(PS) Lull v. County of Sacramento

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7 UNITED STATES DISTRICT COURT

8 FOR THE EASTERN DISTRICT OF CALIFORNIA

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10 CHRISTOPHER LULL, No. 2:18-cv-1020-MCE-EFB PS

11 Plaintiffs,

12 v. FINDINGS AND RECOMMENDATIONS

13 COUNTY OF SACRAMENTO, et al.,

14 Defendants.

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16 This case was before the court on February 6, 2019, for hearing on defendants’ motion to

17 dismiss plaintiff’s first amended complaint pursuant to Federal Rule of Civil Procedure (“Rule”)

18 12(b)(6).1 ECF No. 17. Attorney Jonathan Paul appeared on behalf of defendants, and plaintiff

19 appeared pro se. For the following reasons, it is recommended that defendants’ motion be

20 granted in part and denied in part.

21 I. Factual Allegations

22 According to the first amended complaint, plaintiff owns commercial property located in

23 the County of Sacramento. ECF No. 16 at 3. In January 2017, he allegedly contacted the

24 defendants and requested to pay his assessed property taxes in one-dollar bills as a method for

25 protesting and criticizing elected government officials. Id. at 4. Defendants agreed to accept that

26 method of payment, which plaintiff submitted without incident the following month. Id. At the

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1 This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to

28 28 U.S.C. § 636(b)(1) and Eastern District of California Local Rule 302(c)(21).

1 time the payment was submitted, plaintiff expressed complaints “about taxation without

2 representation and simultaneously distributed several novelty dollars that depicted defendant

3 FROST’s face in the middle of the dollar to symbolize the protest and [plaintiff’s] criticism of

4 FROST.” Id. Plaintiff recorded his protest and subsequently provided Frost with a copy of the

5 video footage. Id. Plaintiff also notified defendants that he would continue to protest his tax

6 payments until Frost agreed to meet with him. Id.

7 Shortly thereafter, defendant Aspesi allegedly notified plaintiff that defendants Lamera,

8 Frost, and Penrose were working on a policy to stop plaintiff from paying his property taxes with

9 one-dollar bills. Id. at 4-5. Although no such policy had been approved, defendants Lamera,

10 Frost, and Penrose instructed Aspesi “to refuse to accept any cash payments in One Dollar Bills in

11 order to chill Lull’s protest efforts.” Id. at 5. The following month, plaintiff allegedly criticized

12 the individual defendants for their efforts to prevent further protests. Id.

13 On April 10, 2017, plaintiff attempted to conduct another protest by paying his taxes with

14 one-dollar bills. Id. at 5-6. Before plaintiff could reach the tax collection department, a security

15 officer acting under instructions from the individual defendants asked plaintiff to leave. Id. at 6.

16 Plaintiff ignored the request and approached defendant Aspei at the public payment counter, but

17 Aspei refused to accept plaintiff’s payment. Id. Plaintiff claims, however, that he witnessed

18 several other people making property tax payments in cash. Id.

19 The amended complaint alleges three claims under 42 U.S.C. § 1983 for retaliation in

20 violation of the First Amendment and violation of plaintiff’s substantive due process and equal

21 protection rights under the Fourteenth Amendment. Id. at 8-11.

22 II. Rule 12(b)(6)’s Standards

23 A complaint may be dismissed for “failure to state a claim upon which relief may be

24 granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to state a claim, a

25 plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell

26 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility when the

27 plaintiff pleads factual content that allows the court to draw the reasonable inference that the

28 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

1 (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability

2 requirement,” but it requires more than a sheer possibility that a defendant has acted unlawfully.

3 Iqbal, 556 U.S. at 678.

4 Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal

5 theory, or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d

6 at 956. Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the

7 claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984).

8 Pro se pleadings are held to a less-stringent standard than those drafted by lawyers.

9 Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). However, the Court need not accept as

10 true unreasonable inferences or conclusory legal allegations cast in the form of factual

11 allegations. See Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (citing Western Mining

12 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)).

13 For purposes of dismissal under Rule 12(b)(6), the court generally considers only

14 allegations contained in the pleadings, exhibits attached to the complaint, and matters properly

15 subject to judicial notice, and construes all well-pleaded material factual allegations in the light

16 most favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710

17 F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).

18 III. Discussion

19 Defendants move to dismiss the first amended complaint, arguing that the complaint fails

20 to allege facts sufficient to state a claim. They further argue that the individual defendants are

21 entitled to qualified immunity. ECF No. 17-1.

22 A. Sufficiency of Plaintiff’s Allegations

23 Defendants advance two overarching arguments in support of dismissal of all claims.

24 First, they argue that plaintiff’s amended complaint must be dismissed in its entirety because it

25 fails to allege the factual basis for plaintiff’s claims. This is so, according to defendants, because

26 plaintiff does not identify the specific policy he challenges, its terms, and how it was applied to

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1 him. Id. at 4. They further argue that due to this lack of clarity plaintiff fails to state a § 1983

2 claim against the County.2

3 Although the amended complaint is not a model of clarity, the factual predicate that he

4 relies on is stated plainly enough. It specifically alleges that defendants have enacted a policy

5 “arbitrarily forbidding tax payments in lawful U.S. Currency consisting of coinage and 1 (one)

6 Dollar bills . . . .” ECF No. 16 at 1. Plaintiff also alleges that he attempted to pay his property

7 taxes with one-dollar bills as a form of protest, but defendant Aspesi refused to accept his

8 payment. Id. at 6. These allegations are sufficient to provide defendants with notice of the nature

9 of the policy plaintiff alleges and how he says it was applied to him. The more pressing question

10 is whether such a policy is actionable under § 1983.

11 Defendants contend that each of plaintiff’s § 1983 claims fail because policies regulating

12 the form of payment are not unlawful under 31 U.S.C. § 5103. In advancing this argument,

13 defendants correctly note that numerous courts have held that 31 U.S.C. § 51033 does not

14 preclude restrictions on the form of acceptable payments. See, e.g., Tenn. Scrap Recyclers Ass’n

15 v. Bredesen, 556 F.3d 442, 458 (6th Cir. 2009) (holding that city ordinance requiring payment for

16 scrap metal by check or money order was not barred by 31 U.S.C. § 5103); McManus v. Kaiser

17 Foundation Health Plan of the Mid-Atlantic States, Inc., 2014 WL 794566, at *2 (D. Md. Feb. 26,

18 2014) (finding that nothing in 31 U.S.C. § 5103 “prohibits imposing restrictions on the acceptable

19 form of payment for a debt.”); In re Reyes, 482 B.R. 603, 606 (D. Ariz. Oct. 16. 2012) (finding

20 that § 5103 did not prohibit bankruptcy court from requiring payment be made “using only

21 certified funds, automatic wage withdrawals, or electronic transfers.”); Genesee Scrap & Tin

22 Baling Co., Inc. v. City of Rochester, 558 F. Supp. 2d 432, 436 (W.D.N.Y. 2008) (finding

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24 2 To succeed on a § 1983 claim against a municipal entity, a plaintiff must establish that

the entity “had a deliberate policy, custom, or practice that was the moving force behind the

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alleged constitutional violation he suffered.” See Galen v. County of Los Angeles, 477 F.3d 652,

26 667 (9th Cir. 2007).

27 3 31 U.S.C. § 5103 provides as follows: “United States coins and currency (including

Federal reserve notes and circulating notes of Federal reserve banks and national banks) are legal

28 tender for all debts, public charges, taxes, and dues.”

1 ordinance requiring payments by check for purchases of scrap metal did not conflict with § 5103

2 because it did not “attempt to confer legal-tender status upon checks, nor d[id] it deem cash not to

3 be legal tender.”).

4 Plaintiff, however, does not claim that the defendants’ policy is unconstitutional simply

5 because it places limitations on the acceptable forms of payment. Instead, plaintiff claims that

6 defendants’ policy was enacted specifically to interfere with the free exercise of his First

7 Amendment rights. The mere fact that the challenged policy does not run afoul of § 5103 does

8 not compel a finding that its implementation was constitutional under the circumstances alleged

9 in plaintiff’s complaint. See O’Brien v. Welty, 818 F.3d 920, 933 (9th Cir. 2016) (“[L]awful

10 government action may nonetheless be unlawful if motivated by retaliation for having engaged in

11 activity protected under the First Amendment.”).

12 B. First Amendment

13 Defendants argue that plaintiff fails to state a First Amendment claim because he does not

14 allege that “the challenged policy prevents [him] from continuing to make protest videos and to

15 distribute novelty dollars, that it favors a different view point, or that the First Amendment creates

16 a right to pay property taxes with $1 bills.” ECF No. 17-1 at 5 (citing Clark v. Comm. for

17 Creative Non-Violence, 468 U.S. 288, 293 (9th Cir. 1984) (expression, whether verbal or

18 symbolic, is subject to reasonable, content-neutral time, place or manner restrictions)). But

19 defendants’ argument fails to appreciate that plaintiff’s First Amendment claim is based upon

20 retaliation.

21 “A plaintiff may bring a Section 1983 claim alleging that public officials, acting in their

22 official capacity, took action with the intent to retaliate against, obstruct, or chill the plaintiffs

23 First Amendment rights.” Az. Students’ Assn. v. Ariz. Bd. of Regents, 824 F.3d 858, 867 (9th Cir.

24 2016). To state First Amendment relation claim, “the plaintiff must allege that (1) it engaged in

25 constitutionally protected activity; (2) the defendant’s actions would ‘chill a person of ordinary

26 firmness’ from continuing to engage in the protected activity; and (3) the protected activity was a

27 substantial motivating factor in the defendant’s conduct—i.e., that there was a nexus between the

28 defendant’s actions and an intent to chill speech.” Id. A plaintiff need not establish that the

1 policy actually suppressed or inhibited his speech; rather, “a plaintiff need only show that the

2 defendant ‘intended to interfere’ with the plaintiff’s First Amendment rights and that it suffered

3 some injury as a result.” Id.

4 Plaintiff alleges that defendants notified him that they were going to implement a policy

5 “that would stop any further attempts by Lull to make his tax payments in One Dollar Bills,” and

6 that such a policy precluded him from making his payments. ECF No. 1 at 1, 4-5. Thus, not only

7 does plaintiff allege that the policy was implemented to curtail him from engaging in protected

8 speech, he alleges that the policy achieved its objective. Accordingly, the complaint sufficiently

9 states a First Amendment retaliation claim.

10 C. Substantive Due Process

11 Plaintiff alleges that defendants violated his substantive due process rights because their

12 policy to not accept coins or one-dollar bills as payment deprived him of his ability to protest.

13 ECF No. 16 at 9-10. Defendants argue that the claim fails because plaintiff does not have a

14 substantive due process right to select the form of payment. ECF No. 17-1 at 5.

15 Dismissal of plaintiff’s substantive due process claim is appropriate, but not for the reason

16 advanced by defendants. Plaintiff’s substantive due process claim is predicated on the same

17 theory as his First Amendment retaliation claim—i.e., that the policy was enacted in retaliation

18 for criticizing defendants and to curtail further protests. As the Supreme Court has explained, “if

19 a constitutional claim is covered by a specific constitutional provision, such as the Fourth or

20 Eighth Amendments, the claim must be analyzed under the standard appropriate to that specific

21 provision, not under the rubric of substantive due process.” United States v. Lanier, 520 U.S.

22 259, 272 n.7 (1997); see Hufford v. McEnaney, 249 F.3d 1142 (9th Cir. 2001) (“[B]ecause the

23 First Amendment explicitly covers [the plaintiff’s retaliation] claim, the First Amendment, not the

24 Fourteenth Amendment’s guarantee of substantive due process, should guide the analysis of the

25 plaintiff’s claims.”) (quotations omitted). Accordingly, plaintiff may only proceed with his First

26 Amendment retaliation claim, and his substantive due process claim must be dismissed.4

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4 At the hearing on defendants’ motion, the court expressed its intention to deny

28 defendants’ motion as to plaintiff’s substantive due process claim. However, upon further review

1 D. Equal Protection

2 To state a claim for discrimination under the Equal Protection Clause, plaintiff must allege

3 that defendant “acted with an intent or purpose to discriminate against plaintiff based upon

4 membership in a protected class.” Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001).

5 If plaintiff is not a member of a protected class, he may assert an equal protection claim as a

6 “class of one” by alleging that defendants intentionally treated him differently than other similarly

7 situated individuals and without a rational basis for doing so. See Gerhart v. Lake County,

8 Mont., 637 F.3d 1013, 1021 (9th Cir. 2011); see also Engquist v. Or. Dep’t of Agric., 553 U.S.

9 591, 601 (2008) (noting that “an equal protection claim can in some circumstances be sustained

10 even if the plaintiff has not alleged class-based discrimination, but instead claims that she has

11 been irrationally singled out as a so-called ‘class of one.’”); Willowbrook v. Olech, 528 U.S. 562,

12 564 (2000) (confirming that the purpose of the equal protection clause, including “class of one”

13 claims, is to protect against “intentional and arbitrary discrimination”). Discriminatory intent for

14 equal protection purposes “implies more than intent as volition or intent as awareness of

15 consequences. It implies that the decision maker . . . selected . . . a particular course of action . . .

16 because of . . . its adverse effects upon an identifiable group.” Pers. Adm’r of Mass. V. Feeney,

17 442 U.S. 256, 279 (1979) (citation and quotations omitted).

18 Here, plaintiff has failed to adequately allege that he was treated differently than

19 similarly-situated persons. Although he does allege that he witnessed “a lady identified as

20 Phoebe” make an approximately $20,000.00 cash payment, he does not allege that the payment

21 was made in small denominations that would be covered by the policy. Accordingly, plaintiff

22 fails to state an equal protection claim.

23 Furthermore, at the hearing on defendants’ motion to dismiss, plaintiff was unable to

24 specify how he was treated differently than others. In light of this fact, and given that he was

25 previously granted leave to amend this claim, granting further leave to amend would be futile.

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28 of relevant authority, the court finds dismissal is appropriate for the reasons stated herein.

1 See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (while the court ordinarily would permit

2 a pro se plaintiff to amend, leave to amend should not be granted where it appears amendment

3 would be futile).

4 E. Qualified Immunity

5 The individual defendants argue that they are entitled to qualified immunity. ECF No. 17-

6 1 at 6-7. Qualified immunity protects government officials from liability for civil damages where

7 a reasonable official would not have known that his conduct violated a clearly established right.

8 5, 483 U.S. 635, 638-39 (1987). In resolving questions of qualified immunity, “courts engage in

9 a two-pronged inquiry.” Tolan v. Cotton, 572 U.S. 650, 655 (2014) (per curiam). “The first asks

10 whether the facts, taken in the light most favorable to the party asserting the injury, . . . show the

11 officer’s conduct violated a federal right.” Id. (citation and bracketing omitted). “The second

12 prong . . . asks whether the right in question was clearly established at the time of the violation.”

13 Id. at 1866 (citation omitted).

14 A right is “clearly established” when “the contours of the right [are] sufficiently clear that

15 a reasonable official would understand that what he is doing violates that right.” Anderson v.

16 Creighton, 483 U.S. 635, 640 (1987). Clearly established law should not be defined “at a high

17 level of generality”; rather, it “must be particularized to the facts of the case.” White v. Pauly, ––

18 – U.S. ––––, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) (per curiam) (citation omitted). While

19 this standard does not require “a case directly on point,” Ashcroft v. al–Kidd, 563 U.S. 731, 741

20 (2011), courts typically identify analogous cases, i.e., ones in which officials “acting under

21 similar circumstances” violated the same constitutional provision, White, 137 S.Ct. at 552. To be

22 analogous, however, the case need not be “materially similar.” Hope v. Pelzer, 536 U.S. 730, 739

23 (2002); see also Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam) (stating that, “in an

24 obvious case,” general legal standards may clearly establish law “without a body of relevant

25 cases”)(citing Hope, 536 U.S. at 738)); Giebel v. Sylvester, 244 F.3d 1182, 1189 (9th Cir. 2001)

26 (citation omitted) (“[E]ven if there is no closely analogous case law, a right can be clearly

27 established on the basis of common sense.”).

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1 In the Ninth Circuit, to assess whether a right is clearly established, courts first look to

2 “Supreme Court and Ninth Circuit law existing at the time of the alleged act.” Cmty. House, Inc.

3 v. City of Boise, 623 F.3d 945, 967 (9th Cir. 2010) (citation omitted). Absent binding precedent,

4 courts should consider all relevant decisional law. Capoeman v. Reed, 754 F.2d 1512, 1514 (9th

5 Cir. 1985).

6 Defendants argue that they are entitled to qualified immunity because “[a] policy

7 regulating form of payment does not violate clearly established law, because the illegality of

8 restricting forms of payment is not ‘beyond debate.’” ECF No. 17-1 at 7. Again, this argument

9 fails to appreciate that plaintiff is alleging a First Amendment retaliation claim. As noted above,

10 it is well established that an “[o]therwise lawful government action may nonetheless be unlawful

11 if motivated by retaliation for having engaged in activity protected under the First Amendment.”

12 O’Brien, 818 F.3d at 933. Accordingly, defendants’ contention that its policy was lawful under

13 31 U.S.C. § 5103 fails to establish that they are entitled to qualified immunity.

14 III. Conclusion

15 Accordingly, it is hereby RECOMMENDED that defendants’ motion to dismiss (ECF No.

16 17) be granted in part and denied in part as follows:

17 1. Defendants’ motion be granted as to plaintiff’s substantive due process and equal

18 protection claims, and these claims be dismissed without leave to amend; and

19 2. Defendants’ motion be denied as to plaintiff’s First Amendment retaliation claim.

20 These findings and recommendations are submitted to the United States District Judge

21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

22 after being served with these findings and recommendations, any party may file written

23 objections with the court and serve a copy on all parties. Such a document should be captioned

24 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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1 || within the specified time may waive the right to appeal the District Court’s order. Turner v.

2 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991).

3 | DATED: September 10, 2019.

‘ tid, PDEA

5 EDMUND F. BRENNAN

UNITED STATES MAGISTRATE JUDGE

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