Silveria v. Marin County Sheriffs Department

Opinion

BONNIE SILVERIA, et al., Case No. 24-cv-03181-AMO

Plaintiffs, ORDER GRANTING IN PART AND v. DENYING IN PART MOTION TO DISMISS DEPARTMENT, et al., Re: Dkt. No. 20 Defendants.

Before the Court is a motion to dismiss filed by the County of Marin, Sheriff Deputy Michael Thompson, the Marin County Sheriff’s Department, and Julia Barnes (“Defendants”). Sean Derning, Bonnie Silveria, and Elgio Limeta (“Plaintiffs”), representing themselves, oppose the motion, which is fully briefed and suitable for decision without oral argument pursuant to Civil Local Rule 7-1(b). Accordingly, the hearing currently set for March 20, 2025 is VACATED. For the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART Defendants’ motion to dismiss.1 Plaintiffs Derning, Silveria, and Limeta are unhoused, sheltering along Binford Road in Marin County. ECF 1 (“Compl.”) at 1-2. In this action, they allege claims under 42 U.S.C. § 1983 for violations of the Fourth, Fifth, and Fourteenth Amendments.2 Id. at 5-10. Plaintiff 1 This order assumes familiarity with the factual allegations in the complaint, the procedural background of this litigation, and the parties’ arguments as set forth in the briefing on the motion to dismiss.

2 Plaintiffs also purport to name the Binford Community as a plaintiff. Id. at 2. This is improper, as Plaintiffs, who are not lawyers, can only represent themselves. See C.E. Pope Equity Trust v. U.S., 818 F.2d 696, 697 (9th Cir. 1987) (“Although a non-attorney may appear in propria persona Derning additionally asserts a claim for violation of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131, et seq. Because the gravamen of Plaintiffs’ claims is the seizure and destruction of their property, the Court addresses the claims under the Fourth, Fifth, and Fourteenth Amendments first. Plaintiffs allege that their belongings were seized and destroyed without just compensation, legally mandated storage, or a meaningful opportunity to retrieve their possessions in violation of the Fourth, Fifth, and Fourteenth Amendments. “Because homeless persons’ unabandoned possessions are ‘property’ within the meaning of the Fourteenth Amendment, the C[ounty] must comport with the requirements of the Fourteenth Amendment’s due process clause if it wishes to take and destroy them.” See Lavan v. City of Los Angeles, 693 F.3d 1022, 1032 (9th Cir. 2012) (citation omitted). In addition, “[t]he Fourth Amendment protects Plaintiffs and other homeless individuals’ retreats . . . .” Cobine v. City of Eureka, 250 F. Supp. 3d 423, 434 (N.D. Cal. 2017). Under the Fourth Amendment, the inquiry is whether the County acted reasonably in seizing Plaintiffs’ possessions. Id. (internal quotations and citation omitted). “A seizure conducted without a warrant may still be reasonable if the official believes the property is abandoned . . . , believes the property poses an immediate threat to public health or safety . . . , or holds the property for its return and notifies the property owner . . . .” Prado v. City of Berkeley, No. 23-CV-04537-EMC, 2024 WL 3697037, at *12 (N.D. Cal. Aug. 6, 2024). But “[a]bsent these preconditions, a seizure is unreasonable.” Id. Here, Plaintiffs plausibly allege that Defendants took unabandoned, non-hazardous property from their shelters, such as drinking water and other necessities, without providing legally mandated storage or a meaningful opportunity to retrieve the items. Plaintiffs allege that they “had their valuables taken into ‘storage’ . . . only to find out all their belongings had been destroyed.” See Compl. at 2, 6. For Plaintiff Derning, these items included, among others, a bike trailer he uses to “fetch water and food.” See Derning Decl. ¶ 6.3 For Plaintiff Silveria, these 3 Each plaintiff has attached a declaration in support of their verified complaint and application for a temporary restraining order and preliminary injunction, all which were filed as a single items included, among others, fencing, an awning, and a little gate. Silveria Decl. ¶ 6. For Plaintiff Limeta, these items included, among others, potable water, a fridge, and a burner for cooking. Limeta Decl. ¶ 6, 9. The Court finds these allegations sufficient to state a plausible claim for relief under the Fourth and Fourteenth Amendments. In light of Defendants’ statement that if “the Court determine[s] that Plaintiffs have stated a plausible claim at this stage in the litigation, Defendants concede that there is no legal authority that would allow them to dispose of non-hazardous personal property within 90-days[,]” see ECF 29 (“Supp. Br.”) at 3, their motion to dismiss is DENIED as to Plaintiffs’ claims that Defendants seized and destroyed property in violation of the Fourth and Fourteenth Amendments.4 Defendants’ motion to dismiss is, however, GRANTED with respect to Plaintiffs’ claim under the Fifth Amendment. To the extent Plaintiffs challenge the lack of notice in conjunction with the failure to provide just compensation under the Fifth Amendment, the takings clause only “requires compensation in the event of otherwise proper interference amounting to a taking.” Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 537 (2005) (emphasis in original) (internal quotation marks and citation omitted); see also Cedar Point Nursery v. Hassid, 594 U.S. 139, 147 (2021) (explaining that “[w]hen the government physically acquires private property for a public use, the Takings Clause imposes a clear and categorical obligation to provide the owner with just compensation.”). Plaintiffs allege no such interference here. Rather, they allege that Defendants acted unlawfully when they seized and destroyed their property as part of a clean-up of the Binford Road encampment. This is not actionable under the Fifth Amendment. See Cooley v.

4 Plaintiffs, however, have failed to allege a plausible Monell claim against the County. See Vinson v. Thomas, 288 F.3d 1145, 1155 (9th Cir. 2002) (“Section 1983 does not confer rights, but instead allows individuals to enforce rights contained in the United States Constitution and defined by federal law.”). Threadbare assertions of a policy, pattern, or practice, like the ones in Plaintiffs’ complaint, are insufficient to state a plausible Monell claim. See AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012) (“Section 1983 suits against local governments alleging constitutional rights violations by government officials cannot rely solely on respondeat superior liability. Instead, plaintiffs must establish that the local government had a deliberate policy, custom, or practice that was the moving force behind the constitutional violation [they] suffered.”) (internal quotations and citations omitted; modification in original). City of Los Angeles, No. 218CV09053CASPLAX, 2019 WL 1936437, at *5 (C.D. Cal. May 1, 2019) (dismissing Fifth Amendment takings claim where the unhoused plaintiffs alleged that the defendant’s seizure of their property was unlawful rather than a proper interference requiring just compensation and where there were no allegations that the alleged seizure that occurred during an “ ‘area cleaning’ ” was made pursuant to powers of eminent domain). For these reasons, Defendants’ motion to dismiss is GRANTED WITH LEAVE TO AMEND as to Plaintiffs’ claims under the Fifth Amendment. Defendants’ motion is also GRANTED as to Plaintiffs’ substantive due process claim under the Fourteenth Amendment. In their opposition, Plaintiffs state that they “submitted a Fourteenth Amendment Claim regarding the death of two dogs that occurred after Sheriffs took away dog fences . . . .” ECF 23 (“Opp.”) at 7. Plaintiffs allege that Defendants deprived them of the ability to have enclosures and shade structures for their pets along Binford Road. Compl. at 8. According to Plaintiffs, it was foreseeable that without an enclosure, a dog could be hit by a car, and that because Defendants removed the enclosures Plaintiffs had set-up for their pets, their dogs were hit by cars and died. Id. Additionally, Plaintiffs Silveria and Limeta still own dogs, and those pets are likely to get hit by cars or suffer unnecessarily unless they have some small, enclosed area with shade, water, and food. Id. at 9. These allegations do not state plausible claim for relief for three reasons. First, the loss of a pet under the circumstances alleged here is not legally cognizable under the Fourteenth Amendment. See Maglaya v. Kumiga, No. 14-CV-3619, 2015 WL 4624884, at *6 (N.D. Ill. Aug. 3, 2015) (dismissing alleged deprivation of property – the killing of the plaintiff’s dog – as non- cognizable under the Fourteenth Amendment). Second, even if the loss of a pet were actionable under the Fourteenth Amendment, Plaintiffs have not sufficiently pleaded the requisite action by Defendants. The lack of enclosures or shade structures that form the basis for Plaintiffs’ claims, see Compl. at 8, are circumstances Plaintiffs would have faced notwithstanding any action by Defendants. Thus, the removal of Plaintiffs’ pet enclosures did not “plac[e] Plaintiffs in an inherently more dangerous situation than process claim where generalized dangers of living on the street preexisted plaintiffs’ relocation to encampment from which plaintiffs faced forced eviction by the city). Third, even if Plaintiffs had adequately pleaded that Defendants engaged in conduct that placed them in danger, the allegations in the complaint fail to plausibly allege that Defendants undertook any action with deliberate indifference. As Plaintiffs allege in their complaint, the County has designated Binford Road “as a permitted place [where] people experiencing homelessness can reside.” Compl. at 3. The County has personnel and contractors “working on Binford Road [to] provid[e] housing services, trash removal, and bathroom services[,]” and the County has received millions of dollars in state funding “to get everyone on Binford Road into housing by August 2026.” Id. The County offers those living along Binford Road “case management,” and despite the clean-ups that are the subject of some of Plaintiffs’ claims, they acknowledge that “the County of Marin is doing some good things on Binford [Road].” Id. at 1. These allegations fall short of plausibly pleading the deliberate indifference required for a Fourteenth Amendment claim, i.e., that Defendants recognized an “unreasonable risk and actually intend[ed] to expose the plaintiff to such risks without regard to the consequences to the plaintiff.” See Patel v. Kent Sch. Dist., 648 F.3d 965, 974 (9th Cir. 2011) (internal quotations and citation omitted). For these reasons, Plaintiffs’ Fourteenth Amendment claim is DISMISSED WITH Plaintiff Derning’s claim under Title II of the ADA is also subject to dismissal. Derning suffers from a chronic injury to his hand, post traumatic stress disorder, and anxiety. Compl. ¶ 4. To manage these disabilities, he engages in occupational therapy by working on bicycles and performing other tasks that improve the dexterity in his hand and help with his mental well-being. Id. Derning requested an accommodation from Deputy Thompson, seeking extra space to do occupational therapy so that he can manage his disabilities, and Thompson refused, warning that the County could “come at anytime and take his belongings.” Id. ¶¶ 5-7. Liberally construed, these allegations fail to establish a viable ADA claim. Derning must allege that “1) he is a ‘qualified individual with a disability’; (2) he was either excluded from otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability.” Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001). The ADA requires “only ‘reasonable modifications . . . .’ ” Where Do We Go Berkeley v. California Dep’t of Transportation, 32 F.4th 852, 862 (9th Cir. 2022). Assuming, without deciding, that Derning has satisfied the threshold elements of his ADA claim, it nonetheless fails as a matter of law. Plaintiffs describe Binford Road as “a narrow median” where “cars go very fast[,]” and Plaintiffs “are parked literally next to the road.” See Compl. at 2; Silveria Decl. ¶ 8; Limeta Decl. at ¶ 11. Based on these allegations, requesting an additional amount of space while Derning remains on Binford Road indefinitely is unreasonable as a matter of law. See Where Do We Go Berkeley, 32 F.4th at 855 (vacating district court’s preliminary injunction order because “there [wa]s no serious question that the ADA” required Caltrans to delay its plan to clear a high-risk encampment along the freeway by six months to grant plaintiff an accommodation of additional time to relocate and find housing). For this reason, the ADA claim is DISMISSED WITHOUT LEAVE TO AMEND. Plaintiffs may file an amended complaint curing the deficiencies discussed above by no later than April 14, 2025. They may not add new claims or parties without a stipulation from Defendants or leave of Court. If an amended complaint is not filed by April 14, 2025, the Court will consider the original complaint operative, and Plaintiffs will be deemed as having elected to stand on the complaint. The Court is setting an extended deadline for the filing of the amended complaint so that Plaintiffs may contact the Federal Pro Bono Project’s Help Desk – a free service for pro se litigants – by calling (415) 782-8982 or emailing fedpro@sfbar.org to make an appointment to determine whether Plaintiffs qualify for possible appointment of pro bono counsel. More information about the program is available online at the Court’s website . /// /// 1 Should the parties wish to explore alternative dispute resolution before the deadline for 2 Plaintiffs to file their amended complaint, they may file a stipulation and proposed order selecting 3 an ADR process. 5 Dated: February 13, 2025 “ 6 col ARACELI MARTINEZ-OLGUIN 7 United States District Judge 8 9 10 11 12

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