“A claim for unlawful 2 arrest is cognizable under § 1983 as a violation of the Fourth Amendment, provided 3 the arrest was without probable cause or other justification.”
How later courts described this case
- “A claim for unlawful 2 arrest is cognizable under § 1983 as a violation of the Fourth Amendment, provided 3 the arrest was without probable cause or other justification.”
- finding that “plaintiff is precluded from asserting 15 any claims pursuant to 18 U.S.C. §§ 242 and 371 because, as criminal statutes, they 16 do not convey a private right of action”
- holding that Heck barred plaintiffs’ claims “challeng[ing] the search and 16 seizure of evidence upon which their criminal charges and convictions were 17 based”
- “The linchpin of 8 the serious harm analysis under § 1589 is not just that serious harm was threatened 9 but that the employer intended the victim to believe that such harm would befall 10 her.”
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 CURTIS THORNTON, Case No. 19-cv-07638-HSG
8 Plaintiff, ORDER GRANTING IN PART
MOTIONS TO DISMISS
9 v.
Re: Dkt. Nos. 18, 21, 22, 28, 43
10 DALY CITY, et al.,
11 Defendants.
12
13 Pending before the Court are Defendants’ motions to dismiss Plaintiff’s first amended
14 complaint (“FAC”). Dkt. Nos. 18, 21, 22, 28, 43. The Court finds this matter appropriate for
15 disposition without oral argument and the matter is deemed submitted. See Civil L.R. 7-1(b). For
16 the reasons detailed below, the Court GRANTS IN PART the motions to dismiss.
17 I. BACKGROUND
18 The FAC alleges the following facts. Plaintiff’s childhood friend, Joshua Godinez, worked
19 at Gate Gourmet, and Plaintiff “observed” that Godinez would “be held” at work “for longer than
20 he intended” and “complain[ed] of receiving no payment.” FAC ¶¶ 34, 38-39. Plaintiff later
21 inquired about employment at Gate Gourmet, was hired in July 2018, and was “assigned to work
22 in a freezer manufacturing meals overnight, supervised in large part by [Margaret] Parker.” Id. at
23 ¶ 47. He “observed that the facility was a locked down building with access controls,” that a
24 manager was required to clock out production workers, and that “managers entered fraudulent
25 information into the time clock recording system.” Id. at ¶ 48. Within his first week at Gate
26 Gourmet, Plaintiff “observed Miss Parker coercing reluctant individuals to work extended shifts
27 and heard testimony from the production workers that they were not being paid for their hours.”
1 In early August, Plaintiff was “similarly defrauded by Gate Gourmet,” notified his
2 supervisors, and tried to obtain the contact information of the payroll personnel. Id. at ¶¶ 54-55.
3 Plaintiff alleges that “Miss Parker attempted to coerce [] Plaintiff into continuing to work
4 extended hours, making a statement to the effect that refusal would lead her to suggest he be laid
5 off.” Id. at ¶ 56. Though Plaintiff had “valuable contracts to complete” for his corporation,1
6 Plaintiff “complied with her coercion, observing that his departure would lead to Miss Parker
7 obtaining the involuntary servitude from one of the more handicapped production workers.” See
8 id. at ¶¶ 43, 57. Plaintiff “call[ed] out” for his remaining shifts and subsequently requested the
9 contact information for human resources. Id. at ¶ 59. In September 2018 Plaintiff sent an email to
10 human resources explaining that “he had been defrauded” and would “escalate the matter” if there
11 was no “investigation or remedy.” Id. at ¶ 60. During some unspecified time in September,
12 Plaintiff “discovered that [the] tires on his trailer had been slashed.” Id. at ¶ 61.
13 A San Francisco Police Department officer, Officer Gonsalves, called Plaintiff and
14 indicated that “he had received a call for service alleging that Plaintiff had threatened the human
15 resources personnel of Gate Gourmet,” but Officer Gonsalves “agreed that [] Plaintiff had not
16 violated any statute.” Id. at ¶¶ 62, 64. Plaintiff told Officer Gonsalves that he “did not have great
17 concern about the money he was due” from Gate Gourmet, but was more concerned for “the
18 individuals being forced to work in conditions of forced labor.” Id. at ¶ 63. Officer Gonsalves
19 indicated that Gate Gourmet’s conduct was a civil matter. Id. at ¶ 64. In October, Plaintiff found
20 that his vehicle had been tampered with, and the facility manager of a repair shop “confirmed that
21 such vehicle condition was very unlikely to have occurred without tampering, and that it was
22 reasonable to associate the tampering with an attempt on his life by the criminal organization he
23 had opposed.” Id. at ¶¶ 66-67.
24 In late November 2018, Parker “visited numerous police departments seeking” Plaintiff’s
25 arrest. Id. at ¶ 69. An officer from the Daly City Police Department, Ian Maddison, initiated an
26
27
1 In February 2018, Plaintiff formed CRATOS Incorporated to “pursu[e] DARPA and Military
contracts, building health/productivity optimizing products, developing real estate for such
1 inquiry, and Plaintiff made several attempts to contact Officer Maddison, who “did not question []
2 Plaintiff nor inform him of Miss Parker’s complaint.” Id. at ¶¶ 70, 73, 75. Officer Maddison
3 “falsely reported that Plaintiff refused to identify himself.” Id. at ¶ 76. Officer Maddison
4 “reported that Miss Parker” received threatening text messages from Plaintiff on November 15.
5 Id. at ¶¶ 80-81, 83. Officer Maddison indicated that Parker had reported the text messages to her
6 supervisor and that she had considered the messages “a credible threat to harm her with firearms.”
7 Id. at ¶ 79. Officer Maddison “filed a report with deliberately false and misleading statements”
8 and obtained an arrest warrant for Plaintiff. Id. at ¶ 80. According to the FAC, the complaint that
9 Officer Maddison filed included the following text messages:
10 • Just got a belt fed 50.cal
• Can’t legally bring it to CA, but it’s a lot of fun, I can put a
11 bullet all the way through a truck
• Belt fed means I can kill as many people hiding on the other
12 side of a truck as I want
• From a half mile away
13 • Got it as a trade, doing dirty deeds for the right people
• Still waiting for my check, you can tell Tanya I can give her a
14 visit at her home if I still need to talk to her to get paid
• I appreciate all the beige ski masks, they came in handy in the
15 desert
• Since I liked you I also want to give ya a little tip, a bunch of
16 dead property owners from a fire means free real estate for
whoever can hold it down
17 • I put the dogs to sleep because they made life inconvenient, I
liked them a lot too
18 • Smile emoji
• I liked them a lot more than I like you or Tanya to be honest
19 • (Photograph of woman with injuries)
• Check it out, I got a picture back from the dirty deed. I bet
20 she does what her husband says now aye lol
Id. at ¶ 81. Plaintiff notes that these text messages listed in the complaint are an excerpt from a
21
lengthier transcript and does not seem to dispute that he sent these messages. See id. Officer
22
Maddison “distributed a TRAK flyer, titled ‘422 PC to Arrest’” that “deceptively” indicated that
23
“Plaintiff threatened to use firearms to ‘kill as many people . . . as I want.” Id. at ¶ 86. On
24
November 19, Plaintiff was awoken “at gun-point, cuffed, and placed in a patrol car.” Id. at ¶ 87.
25
Plaintiff was “fully compliant and inquired to Officer Premenko and other arresting officers about
26
the charge, [but] the arresting officers refused an answer and/or responded that they were
27
1 Officer Paul Mendiara “proceeded to unlawfully search Plaintiff’s truck and utility trailer,”
2 and Officer Premenko transported Plaintiff “without notice of his right to post bail.” Id. at ¶¶ 90-
3 91. During his interrogation, Plaintiff’s request to Officer Mendiara “to be informed of the details
4 of the offense” was denied. Id. at ¶ 96. Plaintiff indicated that he “had observed and experienced
5 all of the element of human trafficking” at Gate Gourmet, that Gate Gourmet previously “had
6 attempted to wrongfully indict him,” and that his vehicle was tampered with. Id. at ¶ 93. Plaintiff
7 was transported to “county jail in Redwood City for booking.” Id. at ¶ 98.
8 The FAC identifies a related, unresolved criminal case pending in San Mateo Superior
9 Court which involves allegations that Plaintiff made criminal threats against his supervisor in
10 violation of California Penal Code Section 422. See generally FAC at 1 (citing case No. 18-NF-
11 013669-A). The FAC also details his release on bail, see id. at ¶ 103, participation in his
12 preliminary hearing, see id. at ¶¶ 99-102, filing of various motions in his criminal matter, see id. at
13 ¶¶ 108-09, 124-29, requests for informal discovery from the District Attorney’s Office, see id. at
14 ¶¶ 110-13, 118, 134-36, and the issuance of subpoenas for witnesses to “further establish the
15 human trafficking and criminal profiteering at Gate Gourmet.” See id. at ¶ 116. Plaintiff states
16 that the evidence he received from informal discovery included reports by Officer Mendiara,
17 Officer Maddison, and Officer Premenko, a video, and a time-stamped interrogation, and that the
18 documents and video “made evident the false and misleading statements submitted by Officer
19 Maddison and Officer Mendiara.” Id. at ¶¶ 111-12.
20 Plaintiff reported the human trafficking and criminal profiteering to the San Francisco
21 Police Department, San Mateo County Police Department, and the FBI, but alleges that “there has
22 been no further communication or inquiry indicating any progress or advancement in their
23 investigation.” Id. at ¶ 180. Plaintiff alleges that various Defendants, specifically Daly City, San
24 Mateo County, the City and County of San Francisco, and the FBI, have “failed to properly
25 investigate the incident, and/or failed to take any action to discipline the involved actors, allocate
26 [] Plaintiff with equal protections of the law, or avoid similar incidents from occurring in the
27 future,” and that “such conduct evidences the ratification of the foregoing acts and omissions by []
1 Plaintiff states that “Defendants acted as integral participants, each with fundamental involvement
2 in the violation of Plaintiff’s rights.” Id. at ¶ 183. Plaintiff states that Defendants’ acts or
3 omissions were a “direct and proximate result” of Plaintiff’s injuries, including wrongful seizure,
4 false imprisonment, violations of state and federal constitutional rights (including violations of the
5 First, Second, Fourth, and Fourteenth Amendments), emotional distress and loss of liberty, and
6 property damages for lost property and wages. Id. at ¶ 185.
7 Plaintiff alleges the following causes of action, though it is not always clear which
8 Defendants Plaintiff references for a given cause of action:
9 1. Violation of 42 U.S.C §§ 1983, 1985, 1986; 18 USC §§ 242,
371
10
2. Violation of Section 1983 based on unconstitutional custom
11 or policy by a municipality under Monell v. Dep’t of Soc.
Servs. of City of New York, 436 U.S. 658 (1978)
12
3. Violation of the Bane Act, California Civil Code 52.1
13
4. Violation of Article 1, Section 13 of the California
14 Constitution
15 5. False arrest and false imprisonment
16 6. Invasion of privacy
17 7. Negligence
18 8. Human trafficking, racketeering, criminal profiteering, forced
labor, involuntary servitude, operating in the US as an
19 unregistered foreign agent
20 9. Interfering with enforcement of US Codes governing
trafficking in forced labor and involuntary servitude
21
See FAC ¶¶ 186-231.
22
II. LEGAL STANDARD
23
Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain
24
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A
25
defendant may move to dismiss a complaint for failing to state a claim upon which relief can be
26
granted under Federal Rule of Civil Procedure 12(b)(6). “Dismissal under Rule 12(b)(6) is
27
appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support
1 a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th
2 Cir. 2008). To survive a Rule 12(b)(6) motion, a plaintiff must plead “enough facts to state a
3 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
4 A claim is facially plausible when a plaintiff pleads “factual content that allows the court to draw
5 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
6 556 U.S. 662, 678 (2009).
7 In reviewing the plausibility of a complaint, courts “accept factual allegations in the
8 complaint as true and construe the pleadings in the light most favorable to the nonmoving party.”
9 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nonetheless,
10 Courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of
11 fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir.
12 2008). “Pleadings must be construed so as to do justice.” Fed. R. Civ. P. 8(e). For that reason, “a
13 pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal
14 pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotations marks and
15 citations omitted).
16 III. DISCUSSION
17 Given that the only basis for subject matter jurisdiction over Plaintiff’s state law claims is
18 supplemental jurisdiction, FAC at 3-4, the Court first addresses the federal claims. Even affording
19 Plaintiff some leeway given his pro se status, the Court finds that most of the federal claims in the
20 FAC clearly fail. Plaintiff alleges the following federal causes of action: (1) violation of 42
21 U.S.C. § 1983, 1985, and 1986; (2) violation of Section 1983 based on a theory of municipal and
22 supervisory liability; (3) violation of 18 U.S.C. §§ 242 and 371; (4) violation of 18 U.S.C.
§§ 1584, 1589, and 1590; (5) violation of 18 U.S.C. §§ 1584b and 1590b; (6) violation of 18
23
U.S.C. § 1962; and (7) violation of 18 U.S.C. § 951.
24
25 A. Daly City Defendants
Plaintiff makes various allegations against Defendants “City of Daly,” Ian Maddison, Paul
26
27
1 Mendiara, Jonathan Premenko, and Patrick Hensley (collectively, “Daly City Defendants”).2 With
2 the exception of Plaintiff’s Section 1983 claim alleging a violation of the Fourth Amendment
3 based on the warrantless search of his truck and trailer, the Court dismisses all of the federal
4 claims against Daly City Defendants without leave to amend.3
5 i. 42 U.S.C. § 1983
6 A claim under Section 1983 requires two elements: “[f]irst, the plaintiff must prove that
7 the defendant has deprived him of a right secured by the ‘Constitution and laws’ of the United
8 States,” and “[s]econd, the plaintiff must show that the defendant deprived him of this
9 constitutional right ‘under color of any statute, ordinance, regulation, custom, or usage, of any
10 State or Territory.’” Adickes v. S. H. Kress & Co., 398 U.S. 144, 150 (1970) (quoting 42 U.S.C.
11 § 1983).
12 • Plaintiff alleges a claim for unlawful arrest in violation of the Fourth Amendment.4
13 The Court DISMISSES this claim WITHOUT LEAVE TO AMEND because the
14 Court finds that there was probable cause for Plaintiff’s arrest based on the text
15 messages cited in the FAC, which Plaintiff does not dispute sending. See FAC ¶ 81
16 (listing texts and noting texts are from an excerpt from a lengthier transcript);
17
2 Daly City Defendants argue that Jonathan Premenko and Patrick Hensley were not properly
18
named. See Dkt. No. 18 at 9; Dkt. No. 20 at 2. The Court finds that these individuals were not
properly named as defendants, but further finds that even had they been properly named, the
19
claims would meet the same fate as those against the named Daly City Defendants.
3 Daly City Defendants request that the Court take judicial notice of the transcript of the
20
preliminary hearing in the state criminal court proceedings, as well as various filings on the docket
of this case, including Plaintiff’s application to proceed in forma pauperis, the Court’s Order
21
granting that application, the original complaint, and the first amended complaint. Dkt. No. 18-1.
The Court DENIES AS MOOT the requests for judicial notice of the transcript of the preliminary
22
hearing, Plaintiff’s application to proceed in forma pauperis, the Court’s Order granting that
application, and the original complaint because the Court does not rely on any of these documents
23
in its analysis. The Court further DENIES AS MOOT the request for judicial notice of the first
amended complaint that forms the basis of the present motions because that request is unnecessary
24
and duplicative.
4 Because Plaintiff’s first cause of action is largely incomprehensible and non-specific, it is
25
unclear whether Plaintiff is alleging an overlap between the Fourth and Fourteenth Amendment
claims. But to the extent that state law has created a due process right to be free from unlawful
26
searches and seizures, the Court finds that the Fourth Amendment governs Plaintiff’s claim under
the more-specific-provision rule of Graham v. Connor, 490 U.S. 386 (1989). The more-specific-
27
provision rule “requires that if a constitutional claim is covered by a specific constitutional
1 Lacey v. Maricopa Cty., 693 F.3d 896, 918 (9th Cir. 2012) (“A claim for unlawful
2 arrest is cognizable under § 1983 as a violation of the Fourth Amendment, provided
3 the arrest was without probable cause or other justification.”) (quoting Dubner v.
4 City and Cnty. of San Francisco, 266 F.3d 959, 964 (9th Cir.2001)).
5 • Plaintiff also alleges a claim for unlawful search in violation of the Fourth
6 Amendment. Beyond listing two warrant exceptions, Defendants do not elaborate
7 on the facts supporting their application. See Dkt. No. 18 at 14-15. The Court
8 exercises its discretion to STAY this claim pending the resolution of the state
9 criminal court proceedings. See Wallace v. Kato, 549 U.S. 384, 393 (2007) (noting
10 the “power of the district court . . . to stay the civil action until the criminal case or
11 the likelihood of a criminal case is ended”); see also Heck v. Humphrey, 512 U.S.
12 477, 487 (1994) (holding that Section 1983 claim for damages must be dismissed if
13 “judgment in favor of the plaintiff would necessarily imply the invalidity of his
14 conviction or sentence”); Whitaker v. Garcetti, 486 F.3d 572, 583–84 (9th Cir.
15 2007) (holding that Heck barred plaintiffs’ claims “challeng[ing] the search and
16 seizure of evidence upon which their criminal charges and convictions were
17 based”).
18 • To the extent Plaintiff attempts to assert a Fifth Amendment due process claim, the
19 Court DISMISSES this claim WITHOUT LEAVE TO AMEND because Fifth
20 Amendment claims are not cognizable against state or local actors. See, e.g., Lee v.
21 City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001).
22 • Plaintiff alleges violations of the First and Second Amendments, but provides
23 entirely insufficient allegations to support a violation of these amendments, and the
24 allegations in the FAC do not suggest this deficiency can be cured. Accordingly,
25 the Court DISMISSES these claims WITHOUT LEAVE TO AMEND.
26 • Referring to state criminal penal code provisions, see Dkt. No. 19 at 9-10, Plaintiff
27 alleges that Daly City Defendants did not afford him the “right to be informed of
1 county the arrest takes place,” and “the right to a phone call within 3 hours of
2 arrest.” See FAC ¶ 187. Plaintiff cannot state a cognizable Section 1983 claim
3 based on alleged violations of state law. See Wyatt v. Walmart Store, No. 2:08-CV-
4 02902MCECMK, 2009 WL 3367450, at *4 (E.D. Cal. Oct. 19, 2009) (noting “a
5 viable § 1983 claim . . . flows from the violation of either federal law or the United
6 States Constitution”). The Court DISMISSES this claim WITHOUT LEAVE TO
7 AMEND.
8 • Plaintiff alleges a violation of Section 1983 based on unconstitutional custom or
9 policy by a municipality under Monell. The FAC does not sufficiently detail that
10 Daly City had an official policy that was the moving force behind any alleged
11 injury. Plaintiff only provides wholly conclusory allegations regarding alleged
12 polices or customs, see FAC ¶ 192, with no supporting facts whatsoever. The
13 Court DISMISSES the Monell claim WITHOUT LEAVE TO AMEND.
14 ii. 42 U.S.C. §§ 1985 and 1986
15 “Section 1985 creates a civil action for damages caused by two or more persons who
16 ‘conspire . . . for the purpose of depriving’ the injured person of ‘the equal protection of the laws,
17 or of equal privileges and immunities under the laws’ and take or cause to be taken ‘any act in
18 furtherance of the object of such conspiracy.’ ” Thornton v. City of St. Helens, 425 F.3d 1158,
19 1168 (9th Cir. 2005) (quoting 42 U.S.C. § 1985). A claim under Section 1985(3) requires “(1) a
20 conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of
21 persons of the equal protection of the laws, or of equal privileges and immunities under the laws;
22 and (3) an act in furtherance of this conspiracy; (4) whereby a person is either injured in his person
23 or property or deprived of any right or privilege of a citizen of the United States.” Steshenko v.
24 Gayrard, 70 F. Supp. 3d 979, 998 (N.D. Cal. 2014) (quoting Sever v. Alaska Pulp Corp., 978 F.2d
25 1529, 1536 (9th Cir.1992)). “A mere allegation of conspiracy is insufficient to state a claim.” Id.
26 (citing Holgate v. Baldwin, 425 F.3d 671, 676-77 (9th Cir. 2005)). Further, a plaintiff alleging a
27 Section 1985(3) claim must show that the deprivation of a legally protected right was motivated
1 action for neglecting to prevent conspiracy to interfere with civil rights and requires a “valid claim
2 for relief under section 1985.” Trerice v. Pedersen, 769 F.2d 1398, 1403 (9th Cir. 1985).
3 • The Court construes Plaintiff’s 1985 and 1986 claims as predicated on the 1983
4 claim because he alleges that there was a conspiracy to wrongfully indict him based
5 on the same allegations relating to the 1983 claim. See FAC ¶¶ 65, 97, 202. The
6 Court DISMISSES the conspiracy claims WITHOUT LEAVE TO AMEND
7 because Plaintiff’s vague and conclusory allegations do not plausibly suggest any
8 conspiracy existed, or importantly, that any alleged legal deprivation was motivated
9 by any class-based animus.
10 iii. 18 U.S.C. §§ 242 and 371
11 • The Court DISMISSES these claims WITHOUT LEAVE TO AMEND because
12 these are federal criminal statutes that do not provide a private civil right of action.
13 See Rockefeller v. U.S. Court of Appeals Office, for Tenth Circuit Judges, 248 F.
14 Supp. 2d 17, 23 (D.D.C. 2003) (finding that “plaintiff is precluded from asserting
15 any claims pursuant to 18 U.S.C. §§ 242 and 371 because, as criminal statutes, they
16 do not convey a private right of action”).
17 iv. 18 U.S.C. § 1584b and 18 U.S.C. § 1590b
18 Section 1584 of Title 18 makes it unlawful to knowingly and willfully hold a person in a
19 condition of involuntary servitude. 18 U.S.C. § 1584. Section 1590 of Title 18 makes it unlawful
20 to “knowingly recruit[], harbor[], transport[], provide[], or obtain[] by any means, any person for
21 labor or services” in violation of the offenses contained in Chapter 77 of Title 18. 18 U.S.C. §
22 1590. The involuntary servitude provision and the trafficking into servitude provision each state
23 that “[w]hoever obstructs, attempts to obstruct, or in any way interferes with or prevents the
24 enforcement of this section, shall be subject to the penalties under subsection (a),” which include
25 fines, imprisonment, or both. 18 U.S.C. §§ 1584(b), 1590(b). Section 1595 provides for a private
26 right of action for a victim of “any violation under Chapter 77 of Title 18, including violations of
27 Sections 1584 and 1590.” Hernandez v. Attisha, No. 09CV-2257-IEGWMC, 2010 WL 816160, at
1 • The FAC alleges that Daly City Defendants failed to properly investigate the
2 human trafficking and criminal profiteering that Plaintiff reported. FAC ¶¶ 180,
3 182. Plaintiff’s theory, predicated on the idea that investigating authorities did not
4 act as Plaintiff thought they should have, is inadequate as a matter of law, and
5 nothing in the FAC suggests that these allegations can be amended to state a
6 cognizable claim against these defendants. The Court DISMISSES these claims
7 WITHOUT LEAVE TO AMEND.
8 B. San Mateo Defendants
9 Plaintiff brings various claims against Defendants San Mateo County and District Attorney
10 Stephen Wagstaffe (collectively, “San Mateo Defendants”). The Court DISMISSES all federal
11 claims against San Mateo Defendants WITHOUT LEAVE TO AMEND.
12 i. 42 U.S.C. § 1983
13 • The Court DISMISSES the 1983 claim against District Attorney Wagstaffe
14 WITHOUT LEAVE TO AMEND because he has immunity for prosecuting the
15 case against Plaintiff in San Mateo County. “A state prosecuting attorney enjoys
16 absolute immunity from liability under 42 U.S.C. § 1983 for his conduct in
17 ‘pursuing a criminal prosecution’ insofar as he acts within his role as an ‘advocate
18 for the State’ and his actions are ‘intimately associated with the judicial phase of
19 the criminal process.’” Harris v. Bullard, No. 19-CV-06648-HSG, 2020 WL
20 353472, at *2 (N.D. Cal. Jan. 21, 2020) (quoting Imbler v. Pachtman, 424 U.S.
21 409, 430-31 (1976)).
22 • Plaintiff’s related allegations against San Mateo County are made on the same basis
23 (namely, that Defendant Wagstaffe prosecuted him). Accordingly, the Court
24 DISMISSES the Monell claim WITHOUT LEAVE TO AMEND because
25 Plaintiff cannot show any viable underlying constitutional violation.
26 ii. 42 U.S.C. §§ 1985 and 1986
27 • The Court DISMISSES the conspiracy claims WITHOUT LEAVE TO AMEND
iii. 18 U.S.C. §§ 242 and 371
1
• The Court DISMISSES these claims WITHOUT LEAVE TO AMEND for the
2
same reason identified above as to Daly City Defendants.
3
iv. 18 U.S.C. § 1584b and 18 U.S.C. § 1590b
4
• The FAC similarly alleges that San Mateo Defendants failed to properly investigate
5
the human trafficking and criminal profiteering that Plaintiff reported. FAC ¶¶
6
180, 182. As previously noted, Plaintiff’s theory is inadequate as a matter of law
7
and the allegations cannot be cured to state a cognizable claim. The Court
8
DISMISSES these claims WITHOUT LEAVE TO AMEND.
9
C. Gate Gourmet
10
Plaintiff makes various allegations against Gate Gourmet. The Court dismisses the Section
11
1589, 1590, and 1962 claims with leave to amend. And the Court dismisses the remaining federal
12
claims against Gate Gourmet without leave to amend.
13
i. 42 U.S.C. § 1983
14
• The Court DISMISSES the Section 1983 claim WITHOUT LEAVE TO
15
AMEND because Gate Gourmet is not a state actor, and the FAC does not
16
plausibly suggest that it had control over any state actor. Plaintiff points to
17
allegations in the FAC relating to Margaret Parker, a Gate Gourmet employee,
18
reporting him to the police. See Dkt. No. 30 at 4 (citing FAC ¶¶ 62, 69, 82). But
19
those allegations do not plausibly suggest that Parker, much less Gate Gourmet,
20
exercised any control over the decision to arrest him.
21
ii. 42 U.S.C. §§ 1985 and 1986
22
• The Court DISMISSES the conspiracy claims WITHOUT LEAVE TO AMEND
23
for the same reasons identified above as to Daly City Defendants.
24
iii. 18 U.S.C. §§ 242 and 371
25
• The Court DISMISSES these claims WITHOUT LEAVE TO AMEND for the
26
same reason identified above as to Daly City Defendants.
27
1 In addition to alleging violations of the involuntary servitude and trafficking provisions,
2 Plaintiff alleges that Gate Gourmet violated Section 1589 of Title 18, which prohibits “knowingly
3 provid[ing] or obtain[ing] the labor or services of a person through force, physical restraint,
4 serious harm, abuse of law or legal process, threats of any of those means, or any combination of
5 those methods.” Novoa v. GEO Grp., Inc., No. EDCV172514JGBSHKX, 2019 WL 7195331, at
6 *8 (C.D. Cal. Nov. 26, 2019) (internal quotation marks omitted). “The term ‘serious harm’ means
7 any harm, whether physical or nonphysical, including psychological, financial, or reputational
8 harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable
9 person of the same background and in the same circumstances to perform or to continue
10 performing labor or services in order to avoid incurring that harm.” 18 U.S.C. § 1589(c). Section
11 1595 also provides for a private right of action for a victim of a violation of Section 1589. Novoa,
12 2019 WL 7195331, at *8 (citing 18 U.S.C. § 1595).
13 Plaintiff argues that the FAC shows that Gate Gourmet had a “practice of obtaining
14 coerced labor with threats of financial harm, that Plaintiff had experienced himself.” Dkt. No. 30
15 at 6 (citing FAC ¶¶ 52-58). The allegations indicate that he reached out to an “elderly woman”
16 who “stated that she had been defrauded of thousands and had gone into life threatening diabetic
17 shock twice during her experience being forced to work and going unpaid.” Id. at ¶119. He states
18 that he was “similarly defrauded” and undetailed allegations that Plaintiff observed Parker
19 “coercing reluctant individuals to work extended shifts” and “heard testimony” that others were
20 not being paid. Id. at ¶ 54. He alleges that Parker “ma[de] a statement to the effect that refusal [to
21 work extended hours] would lead her to suggest he be laid off.” Id. at ¶ 56.
22 • As for the Section 1589 claim, there are insufficient allegations to plausibly suggest
23 that Gate Gourmet obtained labor by the means listed in the statute (i.e. threats of
24 force or physical restraint, threats of serious harm) with the required state of mind.
25 See Mallela v. Cogent Infotech Corp., No. 2:19-CV-01658-NR, 2020 WL 2541860,
26 at *3 (W.D. Pa. May 19, 2020) (finding “forced-labor and trafficking-into-servitude
27 claims fail because [plaintiff] has failed to plead sufficient facts as to [defendant’s]
1 financial harm, that Plaintiff had experienced himself.” Dkt. No. 30 at 6. Parker’s
2 statement that Plaintiff construed as “suggest[ing] he [would] be laid off,” see FAC
3 ¶ 56, does not show that Gate Gourmet intended to cause Plaintiff “to believe that if
4 [he] does not continue to work, [he] will suffer the type of serious harm—physical
5 or nonphysical, including psychological, financial, reputation harm—that would
6 compel someone in h[is] circumstances to continue working to avoid that harm.”
7 See United States v. Dann, 652 F.3d 1160, 1170 (9th Cir. 2011) (“The linchpin of
8 the serious harm analysis under § 1589 is not just that serious harm was threatened
9 but that the employer intended the victim to believe that such harm would befall
10 her.”). The Court is very skeptical that this claim amounts to more than a routine
11 workplace dispute, but will allow Plaintiff one more opportunity to plead additional
12 facts sufficient to state a claim. See id. (“[N]ot all bad employer-employee
13 relationships . . . will constitute forced labor.”). Accordingly, the Court
14 DISMISSES the Section 1589 claim WITH LEAVE TO AMEND. Plaintiff is
15 warned that failure to adequately plead each of the elements of a Section 1589
16 claim, with specific supporting facts, will result in dismissal without further leave
17 to amend.
18 • Similar to the Section 1589 claim, the Court DISMISSES the Section 1590 claim
19 WITH LEAVE TO AMEND because a “1590 claim depends on a predicate
20 TVPRA offense—such as forced labor.” See Martinez-Rodriguez v. Giles, 391 F.
21 Supp. 3d 985, 998 (D. Idaho 2019).
22 • As for the Section 1584 claim, there are insufficient allegations to plausibly suggest
23 that Gate Gourmet “knowingly and willfully” held Plaintiff in a condition of
24 “involuntary servitude,” and nothing in the allegations suggests that Plaintiff can
25 cure this deficiency by amending given the nature of the dispute he already has
26 pled. See Owino v. CoreCivic, Inc., No. 17-CV-1112 JLS (NLS), 2018 WL
27 2193644, at *6 (S.D. Cal. May 14, 2018) (noting “Congress intended § 1584 to
1 ‘involuntary servitude.’ ”) (citing United States v. Kozminski, 487 U.S. 931, 944-45
2 (1988)). The Court DISMISSES the Section 1584 claim WITHOUT LEAVE TO
3 AMEND.
4 v. 18 U.S.C. § 1962
5 “RICO provides a private cause of action for ‘[a]ny person injured in his business or
6 property by reason of a violation of [18 U.S.C. § 1962].’” United Bhd. of Carpenters & Joiners of
7 Am. v. Bldg. & Const. Trades Dep’t, AFL-CIO, 770 F.3d 834, 837 (9th Cir. 2014) (alterations in
8 original) (quoting 18 U.S.C. § 1964(c)). “The elements of a civil RICO claim are as follows: (1)
9 conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity (known as ‘predicate
10 acts’) (5) causing injury to plaintiff’s business or property.” Id.
11 • The Court construes the FAC as alleging that the violations of the Trafficking
12 Victims Protection Reauthorization Act constitute the predicate acts. See Dkt. No.
13 30 at 8 (stating the racketeering activity includes the TVPRA acts); see also 18
14 U.S.C. § 1961 (defining “racketeering activity” as including “any act which is
15 indictable under . . . sections 1581–1592” of Title 18). Given that the Court
16 dismissed the Section 1589 and 1590 claims with leave to amend, the Court
17 DISMISSES the RICO claim WITH LEAVE TO AMEND to the extent that it is
18 based on these predicate acts. Plaintiff is warned that failure to adequately plead
19 each of the elements of a RICO claim, with specific supporting facts, will result in
20 dismissal without further leave to amend.
21 vi. 18 U.S.C. § 951
22 Section 951 of Title 18 provides criminal liability for “whoever, other than a diplomatic or
23 consular officer or attaché, acts in the United States as an agent of a foreign government without
24 prior notification to the Attorney General.” 18 U.S.C. § 951.
25 • Because Section 951 is a federal criminal statute, the Court DISMISSES this claim
26 WITHOUT LEAVE TO AMEND.
27 D. FBI
1 claims against the FBI without leave to amend.
2 i. 42 U.S.C. § 1983
3 • It is unclear whether Plaintiff intends to allege a 1983 violation against the FBI.
4 The FAC does not detail any specific allegations for that cause of action, see FAC ¶
5 186-190, and Plaintiff did not address Defendant FBI’s related arguments in his
6 opposition, see Dkt. No. 36. To the extent Plaintiff alleges a violation of Section
7 1983, the Court DISMISSES the 1983 claim WITHOUT LEAVE TO AMEND.
8 See Beasley v. Fed. Bureau of Investigation, No. CV-19-04606-PHX-JJT, 2019 WL
9 3017609, at *1 (D. Ariz. July 10, 2019) (dismissing 1983 claim without leave to
10 amend because “FBI is not an agency of state government or otherwise a state
11 actor”).
12 ii. 18 U.S.C. §§ 242 and 371
13 • The Court DISMISSES these claims WITHOUT LEAVE TO AMEND for the
14 same reason identified above as to Daly City Defendants.
15 iii. 18 U.S.C. § 1584b and 18 U.S.C. § 1590b
16 • The FAC alleges that the FBI failed to properly investigate the human trafficking
17 and criminal profiteering that Plaintiff reported. FAC ¶¶ 180, 182. Because
18 Plaintiff’s theory is inadequate as a matter of law, the Court DISMISSES these
19 claims WITHOUT LEAVE TO AMEND.
20 E. Dave Kennan
21 Plaintiff brings one federal claim against Defendant South San Francisco Police
22 Department Sergeant Dave Kennan. The limited allegations concerning Defendant Kennan
23 include that Plaintiff received a voicemail from Kennan “regarding the barking dogs [] in his
24 trailer” and that when “Plaintiff sought the records of the call for service answered by Sergeant
25 Kennan” he “discovered that [] Kennan falsely, deceptively, and negligently recorded that he had
26 never communicated with Plaintiff.” See FAC ¶¶ 12, 49, 130.
27 i. 18 U.S.C. § 1584b and 18 U.S.C. § 1590b
1 with or prevented the enforcement of Sections 1584 or 1590. The FAC does not
2 even allege that Plaintiff reported any incidents of human trafficking to Sergeant
3 Kennan. And even if he had, any theory that Defendant Kennan failed to
4 investigate these reports as Plaintiff thought he should would be insufficient as a
5 matter of law. The Court DISMISSES these claims WITHOUT LEAVE TO
6 AMEND.
7 F. STATE LAW CLAIMS
8 A district court may decline to exercise supplemental jurisdiction if it has dismissed all
9 claims over which it has original jurisdiction. Sanford v. MemberWorks, Inc., 625 F.3d 550, 561
10 (9th Cir. 2010) (citing 28 U.S.C. § 1367(c)(3)). “[I]n the usual case in which all federal-law
11 claims are eliminated before trial, the balance of factors to be considered under the pendent
12 jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point toward
13 declining to exercise jurisdiction over the remaining state-law claims.” Id. (citation and internal
14 quotations omitted).
15 Plaintiff’s FAC does not contend that there is diversity jurisdiction, but rather alleges that
16 the Court has subject matter jurisdiction over the federal claims and supplemental jurisdiction over
17 the state claims. FAC at 3-4. Having stayed one federal claim and dismissed the remaining
18 federal claims, the Court, in its discretion, declines to address the remaining state law claims
19 against Defendants unless and until Plaintiff can state a valid federal claim.
20 IV. CONCLUSION
21 For the foregoing reasons, Defendants’ motions to dismiss are GRANTED as follows:
22 • All federal claims against San Mateo Defendants, the FBI, and Dave Kennan are
23 DISMISSED WITHOUT LEAVE TO AMEND;
24 • The Section 1983 claim against Daly City Defendants alleging a violation of the
25 Fourth Amendment based on Plaintiff’s arrest is DISMISSED WITHOUT
26 LEAVE TO AMEND;
27 • The Section 1983 claims against Daly City Defendants alleging violations of the
1 WITHOUT LEAVE TO AMEND;
2 • The Section 1983 claim against Daly City Defendants alleging violations of state
3 law is DISMISSED WITHOUT LEAVE TO AMEND;
4 • The Monell claim against Daly City Defendants is DISMISSED WITHOUT
5 LEAVE TO AMEND;
6 • The conspiracy claims under Sections 1985 and 1986 against Daly City Defendants
7 and Gate Gourmet are DISMISSED WITHOUT LEAVE TO AMEND;
8 • The claims under Sections 242 and 371 against Daly City Defendants and Gate
9 Gourmet are DISMISSED WITHOUT LEAVE TO AMEND;
10 • The claims against Daly City Defendants alleging violations of Sections 1584 and
11 1590 are DISMISSED WITHOUT LEAVE TO AMEND;
12 • The Section 1983 claim against Gate Gourmet is DISMISSED WITHOUT
13 LEAVE TO AMEND;
14 • The claim against Gate Gourmet alleging a violation of Section 1584 is
15 DISMISSED WITHOUT LEAVE TO AMEND;
16 • The claim against Gate Gourmet alleging a violation of Section 951 is
17 DISMISSED WITHOUT LEAVE TO AMEND;
18 • The Section 1983 claim against Daly City Defendants alleging a violation of the
19 Fourth Amendment based on the warrantless search of his truck and trailer is
20 STAYED pending resolution of the state criminal proceeding;
21 • The claims against Gate Gourmet alleging violations of Sections 1589, 1590,
22 and 1962 are dismissed WITH LEAVE TO AMEND.
23 The Court cautions Plaintiff to carefully consider the above analysis when amending his
24 complaint. Any amended complaint cannot reassert claims that were dismissed without leave to
25 amend. Apart from one specific Section 1983 claim against Daly City Defendants that the Court
26 has stayed, which Plaintiff may again allege, there are only three federal claims against Gate
27 Gourmet as to which the Court has granted leave to amend. Plaintiff may amend these three
1 defendants in his second amended complaint. Plaintiff may include the currently-alleged state law
2 claims against Defendants, without modification, in the second amended complaint, but should be
3 aware that the Court will not exercise supplemental jurisdiction over these claims unless Plaintiff
4 || can sufficiently plead facts that give rise to cognizable claims under a federal statute. And even if
5 || Plaintiff eventually can sufficiently plead a federal claim, the Court will dismiss the state law
6 || claims if they fail to meet the applicable pleading standards. In any amended complaint, Plaintiff
7 must clearly identify: (1) each legal claim; (2) the facts supporting each claim; and (3) the
8 || defendant against whom the claim is alleged. Plaintiff may not lump all Defendants together, and
9 || must plead his claims consistent with the requirements discussed above.
10 As the above analysis should make clear, the Court believes that Plaintiff's complaint
11 borders on being frivolous in significant part, and that the complaint could fairly be read as
12 || primarily intended to harass the Defendants. Failure to correct the identified deficiencies will
5 13 result in dismissal without further leave to amend. Any amended complaint must be filed within
14 || 21 days of this order.
15
16 IT IS SO ORDERED.
17 || Dated: 3/15/2021
Abaspued 5
HAYWOOD S. GILLIAM, JR.
19 United States District Judge
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