Railroad 1900, LLC v. City of Sacramento

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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12 RAILROAD 1900, LLC, a Delaware No. 2:21-cv-01673-WBS-DB

limited liability company,

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Plaintiff,

14 ORDER RE: MOTION TO DISMISS

v.

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CITY OF SACRAMENTO, a municipal

16 entity,

17 Defendant.

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20 This action brought under 42 U.S.C. § 1983 challenges

21 the City of Sacramento’s alleged failure to enforce anti-camping

22 and other ordinances against homeless individuals in the area

23 surrounding plaintiff’s property. (Compl. (Docket No. 1).)

24 Plaintiff brings federal claims alleging violation of due process

25 (count one), violation of equal protection (count two), state-

26 created danger (count three), uncompensated taking (count four),

27 and municipal liability (count five), in addition to five causes

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1 of action under California law. (Id.)1

2 I. Due Process Claim

3 “Article III of the [United States] Constitution

4 confines the federal courts to adjudicating actual ‘cases’ and

5 ‘controversies.’” Allen v. Wright, 468 U.S. 737, 750 (1984),

6 abrogated on other grounds, Lexmark Int’l, Inc. v. Static Control

7 Components, Inc., 572 U.S. 118, 128 (2014). “The Art. III

8 doctrine that requires a litigant to have ‘standing’ to invoke

9 the power of a federal court is perhaps the most important”

10 aspect of the case-or-controversy limitation. Id. “In essence

11 the question of standing is whether the litigant is entitled to

12 have the court decide the merits of the dispute or of particular

13 issues.” Id. at 750-51 (quoting Warth v. Seldin, 422 U.S. 490,

14 498 (1975)).2

15 Pursuant to the standing requirement, the Supreme Court

16 “has repeatedly held that an asserted right to have the

17 Government act in accordance with law is not sufficient, standing

18 alone, to confer jurisdiction on a federal court.” Allen, 468

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1 At oral argument, counsel for plaintiff stated that

20 plaintiff had agreed to dismiss its fourth and tenth causes of

action -- alleging an unlawful taking under the Fifth Amendment

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and inverse condemnation under the California Constitution,

22 respectively -- because it had determined that those claims lack

merit. Thus, counsel stated, plaintiff no longer intends to

23 prosecute them. Accordingly, the court will grant defendant’s

motion to dismiss those claims.

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2 Although the question of standing is not expressly

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raised in the City’s motion to dismiss, standing is essential to

the existence of subject matter jurisdiction, an issue which may

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be raised sua sponte. Fed. R. Civ. P. 12(h)(3) (“If the court

27 determines at any time that it lacks subject-matter jurisdiction,

the court must dismiss the action.”); Snell v. Cleveland, Inc.,

28 316 F.3d 822, 826 (9th Cir. 2002).

1 U.S. at 754 (citing Schlesinger v. Reservists Comm. to Stop the

2 War, 418 U.S. 208 (1974); Valley Forge Christian Coll. v. Ams.

3 United for Separation of Church and State, Inc., 454 U.S. 464

4 (1982)). This follows from the fact that, as the Supreme Court

5 has consistently held, “a private citizen lacks a judicially

6 cognizable interest in the prosecution or nonprosecution of

7 another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)

8 (citing Younger v. Harris, 401 U.S. 37, 42 (1971); Bailey v.

9 Patterson, 369 U.S. 31, 33 (1962); Poe v. Ullman, 367 U.S. 497,

10 501 (1961)); see Lefebure v. D’Aquilla, 15 F.4th 650, 654 (5th

11 Cir. 2021) (“It is a bedrock principle of our system of

12 government that the decision to prosecute is made, not by judges

13 or crime victims, but by officials in the executive branch. And

14 so it is not the province of the judiciary to dictate to

15 executive branch officials who shall be subject to investigation

16 or prosecution.”) (citing Linda R.S., 410 U.S. at 617, 619;

17 United States v. Nixon, 418 U.S. 683, 693 (1974)).

18 This principle extends not only to criminal

19 prosecution, but to civil enforcement as well. Doe ex rel. Doe

20 v. Darien Bd. of Educ., 3:11-cv-1581 (JBA), 2012 WL 4092662, at

21 *3 (D. Conn. Sept. 17, 2012); Gutierrez v. City of Carson, LA 10-

22 cv-7627 JAK (CWx), 2011 WL 7129239, at *7 (C.D. Cal. Dec. 16,

23 2011); see, e.g., Allen, 468 U.S. at 739-40 (parents lacked

24 standing to sue IRS for failure to “adopt[ ] sufficient standards

25 and procedures to fulfill its obligation to deny tax-exempt

26 status to racially discriminatory private schools”); In re Att’y

27 Disciplinary Appeal, 650 F.3d 202, 203-04 (2d Cir. 2011) (client

28 lacked standing to challenge decision not to discipline client’s

1 former attorney) (citing Linda R.S., 410 U.S. at 619); White v.

2 City of Toledo, 217 F. Supp. 2d 838, 840 (N.D. Ohio 2002) (“The

3 law is well established that a city’s alleged failure, even if

4 intentional, to enforce [a] speed limit does not state a § 1983

5 [claim] against a municipality.”) (citation omitted). § 1983

6 plaintiffs therefore “lack standing to seek judicial review of

7 . . . executive decisions” not to enforce laws against other

8 individuals. Lefebure, 15 F.4th at 655; see id. (collecting

9 cases); Allen, 468 U.S. at 754. Because this is precisely what

10 plaintiff seeks to do through this action, it lacks Article III

11 standing to pursue its constitutional claims.

12 Plaintiff alleges it has been injured by the

13 development of homeless encampments near its property and by the

14 conduct of individuals living there. (Compl. at ¶¶ 15-21.)

15 However, the specific conduct by the City that plaintiff

16 challenges is the City’s “fail[ure] and refus[al] to enforce

17 [state and local] laws” and to “clear the homeless out of this de

18 facto containment zone.” (Id. at ¶ 16.) Stated more directly,

19 plaintiff challenges the City’s failure to enforce its laws

20 against homeless individuals living near plaintiff’s property,

21 and apparently seeks an injunction compelling the City to do so.

22 (See Opp. at 1 (plaintiff challenges “Defendant’s refusal to

23 enforce its own laws and those of the state that prohibit

24 homeless persons from loitering, vandalizing, and otherwise

25 inhabiting and destroying Plaintiff’s private property and the

26 surrounding public property”) (Docket No. 17); Compl., Prayer

27 (seeking “[i]njunctive/equitable relief in a manner to be

28 determined by law”).) As explained, however, plaintiff lacks

1 standing to sue the City for failing to enforce the law against

2 others because it has no judicially cognizable interest in such

3 enforcement. See Allen, 468 U.S. at 754; Linda R.S., 410 U.S. at

4 619; Att’y Disciplinary Appeal, 650 F.3d at 203-04.

5 Plaintiff relies heavily upon the district court’s

6 decision in Hunters Capital LLC v. City of Seattle, 499 F. Supp.

7 3d 888 (W.D. Wash. 2020). The plaintiffs in that case, a group

8 of business and property owners, brought civil rights claims

9 against the city challenging its allowance of and support for the

10 “Capitol Hill Occupying Protest” (“CHOP”), a barricaded area

11 encompassing the plaintiffs’ properties in which the City of

12 Seattle did not enforce local or state laws against occupying

13 protestors. See id. at 893-99. While the court declined to

14 dismiss most of the plaintiffs’ constitutional claims, including

15 multiple claims alleging violation of due process, it did not

16 address the issue of standing. See id. at 899-906.

17 Moreover, the plaintiffs’ claims in Hunters Capital

18 were based not only on the city’s alleged non-enforcement of the

19 laws, but also on the city’s substantial, affirmative provision

20 of material support to the occupying protestors in establishing

21 the so-called “Autonomous Zone.” Id. at 893. In particular, the

22 city “allegedly provided CHOP participants with medical

23 equipment, washing/sanitation facilities, portable toilets,

24 nighttime lighting, and other material support” and “fortified

25 . . . CHOP by providing participants with sturdier concrete

26 barriers” with which to block people and vehicles from entering.

27 Id. at 894-95 (internal quotation marks omitted). The mayor also

28 “allegedly issued a statement indicating that the City . . . had

1 no plans to cease supporting CHOP and that the City was instead

2 acting to work with and preserve CHOP.” Id. at 896 (internal

3 quotation marks omitted). The court relied on these allegations

4 in concluding that the plaintiffs had “plausibly allege[d] . . .

5 that the City’s affirmative actions in support of CHOP” caused a

6 deprivation of the plaintiffs’ constitutionally protected

7 property interests and thus sufficiently alleged a violation of

8 due process. See id. at 900-01.

9 In contrast, plaintiff in the present case does not

10 allege that the City engaged in any affirmative conduct to

11 support the development of the homeless encampments beyond the

12 alleged non-enforcement decision itself. (See Compl. at ¶¶ 14-

13 25)3; White v. City of Minneapolis, 21-cv-371 (WMW/KMM), 2021 WL

14 5964554, at *1-2 & n.1 (D. Minn. Dec. 16, 2021) (distinguishing

15 Hunters Capital, in due process § 1983 action challenging city’s

16 failure to provide police protection during protest, leading to

17 burning of plaintiff’s business, on ground that plaintiffs did

18 not allege city “actively supported any third-party agitators[,]

19 whether by providing resources . . . or by issuing public

20 statements in which they expressed a desire to preserve the

21 unrest”). This alone is insufficient to demonstrate a judicially

22 cognizable interest, which is necessary to confer standing upon

23 plaintiff. See Allen, 468 U.S. at 750-51, 754; Linda R.S., 410

24 U.S. at 619; Lefebure, 15 F.4th at 655.

25 II. State-Created Danger Claim

26 Plaintiff also brings a separate claim alleging state-

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3 Indeed, plaintiff acknowledges that the City cleared

28 the area on at least one occasion. (Id. at ¶ 22.)

1 created danger, a type of due process violation. See Martinez v.

2 City of Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019). Like

3 plaintiff’s first due process claim, the crux of the state-

4 created danger claim is that the City has created dangerous

5 conditions, to which plaintiff has been exposed, by failing to

6 enforce its laws against homeless individuals residing near

7 plaintiff’s property. (See Compl. at ¶¶ 14-21, 29-31.) Thus,

8 this claim likewise directly challenges the City’s failure to

9 enforce the law against others, and therefore plaintiff also

10 lacks standing to pursue it.

11 This claim fails for other reasons as well. Under the

12 state-created danger rule, “the state may be constitutionally

13 required to protect a plaintiff that it ‘affirmatively places in

14 danger by acting with deliberate indifference to a known or

15 obvious danger.’” Martinez, 943 F.3d at 1271 (quoting Patel v.

16 Kent Sch. Dist., 648 F.3d 965, 971-72 (9th Cir. 2011)). To

17 succeed on a state-created danger claim, a plaintiff must show,

18 inter alia, that “the [defendant’s] affirmative actions created

19 or exposed [the plaintiff] to an actual, particularized danger

20 that [the plaintiff] would not otherwise have faced” and that the

21 danger resulted in a foreseeable injury to the plaintiff. See

22 id. (citing Hernandez v. City of San Jose, 897 F.3d 1125, 1133

23 (9th Cir. 2018)). Whether the defendant created a new danger or

24 enhanced an existing one is not material; the focus is on whether

25 there was “state action [versus] inaction in placing an

26 individual at risk.” See Hernandez, 897 F.3d at 1134-35 (quoting

27 Penilla v. City of Huntington Park, 115 F.3d 707, 710 (9th Cir.

28 1997)); Kennedy v. City of Ridgefield, 439 F.3d 1055, 1063 n.4

1 (9th Cir. 2006).

2 According to plaintiff’s Complaint, the affirmative

3 action which caused the danger to plaintiff was the City’s

4 “decision to treat the area surrounding [plaintiff’s] Property as

5 a containment zone” and its “fail[ure] and refus[al] to enforce”

6 state and local laws; and the “danger” created thereby consisted

7 of public health and safety hazards, harmful environmental

8 conditions and increased crime and risk of property damage.

9 (Compl. at ¶¶ 15-20.) Specifically, plaintiff alleges that, due

10 to this danger, it was injured when “[t]he homeless . . . lit the

11 Property on fire and vandalized it in a variety of other ways,”

12 when its “tenants and their patrons [were made] to fear for their

13 safety” due to drug use and odors, and when it was “forced to

14 expend additional monetary resources on third-party security and

15 cleanup crews” to “repair[ ] fire damage and other vandalism

16 carried out by the homeless population.” (Compl. at ¶¶ 18-20.)4

17 As an initial matter, it is not clear that the term

18 “danger” may, within the meaning of the state-created danger

19 doctrine, be validly construed to include risks of purely

20 economic injury to a corporation. Every Ninth Circuit decision

21 of which this court is aware in which the court recognized a

22 claim for state-created danger involved risks of bodily harm to

23 individuals. See Hernandez, 897 F.3d at 1133-39 (noting focus of

24 analysis is whether “state action . . . placed an individual at

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4 Plaintiff also alleges that, because of the City’s

failures, it has been “threaten[ed]” with “an increased risk of

27 infection of COVID-19” and “loss of business and other

opportunities,” though it does not allege that these threatened

28 harms have yet been realized. (See id. at ¶ 21.)

1 risk) (emphasis added); Henry A. v. Willden, 678 F.3d 991, 1002-

2 1003 (9th Cir. 2012); Kennedy, 439 F.3d at 1061-67; Munger v.

3 City of Glasgow Police Dep’t, 227 F.3d 1082, 1086-88 (9th Cir.

4 2000); Penilla, 115 F.3d at 709-10; L.W. v. Grubbs, 974 F.2d 119,

5 120-23 (9th Cir. 1992); Wood v. Ostrander, 879 F.2d 583, 587-96

6 (9th Cir. 1989); see also Martinez, 943 F.3d at 1271-77 (holding

7 individual plaintiff had demonstrated a valid claim for state-

8 created danger based on physical injury, but ruling for

9 defendants based on qualified immunity where relevant law was not

10 clearly established); Pauluk v. Savage, 836 F.3d 1117, 1121-26

11 (9th Cir. 2016) (same).

12 It is also doubtful that the Supreme Court in DeShaney

13 v. Winnebago County Social Services Department, 489 U.S. 189

14 (1989) -- the progenitor of the state-created danger doctrine,

15 see id. at 201 -- intended to allow § 1983 liability based on

16 economic harms to non-individual plaintiffs, given that that case

17 involved the infliction of bodily harm to a child. Id. at 192;

18 see Cnty. of Sacramento v. Lewis, 523 U.S. 833, 842 (1998)

19 (noting that the Court “ha[s] always been reluctant to expand the

20 concept of substantive due process”) (quoting Collins v. City of

21 Harker Heights, 503 U.S. 115, 125 (1992)). The only decision

22 plaintiff identifies to have done so, Hunters Capital, is not

23 binding and, more importantly, did not address this issue. (Opp.

24 at 6-7); see 499 F. Supp. 3d at 901-03.

25 More importantly, plaintiff fails to plausibly allege

26 that any danger it faced was caused by an “affirmative action[ ]”

27 by the City, as that term has been defined by the courts.

28 Plaintiff describes the City’s non-enforcement as a “decision,”

1 which it argues amounts to “affirmatively treating the area

2 surrounding [plaintiff’s] property as a containment zone” and

3 “affirmatively refus[ing] to enforce its own laws and those of

4 the state.” (Compl. at ¶ 15; Opp. at 7.) That the City may have

5 knowingly declined to enforce the law does not transform its non-

6 enforcement from inaction into an affirmative act, nor does

7 merely labeling such inaction “affirmative[ ].” See Lamberth v.

8 Clark Cnty. Sch. Dist., 2:14-cv-2044-APG, 2015 WL 4760696, at *5

9 (D. Nev. Aug. 12, 2015) (“[Defendants’ alleged] omissions do not

10 qualify as affirmative acts. Regardless of how it is phrased,

11 the substance of these claims is that the defendants failed to

12 render aid.”), aff’d, 698 F. App’x 387 (9th Cir. 2017); Estate of

13 Gonzales v. Hickman, ED 05-cv-660 MMM (RCx), 2006 WL 4959780, at

14 *14 (C.D. Cal. Jan. 30, 2006) (“Inserting the word ‘refusal’

15 . . . does not transform an omission into an affirmative act.”);

16 Johnson v. City of Seattle, 385 F. Supp. 2d 1091, 1097 (W.D.

17 Wash. 2005), aff’d, 474 F.3d 634 (9th Cir. 2007).

18 Municipalities and the officials who enforce their laws

19 are routinely required to make decisions about whether and when

20 to do so. However, to hold that decisions not to enforce laws

21 constitute “affirmative action” for purposes of state-created

22 danger claims would impermissibly expand the scope of due process

23 liability by allowing any mere omission to be reframed as

24 actionable affirmative conduct. Ninth Circuit precedent

25 recognizing claims for state-created danger makes clear that the

26 official conduct in question must be affirmative in a more

27 literal sense. See, e.g., Hernandez, 897 F.3d at 1133-35

28 (directing rally attendees toward violent crowd and blocking them

1 from exiting through other routes); Kennedy, 439 F.3d at 1063

2 (verbally disclosing child molestation allegations to accused

3 individual’s parent); Munger, 227 F.3d at 1087 (ejecting patron

4 from bar); Penilla, 115 F.3d at 708, 710 (canceling paramedic

5 request, breaking lock on door of plaintiff’s home, and placing

6 plaintiff inside). Because allegations of actual affirmative

7 conduct are absent from plaintiff’s complaint, it fails to state

8 a claim for state-created danger. That claim will accordingly be

9 dismissed.

10 III. Equal Protection Claim

11 In certain circumstances, an exception to the rule

12 prohibiting constitutional challenges to lack of enforcement of

13 the law may exist for equal protection claims alleging that

14 enforcement of the law is done selectively for a discriminatory

15 purpose and with a discriminatory effect. See Lacey v. Maricopa

16 Cnty., 693 F.3d 896, 920 (9th Cir. 2012); Rosenbaum v. City &

17 Cnty. of San Francisco, 484 F.3d 1142, 1152 (9th Cir. 2007).

18 Such claims may proceed where a plaintiff alleges that a law was

19 enforced against the plaintiff, but not against other similarly

20 situated individuals, and that the defendant “decided to enforce

21 the law against [the plaintiff] ‘on the basis of an impermissible

22 ground such as race, religion or exercise of constitutional

23 rights.’” See Lacey, 693 F.3d at 922 (quoting United States v.

24 Kidder, 869 F.2d 1328, 1336 (9th Cir. 1989)) (alteration

25 adopted); United States v. Armstrong, 517 U.S. 456, 464-65 (1996)

26 (“A [litigant] may demonstrate that the administration of a . . .

27 law is ‘directed so exclusively against a particular class of

28 persons . . . with a mind so unequal and oppressive’ that the

1 system of [enforcement] amounts to ‘a practical denial’ of equal

2 protection of the law.”) (quoting Yick Wo v. Hopkins, 118 U.S.

3 356, 373 (1886)).

4 Here, however, the basis of plaintiff’s equal

5 protection claim is not that any law was enforced against it.

6 Rather, it alleges that the City enforces certain ordinances

7 against some homeless individuals but not against others.

8 Crucially, plaintiff is part of neither group, and it has

9 identified no authority establishing that it may bring a

10 selective enforcement claim without alleging that it has itself

11 been the subject of the challenged enforcement. See Lacey, 693

12 F.3d at 922; Allen, 468 U.S. 755 (“Our cases make clear . . .

13 that . . . injury [resulting from discrimination] accords a basis

14 for standing only to ‘those persons who are personally denied

15 equal treatment’ by the challenged discriminatory conduct.”)

16 (quoting Heckler v. Mathews, 465 U.S. 728, 739-40 (1984)); cf.

17 Warth, 422 U.S. at 499 (“[E]ven when the plaintiff has alleged

18 injury sufficient to meet the ‘case or controversy’ requirement,

19 this Court has held that the plaintiff generally must assert his

20 own legal rights and interests, and cannot rest his claim to

21 relief on the legal rights or interests of third parties.”).5

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5 Even if plaintiff could make out a claim that it has

23 itself been the target of unlawful selective enforcement of the

law, plaintiff also has not alleged that the non-enforcement

24 decision was made “on the basis of an impermissible ground such

as race, religion or exercise of constitutional rights.” Kidder,

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869 F.2d at 1136 (citation omitted, alteration adopted); (see

Opp. at 5-6 (quoting J.D.H. v. Las Vegas Metro Police Dep’t,

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2:13-cv-1300 APG NJK, 2014 WL 3809131, at *4 (D. Nev. Aug. 1,

27 2014))).

Nor does plaintiff appear to assert an equal protection

28 claim as a “class of one.” Such a claim may lie “where the

1 Nor has plaintiff identified any authority establishing

2 that cities are required, as a matter of equal protection law, to

3 treat all areas of the city alike. While it may be unfair for a

4 city to afford businesses and residents in certain areas the

5 benefit of enforcing local laws while denying that benefit to

6 those in other areas, as plaintiff argues, it does not amount to

7 a violation of equal protection. The court is aware of, and

8 plaintiff has identified, no precedent demonstrating that it

9 does, and to hold otherwise would expand the scope of the Equal

10 Protection Clause in ways this court lacks the authority to

11 extend it. Accordingly, plaintiff’s equal protection claim must

12 also be dismissed.6

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14 plaintiff alleges that [the plaintiff] has been intentionally

treated differently from others similarly situated and that there

15 is no rational basis for the difference in treatment.” Vill. of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000). “Where a

16 plaintiff is making a class-of-one claim, the essence of the

claim is that only the plaintiff has been discriminated against,

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and therefore the basis for the differential treatment might well

18 have been because the plaintiff was unique . . . .” Scocca v.

Smith, 11-cv-1318 EMC, 2012 WL 2375203, at *5 (N.D. Cal. June 22,

19 2012).

Here, plaintiff does not allege that it has been

20 singled out for differential treatment, but rather that the City

has, on a city-wide scale, “arbitrarily determined where homeless

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encampments may or may not be located and what communities should

22 be affected,” thereby “plac[ing] a disproportionate burden on

some persons, communities, and businesses over others.” (Compl.

23 at ¶ 27.) Such allegations cannot support a class-of-one claim.

Cf. Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir.

24 2005) (“An equal protection claim will not lie by conflating all

persons not injured into a preferred class receiving better

25

treatment than the plaintiff.”) (citation and internal quotation

marks omitted).

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27 6 Plaintiff also asserts a claim for municipal liability

premised upon an unconstitutional custom or policy. (Compl. at

28 ¶¶ 35-38.) However, municipal liability under § 1983, recognized

1 IV. State Law Claims

2 Because the court will dismiss plaintiff’s federal

3 claims, it no longer has federal question jurisdiction.7 Federal

4 courts have “supplemental jurisdiction over all other claims that

5 are so related to claims in the action within such original

6 jurisdiction that they form part of the same case or controversy

7 under Article III of the United States Constitution.” 28 U.S.C.

8 § 1367(a). A district court “may decline to exercise

9 supplemental jurisdiction . . . [if] the district court has

10 dismissed all claims over which it has original jurisdiction.”

11 Id. at § 1367(c); see also Acri v. Varian Assocs., Inc., 114 F.3d

12 999, 1001 n.3 (9th Cir. 1997) (en banc) (district courts may

13 decline sua sponte to exercise supplemental jurisdiction).

14 “[I]n the usual case in which all federal-law claims

15 are eliminated before trial, the balance of factors to be

16 considered under the pendent jurisdiction doctrine -- judicial

17 economy, convenience, fairness and comity -- will point toward

18 declining to exercise jurisdiction over the remaining state-law

19 claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7

20 (1988). Here, comity strongly weighs in favor of declining to

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in Monell v. Department of Social Services of City of New York,

22 436 U.S. 658 (1978), is simply a means of suing a municipality

for violations of constitutional rights, not an independent claim

23 of its own. Because all of plaintiff’s constitutional claims are

asserted against the City -- the only defendant in this action -–

24 the claim for municipal liability is redundant of the others, and

will thus be dismissed for the same reasons.

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7 There is no diversity jurisdiction in this case.

Although plaintiff is a Delaware corporation, and thus the

27 parties are of diverse citizenship, neither party alleges that

the amount in controversy exceeds $75,000. (Prayer (Docket No.

28 1)); see 28 U.S.C. § 1332(a).

1 exercise supplemental jurisdiction over plaintiff’s state law

2 claims. The state courts are fully competent to adjudicate such

3 claims. Some of plaintiff’s claims raise complex questions of

4 state law, such as the right to “pursuing and obtaining safety

5 [and] happiness” under the California Constitution, which are

6 better left for California courts to resolve.

7 As for judicial economy, plaintiff’s state law claims

8 have not been the subject of any significant litigation in this

9 case, as this is the first instance in which the merits of

10 plaintiff’s claims are being considered. Judicial economy does

11 not weigh in favor of exercising supplemental jurisdiction.

12 Finally, convenience and fairness do not weigh in favor

13 of exercising supplemental jurisdiction over plaintiff’s

14 remaining state law claims. The federal and state fora are

15 equally convenient for the parties. There is no reason to doubt

16 that the state court will provide an equally fair adjudication of

17 the issues. There is nothing to prevent plaintiff from refiling

18 its state law claims against the City in state court, and any

19 additional cost or delay resulting therefrom should be minimal.

20 Accordingly, the court declines to exercise

21 supplemental jurisdiction and will dismiss plaintiff’s remaining

22 state law claims. In so doing, this court passes no judgment on

23 the merits of plaintiff’s state law claims. Not all wrongs can

24 be remedied by resort to the federal courts. Plaintiff is still

25 free to seek accountability for harms arising from the City’s

26 alleged non-enforcement of its laws through plaintiff’s state law

27 claims or through the democratic process. As Chief Justice

28 Rehnquist observed in DeShaney:

nn ne nnn enn ee nn nn nn nn nn nn nn nn nnn eo nD ae

1 The people . . . may well prefer a system of liability

which would place upon the State and its officials the

2 responsibility for failure to act in situations such

as the present one. They may create such a system, if

3 they do not have it already, by changing the tort law

of the State in accordance with the regular lawmaking

4 process. But they should not have it thrust upon them

by this Court’s expansion of . . . the Fourteenth

5 Amendment.

6 489 U.S. at 203.

7 IT IS THEREFORE ORDERED that defendant’s motion to

8 dismiss (Docket No. 11-1) be, and the same hereby is, GRANTED.

9 | Plaintiff has twenty days from the date of this Order to file an

10 amended complaint, if it can do so consistent with this Order.

11 If plaintiff should elect not to file an amended complaint by

12 that date the Clerk shall enter final judgment of dismissal on

13 this Order. □ - ak.

14 Dated: May 26, 2022 WILLIAM B. SHUBB

15 UNITED STATES DISTRICT JUDGE

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