(PS)Crane v. Juhasz

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 JODI L. CRANE, No. 2:21-cv-0022-TLN-CKD PS

12 Plaintiff,

13 v. FINDINGS AND RECOMMENDATIONS

14 CITY OF DUNSMUIR et al., (ECF No. 27)

15 Defendants.

16

17 Plaintiff Jodi Crane proceeds pro se in this civil rights action under 42 U.S.C. § 1983.

18 Defendant’s motion to dismiss the third amended complaint is before the court. (ECF No. 40.)

19 This matter is appropriate for decision without oral argument. See Local Rule 230(g). For the

20 reasons set forth, the undersigned recommends the court grant the motion and dismiss the third

21 amended complaint without further leave to amend.

22 I. PROCEDURAL BACKGROUND

23 Plaintiff originally filed this civil rights action in the United States District Court for the

24 Northern District of California. On November 16, 2020, the Northern District screened the

25 complaint and found the complaint did not state a cognizable claim for relief. Plaintiff filed an

26 amended complaint on December 16, 2020. On January 4, 2021, the case was transferred to this

27 court.

28 ////

1 Following two rounds of motions to dismiss in this court, plaintiff now proceeds only

2 against defendant Todd Juhasz, Dunsmuir City Manager, in a third amended complaint filed on

3 August 6, 2021. (ECF No. 39.) On August 23, 2021, defendant moved to dismiss the third

4 amended complaint. (ECF No. 40.) Plaintiff has filed an opposition to the motion. (ECF No. 46.)

5 Defendant filed a reply. (ECF No. 49.)

6 II. LEGAL STANDARD FOR A MOTION TO DISMISS

7 Dismissal under Rule 12(b)(6) may be warranted for “the lack of a cognizable legal theory

8 or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica

9 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In evaluating whether a complaint states a claim

10 on which relief may be granted, the court accepts as true the allegations in the complaint and

11 construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding,

12 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989).

13 “[R]ecitals of the elements of a cause of action, supported by mere conclusory statements,

14 do not suffice” to state a valid claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). A

15 complaint must do more than allege mere “labels and conclusions” or “a formulaic recitation of

16 the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In

17 order to state a valid claim for relief, a plaintiff must allege “enough facts to state a claim to relief

18 that is plausible on its face.” Twombly, 550 U.S. at 570. A claim that is plausible on its face has

19 sufficient factual content to allow a reasonable inference that the defendant is liable for the

20 misconduct alleged. Iqbal, 556 U.S. at 678.

21 Courts of this circuit recognize their duty “to ensure that pro se litigants do not lose their

22 right to a hearing on the merits of their claim due to ignorance of technical procedural

23 requirements.” Balistreri, 901 F.2d at 699. As such, the pleadings of pro se litigants “are liberally

24 construed, particularly where civil rights claims are involved.” Id. However, a court’s “liberal

25 interpretation of a civil rights complaint may not supply essential elements of [a] claim that were

26 not initially pled.” Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

27 In addition, the court will not assume the truth of legal conclusions cast in the form of factual

28 allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). Thus,

1 a pro se complaint which offers only “vague and conclusory allegations of official participation in

2 civil rights violations” does not state a claim “sufficient to withstand a motion to dismiss.” Id.

3 III. DISCUSSION

4 A. ALLEGATIONS IN THE THIRD AMENDED COMPLAINT

5 Plaintiff operated a retail store located at 4737 Dunsmuir Avenue. In June of 2020,

6 plaintiff’s business license was due for renewal. (ECF No. 39 at 6.)

7 On June 4, 2020, plaintiff mailed funds for permit fees and renewal of the business

8 license. (ECF No. 39 at 6.) On June 10, 2020, plaintiff went to city hall and was informed that she

9 was being denied the necessary permits to operate the business. (Id.)

10 On June 14, 2021, plaintiff was charged in Siskiyou County with “failure to correct or

11 eliminate fire or life hazard[.]” (ECF No. 39 at 12.) Plaintiff alleges this charge was false. (Id.)

12 On June 15, 2020, plaintiff attempted to visit defendant to discuss her business license and

13 permits but was told he was unavailable. (ECF No. 39 at 6-7.) On June 22, 2020, plaintiff

14 received a letter from defendant stating the city would not issue plaintiff a business license for a

15 business in a building that had been “red-tagged” as unsafe and deemed a danger. (Id. at 7.) The

16 letter stated “You may not live or work in the structure and must contact the city’s building

17 inspector. The funds you submitted for your renewal are included herein.” (Id.)

18 On July 5, 2020, plaintiff attended a meeting at City Hall and brought up the issue. (ECF

19 No. 39 at 9-10.) Defendant stated he was closing plaintiff’s store and locking plaintiff out due to

20 nine months of complaints. (Id. at 10.) Plaintiff told defendant she had not received a copy of “the

21 complaint” and that she had not been heard on the matter. (Id.) Defendant responded that

22 plaintiff’s store would remain closed. (Id.)

23 On July 8, 2020, defendant ordered a “building deemed dangerous” sign posted outside of

24 plaintiff’s business. (ECF No. 39 at 5.) Plaintiff’s locks were cut and replaced with city locks. (Id.

25 at 10.) Sheriff’s deputies escorted plaintiff from her property and told her she risked incarceration

26 if she returned. (Id. at 5.) Since then, she has not been allowed access to the building or to her

27 property that remains in the building. Plaintiff seeks damages. (Id. at 12-13.)

28 ////

1 B. DEFENDANT’S MOTION TO DISMISS

2 Defendant moves to dismiss the third amended complaint. (ECF No. 40-1.) Defendant

3 argues the allegations fail to state a claim under the Fourth and Fourteenth Amendments.

4 Defendant further asserts he is entitled to qualified immunity for denying plaintiff access to the

5 building during times when she did not have a valid permit.

6 C. SEIZURE

7 Fourth Amendment protection against unreasonable searches and seizures applies to

8 commercial premises. Tucson Woman Clinic v. Eden, 379 F.3d 531, 550 (9th Cir. 2004) (quoting

9 United States v. Argent Chem. Labs., Inc., 93 F.3d 572, 575 (9th Cir. 1996)); Soldal v. Cook

10 Cty., Ill., 506 U.S. 56, 67 (1992). To decide whether a warrantless seizure was “reasonable,” a

11 court balances “the nature and quality of the intrusion on the individual’s Fourth Amendment

12 interests against the importance of the governmental interests alleged to justify the intrusion.”

13 United States v. Place, 462 U.S. 696, 703 (1983).

14 “A seizure is a ‘meaningful interference with an individual’s possessory interests in her

15 property.” Brewster v. Beck, 859 F.3d 1194, 1196 (9th Cir. 2017); Soldal, 506 U.S. at 61. Taking

16 the factual allegations in the most favorable light, defendant interfered with possessory interests

17 in plaintiff’s property by allegedly directing that she be locked out of the building. Such conduct

18 triggers the Fourth Amendment’s reasonableness requirement. Lavan v. City of Los Angeles, 693

19 F.3d 1022, 1030 (9th Cir. 2012).

20 Defendant argues the allegations in the third amended complaint are too conclusory to be

21 plausible because plaintiff fails to explain how she has any personal knowledge that her locks

22 were cut and replaced at defendant’s direction. (ECF No. 40-1 at 7.) However, plaintiff

23 specifically alleges that when she went to City Hall, defendant stated he was closing the store and

24 locking plaintiff out. (ECF No. 39 at 10.)

25 Citing no authority, defendant also argues plaintiff fails to have a valid possessory interest

26 in the property at the time of the alleged seizure because she admits the building was red-tagged

27 and she did not have a permit to operate the business. (ECF No. 40-1 at 7.) In the absence of any

28 authority cited, the undersigned declines to find these facts negated plaintiff’s possessory interest

1 in accessing the building as well as her personal property allegedly inside the building.

2 It remains unclear what municipal procedures were utilized here. However, considering

3 the new facts alleged in the third amended complaint, this is not a situation where plaintiff

4 plausibly alleges a lack of meaningful opportunity to retrieve her property prior to the seizure

5 such that it was unreasonable.

6 Under plaintiff’s allegations, she was on notice that she was being denied the necessary

7 business permits to operate her store as of June 10, 2020. On June 22, 2020, plaintiff received

8 written notice that the city would not issue a business license for the store because the building

9 had been deemed to be a danger. Plaintiff was notified she could not live or work in the structure

10 and was directed to contact the city’s building inspector. Plaintiff does not allege whether she

11 contacted the building inspector as directed. More than a month after plaintiff was on notice the

12 business license would not be issued and more than two weeks after she received written notice

13 that she could not live or work in the building, defendant allegedly directed plaintiff to be locked

14 out. Under these facts, plaintiff had almost three weeks to access and, if necessary, remove any

15 property from inside the building. Cf. Lavan, 693 F.3d at 1030 (a municipality seizes a person’s

16 property unreasonably if it destroys the property before giving its owner a meaningful opportunity

17 to retrieve it). Unlike in Lavan, the facts alleged fail to state a plausible claim for an unreasonable

18 seizure.

19 B. DUE PROCESS

20 “No State shall . . . deprive any person of life, liberty, or property, without due process of

21 law.” U.S. Const., amend. XIV § 1. A claim under 42 U.S.C. § 1983 based upon procedural due

22 process has three elements: (1) a liberty or property interest protected by the Constitution; (2) a

23 deprivation of the interest by the government, and (3) lack of process. Portman v. County of Santa

24 Clara, 995 F.2d 898, 904 (9th Cir. 1993); see also Bd. of Regents v. Roth, 408 U.S. 564, 569-70

25 (1972); Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir. 2003).

26 “[D]ue process is flexible and calls for such procedural protections as the particular

27 situation demands.” Matthews v. Eldridge, 424 U.S. 319, 334 (1976). “The fundamental

28 requirement of due process is the opportunity to be heard ‘at a meaningful time and in a

1 meaningful manner.’” Id. at 333. “The essential requirements of due process… are notice and an

2 opportunity to respond.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985).

3 Here, the facts alleged do not support a plausible conclusion that plaintiff was deprived of

4 an opportunity to be heard at a meaningful time and in a meaningful manner. First, plaintiff

5 received a letter from defendant giving notice that the city would not issue her a business license

6 to operate a business in a building that had been “red-tagged” as unsafe. (ECF No. 39 at 7.)

7 Second, the letter instructed plaintiff to “contact the city’s building inspector” to follow up on the

8 issue. (Id.) Third, plaintiff attended a meeting at City Hall and brought up the issue, although

9 defendant told her the store would remain closed. (Id. at 9-10.)

10 Under these facts, plaintiff received both notice and an opportunity to respond. See

11 Cleveland Bd. of Educ., 470 U.S. at 546. Plaintiff’s contrary allegations that she received no

12 notice or citation regarding the building closure are plainly contradicted by the allegation that she

13 received the above-described letter from defendant as well as the allegation that she was charged

14 with a false building violation in Siskiyou County on June 14, 2021 for “failure to correct or

15 eliminate fire or life hazard.” (ECF No. 39 at 12.) While plaintiff is not satisfied with the outcome

16 of her attempts to dispute the closure of the building, this dissatisfaction does not show a due

17 process violation. In addition, while it remains unclear exactly what municipal procedures were

18 used here, the facts alleged do not plausibly show the deprivation of any additional procedures to

19 which plaintiff was entitled but denied.

20 In sum, plaintiff’s use of labels and conclusions stating she was denied due process cannot

21 suffice to state a claim. See Twombly, 550 U.S. at 555. The third amended complaint still lacks

22 adequate facts to plausibly state a procedural due process claim.

23 C. CONCLUSION

24 The order granting defendant’s motion to dismiss plaintiff’s second amended complaint

25 granted leave to amend only the claims for a violation of the Fourteenth Amendment due process

26 and Fourth Amendment unlawful seizure. (See ECF Nos. 33, 38.) Plaintiff does not have leave to

27 present or amend claims premised on general discrimination, conspiracy, deliberate indifference,

28 or other causes of action.

] Despite notice of the complaint’s deficiencies and three opportunities to amend, plaintiff

2 || remains unable to state a proper claim for relief. It clearly appears that further leave to amend

3 || would not facilitate plaintiff to state a valid federal claim against defendant. See Gardner v.

4 | Marino, 563 F.3d 981, 990 (9th Cir. 2009) (a district court should grant leave to amend unless

5 || doing so would be futile). Therefore, this action should be dismissed, without further leave to

6 | amend, for failure to state a claim. See Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000)

7 || (Under Ninth Circuit case law, district courts are only required to grant leave to amend if a

8 | complaint can possibly be saved. Courts are not required to grant leave to amend if a complaint

9 || lacks merit entirely.”’).

10 In accordance with the above, IT IS RECOMMENDED:

11 1. Defendant’s motion to dismiss (ECF No. 40) be granted and plaintiff's complaint be

12 dismissed without further leave to amend; and

13 2. The Clerk of the Court be directed to close this case.

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

15 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days

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

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

18 || “Objections to Magistrate Judge's Findings and Recommendations.” Any response to the

19 || objections shall be served and filed within fourteen days after service of the objections. The

20 || parties are advised that failure to file objections within the specified time may waive the right to

21 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).

22 | Dated: January 14, 2022 / ae / 4 [iy ai

8 CAROLYNK. DELANEY

24 UNITED STATES MAGISTRATE JUDGE

25 8.Crane2 lev22.mtd3 AC

26

27

28