Washington v. Oakland Unified School District

• Court: District Court, N.D. California
• Decided: June 24, 2020
• Docket: 3:19-cv-01022
• Status: Unknown

Opinion

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 JASON LEVETTE WASHINGTON, Case No. 19-cv-01022-CRB 9 Plaintiff, ORDER GRANTING MOTIONS TO 10 v. DISMISS AND GRANTING LEAVE 11 TO FILE A SECOND AMENDED OAKLAND UNIFIED SCHOOL COMPLAINT 12 DISTRICT, et al.,

13 Defendants. 14 Oakland Unified School District (“OUSD”) has renewed its initial motion to 15 dismiss Jason Levette Washington’s claims against OUSD and OUSD employees. Mr. 16 Washington’s First Amended Complaint (“FAC”) alleges OUSD employees violated his 17 constitutional rights by interfering with his religious expression outside of an OUSD 18 school. The City of Oakland (“Oakland”) has also moved to dismiss Mr. Washington’s 19 FAC, which alleges Oakland violated Mr. Washington’s constitutional rights when two 20 Oakland police officers issued a public nuisance citation as a result of Mr. Washington’s 21 religious organization’s activities. Both motions, and Mr. Washington’s motion for leave 22 to file a SAC, are granted. 23 I. BACKGROUND 24 The morning of February 22, 2019, Mr. Washington arrived at Horace Mann 25 Elementary to “do Christian-themed chalk art upon the public easement outside the school 26 property.” FAC (dkt. 40) ¶ 12. That morning, two groups of teachers said “disparaging 27 1 1” “verbally antagonize[d] and harass[ed]” him, id. ¶ 19, intentionally walked into him, id., 2 kicked over a phone with which he was recording the incident, id. ¶ 23, and “propagat[ed] 3 misinformation and claim[ed] [he] was painting on the sidewalk,” id. ¶ 22. 4 Similarly, Mr. Washington alleges that on August 7, 2019, employees of OUSD 5 “verbally berate[d]” him by calling him “stupid” and erasing his chalk art from the 6 sidewalk. Id. ¶¶ 26–30. Additionally, “from January to August 2019 OUSD Police 7 Officers . . . would while on duty and in uniform, come and harass, question, interrogate, 8 impede and interfere with [Mr. Washington] while he was engaged in . . . religious 9 expression.” Id. ¶ 31. In particular, Mr. Washington identifies a January 29, 2019 incident 10 in which OUSD officers “threatened that if [Mr. Washington] did not depart, they would 11 ‘cite’ him,” accused him of spitting at their shoes, “question[ed] his Christianity,” and 12 “discourage[d] [Mr. Washington’s] religious expression.” Id. ¶¶ 32, 41. Mr. Washington 13 also claims that he asked “the supervising officer over OUSD Police personnel . . . to stop 14 these unconstitutional harassments” but that Sergeant Fregoso “neglected to do so.” Id. ¶ 15 33. 16 The FAC also alleges that Oakland violated Mr. Washington’s constitutional rights. 17 According to the FAC, two Oakland police officers “attempted to interrogate” Mr. 18 Washington about who was attending a Team Jesus Youth Ministries event. Id. ¶¶ 34–39. 19 Oakland later fined “him over $500 for what they alleged was [a] violation of a public 20 nuisance ordinance” in connection with this incident. Id. ¶ 42. 21 The Court granted OUSD’s motion to dismiss with leave to amend and denied 22 Oakland’s motion to dismiss. See generally Order Granting OUSD MTD and Denying 23 Oakland MTD (dkt. 42). OUSD subsequently renewed its initial motion to dismiss after 24 Mr. Washington failed to file a Second Amended Complaint (“SAC”), and Oakland filed a 25 new motion to dismiss the FAC. See generally OUSD’s Renewed MTD (dkt. 44); 26 Oakland MTD (dkt. 43). After two requests for extensions of time, see generally Mots. to 27 Extend Time (dkts. 46, 49), which the Court granted, see generally Orders Granting Mots. 1 to file a SAC. See generally Opp’n to Oakland Mot. (dkt. 55); Mot. to File SAC (dkt. 56). 2 Both Oakland and OUSD oppose the motion to file a SAC. See generally Oakland Opp’n 3 (dkt. 58); OUSD Opp’n (dkt. 59). 4 II. LEGAL STANDARD 5 Under Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed for 6 failure to state a claim upon which relief may be granted. Dismissal may be based on 7 either “the lack of a cognizable legal theory or the absence of sufficient facts alleged under 8 a cognizable legal theory.” Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th 9 Cir. 2019). A complaint must plead “enough facts to state a claim to relief that is plausible 10 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009) (citing Bell Atl. Corp. v. 11 Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads 12 factual content that allows the court to draw the reasonable inference that the defendant is 13 liable for the misconduct alleged.” Id. at 678. When evaluating a motion to dismiss, the 14 Court “must presume all factual allegations of the complaint to be true and draw all 15 reasonable inferences in favor of the nonmoving party.” Usher v. City of Los Angeles, 16 828 F.2d 556, 561 (9th Cir. 1987). “[C]ourts must consider the complaint in its entirety, as 17 well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to 18 dismiss, in particular, documents incorporated into the complaint by reference, and matters 19 of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 20 551 U.S. 308, 322 (2007). 21 While these standards apply to all pleadings, a pro se complaint “is to be liberally 22 construed, and . . . however inartfully pleaded, must be held to less stringent standards than 23 formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal 24 quotation marks and citation omitted). If a court does dismiss a complaint for failure to 25 state a claim, it “should liberally allow a party to amend its pleading.” Sonoma Cty. Ass’n 26 of Retired Emps. v. Sonoma Cty., 708 F.3d 1109, 1117 (9th Cir. 2013) (citing Fed. R. Civ. 27 P. 15(a)). A court has discretion to deny “leave to amend only if there is strong evidence 1 of ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to 2 cure deficiencies by amendments previously allowed, undue prejudice to the opposing 3 party by virtue of the amendment, [or] futility of amendment, etc.’” Id. (citing Foman v. 4 Davis, 371 U.S. 178, 182 (1962)). 5 III. DISCUSSION 6 The Court first addresses Oakland’s motion to dismiss, then OUSD’s renewed 7 motion to dismiss, and finally Mr. Washington’s motion for leave to file a Second 8 Amended Complaint. 9 A. Oakland’s Motion to Dismiss 10 Oakland asserts that Mr. Washington’s claims under 42 U.S.C. § 1983, 42 U.S.C. 11 § 1986, various tort theories, and 18 U.S.C. §§ 241 and 242 all fail for a number of 12 reasons. The Court considers each in turn. 13 1. 42 U.S.C. § 1983 14 Local governing bodies can be sued directly under 42 U.S.C. § 1983 where “the 15 action that is alleged to be unconstitutional implements or executes a policy statement, 16 ordinance, regulation, or decision officially adopted or promulgated by those whose edicts 17 or acts may fairly be said to represent official policy.” Monell v. Dep’t of Soc. Servs. of 18 City of New York, 436 U.S. 658, 659 (1978). A local government cannot, however, be 19 held liable under this section solely “on a respondeat superior theory.” Id. For a local 20 government entity to be liable under this section, the plaintiff must sufficiently allege 21 “(1) they were deprived of their constitutional rights by defendants and their employees 22 acting under color of state law; (2) that the defendants have customs or policies which 23 ‘amount[ ] to deliberate indifference’ to their constitutional rights; and (3) that these 24 policies are the ‘moving force behind the constitutional violation[s].’” Lee v. City of Los 25 Angeles, 250 F.3d 668, 681–82 (9th Cir. 2001) (quoting Oviatt v. Pearce, 954 F.2d 1470, 26 1477 (9th Cir. 1992)); see also Monell 436 U.S. at 694. 27 1 To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection 2 Clause of the Fourteenth Amendment, a plaintiff must show “the defendants acted with an 3 intent or purpose to discriminate against the plaintiff based upon membership in a 4 protected class.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (citing 5 Washington v. Davis, 426 U.S. 229, 239–40 (1976)). And “[w]here the challenged 6 governmental policy is ‘facially neutral,’ proof of its disproportionate impact on an 7 identifiable group can satisfy the intent requirement only if it tends to show that some 8 invidious or discriminatory purpose underlies the policy.” Lee, 250 F.3d at 686 (citing 9 Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–66). 10 Mr. Washington asserts that his Fourteenth Amendment right to Equal Protection 11 was violated, and the public nuisance citation was given “in response to his exercise of 12 federally protected rights.” FAC ¶ 40, 42; Opp’n to Oakland Mot. at 5. Mr. Washington 13 fails to allege any additional facts sufficient to state a plausible claim that he was 14 intentionally discriminated against on the basis of religion or that he was purposely treated 15 differently from those similarly situated. See Hebbe v. Pliler, 627 F.3d 338, 341–42 (9th 16 Cir. 2010) (although pro se pleadings are liberally construed, a plaintiff must allege facts 17 sufficient to state a plausible claim); see also Monteiro v. Tempe Union High Sch. Dist., 18 158 F.3d 1022, 1026 (9th Cir. 1998) (§ 1983 equal protection claim must allege facts that 19 are at least susceptible to an inference of intentional discrimination). 20 Although the Court has discretion to deny leave to amend under certain 21 circumstances, Sonoma Cty. Ass’n of Retired Emps. v. Sonoma Cty., 708 F.3d 1109, 1117 22 (9th Cir. 2013), Mr. Washington’s 42 U.S.C. § 1983 claims are dismissed without 23 prejudice as his opposition indicates that he could plead additional facts demonstrating 24 intentional discrimination. Opp’n to Oakland Mot. at 5. Because dismissal is warranted 25 on these grounds, the Court need not consider Oakland’s argument that Mr. Washington 26 failed to allege the remaining elements of municipal liability. Oakland MTD at 4–5. 27 1 2. 42 U.S.C. § 1986 2 A cause of action under 42 U.S.C. § 1986 requires “a valid claim for relief under 3 section 1985.” E.g., Trerice v. Pedersen, 769 F.2d 1398, 1403 (9th Cir. 1985). Because 4 Mr. Washington did not plead a claim against Oakland under 42 U.S.C. §1985, see FAC 5 ¶¶ 34–39, 42, the Court dismisses Mr. Washington’s 42 U.S.C. § 1986 claims without 6 prejudice. 7 3. Tort Claims 8 Under the California Government Tort Claims Act, a plaintiff may not bring a suit 9 for “money or damages” against a public entity until a written claim has been presented to 10 the entity and the claim either has been acted upon or is deemed to have been rejected. 11 Cal. Gov’t Code §§ 905, 910, 945.4; Santa Ana Police Officers Ass’n v. City of Santa Ana, 12 723 Fed. Appx. 399, 401 (9th Cir. 2018); see also Ramachandran v. City of Los Altos, 359 13 F. Supp. 3d 801, 816 (N.D. Cal. 2019). 14 With respect to Oakland’s motion to dismiss, “failure to allege facts demonstrating 15 or excusing compliance with the claim presentation requirement subjects a claim against a 16 public entity to a demurrer for failure to state a cause of action.” State v. Superior Court 17 (Bodde), 32 Cal. 4th 1234, 1239 (2004). Because the FAC does not include facts 18 demonstrating that Mr. Washington presented his claim to Oakland or otherwise excusing 19 compliance with this California law requirement, Mr. Washington’s tort claims are 20 dismissed. Mr. Washington is permitted to amend his pleading to allege additional facts 21 demonstrating or excusing compliance with this requirement. Because dismissal is 22 warranted on these grounds, the Court need not consider Oakland’s remaining arguments 23 that Mr. Washington has failed to allege a statutory basis for Oakland’s liability or that he 24 failed to plead facts that sufficiently support the elements of these claims. Oakland MTD 25 at 6–7. 26

27 1 4. 18 U.S.C. §§ 241 and 242 2 Sections 241 and 242 are “criminal provisions . . . [that] provide no basis for civil 3 liability.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Because amendment 4 would be futile, Mr. Washington’s claims under 18 U.S.C. § 241 and 18 U.S.C. § 242 are 5 dismissed with prejudice. 6 B. OUSD’s Motion to Dismiss 7 Because Mr. Washington has not filed an amended complaint, the Court’s previous 8 Order dismissing the FAC’s claims against OUSD remains applicable. See generally 9 Order Granting OUSD MTD and Denying Oakland MTD. If Mr. Washington chooses to 10 file a Second Amended Complaint, he may amend his 42 U.S.C. § 1985(3) claims against 11 the defendant OUSD employees. His 18 U.S.C. § 241 claims are dismissed with prejudice 12 for the reasons stated in the Court’s prior Order dismissing the FAC. 13 C. Mr. Washington’s Motion for Leave to File a Second Amended Complaint 14 The Court interprets Mr. Washington’s Petition for Formal Filing of Second 15 Amended Complaint as a motion for leave to file a Second Amended Complaint. Oakland 16 and OUSD both argue amendment would be futile because the claims Mr. Washington 17 raised in his Opposition appear duplicative of claims in the FAC.1 Oakland Opp’n at 3; 18 OUSD Opp’n at 4. However, Mr. Washington’s FAC did not have the benefit of the 19 Court’s prior ruling, and the fact that Mr. Washington raised previously-rejected 20 arguments in his Opposition does not mean it is impossible that he will raise novel 21 arguments and additional supporting facts in a SAC. Because it is not clear that 22 amendment would be futile, Mr. Washington’s request is granted. Leadsinger v. BMG 23 Music Pub., 512 F.3d 522, 532 (9th Cir. 2008). 24 25 1. Oakland and OUSD also both assert the present motion should be denied for failure to comply 26 with Local Rule 10–1, which provides “[a]ny party filing or moving to file an amended complaint must reproduce the entire proposed pleading and may not incorporate any part of a prior pleading 27 by reference.” Civ. L.R. 10–1. In light of Mr. Washington’s pro se status, and the fact that he was 1 || IV. CONCLUSION 2 For the foregoing reasons, Oakland and OUSD’s motions to dismiss are granted. 3 || Mr. Washington’s request to file a Second Amended Complaint is also granted. Because 4 || amendment to Mr. Washington’s claims under 18 U.S.C. §§ 241 and 242 would be futile, 5 || those claims are dismissed with prejudice and should not be included in any amended 6 || complaint. Any amended complaint should address the deficiencies identified in this 7 || Order and in the Court’s previous Order and must be filed no later than 5:00 PM PDT on 8 || July 31, 2020. Failure to cure the deficiencies identified by the Court will result in a 9 || dismissal of Mr. Washington’s claims with prejudice. See Sonoma Cty. Ass’n of Retired 10 || Emps. v. Sonoma Cty., 708 F.3d 1109, 1117 (9th Cir. 2013) (citing Foman v. Davis, 371 11 || U.S. 178, 182 (1962)). 2 The Court again recommends that Mr. Washington consult with the Federal Pro 13 || Bono Project’s Legal Help Center in either of the Oakland or San Francisco federal 5 14 || courthouses for assistance. The San Francisco Legal Help Center office is located in 3 15 || Room 2796 on the 15th floor at 450 Golden Gate Avenue, San Francisco, California. The A 16 || Oakland office is located in Room 470-S on the 4th floor at 1301 Clay Street, Oakland, 17 || California. Appointments can be made by calling (415) 782-8982 or by emailing the 18 appointment line at fedproWsfbar.org. Telephone appointments are available. Lawyers at 19 || the Legal Help Center can provide basic assistance to parties representing themselves but 20 || cannot provide legal representation. 21 22 IT IS SO ORDERED. 23 Dated: June 24, 2020 oC --~— 24 CHARLES R. BREYER 25 United States District Judge 26 27 28