act and Safe Drinking Water Act (against the Board Defendants, HCSD, Goff, Dixon, and Kampa).

Count IV Fifth and Fourteenth Amendments – Deprivation of due process and equal protection (against the Board Defendants, HCSD, and Kampa).

Count V Fifth and Fourteenth Amendments – Deprivation of due process and equal protection (against the Board Defendants, Winston, Dixon, Goff, Kampa, and Dingman).

Count VI Fifth and Fourteenth Amendments – Deprivation of due Process, equal protection, and right to vote (against the Board Defendants, Bowles, Kampa, and Dingman).

Count VII Fifth and Fourteenth Amendments – Deprivation of due process and equal protection (against HCBC and Crittenden). Count VIII Fifth and Fourteenth Amendments – Deprivation of due process and equal protection (against Dingman). Count IX 33 U.S.C. § 1251, et seq. – Violation of Clean Water Act (against Puckett). Count X 42 U.S.C. § 300f, et seq. – Violation of Safe Drinking Water Act (against Puckett).

Count XI 7 U.S.C. § 136, et seq. – Violation of the Insecticide, Fungicide, and Rodenticide Act (against Puckett). Count XII 18 U.S.C. § 1513(e) – Retaliation (against the Board Defendants and HCSD).

Count XIII 42 U.S.C. § 1985 – Conspiracy (against the Board Defendants, HCSD, Bowles, Winston, and Dingman). Count XIV First, Fifth, and Fourteenth Amendments – Retaliation and violation of due process and equal protection.

See ECF No. 17, pgs. 31-37. 2. State Law Claims Plaintiff asserts the following claims for relief (again, referred to ac “Counts”) under California law:7

Count I Violations of HCSD bylaws (against the Board Defendants, Bowles, Dingman, Kampa, Dixon, Goff, and Winston). Count II Willful negligence (against all defendants). Count III Nuisance (against Puckett). Count IV California Gov’t Code § 1090 – self dealing (against the Board Defendants, Winston, Bowles, Dingman, Goff, and Dixon). Count V Retaliation (against the Board Defendants, HCSD, and Kampa). Count VI Gifts of public funds (against HCBC and Crittenden). Count VIII8 Gifts of public funds, false claims, and fraud (against Dingman). Count IX Gifts of public funds (against Bowles and Goff). Count X Gifts of public funds (against Doe defendants). Count XI Article 1, section 2, California Constitution – violation of right to free speech (against the Board Defendants, Winston, Bowles, and Dingman).

7 Though plaintiff states that he is not seeking relief against Winston based on any state law claims, plaintiff nonetheless asserts state law claims as against Winston. Count XII Unfair business practices (against the Board Defendants and Bowles). Count XIII Unfair business practices (against the Board Defendants, Dixon, and Goff).

Count XIV False claims (against Winston).

Count XV Negligence (against the Board Defendants, Kampa, Goff, Dixon, Bowles, Dingman, and Winston). Count XVI Unfair business practices (against the Board Defendants, Kampa, Dingman, Bowles, Crittenden, and HCBC).

Count XVII Civil conspiracy (against the Board Defendants, Winston, Dingman, Goff, and Bowles). Count XVIII Willful and/or negligence infliction of emotional distress (against the Board Defendants, Goff, Winston, Bowles, Kampa, and Dingman). Count XIX California Public Records Act (against the Board Defendants, HCSD, and Kampa).

Count XX Nuisance (against the Board Defendants, Dingman, Goff, Dixon, and Kampa). Count XXI Breach of covenant of good faith and fair dealing against the Board Defendants, HCSD, and Kampa).

Count XXII Void official acts (against the Board Defendants).

Count XXIII Gifts of public funds (against the Board Defendants, Kampa, Dingman, and Bowles). Count XXIV Gifts of public funds (against the Board Defendants, Martin, Bowles, and Soares).

Count XXV Waste of public funds (against the Board Defendants and HCSD).

Count XXVI Punitive damages (against all defendants).

See ECF No. 17, pgs. 37-44.

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/ / / A. Defendant Winston In his motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), Defendant Winston argues: (1) Plaintiff’s federal claims against him must all be dismissed because Plaintiff admits defendant Winston is a private actor; (2) Plaintiff’s federal claims are barred by the Noerr-Pennington doctrine; (3) Plaintiff’s due process and equal protection claims must be dismissed; (4) Plaintiff fails to allege sufficient facts to sustain a First Amendment claim; (5) California’s litigation privilege bars Plaintiff’s state law claims; and (6) Plaintiff’s state law conspiracy claims are barred by California Civil Code § 1714.10. See ECF No. 24-1 (points and authorities in support of Defendant Winston’s motion to dismiss). Defendant Winston separately moves to strike Plaintiff’s state law claims under California Code of Civil Procedure § 425.16, California’s statute barring strategic litigation against public participation (anti-SLAPP statute). See ECF No. 25-1 (points and authorities in support of Defendant Winston’s motion to strike). Defendant Winston also separately moves to revoke Plaintiff’s in forma pauperis status pursuant to 28 U.S.C. § 1915(e)(2) and enter a vexatious litigant order against Plaintiff pursuant to 28 U.S.C. § 1651(a). See ECF No. 39-1 (points and authorities in support of Defendant Winston’s motion to revoke). B. The HCSD Defendants In their amended motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the HCSD Defendants argue: (1) Plaintiff cannot bring an action directly under the Constitution; (2) Plaintiff cannot state a claim for violation of the First Amendment; (3) Plaintiff cannot establish a claim for violation of procedural due process; (4) Plaintiff cannot establish an equal protection violation; (5) Plaintiff’s claims based on gifts of public funds fail as a matter of law because Plaintiff alleges no facts to establish the disbursements were not rationally related to a public purpose; (6) Plaintiff has alleged no facts to establish a violation of his right to vote; and (7) Plaintiff’s federal statutory claims fail because he has not alleged that he suffered an injury in fact. See ECF No. 26. / / / The HCSD Defendants also argue Plaintiff’s state law claims are deficient because: (1) Plaintiff’s state law claims fail because the HCSD Defendants are immune; (2) Plaintiff has not alleged defendants were negligent; (3) Plaintiff has failed to plead sufficient facts to show a nuisance; (4) Plaintiff has alleged no facts showing impermissible self-dealing; (5) Plaintiff cannot establish retaliation because he was not an employee; (6) Plaintiff’s claim based on alleged gifts fail as a matter of law; and (7) Plaintiff’s claims for intentional and negligent infliction of emotional distress fail as a matter of law. See ECF No. 26. In considering a motion to dismiss under Rule 12(b)(6), the Court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The Court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain more than “a formulaic recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 557). In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The Court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). Finally, leave to amend must be granted “[u]nless it is absolutely clear that no amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). In this case, Plaintiff purports to raise a constellation of both federal and state law claims. Collectively, Defendants argue Plaintiff’s federal claims must be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Defendants also collectively argue Plaintiff’s various state law claims fail. Finally, Defendant Winston seeks an order revoking Plaintiff’s in forma pauperis status in this case, declaring him a vexatious litigant, and requiring Plaintiff to post security before proceeding. / / / A. Federal Claims As to Plaintiff’s federal claims against him, Defendant Winston raises the following contentions: (1) Plaintiff’s federal claims must be all dismissed because Plaintiff admits Defendant Winston is a private actor; (2) Plaintiff’s federal claims are barred by the Noerr-Pennington doctrine; (3) Plaintiff’s due process and equal protection claims must be dismissed; and (4) Plaintiff fails to allege sufficient facts to sustain a First Amendment claim.9 The HCSD Defendants separately argue Plaintiff’s federal claims fail for the following reasons: (1) Plaintiff cannot bring an action directly under the Constitution; (2) Plaintiff cannot state a claim for violation of the First Amendment; (3) Plaintiff cannot establish a claim for violation of procedural due process; (4) Plaintiff cannot establish an equal protection violation; (5) Plaintiff’s claims based on gifts of public funds fail as a matter of law because Plaintiff alleges no facts to establish the disbursements were not rationally related to a public purpose; (6) Plaintiff has alleged no facts to establish a violation of his right to vote; and (7) Plaintiff’s federal statutory claims fail because he has not alleged that he suffered an injury in fact. 1. Liability of Private Actors “Traditionally, the requirements for relief under [§] 1983 have been articulated as: (1) a violation of rights protected by the Constitution or created by federal statute, (2) proximately caused (3) by conduct of a ‘person’ (4) acting under color of state law.” Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Or, more simply, courts have required plaintiffs to “plead that (1) the defendants acting under color of state law (2) deprived plaintiffs of rights secured by the Constitution or federal statutes.” Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986); see also Pistor v. Garcia, 791 F. 3d 1104, 1114 (9th Cir. 2015); Long v. Cty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); WMX Techs., Inc. v. Miller, 197 F.3d 367, 372 (9th Cir. 1999) (en banc); Ortez v. Wash. Cty., Or.., 88 F.3d 804, 810 (9th Cir. 1996). / / /

9 Defendant Winston also contends Plaintiff’s current action is barred by the The question of whether a person who has allegedly caused a constitutional injury was acting under color of state law is a factual determination. See Brunette v. Humane Soc’y of Ventura Cty., 294 F.3d 1205, 1209 (9th Cir. 2002); Gritchen v. Collier, 254 F.3d 807, 813 (9th Cir. 2001); Lopez v. Dep’t of Health Servs., 939 F.2d 881, 883 (9th Cir. 1991) (per curiam); Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir. 1983). A defendant has acted under color of state law where he or she has “exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)); see also Polk Cty. v. Dodson, 454 U.S. 312, 317-18 (1981); Anderson v. Warner, 451 F.3d 1063, 1068 (9th Cir. 2006); McDade v. West, 223 F.3d 1135, 1139-40 (9th Cir. 2000); Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir. 1997); Vang v. Xiong, 944 F.2d 476, 479 (9th Cir. 1991). Generally, private parties are not acting under color of state law. See Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991); see also Simmons v. Sacramento Cty. Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (explaining that a lawyer in private practice does not act under color of state law). Defendant Winston argues Plaintiff cannot maintain an action against him under § 1983 because Plaintiff admits Defendant Winston is a private actor. According to Defendant Winston:

Plaintiff admits that Winston is a private actor. See IAC, ¶¶ 70, 71. He cannot amend to allege Winston was a state actor without contradicting his earlier-filed pleadings. Moreover, Winston's conduct does not rise to the level of state action under any of the four tests to determine state action by a private actor.

ECF No. 24-1, pg. 15. Winston concludes that Plaintiff’s claim against him fails because he cannot be considered a state actor. See id. at 15-17. Generally, private parties are not acting under color of state law. See Price, 939 F.2d at 707-08; Simmons, 318 F.3d at 1161. A private actor may, however, be liable for conduct that is fairly attributable to the government. See Sutton v. Providence St Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999). In Gonzalez v. Spencer, the Ninth Circuit explained that a private attorney who is retained to represent state entities and their employees in litigation acts under color of state law because his or her role is “analogous to that of a state prosecutor rather than a public defender” 336 F.3d 832, 834 (9th Cir. 2003) (per curiam). Additionally, where a private party conspires with state officials to deprive others of constitutional rights, the private party is acting under color of state law. See Tower v. Glover, 467 U.S. 914, 920 (1984); Dennis v. Sparks, 449 U.S. 24, 27-28 (1980); Crowe v. Cty. of San Diego, 608 F.3d 406, 440 (9th Cir. 2010); Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002); DeGrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir. 2000); George v. Pacific-CSC Work Furlough, 91 F.3d 1227, 1231 (9th Cir. 1996) (per curiam); Kimes v. Stone, 84 F.3d 1121, 1126 (9th Cir. 1996). “To prove a conspiracy between the state and private parties under [§] 1983, the [plaintiff] must show an agreement or meeting of the minds to violate constitutional rights. To be liable, each participant in the conspiracy need not know the exact details of the plan, but each must at least share the common objective of the conspiracy.” United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir. 1989) (en banc) (citations and internal quotation marks omitted); see also Crowe, 608 F.3d at 440; Franklin, 312 F.3d at 441). Conclusory allegations are insufficient to state a claim of conspiracy. See Simmons, 318 F.3d at 1161. Defendant Winston contends:

Though Winston is an attorney licensed by the State of California, he is being sued in his capacity as private counsel representing the HCSD and Board Defendants. See, e.g., 1AC, ¶¶ 70-74. Winston gave advice. Id., ¶¶ 70-74. Winston filed papers in at least one legal action. Id., fn.60. Winston appeared in numerous legal proceedings on behalf of the HCSD and/or the Board Defendants. Id. Thus, Winston has been sued because of the legal advice and/or services provided to the HCSD and Board Defendants both in relation to Board meetings and in litigation. ECF No. 24-1, pg. 16. Defendant Winston’s argument is not entirely persuasive. A private attorney who is retained to provide advice to state entities may be acting under color of law. See Gonzalez, 336 F.3d at 834. Here, Defendant Winston was hired by the Hornbrook Community Services District, which is akin to a state entity in that it is a public services district, to provide legal advice. This situation is similar to Gonzalez. Because Defendant Winston was a private attorney hired to represent a public entity, as in Gonzalez, Winston may be considered a state actor. 2. Noerr-Pennington Doctrine Defendant Winston contends that, even if he can be considered a state actor, he is immune from liability under the Noerr-Pennington doctrine. The Noerr-Pennington doctrine holds that "[t]hose who petition government for redress are generally immune from antitrust liability." Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 56 (1993). While originally arising in antitrust law, the Noerr-Pennington doctrine now includes all fields of law. In California Transport v. Trucking Unlimited, the Supreme Court stated:

The same philosophy governs the approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly, the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition. 404 U.S. 508, 512 (1972). Under the Noerr-Pennington doctrine, those who petition the government for redress are immune from liability for their petitioning conduct. See Empress LLC v. City & County of San Francisco, 419 F.3d 1052, 1056 (9th Cir. 2005). Like the California anti-SLAPP statute (California Code of Civil Procedure § 425.16), the Noerr-Pennington doctrine not only protects petitioning activity, but also "activity incidental to and in anticipation of petitioning activity." Theme Prods., Inc. v. News Am. Mktg. FSI, 546 F.3d 991, 1007 (9th Cir. 2008). Communications related to litigation are sufficiently within the protection of the Petition Clause to trigger the Noerr-Pennington doctrine to bar claims against a private attorney as to such communications. See Freeman v. Lasky, Haas & Cohler, 410 F.3d 1180, 1185 (9th Cir. 2005) (applying the Noerr-Pennington and finding that plaintiffs' claims against attorneys predicated on discovery misconduct, subornation of perjury, and witness intimidation were barred). / / / As to application of the Noerr-Pennington doctrine in this case, Defendant Winston contends:

Here, Gifford's claims are based exclusively on Winston's legal representation of his clients, HCSD and its Board members, and related communicative conduct. The Complaint alleges that: Winston is an attorney who was employed by the Board Defendants and/or HCSD at all times material and was their/its agent and Winston acted "towards Plaintiff, or with third parties, at times purportedly on behalf of the HCSD, or one or more of its Directors, employees or agents." lAC, ¶¶ 71, 74 and fn 60. Winston was the "attorney of record" for the HCSD, its employees, and Board defendants, and represented them in legal actions. Id. Winston authored documents, letters, emails, public records, and contracts involving these clients. Id., ¶¶ 71-73, fn 54. Winston presented documents to government agencies and courts. Id., ¶¶ 48, 74, fn 60. Winston provided advice to the Board defendants, HCSD, and its employees. Id., ¶¶ 70, 73. The Board instructed Winston to appear in legal matters. Id., ¶¶ 18, 23. And Winston presented himself as counsel for the District. Id., ¶¶ 70, 74, fn. 60. There can be no dispute that Winston is being sued for conduct arising out of his representation of the HCSD and its Board members. Thus, Gifford's claims arising from Winston's representative conduct constitutes protected petitioning activity under Noerr-Pennington. Thus, as a matter of law, the Noerr-Pennington doctrine immunizes Winston and mandates dismissal of Gifford's federal claims against him.

ECF No. 24-1, pg. 19. The Court agrees. A review of the first amended complaint reflects that Plaintiff’s allegations against Defendant Winston stem from Winston’s actions as counsel for the HCSD. Absent the protection of the Petition Clause, attorneys like Defendant Winston would not be willing to represent public entities, which would ultimately thwart the ability of such entities to serve their communities.10 While Plaintiff may be able to establish that Defendant Winston is a state actor subject to liability under §1983, Defendant Winston is immune from such liability.11 / / / / / / / / / / / / 10 Whether the HCSD has done so in this case consistent with applicable state laws is properly the subject of Plaintiff’s various state law claim, including his claim that the HCSD violated California’s Brown Act. 11 Because Defendant Winston cannot be held liable under §1983, the Court does not 3. Due Process Plaintiff’s first amended complaint references due process in various claims, as summarized below:

Count IV Plaintiff alleges “Deprivation of Rights to Due Process; Equal Protection.” ECF No. 17, pg. 33. Plaintiff alleges at paragraph 96 that the Board Defendants and Kampa failed to “respond in any way to Plaintiff’s multiple requests to them for statutorily-mandated access to the books, papers, ad records of the HCSD. . . .” Id. Plaintiff also states that he was denied access “without any notice or hearing to Plaintiff, depriving Plaintiff off his right to due process. . . .” Id. Count V According to Plaintiff, Defendants Winston, Dixon, Goff, Kampa, and Dingman conspired to refuse to follow federal and state water laws. See id. Specifically referencing due process, Plaintiff stats at paragraph 98 the Board Defendants, Dixon, Goff, Winston, Bowles, and Dingman denied him “notice, opportunity to be heard, or other due legal process.” Id. at 34. Count VI Plaintiff references due process and alleges the Board Defendants, Bowles, Kampa, and Dingman failed to read meters and altered HCSD fees to the benefit of their friends. See id. at 34. Plaintiff states he was denied due process “insofar as he, as an elector of the District, was denied the right and opportunity to be served safe water. . . .” Id.

Count VII Plaintiff contends Defendants HCBC and Crittendon denied him due process by not providing notice that they were concealing their improper conduct from the public. See id. at 35. Count VIII Plaintiff alleges at paragraphs 101 and 102 that Defendant Dingman conspired with the Board Defendants, Kampa, and Bowles to receive gifts of public funds and provided no “opportunity to utilize the due processes of law. . . .” Id. Plaintiff adds: 102 By so doing, these Defendants acted in violation of Plaintiff’s due process rights to attend their meetings and protest or take legal action concerning the illegal gifting of public funds and, to thereby deliberately deprive Plaintiff of his right to due process, free speech, and petitioning rights to protest and act against corrupt and unlawful activity;. . . and, his right to due process sin regards to execution of these acts as provided by statute and the HCSD Bylaws.”

Id.

/ / / Count XIV In his final federal claim, Plaintiff contends the Board Defendants and Kampa violated his due process rights by refusing to comply with the “Uniform Construction Costs Accounting Act.” Id. at 37. The Due Process Clause protects from being deprived of life, liberty, or property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a claim of deprivation of due process, a plaintiff must allege the existence of a liberty interest for which the protection is sought. See Ingraham v. Wright, 430 U.S. 651, 672 (1977); Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). Liberty interests can arise both from the Constitution and from state law. See Hewitt v. Helms, 459 U.S. 460, 466 (1983); Meachum v. Fano, 427 U.S. 215, 224-27 (1976); Smith v. Sumner, 994 F.2d 1401, 1405 (9th Cir. 1993). In determining whether state law confers a liberty interest, the Supreme Court has adopted an approach in which the existence of a liberty interest is determined by focusing on the nature of the deprivation. See Sandin v. Connor, 515 U.S. 472, 481-84 (1995). In their amended motion to dismiss, the HCSD Defendants argue: (1) Plaintiff cannot state a claim for violation of procedural due process because he does not allege he was denied any liberty or property interest; and (2) Plaintiff’s claims based on gifts of public funds fail as a matter of law because plaintiff alleges no facts to establish the disbursements were not rationally related to a public purpose. See ECF No. 26, pgs. 6-7. According to the HCSD Defendants:

. . . The protected interest(s) apparently alleged by Plaintiff are an ambiguous interest in flawless operation of a drinking water facility and perfectly even implementation of legal duties by public officers. Plaintiff alleges a right to “the proper and timely creation and retention of records,” of which he was deprived, along with the right to have public officers “monitor and supervise the operations of the HCSD facilities and employees.” (Complaint, p. 21-23.) None of these amount to the type of vested, specific . . . interest required to state a claim for relief for violation of procedural due process rights.

ECF No. 26, pg. 6. / / / / / / / / / As to Plaintiff’s allegations relating to gifts of public funds, the HCSD Defendants argue:

Disbursements of public funds are assumed to be legitimate so long as they are made with a public purpose, and “[d]etermination of public purpose is primarily a matter for the Legislature and will not be disturbed as long as it has a reasonable basis.” County of Alameda v. Janssen, 16 Cal.2d 276, 281 (1940). Plaintiff has alleged no facts demonstrating that the payments lacked a public purpose, other than conclusory allegations of corruption. The essence of the facts of these allegations are that HCSD paid its employees and may have been flexible with its water rate charges. As a public agency with fewer than 200 constituents, some rate flexibility may contribute to the overall well-being of the community, and thus be rationally related to a public purpose.

ECF No. 26, pgs. 6-7. The gravamen of Plaintiff’s due process claims is that his constitutional rights were violated because the defendants concealed their allegedly wrongful conduct. The Court agrees with the HCSD Defendants that Plaintiff’s various due process claims fail because Plaintiff has not alleged the existence of a recognized liberty or property interest flowing to Plaintiff as to which he was due any particular process. 4. Equal Protection Plaintiff references equal protection in various claims. In “Count IV,” Plaintiff alleges “Deprivation of Rights to Due Process; Equal Protection.” ECF No. 17, pg. 33. According to Plaintiff, while others were allowed to circumvent the rules to obtain benefits from the HCSD, Plaintiff was not. See id. Presumably, Plaintiff believes this constitutes a violation of the constitutional guarantee that he be treated the same as others who are similarly situated. Plaintiff also references equal protection in “Count V” under the same theory. See id. at 34. In “Count VI,” Plaintiff again references equal protection under a similar theory – the allegedly nefarious conduct of various defendants resulted in some people receiving clean water while he and other citizens did not. See id. Plaintiff references equal protection in “Count VII.” See id. at 34-35. According to Plaintiff, Defendants HCBC and Crittendon conspired with the HCSD, the Board Defendants, and Bowles to receive gifts and benefits to which Plaintiff and the general public were not privy. See id. at 35. In “Count VIII,” Plaintiff again references equal protection under a very similar theory. See id. Plaintiff adds that a fraudulent billing practice contributed to some receiving benefits others did not. See id. Finally, Plaintiff references equal protection in “Count XIV.” See id. at 37. Equal protection claims arise when a charge is made that similarly situated individuals are treated differently without a rational relationship to a legitimate state purpose. See San Antonio School District v. Rodriguez, 411 U.S. 1 (1972). Equal protection claims are not necessarily limited to racial and religious discrimination. See Lee v. City of Los Angeles, 250 F.3d 668, 686-67 (9th Cir. 2001) (applying minimal scrutiny to equal protection claim by a disabled plaintiff because the disabled do not constitute a suspect class) see also Tatum v. Pliler, 2007 WL 1720165 (E.D. Cal. 2007) (applying minimal scrutiny to a prisoner’s equal protection claim based on denial of in-cell meals where no allegation of race-based discrimination was made); Hightower v. Schwarzenegger, 2007 WL 732555 (E.D. Cal. March 19, 2008).12 In order to state a § 1983 claim based on a violation of the Equal Protection Clause of the Fourteenth Amendment, a plaintiff must allege that the defendants acted with intentional discrimination against the plaintiff, or against a class of inmates which included the plaintiff, and that such conduct did not relate to a legitimate government purpose. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (holding that equal protection claims may be brought by a “class of one”); Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); Federal Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 471 (9th Cir. 1991); Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985). In their amended motion to dismiss, the HCSD Defendants argue Plaintiff cannot sustain an equal protection claim because he does not allege he is a member of a protected class. See ECF No. 26, pg. 6. According to the HCSD Defendants:

Plaintiff has not alleged being a member of a protected class— indeed, the Equal Protection allegation is almost thrown in as an afterthought. There is no allegation that any law was applied differently to him than to others—the equal protection claim is entirely inapplicable to

12 Error! Main Document Only.Strict scrutiny applies to equal protection claims alleging race-based or religious discrimination (i.e., where the plaintiff is member of a “protected class”); minimal scrutiny applies to all other equal protection claims. See Lee v. City of Los the facts alleged.

ECF No. 26, pg. 6. The Court agrees. Plaintiff’s first amended complaint is devoid of any allegations that he is a member of a protected class or that any defendant acted with an intent to discriminate based on membership in a protected class. To the extent Plaintiff’s equal protection claim is based on his allegation that people within the jurisdiction of the HCSD are not receiving the same services as others outside the district, Plaintiff’s claim fails because, necessarily, he is being treated the same as all those similarly situated, namely those within the jurisdiction of the district. In other words, Plaintiff is not being treated any differently than other members of the public subject to the alleged wrongdoing of the HCSD Defendants. 5. First Amendment In his first amended complaint, Plaintiff alleges at paragraph 92 that the Board Defendants, Winston, Kampa, and Dingman, acted in retaliation for Plaintiff’s “exercise of statutory and constitutional rights to speak freely, petition the government, and courts, for redress of grievances. . . .” ECF No. 17, pg. 32. According to Plaintiff, Defendants’ alleged conduct chilled his speech. See id. In order to state a claim under 42 U.S.C. § 1983 for retaliation, the plaintiff must establish that he was retaliated against for exercising a constitutional right, and that the retaliatory action was not related to a legitimate government purpose. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). In meeting this standard, the plaintiff must demonstrate a specific link between the alleged retaliation and the exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995); Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The plaintiff must also show that the exercise of First Amendment rights was chilled, though not necessarily silenced, by the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000), see also Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the plaintiff must establish the following in order to state a claim for retaliation: (1) the defendant took adverse action; (2) the adverse action was taken because the plaintiff engaged in protected conduct; (3) the adverse action chilled the plaintiff’s First Amendment rights; and (4) the adverse action did not serve a legitimate purpose. See Rhodes, 408 F.3d at 568. In their amended motion to dismiss, the HCSD Defendants argue Plaintiff cannot state a First Amendment retaliation claim because he suffered no adverse action after engaging in protected activity. See ECF No. 26, pgs. 5-6. According to the HCSD Defendants:

. . . Here, Plaintiff has failed to plead facts that show any sort of causal relationship between the vaguely referenced exercise of his right to speak, to speak freely, and to petition at the public meetings of the board of the HCSD. (Complaint p. 20, ln. 4-13.) Plaintiff has alleged no specific facts suggesting that any adverse action was taken as a result of his speech or petition, or that he was somehow barred from speaking or petitioning. (citation omitted). To the extent that Plaintiff claims he has been unable to seek redress from the Courts, such a claim is patently ridiculous given the multiplicity of his litigation. As for the alleged infringement on Plaintiff’s right to petition, it is unclear how this was in any way violated. Indeed, in articulating his cause of action, Plaintiff enumerates the many times he exercised his right to petition.

ECF No. 26, pgs. 5-6.

The Court agrees. As to the chilling effect of the defendants’ alleged conduct, Plaintiff has pleaded facts contrary to this element. Specifically, despite the alleged retaliation, Plaintiff has states that he has repeatedly petitioned both the HCSD and the federal courts for relief. Further, Plaintiff has not identified the alleged adverse action taken against him, or the protected activity Plaintiff engaged in which purportedly was the impetus for such adverse action. 6. Action Directly Under the Constitution The HCSD Defendant argue that, as a matter of law, Plaintiff cannot seek redress directly under the Constitution. See ECF No. 26, pg. 5. According to the HCSD Defendants: To the extent that Plaintiff seeks redress directly under the constitution for violation of his First, Fourth, and Fourteenth Amendment rights, those claims fail because no direct cause of action exists under the constitution against state defendants where such defendants are amenable to suit under Section 1983. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001) (“[A] litigant complaining of a violation of a constitutional right does not have a direct cause of action under the United States Constitution but must utilize 42 U.S.C. 1983.”); see also Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981).

Id.

This largely “housekeeping” argument is axiomatic. As the court noted in Arpin, § 1983 is the only vehicle available for asserting a violation of a constitutional right. See 261 F.3d at 925. To the extent Plaintiff attempts to assert a claim directly under any particular provision of the Constitution instead of through §1983, he cannot successfully do so. 7. Right to Vote At paragraph 93 of the first amended complaint, Plaintiff alleges the Board Defendants and Kampa violated his right to vote. See ECF No. 17, pgs. 32-33. Plaintiff claims this was accomplished by Defendants’ failure to abide by HCSD bylaws. See id. at 32. More specifically, Plaintiff alleges an “agreement” to “evade the voting requirements thereof relating to District fees and charges.” Id. Plaintiff also alleges violation of his right to vote at paragraph 99 of the first amended complaint. See id. at 34. Plaintiff alleges this was accomplished by “improperly and wrongfully failing to read meters, waiving various fees and charges, altering rates and fees of the HCSD to benefit their friends without voter approval.” Id. Plaintiff alleged HCSD bylaws were “contradicted” and relevant water safety laws were not followed. Id. Plaintiff claims that he was denied his right, “as a [sic] elector of the District,” to be served with safe water. Id. According to the HCSD Defendants: Gifford’s complaint also alleges a violation of Plaintiff’s right to vote. This violation is apparently based on unspecified violations of HCSD bylaws. The gravamen of the cause of action are alleged secret meetings at which unspecified actions were taken that had an unspecified effect on unspecified persons. There are no factual allegations from which to discern the actual conduct Plaintiff complains of. This cause of action lacks facts sufficient to put Defendants on notice of what they are meant to have done wrong, and therefore falls short of the pleadings standards.

ECF No. 26, pg. 7.

/ / / / / / The Court agrees with the HCSD Defendants that Plaintiff’s claims related to the alleged denial of the right to vote are too nebulous and vague to proceed. See Iqbal, 129 S. Ct. at 1949. Plaintiff has not specifically alleged how the defendants’ conduct affected his right to vote. Moreover, under the Voting Rights Act of 1965, a plaintiff must allege invidious discrimination. See Mobile v. Bolden, 446 U.S. 55 (1980). Plaintiff has failed to do so here. Finally, to the extent the alleged denial of the right to vote stems from HCSD and its board taking illegal or improper actions, Plaintiff has alleged no facts to indicate that he has been unable to vote in any election to replace HCSD board members. 8. Federal Statutory Claims At paragraphs 94 and 95 of the first amended complaint, Plaintiff alleges violations of the Clean Water Act and Safe Drinking Water Act. See ECF No. 17, pg. 33. At paragraphs 103 and 104, Plaintiff specifically claims violations of these federal laws by Defendant Puckett. See id. at 35-36. At paragraph 105, Plaintiff alleges violation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). See id. at 36. At paragraphs 106 and 107, Plaintiff claims Defendant HCSD retaliated in violation of 18 U.S.C. § 1513(e). See id. According to the HCSD Defendants:

In order to bring a private claim under the Clean Water Act (and the other analog statutes under which Gifford brings claims), a private individual must have suffered an injury in fact. See, e.g., Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). Gifford has made no such allegation here. As such, he has no standing to bring claims under these statutes, and those causes of action must fail as a matter of law. ECF No. 26, pg. 7. The Court agrees with the HCSD Defendants as to the Clean Water Act and Safe Drinking Water Act – Plaintiff cannot sustain a claim under these statutes because he has not alleged an injury in fact which he suffered. See Whitmore, 495 U.S. at 155. As to Plaintiff’s reference to FIFRA, Plaintiff’s claim fails because enforcement is accomplished by either the Environmental Protection Agency or the states. See 7 U.S.C. § 136, et seq. Plaintiff has cited no authority for private enforcement of FIFRA. Similarly, enforcement of 18 U.S.C. § 1513(e) – relating to retaliation against an informant – is accomplished by a criminal prosecution. See 18 U.S.C. § 1513(g). There is no private right of action under § 1513. See Shahin v Darling, 606 F. Supp. 2d 525 (D. Del. 2009). B. State Law Claims In his motion to dismiss, Defendant Winston argues Plaintiff’s state law claims fail for the following reasons: (1) Plaintiff’s claim are barred by California’s litigation privilege; and (2) Plaintiff’s conspiracy claims are barred by California Civil Code § 1714.10. See ECF No. 24-1, pgs. 21-26. By separate motion, Defendant Winston argues the Court should strike Plaintiff’s state law claims under California’s anti-SLAPP statute. See ECF No. 25. In their amended motion to dismiss, the HCSD Defendants argue: (1) the HCSD and its employees are immune for discretionary acts under California Government Code §§ 820.2; and 818.2; (2) Plaintiff has not alleged any facts to show negligence; (3) Plaintiff has not alleged facts to support his nuisance claims; (4) Plaintiff has not alleged facts to support his claims under California Government Code §§ 1090 and 87100; (5) Plaintiff cannot state a claim for retaliation in employment; (6) Plaintiff cannot state a claim based on gifts of public funds; and (7) Plaintiff’s claims for negligent and intentional infliction of emotional distress fail as a matter of law. See ECF No. 26, pgs. 7-10. Because, for the various reasons discussed above, the Court finds that Plaintiff has failed to plead cognizable federal claims, the Court declines to rule on the viability of Plaintiff’s state law claims at this time. Defendants may renew their argument relating to state law claims upon a finding by the Court that Plaintiff has stated cognizable federal claims which should be answered. In the event Plaintiff is unable to state cognizable federal claims, the Court will consider whether to decline supplemental jurisdiction pursuant 28 U.S.C. § 1367(c)(3), in which case Plaintiff may pursue his state law claims in the appropriate state court of general jurisdiction. / / / / / / / / / C. Revocation of In Forma Pauperis Status By way of a third motion, Defendant Winston seeks an order revoking Plaintiff’s in forma pauperis status, declaring Plaintiff a vexatious litigant, and requiring Plaintiff to post security. See ECF No. 39. According to Defendant Winston, 28 U.S.C. § 1915(e)(2) – part of the federal in forma pauperis statute – authorizes the Court to dismiss the entire action because it is frivolous, malicious, and fails to state a claim. See id. at 15-24. Defendant Winston also contends the Court should declare Plaintiff a vexatious litigant under the All Writs Act and order Plaintiff to post bond before proceeding further with this action. See id. at 24-25. At the outset, the Court notes that § 1915(e)(2) does not provide for revocation of Plaintiff’s in forma pauperis status. In certain instances, a prisoner’s in forma pauperis status may be revoked under relevant provisions of the Prison Litigation Reform Act (PLRA). The PLRA does not apply here, however, because Plaintiff is not a prisoner. The provision cited by Defendant Winston does permit the Court to dismiss actions filed by litigants proceeding pro se if the Court finds the action is malicious, frivolous, or fails to state a claim. While the Court finds that Plaintiff fails to state any federal claims, the Court declines to rule on Plaintiff’s state law claims, leaving that task for another day if Plaintiff can state cognizable federal claims. The procedural relief requested by Defendant Winston in his third motion should, therefore, be denied at this time without prejudice. Defendant Winston may renew his request to declare Plaintiff a vexatious litigant and require him to post security should the case proceed in federal court past the pleadings stage. / / / / / / / / / / / / / / / / / / / / / Based on the foregoing, the undersigned recommends that: 1. Defendant Winston’s motion to dismiss, ECF No. 24, be granted as to Plaintiff’s federal claims and Defendant Winston be dismissed with prejudice; 2. The HCSD Defendants’ amended motion to dismiss, ECF No. 26, be granted as to Plaintiff’s federal claims; 3. Plaintiff’s federal claims be dismissed as follows;

a. Plaintiff’s due process claims be dismissed with leave to amend;

b. Plaintiff’s equal protection claims be dismissed with leave to amend; c. Plaintiff’s retaliation claim be dismissed with leave to amend; d. Plaintiff’s claims relating to the denial of the right to vote be dismissed with leave to amend;

e. Plaintiff’s federal statutory claims be dismissed with prejudice; 4. Defendants’ motions to dismiss be denied as to Plaintiff’s state law claims, without prejudice to renewal upon the filing of a further amended complaint; and 5. Defendant Winston’s motion to strike Plaintiff’s state law claims, ECF No. 25, and motion to revoke Plaintiff’s in forma pauperis status, declare Plaintiff a vexatious litigant, and require Plaintiff to post security, ECF No. 39, also be denied without prejudice to renewal upon the filing of a further amended complaint; and 6. Plaintiff’s motions for default judgment, ECF Nos. 65 and 66, be denied because Plaintiff has not demonstrated an entitlement to relief on any of his federal claims and the Court has not decided whether to exercise supplemental jurisdiction over Plaintiff’s state law claims. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court. Responses to objections shall be filed within 14 days after service of objections. / / / Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). Dated: March 25, 2021 Ssvcqo_ UNITED STATES MAGISTRATE JUDGE 30