(PS) Whitsitt v. City of Stockton

Opinion

1 2 3 4 5 6 7 10 11 WILLIAM J. WHITSITT, No. 2:20-cv-00131 KJM AC PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 CITY OF STOCKTON, et al., 15 Defendants. 16 17 Plaintiff is proceeding in this action pro se. This matter was accordingly referred to the 18 undersigned by E.D. Cal. 302(c)(21). Plaintiff was previously granted authority to proceed in 19 forma pauperis pursuant to 28 U.S.C. § 1915(a)(1). ECF No. 3. His initial complaint was 20 rejected with leave to amend. Id. Plaintiff submitted a First Amended Complaint (“FAC”) on 21 April 20, 2020. ECF No. 7. Plaintiff subsequently submitted a motion to amend, asserting that 22 he had submitted the FAC before receiving the order to amend his complaint. ECF No. 8. The 23 motion was granted. ECF No. 9. The Second Amended Complaint (“SAC”), ECF No. 10, is now 24 before the Court for screening. 26 The federal IFP statute requires federal courts to dismiss a case if the action is legally 27 “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 28 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 1 Plaintiff must assist the court in determining whether or not the complaint is frivolous, by drafting 2 the complaint so that it complies with the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). 3 Under the Federal Rules of Civil Procedure, the complaint must contain (1) a “short and plain 4 statement” of the basis for federal jurisdiction (that is, the reason the case is filed in this court, 5 rather than in a state court), (2) a short and plain statement showing that plaintiff is entitled to 6 relief (that is, who harmed the plaintiff, and in what way), and (3) a demand for the relief sought. 7 Fed. R. Civ. P. 8(a). Plaintiff’s claims must be set forth simply, concisely and directly. Fed. R. 8 Civ. P. 8(d)(1). 9 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989). In reviewing a complaint under this standard, the 11 court will (1) accept as true all of the factual allegations contained in the complaint, unless they 12 are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the 13 plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327; Von 14 Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010). 15 The court applies the same rules of construction in determining whether the complaint 16 states a claim on which relief can be granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (court 17 must accept the allegations as true); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (court must 18 construe the complaint in the light most favorable to the plaintiff). Pro se pleadings are held to a 19 less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 20 (1972). However, the court need not accept as true conclusory allegations, unreasonable 21 inferences, or unwarranted deductions of fact. W. Min. Council v. Watt, 643 F.2d 618, 624 (9th 22 Cir. 1981). A formulaic recitation of the elements of a cause of action does not suffice to state a 23 claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–57 (2007); Ashcroft v. Iqbal, 556 U.S. 24 662, 678 (2009). 25 To state a claim on which relief may be granted, the plaintiff must allege enough facts “to 26 state a claim to relief that is plausible on its face.” Bell Atlantic Corp., 550 U.S. at 570. “A claim 27 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 28 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. 1 at 678. A pro se litigant is entitled to notice of the deficiencies in the complaint and an 2 opportunity to amend, unless the complaint’s deficiencies could not be cured by amendment. See 3 Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute as 4 stated in Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000)). 6 A. The Complaint 7 The SAC seeks relief against the City of Stockton, several police officers, court officers, 8 Kelly Morris and Nicky Morris and their attorneys, and 25 unnamed defendants. ECF No. 10 at 9 1. Plaintiff asserts claims of constitutional violations under 42. U.S.C. §§ 1983 and 1985, along 10 with state law claims. Id. He alleges seven causes of action: (1) “Conspiracy and Denial of my 11 1st Amendment Right of Freedom of Religion and Religious Freedom 4th 14th amend. Unlawful 12 Arrest and Seizure of my Person . . . and (1)(a) Actual Interference With my 1st Amendment 13 Freedom of Religion;” (2) “Protective Stay Away Order Temporary Restraining Order denying 14 me access to Christin Life Church and the Bible College Deprivation of 1st Amend Right to 15 Freedom of Religion Education, Religious Freedom . . . (2)(a) Actual Interference with and denial 16 of my Inalienable right to 1st Amendment Right to Freedom of religious education and 17 Association;” (3) “False Arrest Without Warrant No Probable Cause;” (4) [repeated previous 18 claims]; (5) “Interference with Inalienable Right to Justice and Court Process;” (6) “Damage to 19 my Good Name Integrity and Person;” and (7) “Emotional Distress.” ECF No. 10 at 8-23. 20 Plaintiff seeks several million dollars in damages, including punitive damages, and criminal 21 penalties. Id. at 24-25. 22 The first portion of plaintiff’s SAC makes legal arguments regarding jurisdiction, 23 standing, venue, and the legal standards that should be applied. Id. at 1-8. In his recitation of 24 facts, plaintiff states that the “conspiracy starts out all because a considerably younger woman 25 loves me and I fell in love with her also back.” Id. at 9. The woman at issue, “Chloe,” attended 26 Christian Life College. Id. Chloe’s mother, Niki Morris, did not like plaintiff because of his 27 “personal difference in the rapture belief.” Id. Plaintiff alleges Niki Morris coerced her daughter 28 into obtaining, or obtained on her behalf, a restraining order against plaintiff. Id. Plaintiff alleges 1 that within one week he was falsely arrested and that at least one of the arresting officers was a 2 friend or family member of Niki Morris. Id. at 10. 3 Plaintiff alleges the Morris family, the Stockton police officers, and San Joaquin county 4 acted in a conspiracy. Id. They used their court process to coerce him into a guilty plea. Id. 5 Plaintiff alleges he was not served a copy of the restraining order before being held in civil 6 contempt, rendering the restraining order unenforceable. Id. He asks the court to withdraw his no 7 contest plea. Id. Plaintiff also alleges his right to religious freedom was violated because the 8 restraining order prevents him from worshiping at Christian Life Church. Id. at 12-13. 9 B. The SAC Does Not State a Claim 10 Plaintiff’s complaint cannot survive because it does not state any cognizable legal claim as 11 required by Fed. R. Civ. P. 12(b)(6). The claims asserted in the SAC are best construed as 12 follows: (1) false arrest, (2) violation of first amendment religious freedom, (3) violation of first 13 amendment freedom of association, (4) violation of constitutional right to due process, (5) 14 defamation, and (6) intentional or negligent infliction of emotional distress. The facts alleged in 15 support of these putative causes of action do not state any federal claim, and the court should 16 decline jurisdiction over remaining state claims. 17 1. The SAC does not state a claim for false arrest 18 In order to state a Section 1983 claim for an unconstitutional arrest, plaintiff must allege 19 facts showing that he was arrested without probable cause or other justification. Dubner v. City 20 & County of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001) (“[a] claim for unlawful arrest is 21 cognizable under § 1983 as a violation of the Fourth Amendment, provided the arrest was without 22 probable cause or other justification”). To prevail on claims for false arrest and imprisonment, 23 plaintiff “would have to demonstrate that there was no probable cause to arrest him,” and he has 24 made no such allegation. Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998). 25 Plaintiff’s conclusory statement that he was “falsely arrested” is not sufficient. ECF No. 10 at 10. 26 Moreover, the SAC indicates that plaintiff pled no contest to the charges. See id. To the extent 27 the false arrest allegations relate to plaintiff’s conviction, “finding there was no probable cause 28 would ‘necessarily imply’ that [plaintiff’s] conviction ... was invalid” and the claims would 1 therefore not be cognizable under Heck v. Humphrey, 512 U.S. 477 (1994).” Cabrera, 159 F.3d 2 at 380. Accordingly, plaintiff’s SAC does not state a claim for false arrest and could not be 3 amended to do so. 4 2. The SAC does not state a claim for violation of religious freedom 5 Plaintiff asserts that his constitutional right to religious freedom was violated because the 6 restraining order discussed above prevents him from attending his particular church of choice. 7 ECF No. 10 at 12-13. A restraining order barring an individual from a particular place of 8 worship, for cause, does not violate the First Amendment. “Although the guarantee of religious 9 freedom of the First Amendment of the Constitution of the United States is binding on the states 10 under the due process clause of the Fourteenth, Cantwell v. State of Connecticut, 310 U.S. 296, 11 303 (1940), the states may nevertheless regulate conduct for the protection of society, and insofar 12 as such regulations are directed towards a proper end and are not discriminatory, they may 13 indirectly affect religious activities without infringing the constitutional guarantee. Although 14 freedom of conscience and the freedom to believe are absolute, the freedom to act is not.” 15 Pencovic v. Pencovic, 45 Cal. 2d 97, 102–03 (1955). The SAC does not state any facts indicating 16 that the protective order targeted plaintiff’s practice of his religion. Rather, the SAC explains that 17 the person the restraining order was entered to protect attends the church in question. Plaintiff 18 simply makes the conclusory assertion that the civil restraining order is not valid because it was 19 issued as part of a conspiracy. ECF No. 10 at 9.1 The facts underlying this claim do not, as a 20 matter of law, violate plaintiff’s right to religious freedom. 21 3. The SAC does not state a claim for violation of freedom of association 22 Plaintiff alleges that his right to free association was violated because he was prevented 23 from attending Christian Life College by enforcement of the civil restraining order discussed 24 above, which he alleges is “just a farce[.]” ECF No. 10 at 16. This claim fails for reasons similar 25 to the religious freedom claim. The First Amendment protects individuals from undue 26 1 To the extent plaintiff bases this case on the invalidity of his conviction pursuant to the 27 restraining order, as mentioned above, the “Heck bar” operates to prevents a suit for damages based on a state conviction absent evidence that the conviction has already been overturned. 28 Heck, 512 U.S. 477. 1 interference with their freedom of speech, assembly, and expressive association. U.S. CONST., 2 amend. I; De Jonge v. State of Oregon, 299 U.S. 353, 364 (1937). The right of an individual to 3 free association is, however, not unbounded. Once again, the “freedom of expressive association 4 is not absolute; it can be overridden by regulations adopted to serve compelling state interests, 5 unrelated to the suppression of ideas, that cannot be achieved through means significantly less 6 restrictive of associational freedoms.” Boy Scouts of Am. v. Dale, 530 U.S. 640, 640–41 (2000) 7 (internal citations omitted). 8 Here, plaintiff claims his freedom to associate with the religious institution of his choice is 9 being impinged upon by a restraining order that he alleges is a “farce.” ECF No. 10 at 16. 10 However, plaintiff’s SAC fails to state any facts, other than the conclusory allegation that the 11 restraining order is invalid, to support his assertion that a constitutional violation has occurred. 12 Further, the facts plaintiff does allege makes clear that the restraining order at issue was not 13 overbroad, because it was allegedly issued to protect a woman who attended the bible college at 14 issue. Finally, there is no indication in the SAC that the order preventing plaintiff from attending 15 the bible college was related to any suppression of ideas, as opposed to the physical protection of 16 another person. The facts giving rise to this claim do not support a claim for violation of 17 plaintiff’s right to freely associate. 18 4. The SAC does not state a due process claim 19 In order to state a Section 1983 claim for violation of due process rights, plaintiff “must 20 allege facts that, if true, show that ... [defendants] deprived him of a constitutionally protected 21 liberty or property interest without due process.” Knappenberger v. City of Phoenix, 566 F.3d 22 936, 940 (9th Cir. 2009). Plaintiff alleges that he was not served a copy of the restraining order 23 against him before he was arrested, and this was a violation of his due process rights. ECF No. 24 10 at 11. Plaintiff relies on Koehler v. Superior Court, which is a habeas corpus case pointing out 25 that “a contempt citation must be served personally.” Koehler v. Superior Court, 181 Cal. App. 26 4th 1153, 1169 (2010). This case is not on point; it is about a court’s decision to hold an 27 individual in civil contempt, not the enforcement of a restraining order. In any case, the SAC 28 simply does not allege facts sufficient to indicate there was a due process violation. The 1 conclusory assertion that plaintiff was unlawfully arrested before being served with the 2 restraining order does not suffice; he gives no indication as to why he was arrested, and he says 3 nothing about the process leading up to his no contest plea. Plaintiff’s SAC thus fails to state a 4 due process claim. Moreover, any due process violation infecting the validity of plaintiff’s 5 conviction is a matter that falls outside the scope of § 1983 and is Heck-barred. 6 5. The Court should decline jurisdiction over remaining state law claims 7 Jurisdiction in this case is based on the existence of federal questions, pursuant to 28 8 U.S.C. § 1331. ECF No. 10 at 6.2 As discussed above, each of plaintiff’s federal law claims 9 warrant dismissal for failure to state a claim. With the dismissal of plaintiff’s federal claims, the 10 court has the discretion to either adjudicate plaintiff’s remaining state law claims or dismiss them. 11 See Herman Family Revocable Tr. v. Teddy Bear, 254 F.3d 802, 806 (9th Cir. 2001) (“If the 12 district court dismisses all federal claims on the merits, it has discretion under § 1367(c) to 13 adjudicate the remaining claims....”). When a court dismisses a plaintiff's federal claims on the 14 merits, and declines to adjudicate his supplemental state law claims, “the preferable course of 15 action is dismissal of the remaining claims without prejudice.” Montazer v. SM Stoller, Inc., 363 16 F. App'x 460, 462 (9th Cir. 2010) (citing Les Shockley Racing, Inc. v. Nat'l Hot Rod Ass'n, 884 17 F.2d 504, 509 (9th Cir. 1989)). The court will, accordingly, recommend that the court decline to 18 adjudicate plaintiff remaining state law claims and dismiss them without prejudice. 19 C. Futility of Amendment 20 If the court finds that a complaint or claim should be dismissed for failure to state a claim, 21 the court has discretion to dismiss with or without leave to amend. Leave to amend should be 22 granted if it appears possible that the defects in the complaint could be corrected, especially if a 23 plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); Cato v. 24 United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given leave to 25 amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that 26 2 Plaintiff also alleges there is diversity jurisdiction in this case because he is a “Citizen of 27 California and the Incident happened all within the State of California.” ECF No. 10 at 6. Because plaintiff and most, if not all, defendants are citizens of the same state, there is no 28 diversity jurisdiction here. 28 U.S.C. § 1332. 1 the deficiencies of the complaint could not be cured by amendment.” (citing Noll v. Carlson, 809 2 F.2d 1446, 1448 (9th Cir. 1987))). However, if, after careful consideration, it is clear that a claim 3 cannot be cured by amendment, the Court may dismiss without leave to amend. Cato, 70 F.3d at 4 1105-06. 5 Plaintiff has twice amended his complaint, and has continually failed to state any claim. 6 Further, the contents of his SAC strongly indicate that another opportunity to amend would not 7 result in a complaint that states a claim. First, for the reasons explained above, the events about 8 which plaintiff complains do not, as a matter of law, violate his federal rights. Second, to the 9 extent that plaintiff alleges his conviction is unconstitutional, such matters do not give rise to 10 cognizable claims under § 1983. See Heck, supra. Third, to the extent that plaintiff challenges 11 the constitutionality of the restraining order, the federal court lacks jurisdiction to review state 12 court judicial rulings. See Branson v. Nott, 62 F.3d 287, 291 (9th Cir.) (no jurisdiction over § 13 1983 claims challenging validity of state court orders), cert. denied, 516 U.S. 1009 (1995). Leave 14 to amend would therefore be futile and should be denied on that basis. See Hartmann v. CDCR, 15 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may deny leave to amend when 16 amendment would be futile.”). 18 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s Second Amended 19 Complaint (ECF No. 10) be dismissed, that no further leave to amend be granted, and that this 20 case be closed. Dismissal should be without prejudice as to the state law claims only. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 23 days after being served with these findings and recommendations, any party may file written 24 objections with the court. The document should be captioned “Objections to Magistrate Judge's 25 Findings and Recommendations.” Any reply to the objections shall be served and filed within 26 fourteen (14) days after service of the objections. The parties are advised that failure to file 27 //// 28 //// wOAIe 2 OU VM EVEL UING INIT ENN RUC tee PI vere POY VI

1 || objections within the specified time may waive the right to appeal the District Court’s order. 2 | Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 3 || DATED: June 2, 2020 . 4 et, been — Sn UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28