# (PS) Olson v. Puckett

> District Court, E.D. California · August 31, 2022

URL: https://www.frixlaw.com/law-library/cases/10046878

## Case

- **Court:** District Court, E.D. California
- **Decided:** August 31, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 KIMBERLY OLSON, No. 2:21-CV-1482-KJM-DMC
12 Plaintiff,
13 v. FINDINGS AND RECOMMENDATIONS
14 ROBERT PUCKETT, SR., et al.,
15 Defendants.
16
17 Plaintiff, who is proceeding pro se, brings this civil action. Pending before the
18 Court are the following motions and associated filings:
19 Defendants’ Motion

20 ECF No. 47 Defendants’ motion to dismiss.
ECF No. 54 Request for judicial notice in support of motion to dismiss.
21 ECF No. 56 Plaintiff’s opposition.
ECF No. 58 Plaintiff’s memorandum in support of opposition.
22 ECF No. 62 Defendants’ reply.
ECF No. 63 Plaintiff’s opposition to Defendants’ request for judicial notice.
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Plaintiff’s Motion
24
ECF No. 67 Plaintiff’s motion for civil contempt and injunctive relief.
25 ECF No. 69 Defendants’ opposition.
ECF No. 73 Plaintiff’s reply.
26 ECF No. 74 Plaintiff’s objections to Defendants’ opposition.
27 Both motions have been submitted on the record without oral argument.
28 / / /
1 Plaintiff’s third motion for injunctive relief, ECF No. 72, which is not directly
2 related to either the prior motion or pending motion, will be addressed separately.
3
4 I. BACKGROUND
5 A. Procedural History
6 Plaintiff initiated this action with a pro se complaint filed on August 18, 2021. See
7 ECF No. 1. With her complaint, Plaintiff filed a motion for a temporary restraining order and
8 declaration in support thereof. See ECF No. 3 and 4. On August 20, 2021, the District Judge
9 issued a minute order referring Plaintiff’s motion for a temporary restraining order to the
10 undersigned. See ECF No. 5.
11 On August 23, 2021, the undersigned issued orders granting Plaintiff’s application
12 for leave to proceed in forma pauperis and directing Plaintiff to effect service of her motion for a
13 temporary restraining order on the named defendants. See ECF Nos. 6 and 7. The Court also
14 issued an order directing that the original complaint be served on the named defendants by the
15 United States Marshal. See ECF No. 8.
16 Following compliance with the Court’s order directing service of Plaintiff’s
17 motion for a temporary restraining order, the Court issued an order directing Defendants to show
18 cause why Plaintiff’s motion should not be granted. See ECF No. 12. A briefing schedule was
19 established, and the matter was set for hearing before the undersigned in Redding, California on
20 September 14, 2021. See id. On September 8, 2021, the Court denied Defendants’ request for
21 additional time and confirmed that the hearing remained on calendar for September 14 as
22 originally scheduled. See ECF No. 18.
23 Following the September 14 hearing, Plaintiff’s motion for a temporary restraining
24 order was taken under submission. See ECF No. 24 (hearing minutes).
25 / / /
26 / / /
27 / / /
28 / / /
1 On September 17, 2021, the undersigned issued findings and recommendations
2 that Plaintiff’s motion for a temporary restraining order be construed as a motion for preliminary
3 injunctive relief and, so construed, be granted. See ECF No. 29. Specifically, the undersigned
4 recommended as follows:

5 1. Plaintiff’s motion for injunctive relief be granted to the extent
Defendant Hornbrook Community Services District (HCSD) must
6 provide Olson with water in compliance with internal rules and all
other applicable state and local laws.
7
2. HCSD be ordered to return Olson’s water meter and attach a flow
8 restrictor to it, limiting Olson to 200 gallons of water per day, or
whatever generally applicable use restrictions HCSD enacts in
9 order to conserve water.

10 3. HCSD provide all required time periods between any notice of
violation and any adverse action not covered by the order granting
11 injunctive relief.

12 4. HCSD be permitted to take regular readings of Olson’s water meter
and undertake any routine or emergency maintenance necessary.
13
5. Olson be ordered not to tamper with or obstruct her water meter or
14 the attached flow regulator, except to the extent an emergency
situation requires maintenance of the meter. Olson should further be
15 ordered to comply with all lawful directives from law enforcement,
including orders to remove illegal obstructions to her water meter.
16 Olson should further be ordered not to interfere with HCSD officials
undertaking lawful, routine duties concerning her water meter.
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6. Olson be ordered to comply with all HCSD restrictions, including
18 usage limits and restrictions on outdoor watering via the HCSD water
system.
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7. That the order last during the pendency of this case.
20
Id. 19-20.
21
22 Despite the claimed exigence of the water issue and urgent need for injunctive
23 relief, and despite the Court’s findings and recommendations in her favor, on September 29,
24 2021, Plaintiff filed objections to the Court’s findings and recommendations. See ECF No. 40.
25 This triggered a further 14-day period within which Defendants could respond to Plaintiff’s
26 objections, which Defendants did on October 14, 2021. See ECF No. 45. On October 21, 2021,
27 Plaintiff filed a reply to Defendants’ response to Plaintiff’s objections. See ECF No. 49. On
28 December 6, 2021, the District Judge adopted the September 17, 2021, findings and
1 recommendations in full. See ECF No. 52.
2 During the time Plaintiff’s motion for injunctive relief was being litigated and
3 decided, Plaintiff filed a first amended complaint on October 6, 2021. See ECF No. 44.
4 Defendants filed their motion to dismiss Plaintiff’s first amended complaint on October 20, 2021.
5 See ECF No. 47. Plaintiff filed her motion for civil contempt, sanctions, and renewed request for
6 injunctive relief on February 4, 2022. See ECF No. 67. Both motions are fully briefed and have
7 been submitted for decision without oral argument.
8 B. Plaintiff’s Allegations
9 1. Parties
10 The action currently proceeds on Plaintiff’s first amended complaint. See ECF
11 No. 44. As with the original complaint, Plaintiff names the following defendants: (1) Clint
12 Dingman, (2) Robert Puckett, Sr., (3) Michele Hanson, (4) Melissa Tulledo, and (5) the
13 Hornbrook Community Services District (HCSD). See id. at 1. Defendants Puckett, Dingman,
14 Hanson, and Tulledo are “the Directors and employees of Defendant Hornbrook Community
15 Services District.” Id. at 2. Specifically, Defendants Puckett, Hanson, and Tulledo are
16 respectively President, Secretary, and Director of the HCSD board, and are sometimes referred to
17 as the “Board Defendants.” Id. at 3. Defendant Dingman is “the HCSD’s Systems Operator, shift
18 operator, . . . and/or water plant operator.” Id. at 3, n.8. The HCSD is “a public entity providing
19 domestic water to the community of Hornbrook.” Id. at 2. Plaintiff alleges that she is a “water
20 customer of the HCSD, which supplies the only source of potable water” to her home. Id. She
21 also states that she is disabled, suffering from “mobility and other disabilities as a result of spinal
22 damage.” Id.
23 2. Factual Allegations
24 Plaintiff alleges that between July 19-23, 2021, there was no “usable water” in the
25 distribution system on her block, and “no water flowing from the taps” in her home. Id. at 5. She
26 states that during this time, Defendants trespassed onto her land, and cut her home off from the
27 HCSD water system. Id. According to Plaintiff, they also plugged and locked off a “residence
28 side” supply pipe, which was Plaintiff’s personal property, in order to prevent her from accessing
1 any alternative water supply. Id. at 5-6. She claims that in the process of shutting off her water
2 supply, officials took her “water meter, a utility van belonging to a plumbing contractor1 . . . and
3 a 2001 Honda CR-V belonging to [her] Personal Caregiver.” Id. at 5 n.11. “Defendants also
4 destroyed some of Plaintiff’s landscaping and bushes.” Id. At the time of the alleged seizure of
5 property, HCSD and Defendant Puckett told Plaintiff that no one could use certain portions of her
6 driveway, and that any vehicles parked in those sections would be seized. Id. at 6.
7 Plaintiff wrote to the HSCD on August 4, 2021, asking for explanation, the return
8 of any seized property, and the restoration of her water service. See id. She did not receive a
9 response. See id. Her billing statement from HCSD after the “discontinuation of water service
10 [did] not show any fines,” or other reason for the shut-off. Id. at 7.
11 As a result of the water shut-off, Plaintiff claims that she “has had to borrow and
12 expend substantial sums in constructing a system of temporary pumps, . . . and storage for potable
13 water.” Id. She has also spent money to “have potable water delivered by truck.” Id. Plaintiff
14 also states that this system only currently works because temperatures remain above freezing. Id.
15 at 7, n.16.
16 On September 17, 2021, this Court issued findings and recommendations granting
17 Plaintiff’s motion for preliminary injunction and ordering that her water service be restored. See
18 id. at 29. As outlined above, the findings and recommendations provided that HCSD return
19 Plaintiff’s water meter and limit her water usage in accordance with whatever “generally
20 applicable” use restrictions would apply. See id. at 19. It was further recommended that Plaintiff
21 be ordered not to tamper with or obstruct her water meter, and “not to interfere with HCSD
22 officials undertaking lawful, routine duties concerning her water meter.” Id.
23 Plaintiff addresses the Court’s recommendations in her first amended complaint,
24 which was filed before the findings and recommendations were adopted in full by the District
25 Judge. According to Plaintiff, the HCSD did not restore service for several days. See ECF No.
26 44, pg. 7. When Defendants did return water service to Plaintiff, they installed a flow restrictor,
27
1 This van is likely that of Roger Gifford, Plaintiff in case no. 2:21-CV-1726-KJM-
28 DMC. His complaint rests on many of the same factual allegations as this one.
1 which limited her to the use of “~1/6 of a gallon each minute, and about 4 gallons per day.” Id.
2 “Plaintiff notified the HCSD, and its President, Robert Puckett,” of the alleged issues with the
3 water supply. Id. at 8. The only change was that the flow of water was increased to “1/2 gallon
4 each minute.” Id.
5 She alleges that all of this activity was in retaliation for numerous lawsuits she has
6 commenced “against the HCSD and its officers for violations of the Brown Act” and for allowing
7 a water leak to continue, leaking 25,000 gallons of water per day. Id. at 8, n.17.
8 Plaintiff also alleges ongoing actions by Defendants. Plaintiff claims that
9 following this, “HCSD, Puckett, and Dingman . . . fabricate[d], and submit[ted], false evidence”
10 to this Court. Id. at 9. She also states the “HCSD Board Defendants” used their official positions
11 to “gain access to Plaintiff’s personal information as contained in her water account” and to
12 provide that information to third parties to engender ill-will towards Plaintiff, though she does not
13 provide additional factual specificity. Id. Furthermore, Plaintiff claims that HCSD and Board
14 Defendants held improperly noticed Board meetings to coordinate creation and application of
15 rules against Plaintiff, and to falsify records. Id. at 10.
16 Plaintiff also states that the HCSD, Board Defendants, and Dingman deliberately
17 mis-operated water facilities and did not repair them. Id. at 11. This was “to create the false
18 perception of an ‘emergency’ so as to wrongfully acquire public funds” while also retaliating
19 against Plaintiff. Id.
20 3. Legal Theories
21 Plaintiff alleges various federal and state law claims as follows:
22 Federal Claims

23 Count I Fourth and Fifth Amendment violations by unreasonable
seizure, and deprivation of property without due process by
24 shutting off Plaintiff’s water, and restricting driveway use
by the HCSD, Board Defendants, Dingman, and Doe
25 defendants. Id. at 18

26 Count II Violation of 42 U.S.C. 1983 by conspiring to violate
Plaintiff’s rights, and retaliate for protected speech by the
27 HCSD, Board Defendants, Dingman, and Doe Defendants.
Id. at 18-19. This also includes generation of false
28 evidence that was submitted to this Court. Id. at 19.
1 Count III Violation of Due Process and Equal Protection by not
giving Plaintiff a way to re-establish the right to use her
2 driveway, or to get water service turned back on by the
HCSD, Dingman, and Board Defendants. Id.
3
Count IV Deprivation of Equal Protection and Due Process by
4 terminating Plaintiff’s water service by the HCSD, Board
Defendants, Dingman, Doe defendants, and Bruce’s
5 Towing. Id. at 19-20.

6 Count V Retaliation against Plaintiff for administrative and legal
actions against the HCSD by the HCSD, Board Defendants,
7 and Dingman. Id. at 20.

8 Count VI Violations of the ADA and Title II of the Civil Rights Act
by failing to accommodate her disability in terms of notice
9 of water shut-off, or access to HCSD facilities. Id. at 20-
21. This count is alleged against the HCSD and Board
10 Defendants. Id.

11 Count VII Violations of 42 U.S.C. 1985 by making a plan to prevent
Plaintiff from continuing to pursue administrative and legal
12 action by the HCSD, Board Defendants, and other public
officer defendants. Id. at 21.
13
Count VIII Violations of 42 U.S.C. 1986 for the same acts as described
14 in Count VII, but alleged against the HCSD, Board
Defendants, and Dingman. Id. at 21-22.
15
16 State Law Claims

17 Count I Violations of HCSD bylaws and regulations in denying
Plaintiff access to HCSD facilities and water supply by the
18 HCSD, Board Defendants, and Dingman. Id. at 22.

19 Count II Negligence in failing to consider potential harm to the
Plaintiff, or in failing to conform with California law
20 against the HCSD, Board Defendants, Dingman, and
Bruce’s Towing. Id. at 22-23.
21
Count III Trespassing and nuisance for coming onto Plaintiff’s
22 property by Puckett, the HCSD, Dingman, and Bruce’s
Towing. Id. at 23.
23
Count IV Waste or gifts of public funds by giving Dingman extra
24 hours and pay, alleged against Dingman, Puckett, Hanson.
Id. 23-24.
25
Count V Violations of Plaintiff’s rights under California
26 Constitution Article I Sections 1, 7, 26, 3(a)-(b)(1), 13, 17,
and 19(a). Id. at 24.
27

28 / / /
1 Count VI Willful or negligent infliction of emotional distress by
damaging Plaintiff’s property by the HCSD, Board
2 Defendants, Dingman, and Bruce’s Towing. Id.

3 Count VII Violation of California Government Code sections 61045,
61050, and 61051 by virtue of the HCSD failing to appoint
4 a general manager against Hanson, Puckett, the HCSD and
Board Defendants. Id. at 24-25.
5 Count VIII Conversion of Plaintiff property by the HCSD, Board
Defendants, and Dingman. Id. at 25.
6
Count IX Violation of Plaintiff’s right to privacy under the California
7 Constitution Article I, Section 1. Id. This is alleged
against the Board Defendants for taking Plaintiff’s personal
8 information contained in her water account and providing it
to third parties to “engender ridicule.” Id.
9
Count X Violation of the California Public Records Act and
10 California Civil Code section 1798.34 and 1798.77 by not
allowing Plaintiff to access records by the HCSD,
11 Dingman, and Board Defendants. Id.
12
13 II. APPLICABLE LEGAL STANDARDS
14 A. Motion to Dismiss
15 In considering a motion to dismiss, the Court must accept all allegations of
16 material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The
17 Court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer
18 v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S.
19 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All
20 ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen,
21 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual
22 factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009).
23 In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers.
24 See Haines v. Kerner, 404 U.S. 519, 520 (1972).
25 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement
26 of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair
27 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly,
28 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order
1 to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain
2 more than “a formulaic recitation of the elements of a cause of action;” it must contain factual
3 allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The
4 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at
5 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the
6 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
7 Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but
8 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting
9 Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a
10 defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement
11 to relief.” Id. (quoting Twombly, 550 U.S. at 557).
12 In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials
13 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998);
14 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The Court may, however, consider: (1)
15 documents whose contents are alleged in or attached to the complaint and whose authenticity no
16 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question,
17 and upon which the complaint necessarily relies, but which are not attached to the complaint, see
18 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials
19 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.
20 1994).
21 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no
22 amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per
23 curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).
24 B. Preliminary Injunctive Relief
25 The primary purpose of a preliminary injunction is preservation of the status quo.
26 See, e.g., Ramos v. Wolf, 975 F.3d 872, 887 (9th Cir. 2020). More specifically, the purpose of a
27 preliminary injunction is preservation of the Court's power to render a meaningful decision after a
28 trial on the merits. See, e.g., Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981); Barth v.
1 Montejo, No. 2:19-cv-1874-DB-P, 2021 WL 1291962, at *1 (E.D. Cal. Apr. 7, 2021). It is meant
2 to maintain the relative positions of the parties and prevent irreparable loss of rights before a trial
3 and final judgment. See, e.g., Camenisch, 451 U.S. at 395; Ramos, 975 F.3d at 887; Doe #1 v.
4 Trump, 957 F.3d 1050, 1068 (9th Cir. 2020). A preliminary injunction may assume two forms.
5 Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878 (9th Cir. 2009).
6 Prohibitory injunctions prevent a party from acting, thus maintaining the status quo. Id. A
7 mandatory injunction directs some responsible party to act. Id. at 879.
8 The legal principles applicable to requests for injunctive relief, such as a
9 temporary restraining order or preliminary injunction, are well established. To prevail, the
10 moving party must show that irreparable injury is likely in the absence of an injunction. See
11 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Nat. Res. Def.
12 Council, Inc., 555 U.S. 7, 20–22 (2008)); see also All. for the Wild Rockies v. Cottrell, 632 F.3d
13 1127, 1131 (9th Cir. 2011). To the extent that prior Ninth Circuit cases suggest a lesser standard
14 by focusing solely on the possibility of irreparable harm, such cases are “no longer controlling, or
15 even viable.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.
16 2009); see Cottrell, 632 F.3d at 1132; Stormans, 586 F.3d at 1127. Instead, a party must
17 demonstrate: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in
18 the absence of an injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is
19 in the public interest. E.g., Winter, 555 U.S. at 20; Cottrell, 632 F.3d at 1131; Stormans, 586 F.3d
20 at 1127.
21 The Ninth Circuit evaluates the above factors under a sliding scale. Cottrell, 632
22 F.3d at 1131–35. A stronger showing on one factor may offset a weaker showing on another. Id.
23 at 1132. But a plaintiff must make some showing on all four factors. Id. at 1135. Under the scale,
24 if the balance of hardships tips sharply towards the plaintiff, the plaintiff need only show “serious
25 questions going to the merits” provided that the plaintiff also satisfies the other two factors. Id. at
26 1131–35. Thus, when there are serious questions going to the merits and a balance of hardships
27 tips sharply towards the plaintiff, a preliminary injunction may issue if the plaintiff also shows
28 that there is a likelihood of irreparable injury, and that the injunction is in the public interest. Id.
1 A preliminary injunction is an extraordinary remedy that is not awarded as of
2 right. Winter, 555 U.S. at 24; Cottrell, 632 F.3d at 1131. The burden to achieve injunctive relief is
3 particularly high when a party seeks a mandatory injunction. See Garcia v. Google, Inc., 786 F.3d
4 733, 740 (9th Cir. 2015). Mandatory injunctions go beyond an injunction preventing a party from
5 acting, and thus beyond mere maintenance of the status quo. See id. They require a party to act.
6 Id. District courts must deny requests for mandatory injunctions unless the law and facts clearly
7 favor a moving party. Id. The Court will not grant such requests in doubtful cases. Id.
8
9 III. DISCUSSION
10 Before the Court are two motions – Defendants’ motion to dismiss, ECF No. 47,
11 and Plaintiff’s motions for civil contempt and injunctive relief, ECF No. 67.
12 A. Motion to Dismiss
13 In their motion to dismiss, Defendants argue that the first amended complaint
14 should be dismissed because: (1) it is foreclosed under the doctrine of res judicata; (2) the first
15 amended complaint does not comply with Federal Rule of Civil Procedure 8; and (3) the first
16 amended complaint fails to state any federal claims upon which relief can be granted. See ECF
17 No. 47, pg. 7.
18 1. Res Judicata
19 In support of their argument that the current action is foreclosed by the doctrine of
20 res judicata, Defendants offer a summary of prior similar actions filed by Plaintiff Kimberly
21 Olson as well as Peter Harrell and Roger Gifford. See id. at 4-6. According to Defendants:

22 . . .Olson, Harrell, and Gifford have been waging a private war
against HSCD by filing numerous lawsuits naming the District, its board
23 members, employees, contractors, consultants and even its former legal
counsel Robert Winston. (See C.A.E.D. Dkts. 2-14-cv-01595-KJM-GGH,
24 2:15-cv-1274-MCE-AC-PS, 2:16-cv-0955 KJM-GGH, 2:19-cv-00031-
KJM-AC).
25 In Harrell v. Hornbrook Community Services District, 2:14-cv-
01595 KJM-GGH (Harrell I), Plaintiff alleged that HCSD was in violation
26 of constitutional law, was not operating “within the bounds of the laws”,
and HCSD’s water plant had numerous safety hazards in violation of Cal
27 OHSA regulations and the Water Code. (Harrell I, ECF No. 1, p. 5)
Additionally, Plaintiff alleged that HCSD interfered with “the Duties of
28 Kimberly Olson (“Olson”) as Secretary of the HCSD, as mandated by the
1 HCSD Bylaws” and amongst wrongful actions, acted illegally to “revoke
HCSD rates and charges and policies”. (Harrell I, ECF No. 1, p. lns. 1-13)
2 (See Decl. of J. Chiao, ¶11).
In his Findings and Recommendations on August 14, 2017, Hon.
3 Gregory G. Hollows, U.S. Magistrate Judge of the Eastern District of
California, stated that while “the action began in part as a suit alleging that
4 he was terminated from his employment in retaliation for his exercise of
his First Amendment rights, [it] has since morphed into a muddied and
5 muddled conglomeration of claims, both federally and state based,
challenging the manner in which [HCSD] is run in general, its hiring
6 practices, its failure to adhere to the State’s opening meeting law, and its
claim to operate as a water company in violation of nearly every law and
7 regulation applicable to such an enterprise.” (Harrell I, ECF No. 157, p. 2)
The Court further noted that “[t]he instant case is an example of a
8 purposeful overloading of the court with pleadings which take up more
than warranted judicial attention, but which simultaneously demonstrate a
9 desire to wage a war of attrition on the opposing parties. There seems to
be no desire on plaintiff's part to ever reach the merits of a viable claim;
10 rather, there seems to be much desire to use the litigation process per se as
an end in itself.” (Harrell I, No. 157, pp. 1-2) Based on the “contumacious
11 behavior of plaintiff”, the Court recommended that Plaintiff’s Second
Amended complaint be dismissed with prejudice pursuant to Federal Rule
12 of Civil Procedure 41(b) for failure to obey a court order, or in the
alternative pursuant to Rule 12(b)(6) for failure to state a claim.” (Harrell
13 I, ECF No. 157, p. 15) (See Decl. of J. Chiao, ¶12).
Peter T. Harrell and Roger J. Gifford appealed the Eastern
14 District’s adverse rulings against them, including the decision in Harrell I.
The Ninth Circuit concluded that Peter Harrell’s appeal No. 17-17191 was
15 frivolous and therefore revoked Harrell’s in forma pauperis status for
appeal No. 17-17191 and dismissed the appeal as frivolous. The Ninth
16 Circuit also dismissed cross-appeals No. 17-17209 and 17-17313 as
frivolous and denied Roger Gifford’s motion to proceed in forma pauperis.
17 (See Harrell v. Hornbrook Community Services District, 2018 WL
6039097, Decl. of J. Chiao, ¶15)
18 In Harrell v. Dingman, 2:19-cv-00031-KJM-AC (Harrell II),
Plaintiff again sought relief against HCSD for constitutional violations,
19 including deprivation of due process, equal protection, and unlawful
seizure, violations of the Clean Water Act, deprivations of right to due
20 process and equal protection regarding gifts of public funds, and pendent
state claims, including violations of HCSD bylaws, self-dealing, gifts of
21 public funds, improperly unbilled fees and charges, and waste of public
funds. (Harrell II, ECF No. 1 and 17) (See Decl. of J. Chiao, ¶13) In her
22 Findings and Recommendations on May 29, 2019, Hon. Allison Claire
noted that the Court had rejected prior iterations of Plaintiff’s complaint
23 on the basis of res judicata and failure to comply with Rule 8, and that the
underlying dispute appears to involve the quality and quantity of water
24 provided by the District to plaintiff’s property in Siskiyou county. (Harrell
II, ECF No. 19, pp.1 and 3) The Court found that the majority of
25 Plaintiff’s Second Amended Complaint was identical to the First
Amended Complaint and initial complaint, and stated that “[t]he sheer
26 quantity of factual allegations and legal assertions in plaintiff’s complaint
makes it impossible for the court, and therefore for defendants, to
27 determine whether any cognizable claim is presented, what legal wrong
may have been done to plaintiff, by whom and when, or how any alleged
28 harm is connected to the relief plaintiff seeks. (Harrell II, ECF No. 19, p.4)
1 Accordingly, Magistrate Judge Claire recommended that Plaintiff’s
Second Amended Complaint be dismissed with prejudice. (See Dec. J.
2 Chiao, ¶14).
This case filed by Plaintiff Olson on August 18, 2021, is simply a
3 continuation of prior litigation efforts against HCSD. Like Harrell I and
Harrell II, Plaintiff’ First Amended Complaint alleges that HCSD is
4 willfully, negligently, recklessly, and dangerously “failing to undertake
diagnostics needed to competently operate the water facilities, and to
5 make needed and necessary repairs to the HCSD water production,
storage, and distribution systems- in part to create the false perception of
6 an “emergency” so as to wrongfully acquire public funds in the form of
grants from California and USDA…” (ECF No. 44, p. 11, ¶24) Plaintiff
7 filed a Motion for Temporary Restraining Order on August 18, 2021 (ECF
No. 3) A hearing was held with Magistrate Judge Dennis Cota on
8 Plaintiff’s Motion on September 14, 2021, and Judge Cota issued Findings
and Recommendations on September 17, 2021. (ECF No. 29) Predictably,
9 Plaintiff filed Objections to Judge Cota’s Findings and Recommendations.
(ECF No. 40) Defendants filed a Response to Plaintiff’s Objections
10 accordingly. (ECF No. 45).

11 ECF No. 47, pgs. 4-6.
12 Based on this background, Defendants conclude:

13 As demonstrated above, Plaintiff brings several claims that have
already been litigated in the closed cases Harrell v. Hornbrook
14 Community Services District, 2:14-cv-01595 KJM-GGH (E.D. Cal.)
(Harrell I) and Harrell v. Dingman, 2:19-cv-00031-KJM-AC (E.D.Cal.)
15 (Harrell II). Both Harrell I and Harrell II, were dismissed in its entirety,
with prejudice, and the dismissals were affirmed by the Ninth Circuit.
16 (Harrel I at ECF NO. 157, 159, 207) (Harrel II at ECF No. 19, 29)
Large portions of the current action overlap with the issues presented and
17 adjudicated in Harrell I and II, and are therefore barred by res judicata.

18 ECF No. 47, pg. 7.
19 Two related doctrines of preclusion are grouped under the term “res judicata.” See
20 Taylor v. Sturgell, 553 U.S. 880, 128 S. Ct. 2161, 2171 (2008). One of these doctrines – claim
21 preclusion – forecloses “successive litigation of the very same claim, whether or not relitigation
22 of the claim raises the same issues as the earlier suit.” Id. Stated another way, “[c]laim
23 preclusion. . . bars any subsequent suit on claims that were raised or could have been raised in a
24 prior action.” Cell Therapeutics, Inc. v. Lash Group, Inc., 586 F.3d 1204, 1212 (9th Cir. 2009).
25 “Newly articulated claims based on the same nucleus of facts are also subject to a res judicata
26 finding if the claims could have been brought in the earlier action.” Stewart v. U.S. Bancorp, 297
27 F.3d 953, 956 (9th Cir. 2002). Thus, claim preclusion prevents a plaintiff from later presenting
28 any legal theories arising from the “same transactional nucleus of facts.” Hells Canyon
1 Preservation Council v. U.S. Forest Service, 403 F.3d 683, 686 n.2 (9th Cir. 2005).
2 The party seeking to apply claim preclusion bears the burden of establishing the
3 following: (1) an identity of claims; (2) the existence of a final judgment on the merits; and (3)
4 identity or privity of the parties. See Cell Therapeutics, 586 F.3d at 1212; see also Headwaters,
5 Inc. v. U.S. Forest Service, 399 F.3d 1047, 1052 (9th Cir. 2005). Determining whether there is an
6 identity of claims involves consideration of four factors: (1) whether the two suits arise out of the
7 same transactional nucleus of facts; (2) whether rights or interests established in the prior
8 judgment would be destroyed or impaired by prosecution of the second action; (3) whether the
9 two suits involve infringement of the same right; and (4) whether substantially the same evidence
10 is presented in the two actions. See ProShipLine, Inc. v. Aspen Infrastructure Ltd., 609 F.3d 960,
11 968 (9th Cir. 2010). Reliance on the first factor is especially appropriate because the factor is
12 “outcome determinative.” Id. (quoting Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987
13 (9th Cir. 2005)). As to privity of the parties, “privity . . . [arises] from a limited number of legal
14 relationships in which two parties have identical or transferred rights with respect to a particular
15 legal interest.” Headwaters, Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1053 (9th Cir. 2005).
16 “Issue preclusion . . . bars successive litigation of an issue of fact or law actually
17 litigated and resolved in a valid court determination essential to the prior judgment, even if the
18 issue recurs in the context of a different claim.” Taylor, 128 S. Ct. at 2171 (internal citation,
19 quotation omitted).
20 Defendants begin their analysis by comparing the allegations in Harrell I and
21 Harrell II and then state: “. . .While the allegations in each respective complaint (and amended
22 complaint) are difficult to parse, it is clear that Plaintiff’s present complaint is at least partially
23 barred. (See also Harrell II, ECF No. 8, p. 5).” ECF No. 47, pg. 8. Defendants devote the
24 remainder of the res judicata argument to explaining why Olson and Harrell should be found to be
25 in privity. See id. at 8-9.
26 / / /
27 / / /
28 / / /
1 The Court finds Defendants’ res judicata argument unpersuasive. Specifically,
2 though Defendants urge that the current amended complaint is “at least partially barred,”
3 Defendants do not specify which part are barred and which are not. Defendants have thus failed
4 to adequately establish an identify of claims between the current action and prior actions. Nor
5 does the Court find an identity of claims when comparing Harrell I or Harrell II to the present
6 action. The current case does not arise out of the same transactional nucleus of facts. While the
7 Court generally agrees with Defendants’ characterization of the Harrell I and Harrell II cases, the
8 Court does not agree that the current case is similar to either of the prior actions filed by Mr.
9 Harrell. Specifically, unlike Harrell I or Harrell II, the current action concerns allegations that
10 Defendants failed to adhere to their own policies when Plaintiff’s water supply was disconnected
11 in July 2021. Neither of the prior actions filed by Mr. Harrell involved the allegedly improper
12 disconnection of water supply in July 2021, nor could they because they were both filed prior to
13 that date. For this same reason, the prior Harrell actions and the current Olson action cannot
14 involve the same evidence.
15 2. Rule 8
16 Defendants next argue that the amended complaint fails to satisfy the pleading
17 requirements of Rule 8 of the Federal Rules of Civil Procedure. They contend:

18 Here, Plaintiff’s twenty-nine (29) page First Amended Complaint
alleges numerous constitutional violations of the 1st Amendment, 4th/5th
19 Amendment Search and Seizure, Conspiracy under 42 USC §1983,
violations of Due Process and Equal Protection, Unlawful Retaliation, as
20 well as violations of the ADA. Plaintiff’s fact allegations are general and
conclusory, however, and Plaintiff does not provide specific supporting
21 facts for each of these federal causes of action. For example, Plaintiff’s
First Amended Complaint alleges that Defendants participated in a scheme
22 to retaliate against Plaintiff, and falsely apply for and wrongfully profit
from government grants. (ECF No. 44, p. 3 ¶5-6) No facts are alleged in
23 support of this purported scheme. Instead, despite the length of Plaintiff’s
First Amended Complaint, the exact nature of what happened to Plaintiff
24 is obscured by several vague and disconnected events and allegations.
Each of the Defendants cannot discern what legal wrong was done to
25 Plaintiff, by whom and when, or how any alleged harm is connected to the
relief Plaintiff seeks.
26
ECF No. 47, pg. 10.
27
28 / / /
1 Defendants’ point is well-taken. Rule 8’s pleading requirements are not met by a
2 “complaint that contains conclusion or surmise and requires a court to decide whether events not
3 pleaded could be imagined in a plaintiff’s favor.” Levin v. Miller, 763 F.3d 667, 671 (7th Cir.
4 2014). Rather, in order to establish plausibility, allegations in a complaint “may not simply recite
5 the elements of a cause of action but must contain sufficient allegations of underlying facts to
6 give fair notice and to enable the opposing party to defend itself effectively.” Eclectic Props. E.,
7 LLC v. Marcus and Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014) (internal quotation and
8 citation omitted). “. . .[T]he factual allegations that are taken as true must plausibly suggest an
9 entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the
10 expense of discovery and continued litigation.” Id. While pleadings of pro se litigants are held to
11 less rigid standards than those drafted by attorneys, see Haines v. Kerner, 404 U.S. 519, 520-522
12 (1972), even pro se pleadings “must meet some minimum threshold in providing a defendant with
13 notice of what it is that it allegedly did wrong,” Brazil v. United States Dept. of Navy, 66 F.3d
14 193, 199 (9th Cir. 1995).
15 Although the Federal Rules adopt a flexible pleading policy, a complaint must give
16 fair notice and state the elements of the claim plainly and succinctly. See Jones v. Community
17 Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some
18 degree of particularity overt acts which defendants engaged in that support Plaintiff’s claims. See
19 id. The allegations must be short and plain, simple and direct, and describe the relief Plaintiff
20 seeks. See Fed. R. Civ. P. 8(a); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002);
21 Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002).
22 Plaintiff has not complied with these requirements. The amended complaint is
23 repetitive and argumentative, includes vague and conclusory allegations, and largely fails to
24 allege facts to support any claim against Defendants in their individual capacities. This alone
25 justifies dismissal of her amended complaint. See Schmidt v. Hermann, 614 F.2d 1221, 1223 (9th
26 Cir. 1980) (upholding the dismissal of a complaint where it was “impossible to designate the
27 cause of action or causes of action attempted to be alleged in the complaint.”); In re Sagent Tech.,
28 Inc., 278 F. Supp. 2d 1079, 1094 (N.D. Cal. 2003) (“[T]he complaint fails to state a claim because
1 plaintiffs do not indicate which individual defendant or defendants were responsible for which
2 alleged wrongful act.”); see also McHenry v. Renne, 84 F.3d 1172, 1177-78 (9th Cir. 1996)
3 (affirming Rule 8 dismissal of complaint that was “argumentative, prolix, replete with
4 redundancy, and largely irrelevant” and providing an example of a properly pleaded claim, which
5 could be “read in seconds and answered in minutes”).
6 3. Failure to State a Claim
7 Defendants next present a series of arguments as to each federal cause of action
8 asserted in the pleading. The Court addresses these arguments below.
9 a. First Amendment Retaliation
10 To state a First Amendment retaliation claim, a plaintiff must plausibly allege “that
11 (1) he was engaged in a constitutionally protected activity, (2) the defendant’s actions would chill
12 a person of ordinary firmness from continuing to engage in the protected activity, and (3) the
13 protected activity was a substantial or motivating factor in the defendant’s conduct.” O’Brien v.
14 Welty, 818 F.3d 920, 932 (9th Cir. 2016) (quoting Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d
15 755, 770 (9th Cir. 2006)).
16 Plaintiff alleges Defendants retaliated against her because of her history of
17 engaging in protected activity. She claims as follows:
18 Over the past several years, Plaintiff has brought multiple legal
actions against the HCSD and its officers for violations of the
19 Brown Act (prevailing on many in both the trial court, and the
Third District Court of Appeals of California), filed complaints
20 concerning its operations with multiple government agencies, and
has assisted others in doing those things as well, much to their angst
21 and irritation. In fact, Puckett seized the opportunity while he was
on local television to complain about some of that litigation. See
22 news story on the Channel 10 Medford, OR station at:
https://ktvl.com/news/local/amid-water-crisis-small-community-
23 takes-matters-into-its-own-hands[.] . . .
24 Am. Compl. ¶ 17, n. 17.
25 Defendants argue these allegations do not state a viable First Amendment claim.
26 They contend:
27 Here, Plaintiff has not established any of the foregoing
elements. Instead, Plaintiff relies upon “shotgun pleading” and she
28 does not allege any facts in support of her retaliation claim.
1 Without additional factual specificity, a retaliation is not
cognizable. See Iqbal, 556 U.S. at 678 (a claim has the requisite
2 facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant
3 is liable for the misconduct alleged).
4 ECF No. 47-1, pg. 15.
5 Liberally construing the pleading, Plaintiff has adequately alleged that she engaged
6 in constitutionally protected activity and that Defendants’ actions would chill a person of ordinary
7 firmness from continuing to engage in those activities. The problem, however, arises with respect
8 to Defendants’ motivation. It is true that in rare cases will a plaintiff have direct evidence of
9 intent. See Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (“Because direct evidence of
10 retaliatory intent rarely can be pleaded in a complaint, allegation of a chronology of events from
11 which retaliation can be inferred is sufficient to survive dismissal.”). Therefore, circumstantial
12 evidence is often critical in establishing the motive behind a defendant’s conduct. But here, the
13 only arguable suggestion of retaliatory motive is a news article wherein Defendant Puckett refers
14 to Plaintiff’s litigation activity. This link, however, is too tenuous to ascribe retaliatory intent to
15 Defendants as a whole or even to Defendant Puckett in particular. Given this deficiency,
16 Plaintiff’s First Amendment claim is subject to dismissal.
17 b. Fourth Amendment and Fifth Amendment Search and Seizure
18 The Fourth Amendment provides that “[t]he right of the people to be secure in
19 their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
20 violated, and no Warrants shall issue, but upon probable cause, supported by Oath or
21 affirmation.” U.S. Const. amend. IV. “To establish a viable Fourth Amendment claim, a plaintiff
22 must show not only that there was a search and seizure as contemplated by the Fourth
23 Amendment, but also that said search and seizure was unreasonable and conducted without
24 consent.” Rakas v. Illinois, 439 U.S. 128, 143 (1978); United States v. Rubio, 727 F.2d 786,
25 796–97 (9th Cir. 1983).
26 / / /
27 / / /
28 / / /
1 Generally, under the Fifth Amendment, a “plaintiff must establish two elements to
2 have a viable” takings claim. In re Upstream Addicks and Barker (Texas) Flood-Control
3 Reservoirs, 146 Fed. Cl. 219, 246 (Fed. Cl. 2019). First, a plaintiff “must establish that he or she
4 holds ‘a property interest for purposes of the Fifth Amendment.’ ” Id. (quoting Caquelin v.
5 United States, 140 Fed. Cl. 564, 572 (2018)). Second, “ ‘the court must determine whether the
6 governmental action at issue amounted to a compensable taking of that property interest.’ ” Id.
7 (quoting Amer. Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363, 1372 (Fed. Cir. 2004)).
8 When the government physically acquires private property for public use, a “physical taking” has
9 occurred. Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071 (2021). If the government
10 imposes regulations that restrict a landowner’s use of his or her own property, it might commit a
11 “regulatory taking.” Id. at 2072. A temporary interference with the use of property can be
12 considered a regulatory taking. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124
13 (1978); see also Bridge Aina Le‘a, LLC v. Land Use Comm’n, 950 F.3d 610, 626 (9th Cir. 2020).
14 Plaintiff accuses Defendants of “trespassing onto Plaintiff’s property, seizing her
15 property (including her property interest in her domestic water service from the HCSD) without
16 warrant or due process, and taking a portion of her driveway exclusively for governmental use
17 without due process or compensation.” Am. Compl. ¶ 44. According to Plaintiff, the seized
18 property “included Plaintiff’s water meter, a utility van belonging to a plumbing contractor hired
19 by Plaintiff, and a 2001 Honda CR-V belonging to [Plaintiff]’s Personal Caregiver (actually
20 seized twice).” Id. ¶ 9, fn. 11.
21 Defendants argue these allegations do not state either a Fourth or Fifth
22 Amendment claim:
23 Here it, is entirely incomprehensible how Plaintiff’s vague
and conclusory allegation regarding her property interest in her
24 domestic water service or the towing of vehicles (that obstructed
from the reading of Plaintiff’s water meter) constitutes a taking of
25 Plaintiff’s driveway [or] constitutes an unreasonable search and
seizure. As such, Plaintiff’s unconstitutional search and seizure
26 claim is subject to dismissal.
27 ECF No. 47-1, pg. 12.
28 / / /
1 The Court agrees that some of Plaintiff’s allegations are insufficient to proceed.
2 For example, any Fifth Amendment claim premised on Defendants’ seizure of personal property
3 belonging to Plaintiff’s plumbing contractor and/or personal caregiver fails because Plaintiff does
4 not allege that she herself has a property interest in those vehicles. Nonetheless, liberally
5 construing the pleading, Plaintiff’s allegations suffice to state Fourth and Fifth Amendment
6 claims that Defendants searched her property without a warrant, seized her water meter, and
7 prohibited her from using her own driveway, and that the act of cutting off water service
8 interfered with her property right in continued water service. Cf. McMillan v. Goleta Water Dist.,
9 792 F.2d 1453, 1457 (9th Cir. 1986). a
10 c. Fourteenth Amendment
11 “The Fourteenth Amendment’s Due Process Clause protects persons against
12 deprivations of life, liberty, or property; and those who seek to invoke its procedural protection
13 must establish that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221
14 (2005). The due process clause of the Fourteenth Amendment confers both substantive and
15 procedural protections. Albright v. Oliver, 510 U.S. 266, 272 (1994).
16 The substantive protections of the due process clause bar certain governmental
17 actions regardless of the fairness of the procedures that are used to implement them. Cty. of
18 Sacramento v. Lewis, 523 U.S. 833, 840 (1998). Therefore, the substantive protections of the due
19 process clause are intended to prevent government officials from abusing their power or
20 employing it as an instrument of oppression. Lewis, 523 U.S. at 846. The Supreme Court has
21 held that “the substantive component of the Due Process Clause is violated by executive action
22 only when it ‘can properly be characterized as arbitrary, or conscience shocking, in a
23 constitutional sense.’ ” Id. at 847. “[O]nly the most egregious official conduct can be said to be
24 arbitrary in a constitutional sense.” Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006)
25 (quoting Lewis, 523 U.S. at 846).
26 / / /
27 / / /
28 / / /
1 “The requirements of procedural due process apply only to the deprivation of
2 interests encompassed by the Fourteenth Amendment’s protection of liberty and property.” Bd.
3 of Regents of State Colleges v. Roth, 408 U.S. 564, 569–70 (1972). “[P]rocedural due process
4 claims are resolved by balancing tests, where differing interests can give rise to many differing
5 procedural requirements.” Brittain, 451 F.3d at 1000. “[D]ue process is flexible and calls for
6 such procedural protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S.
7 319, 334 (1976) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).
8 Defendants argue Plaintiff fails to state either a substantive or procedural due
9 process claim:
10 Here, Plaintiff has only alleged that Defendants wrongfully
cut off the domestic water supply to Plaintiff’s home without
11 alleging any of the facts or circumstances prior to the
discontinuation of her water service. “[C]onsideration of what
12 procedures due process may require under any given set of
circumstances must begin with a determination of the precise nature
13 of the government function involved as well as of the private
interest that has been affected by governmental action.” Goldberg
14 v. Kelly, 397 U.S. 254, 263 (1970). Merely stating that a due
process violation occurred is conclusory and does not suffice to
15 state a valid claim. [¶] [S]imilar to Plaintiff’s failure to allege
procedural due process, Plaintiff has also failed to allege facts in
16 support of egregious official conduct that constituted an abuse of
power. As such, Plaintiff’s substantive due process claim likewise
17 is subject to dismissal.
18 ECF No. 47-1, pg. 14.
19 The Court does not agree that Plaintiff has alleged only that a due process
20 violation occurred. Nor is Plaintiff required, as Defendants contend, to set forth all the
21 circumstances underlying her claim. Her allegations fall between these two endpoints, accusing
22 Defendants of failing to provide her with any written information “on the basis for the seizures
23 and water shut off” and further failing to provide “any notice of, or instruction concerning, the
24 availability of any means to challenge allegations against her, hearing rights, fees required, or
25 other any other [sic] means by which she may have her water service (fully) restored.” Am.
26 Compl. ¶ 11. She then alleges that Defendants cut off her own water pipe, limited her access to
27 her own property, and placed her health and safety in danger. Id. ¶ 12. These allegations suffice
28 to state a due process claim, as discussed in detail in this Court’s September 17, 2021, Findings
1 and Recommendations to grant in part Plaintiff’s motion for injunctive relief, which the district
2 judge adopted in full. ECF Nos. 29, 52.
3 d. Equal Protection
4 A plaintiff can state a claim for violation of the Equal Protection Clause by
5 showing “that the defendant acted with an intent or purpose to discriminate against him based
6 upon his membership in a protected class.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir.
7 2003). “Intent” in this context means that the defendant acted, at least in part, because of the
8 plaintiff’s membership in a protected class. Id. Alternately, the plaintiff can state a claim by
9 alleging that he was intentionally treated differently than similarly situated individuals and there
10 was no rational basis for the difference in treatment. Thornton v. City of St. Helens, 425 F.3d
11 1158, 1167 (2005); Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
12 Defendants argue:
13 Plaintiff has not included factual allegations that she was
treated differently from other people with whom she was similarly
14 situated and that there was no rational basis for the difference in
treatment. Plaintiff has not alleged facts demonstrating irrational or
15 arbitrary actions on the part of Defendants. As such, Plaintiff has
failed to present an Equal Protection claim sufficient to withstand a
16 motion to dismiss.
17 ECF No. 47-1, pg. 15.
18 The Court again disagrees with Defendants’ reading of the pleading. Plaintiff’s
19 equal protection claim is premised on a “class of one.” Am. Compl. ¶ 32; Willowbrook v. Olech,
20 528 U.S. 562, 564 (2000). A class of one claim arises when a plaintiff alleges that they have been
21 intentionally treated differently from other similarly situated people and that there is no rational
22 basis for different treatment. Id. This theory alleges that the defendants arbitrarily discriminated
23 against the specific plaintiff rather than against a group or protected class. Lazy Y Ranch LTD v.
24 Behrens, 546 F.3d 580, 592 (9th Cir. 2008). In this case, Plaintiff alleges that Defendants “acted
25 to treat Plaintiff differently, and more harshly, than other customers of the HCSD, and for an
26 improper purpose.” Am. Compl. ¶ 16. They did this by providing other HCSD customers with
27 water and/or by complying with notice requirements. See id. ¶¶ 11, 13. Plaintiff also claims
28 Defendants brought “baseless, wrongful, unconstitutional governmental and other actions against
1 Plaintiff – but without utilizing the same tactics or actions against any other customers of the
2 HCSD besides Plaintiff.” Id. ¶ 17, fn. 19. Because Plaintiff alleges that there was no rational
3 basis for this differential treatment, she has stated a viable equal protection claim.
4 e. Conspiracy
5 To state a claim for civil conspiracy, a plaintiff must plead “(1) the formation of a
6 group of two or more persons who agreed to a common plan or design to commit a tortious act;
7 (2) a wrongful act committed pursuant to the agreement; and (3) resulting damages.” City of
8 Indus. v. City of Fillmore, 198 Cal. App. 4th 191, 212 (2d Dist. 2011), as modified (Aug. 24,
9 2011). “Civil conspiracy is not an independent tort.” Id.
10 Defendants argue Plaintiff’s conspiracy claim is too conclusory to state a claim:
11 Here, Plaintiff’s allegations regarding conspiracy are
entirely conclusory, lack facts, and lack the required specificity.
12 Plaintiff failed to allege what each Defendant did to carry out any
overt acts in furtherance of the alleged conspiracy. Plaintiff also
13 does not allege how the Defendants conspired together to commit
wrongful acts. Thus, Plaintiff fails to allege specific facts that are
14 necessary to establish a §1985 claim, and Plaintiff’s claim of
conspiracy fails to satisfy the pleading requirements.
15
Moreover, a racial, or other class-based, invidiously
16 discriminatory animus is an indispensable element of a section
1985(3) claim. Bray v. Alexandria Women’s Health Clinic, 506
17 U.S. 263, 267-69 (1993). Plaintiff does not allege a racial or other
class-based invidiously discriminatory animus. Plaintiff’s claim of
18 conspiracy fails on this basis as well.
19 ECF No. 47-1, pg. 13.
20 Examination of the pleading confirms that Plaintiff’s conspiracy claims brought
21 pursuant to 42 U.S.C. § 1983, § 1985, and § 1986 rest entirely on speculation. Plaintiff alleges
22 only that Defendants “jointly acted to systematically and wrongfully stifle, deny, suppress, and
23 thwart, Plaintiff Olson’s rights under the federal and State constitutions, her statutory rights, those
24 rights as provided in the HCSD’s Bylaws, Rules and Regulations, and its customs, policies, and
25 practices, and specifically inclusive of her First, Fourth, and Fourteenth Amendment procedural
26 and substantial due process rights, and her Equal Protection rights. . . .” Am. Compl. ¶ 17. She
27 then alleges that this conduct “violated . . . the provisions of, and protections afforded Plaintiff by,
28 42 USC 1985(2) and/or (3) as a ‘class of one’, so each of those Defendants also violated 42 USC
1 §1986 by failing and/or refusing to take any action to stop, or prevent, the violation of Plaintiff’s
2 constitutional rights.” Id. ¶ 54. There are no allegations, however, to indicate how and/or when
3 the alleged conspiracy occurred. Without these necessary details, these claims fail.
4 f. Monell Liability
5 “In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Supreme
6 Court held that a municipality may not be held liable for a § 1983 violation under a theory of
7 respondeat superior for the actions of its subordinates.” Castro v. County of Los Angeles, 833
8 F.3d 1060, 1073 (9th Cir. 2016). In this regard, “[a] government entity may not be held liable
9 under 42 U.S.C. § 1983, unless a policy, practice, or custom of the entity can be shown to be a
10 moving force behind a violation of constitutional rights.” Dougherty v. City of Covina, 654 F.3d
11 892, 900 (9th Cir. 2011) (citing Monell, 436 U.S. at 694).
12 In order to allege a viable Monell claim, a plaintiff “must demonstrate that an
13 ‘official policy, custom, or pattern’ on the part of [the defendant] was ‘the actionable cause of the
14 claimed injury.’ ” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012) (quoting
15 Harper v. City of Los Angeles, 533 F.3d 1010, 1022 (9th Cir. 2008)). There are three ways a
16 “policy” can be established. See Clouthier, 591 F.3d at 1249-50. “First, a local government may
17 be held liable ‘when implementation of its official policies or established customs inflicts the
18 constitutional injury.’ ” Id. at 1249 (quoting Monell, 436 U.S. at 708 (Powell, J. concurring)).
19 Second, plaintiff may allege that the local government is liable for a policy of inaction or
20 omission, for example when a public entity, “fail[s] to implement procedural safeguards to
21 prevent constitutional violations” or fails to adequately train its employees. Tsao, 698 F.3d at
22 1143 (citing Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992)); see also Clouthier, 591 F.3d
23 at 1249 (failure to train claim requires plaintiff show that “the need for more or different training
24 [was] so obvious, and the inadequacy so likely to result in the violation of constitutional rights,
25 that the policymakers ... can reasonably be said to have been deliberately indifferent to the need.”)
26 (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)); Long v. County of Los Angeles,
27 442 F.3d 1178, 1186 (9th Cir. 2006) (“To impose liability against a county for its failure to act, a
28 plaintiff must show: (1) that a county employee violated the plaintiff’s constitutional rights; (2)
1 that the county has customs or policies that amount to deliberate indifference; and (3) that these
2 customs or policies were the moving force behind the employee’s violation of constitutional
3 rights.”). “Third, a local government may be held liable under § 1983 when ‘the individual who
4 committed the constitutional tort was an official with final policy-making authority’ or such an
5 official ‘ratified a subordinate's unconstitutional decision or action and the basis for it.’ ”
6 Clouthier, 591 F.3d at 1250 (quoting Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir.
7 1992)).
8 However, a complaint alleging a Monell violation “ ‘may not simply recite the
9 elements of a cause of action, but must contain sufficient allegations of underlying facts to give
10 fair notice and to enable the opposing party to defend itself effectively.’ ” AE ex rel. Hernandez
11 v. Cty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216
12 (9th Cir. 2011)). At a minimum, the complaint should “identif[y] the challenged policy/custom,
13 explain[ ] how the policy/custom was deficient, explain[ ] how the policy/custom caused the
14 plaintiff harm, and reflect[ ] how the policy/custom amounted to deliberate indifference[.]”
15 Young v. City of Visalia, 687 F. Supp. 2d 1141, 1149 (E.D. Cal. 2009); see also Little v. Gore,
16 148 F. Supp. 3d 936, 957 (S.D. Cal. 2015) (“Courts in this circuit now generally dismiss claims
17 that fail to identify the specific content of the municipal entity’s alleged policy or custom.”).
18 Plaintiff alleges that Defendant Dingman helped create and submit false
19 government documents, failed to comply with HCSD Rules and Regulations, claimed time for
20 duties and/or actions that were not pre-approved by the Board or General Manager, illegally
21 seized and converted Plaintiff’s real and personal property, and cut off Plaintiff’s water supply
22 without notice, hearing, and/or opportunity for review. Am. Compl. ¶ 36. Plaintiff alleges that
23 the Defendants were aware of and ratified this conduct and that it was the result of “the written
24 and unwritten official policy, custom, or practices of the HCSD as created and implemented by
25 one or more of the Board Defendants, and/or HCSD itself.” Id. ¶ 37.
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1 Defendants argue simply that the amended complaint “fails to demonstrate that
2 HCSD had a ‘policy or custom’ of deliberately engaging in retaliation and violations of clearly
3 established constitutional rights.” ECF No. 47-1, pg. 17. Although the Court is unimpressed with
4 the cursory nature of this argument, Defendants are correct. Plaintiff alleges only that the Board
5 Defendants knew of Dingman’s conduct and ratified it. But this conclusory allegation fails to
6 specify the precise policy or custom at issue and fails to even identify how the Board became
7 aware of the conduct so as to ratify it. The Court therefore finds that Plaintiff’s vague and
8 conclusory allegations do not satisfy the pleading requirements to assert a Monell claim.
9 g. Americans with Disabilities Act
10 Title II of the Americans with Disabilities Act (ADA) is designed to ensure that
11 qualified individuals with a disability are not excluded from participation in or denied the benefits
12 of a program, service or activity of any public entity, service or program receiving federal
13 financial assistance on the basis of their disability. 42 U.S.C. § 12132. This statute also ensures
14 that public entities, services and programs receiving federal financial assistance do not otherwise
15 discriminate against an individual with a qualified disability based on such disability. 42 U.S.C. §
16 12132.
17 Defendants argue:
18 Here, Plaintiff uses only conclusory language in attempting
to state a claim under the ADA. Plaintiff does not set forth any non-
19 conclusory factual allegations that she was discriminated against
based upon her disabilities. Plaintiff has also failed to allege facts as
20 to what accessibility barriers Plaintiff encountered or to explain
how any alleged barriers relate to her particular disability.
21 Plaintiff’s bare legal conclusions are insufficient to satisfy standing
and the ADA’s pleading requirements. As such, Plaintiff’s ADA
22 claim must be dismissed.
23 ECF No. 47-1, pg. 16.
24 The Court agrees that Plaintiff’s allegations are insufficient to state an ADA claim.
25 She adequately alleges that she has a disability and that Defendants were aware of it, but she does
26 not indicate how she was discriminated against or denied services based on that disability.
27 Plaintiff alleges that she could not access the facility where HCSD stored its public records, see
28 Am. Compl. ¶ 52, but she does not specify what circumstances rendered the office inaccessible.
1 Moreover, while Plaintiff alleges that Defendants “failed to accommodate her disability by giving
2 her adequate and proper notice of any adverse determinations or actions against her,” it is unclear
3 what type of accommodation she required because of her disability. Am. Compl. ¶¶ 51-52. This
4 claim thus fails as vague and conclusory.
5 h. Jurisdiction
6 Defendants next make a related arguments suggesting that this Court lacks
7 jurisdiction to provide the relief that Plaintiff seeks. They argue:
8 The First Amended Complaint alleges that HCSD is a
public entity operating wholly within the County of Siskiyou, a
9 political subdivision of the State of California. (ECF No. 1,
Complaint, ¶2) The Complaint seeks injunctive and declaratory
10 relief that is equivalent to seeking mandamus relief, and this Court
lacks mandamus jurisdiction to compel a state official to perform
11 his or her duties. The Court’s mandamus power, as set forth in 28
U.S.C. §1361, extends only to federal officials. See Amisub (PSL),
12 Inc. v. Colo. Dep’t of Soc. Servs., 879 F.2d 789, 790 (10th Cir.
1989) (“No relief against state officials or state agencies is afforded
13 by §1361.”); see also Williams v. Va. Supreme Court, 457 Fed.
Appx. 228, 229 (4th Cir. 2011) (“[F]ederal courts do not have
14 jurisdiction to grant mandamus relief against state officials”).
15 This action also is barred by the Eleventh Amendment. The
Eleventh Amendment bars courts from entertaining suits brought by
16 a private party against a state, an arm of the state, its
instrumentalities, or its agencies. Los Angeles Brach NAACP v. Los
17 Angeles Unified Sch. Dist., 714 F.2d 946, 950 (9th Cir. 1983). In Ex
Parte Young, 209 U.S. 123 (1908), the Supreme Court recognized a
18 limited exception to Eleventh Amendment immunity, permitting
suits for prospective declaratory and injunctive relief against state
19 officers “who threaten and are about to commence proceedings” to
enforce an alleged unconstitutional act. Here, the limited exception
20 does not apply since no such prospective proceedings are
contemplated by HCSD.
21
ECF No. 47-1, pg. 18.
22
23 The Court finds these arguments unpersuasive. As an initial matter, Defendants
24 cite to no authority for the proposition that Plaintiff’s request for injunctive and declaratory relief
25 “is equivalent to seeking mandamus relief.” Notably, Plaintiff has not filed a writ of mandamus
26 and is not proceeding pursuant to 28 U.S.C. § 1361.2 Furthermore, it is axiomatic that
27
2 This statute reads, “The district courts shall have original jurisdiction of any action
28 in the nature of mandamus to compel an officer or employee of the United States or any agency
1 “[c]ounties, municipalities, municipal agencies, and officers thereof, usually are not considered
2 arms of the state, and thus usually are not entitled to [Eleventh Amendment] immunity.” Wright
3 & Miller, 13 Fed. Prac. & Proc. Juris. § 3524.2 (3d ed.). As a political subdivision of Siskiyou
4 County, HCSD is not an “arm of the state” for Eleventh Amendment purposes. See Lake Country
5 Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401 (1979) (holding that suit
6 against a political subdivision is not barred by the Eleventh Amendment); Monell, supra, 436
7 U.S. 658.
8 i. State Law Claims
9 Under 28 U.S.C. § 1367(a), in any civil action in which the district court has
10 original jurisdiction, the “district courts shall have supplemental jurisdiction over all other claims
11 that are so related to claims in the action within such original jurisdiction that they form part of
12 the same case or controversy under Article III of the United States Constitution,” except as
13 provided in subsections (b) and (c). The Supreme Court has stated that “if the federal claims are
14 dismissed before trial, ... the state claims should be dismissed as well.” United Mine Workers of
15 Am. v. Gibbs, 383 U.S. 715, 726 (1966). Although the Court may exercise supplemental
16 jurisdiction over state law claims, Plaintiff must first have a cognizable claim for relief under
17 federal law. 28 U.S.C. § 1367.
18 Defendants seek dismissal of Plaintiff’s state law claims as follows:
19 Plaintiff’s [sic] move to dismiss Plaintiff’s state law claims
for failure to state a cause of action and noncompliance with Rule
20 8(a). Alternatively, given that Plaintiff has failed to state a federal
law claim, Defendants request that the Court decline to exercise
21 supplemental jurisdiction over Plaintiff’s remaining state claims
pursuant to 28 U.S.C. § 1367(c)(3) (a district court may “decline to
22 exercise supplemental jurisdiction” over state law claims if it “has
dismissed all claims over which it has original jurisdiction”); see
23 also Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir.
2010).
24
ECF No. 47-1 at 18.
25
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27

28 thereof to perform a duty owed to the plaintiff.”
1 / / /
2 Defendants fail to analyze any of Plaintiff’s ten state law claims to determine
3 whether they state a cause of action, and the Court declines to conduct that analysis for them. To
4 the extent Defendants argue that the Court should decline supplemental jurisdiction because
5 Plaintiff fails to state a federal cause of action, the Court has found that Plaintiff’s allegations are
6 sufficient to state Fourth, Fifth, and Fourteenth Amendment claims. Nevertheless, the Court will
7 recommend that supplemental jurisdiction be declined at this time because Plaintiff has not
8 complied with Rule 8’s pleading requirements, as discussed supra.
9 B. Motion for Contempt Sanctions or a Further Preliminary Injunction
10 Also pending before the Court is Plaintiff’s motion for contempt sanctions or a
11 further preliminary injunction. The Preliminary Injunction ordered Defendants to, among other
12 things, “provide Olson with water in compliance with internal rules and all other applicable state
13 and local laws.” ECF No. 52. It further ordered Defendants “to return Olson’s water meter and
14 attach a flow restrictor to it, limiting Olson to 200 gallons of water per day, or whatever generally
15 applicable use restrictions HCSD enacts in order to conserve water.” Id. (emphasis in original).
16 Plaintiff claims Defendants failed to comply with the Preliminary Injunction by
17 (1) failing to fully restore Plaintiff’s water service to her home “in compliance with local rules,
18 and all other applicable state and local laws,” (2) restricting her water use more severely than
19 other customers, (3) installing a “flow restrictor” that does not permit Plaintiff to use water up to
20 the then-limit of 200 gallons per day, and (4) failing to properly repair and maintain the
21 connection providing Plaintiff’s water service.
22 In support of her motion, Plaintiff submits several letters she sent to Defendant
23 Puckett between September 29, 2021, and January 26, 2022, wherein she claimed that she had
24 only been able to use 1,200 to 1,600 gallons per month, despite other residents receiving
25 substantially more water, and that her water pressure was too low to take a shower or perform
26 other daily activities. Pl.’s Decl. ¶ 3, Ex. C. Plaintiff also submits copies of her water bills,
27 which reflect that she used 1,230 gallons of water in October 2021; 1,640 gallons in November
28 2021; and 1,160 gallons in December 2021. Pl.’s Decl. Ex. D. Concerning her water pressure,
1 Plaintiff attaches a copy of § 608.1 of the California Plumbing Code, which mandates a minimum
2 water pressure of 15 pounds force per square inch. Pl.’s Decl. Ex. F. Plaintiff contends that her
3 water pressure fell far short of this statutory minimum, as evidenced by her own measurements of
4 the flow rate in her home on an unspecified date.3 Pl.’s Decl. ¶ 3.
5 Defendants oppose Plaintiff’s motion, arguing that she has not met the high burden
6 for sanctions or an amended preliminary injunction. ECF No. 69. They contend there is simply
7 no showing that they failed to comply with the Preliminary Injunction and that Plaintiff’s issue
8 here stems from the water pressure, not the amount of water provided. They further note that, by
9 the time the Preliminary Injunction went into effect, the 10-gallon per hour flow restrictor, which
10 had also been installed on five other HCSD customers’ homes, had been replaced with a 90-
11 gallon-an-hour flow restrictor. Decl. of Robert Puckett in Supp. of Defs.’ Opp’n ¶¶ 3-6. Still,
12 Plaintiff, like all other HCSD customers, was limited to 300 gallons per day pursuant to
13 resolutions passed by the HCSD Board Defendants. Id. ¶ 6, Ex. 1.
14 A party seeking a civil contempt order must establish: (1) that the defendant
15 violated a court order, (2) beyond substantial compliance, (3) not based on a good faith and
16 reasonable interpretation of the order, (4) by clear and convincing evidence. Labor/Community
17 Strategy Ctr. v. Los Angeles Cty. Metropolitan Transp. Authority, 564 F.3d 1115, 1123 (9th Cir.
18 2009).
19 District courts have “inherent power” to impose sanctions to manage their cases,
20 ensure the orderly administration of justice, and enforce compliance with orders. ChromaDex,
21 Inc. v. Elysium Health, Inc., 535 F. Supp. 3d 906, 911 (C.D. Cal. 2021) (citing Int’l Union,
22 United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 831 (1994). “That authority includes the
23 ability to fashion an appropriate sanction for conduct which abuses the judicial process.”
24 Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186 (2017). But a court imposing
25 sanctions pursuant to its inherent power may impose sanctions based only on a finding of either
26

27 3 Plaintiff’s calculations were based on sequentially filling 3 one-gallon jugs from
her kitchen tap. Pl.’s Decl. ¶ 3. According to Plaintiff, it took 88 seconds to fill the first jug, 96
28 seconds to fill the second jug, and 93 seconds to fill the third jug. Id.
1 “a willful violation of a court order [or ...] bad faith.” Am. Unites for Kids v. Rousseau, 985 F.3d
2 1075, 1090 (9th Cir. 2021).
3 The Court finds that Plaintiff has not shown by clear and convincing evidence that
4 Defendants violated the Preliminary Injunction. While she claims that she received less water
5 than other HCSD customers, her evidence shows only that she used less than 200 gallons of water
6 per day, not that Defendants provided less. Turning to the water pressure, Defendants are
7 incorrect in claiming that it is not at issue here. To the contrary, the Preliminary Injunction
8 specifically states that “HCSD must provide Olson with water in compliance with internal rules
9 and all other applicable state and local laws.” ECF No. 52 ¶ 2 (emphasis added). This would
10 necessarily encompass the state’s minimum requirements for water pressure. In any event,
11 Plaintiff’s evidence—measurements based on filling 3 one-gallon jugs on an unspecified date—is
12 insufficient to show that her water pressure fell below the state statutory minimum. And finally,
13 Plaintiff readily admits in her Reply brief that Defendants “altered Plaintiff’s water service to a
14 fully usable state on February 20, 2022.” ECF No. 73, pg. 3. For these reasons, Plaintiff’s
15 motion should be denied.4
16
17 IV. CONCLUSION
18 Based on the foregoing, the undersigned recommends that:
19 1. Defendants’ motion to dismiss, ECF No. 47, be granted with leave to
20 amend; and
21 2. Plaintiff’s motion for sanctions or, in the alternative, for a further
22 preliminary injunction, ECF No. 67, be denied.
23 These findings and recommendations are submitted to the United States District
24 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
25 after being served with these findings and recommendations, any party may file written objections
26
4 Plaintiff also claims that Defendants damaged and then failed to repair a control
27 valve on the “supply side” of the water meter. Pl.’s Decl. ¶ 2, ECF No. 67. She seeks an order
directing them to remedy this as soon as possible, but this issue exceeds the scope of the
28 Preliminary Injunction and is therefore not a proper basis to modify it.
1 | with the Court. Responses to objections shall be filed within 14 days after service of objections.
2 || Failure to file objections within the specified time may waive the right to appeal. See Martinez v.
3 || Ylst, 951 F.2d 1153 (9th Cir. 1991).
4
5 || Dated: August 30, 2022 Svc
6 DENNIS M. COTA
7 UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10046878. Public record. Not legal advice.