“Appellant is entitled to redeem his note, but not in precious metal. Simply 26 stated, we find his contentions frivolous.”
How later courts described this case
- “Appellant is entitled to redeem his note, but not in precious metal. Simply 26 stated, we find his contentions frivolous.”
- “Under the Ex parte Young doctrine, a plaintiff may 11 maintain a suit for prospective relief against a state official in his official capacity, when that suit 12 seeks to correct an ongoing violation of the Constitution or federal law.”
- “In dismissing for failure to state a claim, a district court should grant leave to amend 18 even if no request to amend the pleading was made, unless it determines that the pleading could 19 not possibly be cured by the allegation of other facts.”
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 MARC R WARD, Case No. 23-cv-06167-JSC
8 Plaintiff,
ORDER RE: DEFENDANT
9 v. STANISLAUS’S MOTION TO DISMISS
10 SELVI STANISLAUS, Re: Dkt. No. 43
Defendant.
11
12
13 Plaintiff, who represents himself, sues Defendant Stanislaus in her official capacity as
14 Executive Officer for the State of California Franchise Tax Board for executing a levy. (Dkt. No.
15 5 at 3, 5.)1 Before the Court is Defendant Stanislaus’s motion to dismiss. (Dkt. No. 43.) Having
16 carefully considered the briefing, the Court concludes oral argument is unnecessary, see Civ. L. R.
17 7-1(b), and GRANTS Defendant Stanislaus’s motion to dismiss. Plaintiff failed to timely serve
18 Defendant Stanislaus. Further, Plaintiff’s § 1983 damages claim against Defendant Stanislaus in
19 her official capacity is barred by the Eleventh Amendment, and to the extent Plaintiff’s claim for
20 prospective relief is not also barred by the Eleventh Amendment, Plaintiff fails to state a claim.
21 BACKGROUND
22 Plaintiff is employed by Wells Fargo. (Dkt. No. 5 at 5.) The Sacramento County Sheriff’s
23 Office’s Civil Bureau served a writ of garnishment on Wells Fargo in April 2023 ordering Wells
24 Fargo to withhold money from Plaintiff’s paycheck. (Id. at 3-5.) The writ of garnishment was
25 based on a wage garnishment order issued by a Contra Costa County superior court in relation to
26 unpaid taxes. (Id. at 4-5.) The ongoing withholding began in May 2023. (Id. at 5.)
27
1 Plaintiff brings a 42 U.S.C. § 1983 suit against Defendant Stanislaus for violating his
2 federal rights by executing the superior court’s wage garnishment order. (Id. at 3.) Defendant
3 Stanislaus moves to dismiss Plaintiff’s claims against her on the grounds the Eleventh Amendment
4 immunizes her from suit, Plaintiff failed to properly serve Defendant, and the complaint fails to
5 state a claim. Plaintiff argues Defendant Stanislaus’s motion to dismiss is untimely because
6 Plaintiff completed service in December 2023.
7 DISCUSSION
8 A plaintiff’s “suit against state officials in their official capacities” is treated “as a suit
9 against the state of California.” Holley v. California Dep’t Of Corr., 599 F.3d 1108, 1111 (9th
10 Cir. 2010). California’s Franchise Tax Board is an agency of the state of California. Cal. Gov’t
11 Code § 15700 (“There is in the state government, in the Government Operations Agency, a
12 Franchise Tax Board[.]”). So, Plaintiff’s suit against Defendant Stanislaus in her official capacity
13 is a suit against the state of California.
14 I. Service
15 Federal Rule of Civil Procedure 4 provides service on an individual may be accomplished
16 by 1) “following state law for serving a summons in an action brought in courts of general
17 jurisdiction in the state where the district court is located or where service is made;” 2) delivering
18 a copy of the summons and complaint to the individual personally; 3) “leaving a copy of each at
19 the individual’s dwelling or usual place of abode with someone of suitable age and discretion who
20 resides there;” or 4) service upon “an agent authorized by appointment or by law to receive service
21 of process.” Fed. R. Civ. P. 4(e). Service on a state or local government may be accomplished by
22 either “delivering a copy of the summons and of the complaint to its chief executive officer” or
23 “serving a copy of each in the manner prescribed by that state’s law for serving a summons or like
24 process on such a defendant.” Id. at 4(j).
25 The Ninth Circuit has not squarely addressed whether state officials sued in their official
26 capacity must be served as individuals according to Rule 4(e) or as public entities according to
27 Rule 4(j). But both Rules 4(e) and 4(j) allow for service pursuant to state law. In Jackson v.
1 proper according to California Code of Civil Procedure § 415.20(a), which governs service for
2 public entities, rather than § 415.20(b), which governs service on natural persons. 682 F.2d 1344,
3 1348 (9th Cir. 1982). Jackson suggests “a state official sued in their official capacity could be
4 considered a ‘public entity’ and therefore could properly be served pursuant to [] § 415.20(a).”
5 Alexander v. Brown, No. 23-CV-00274 JFW-SHK, 2024 WL 1218280, at *9 (C.D. Cal. Feb. 9,
6 2024), report and recommendation adopted, No. 23-CV-00274 JFW-SHK, 2024 WL 1216716
7 (C.D. Cal. Mar. 20, 2024). So, no matter whether service of a state official sued in their official
8 capacity must fulfill Rule 4(e) or 4(j), such service may be achieved pursuant to California law
9 governing service on public entities.
10 California law provides “[a] summons may be served on a public entity by delivering a
11 copy of the summons and of the complaint to the clerk, secretary, presiding officer, or other head
12 of its governing body.” Cal. Civ. Proc. Code § 416.5(a).
13 In lieu of personal delivery of a copy of the summons and complaint
to the person to be served . . . a summons may be served by leaving a
14 copy of the summons and complaint during usual office hours in his
or her office or, if no physical address is known, at his or her usual
15 mailing address, other than a United States Postal Service post office
box, with the person who is apparently in charge thereof, and by
16 thereafter mailing a copy of the summons and complaint by first-class
mail, postage prepaid to the person to be served at the place where a
17 copy of the summons and complaint were left.
18 Cal. Civ. Proc. Code § 415.20(a). Additionally, “[s]ervice of summons in all actions on claims
19 against the state shall be made on the Attorney General.” Cal. Gov’t Code § 955.4.
20 Plaintiff did not personally serve Defendant Stanislaus. Plaintiff claims to have served
21 Defendant Stanislaus on December 8, 2023, by serving Jasmine Lee at 3321 Power Inn Suite 250
22 Sacramento, CA 95826. (Dkt. No. 17 at 1.) Jasmine Lee is not a clerk, secretary, presiding
23 officer, or other head of the Franchise Tax Board, nor is she authorized to accept service on behalf
24 of the Franchise Tax Board. (Dkt. No. 43 at 19 ¶¶ 2-4.) And though the Power Inn address is the
25 Franchise Tax Board’s Sacramento local field office, Defendant Stanislaus does not maintain her
26 usual office at the Power Inn address. (Id. at 17 ¶¶ 3-4.) So, Plaintiff failed to serve Defendant
27 Stanislaus in her official capacity by leaving the summons and complaint with Jasmine Lee in
1 After briefing on the instant motion closed, Plaintiff filed a proof of service of the
2 summons for Defendant Stanislaus dated December 8, 2023, though the process server’s signature
3 is dated June 14, 2024. (Dkt. Nos. 48, 49.) This new proof of service claims the summons was
4 served on “Rajdeep Sidhu Security Guard” at Defendant Stanislaus’s residence but also claims
5 “Rajdeep Sidhu Security Guard” is designated by law to accept service on behalf of the Franchise
6 Tax Board. (Id.) Why would the security guard at Defendant Stanislaus’s residence be authorized
7 to accept service on behalf of the Franchise Tax Board? In any event, it is Plaintiff’s burden to
8 establish service on Defendant Stanislaus was valid pursuant to Rule 4. Brockmeyer v. May, 383
9 F.3d 798, 801 (9th Cir. 2004). Plaintiff’s newly filed proof of service lacks sufficient information
10 to determine whether Defendant Stanislaus was properly served. So, Plaintiff fails to carry his
11 burden to show Defendant Stanislaus was properly served.
12 Plaintiff insists his service on Attorney General Bonta by mail on December 18, 2023,
13 constitutes proper service “in accordance with Rule 5(b)(1),” and thus Defendant Stanislaus’s
14 motion to dismiss is untimely. (Dkt. No. 45 at 1.) Federal Rules of Civil Procedure 5(b)(1)
15 provides “[i]f a party is represented by an attorney, service under this rule must be made on the
16 attorney unless the court orders service on the party.” Plaintiff argues the Attorney General “has
17 appeared as an attorney for Defendant Stanislaus,” so Plaintiff’s service of the Attorney General
18 was sufficient. (Dkt. No. 45 at 3.) But Rule 5 governs service of pleadings and other papers “after
19 the original complaint.” Fed. R. Civ. P. 5(a)(1)(B). As discussed above, Rule 4 governs service
20 of the summons and complaint. Plaintiff’s service-by-mail on Attorney General Bonta fails to
21 satisfy the requirements of §§ 416.5(a) or 415.20(a) as to service on Defendant Stanislaus.
22 So, Plaintiff has failed to properly serve Defendant Stanislaus and the motion to dismiss is
23 not untimely. Accordingly, Plaintiff’s complaint against Defendant Stanislaus must be
24 DISMISSED for failure to serve.
25 II. Eleventh Amendment
26 Even if Plaintiff had properly served Defendant Stanislaus (or would properly serve her in
27 the future), Plaintiff’s claim for damages against Defendant Stanislaus fails for the additional
1 states and state agencies in federal courts when the state has not waived its immunity. Seminole
2 Tribe of Fla. v. Fla., 517 U.S. 44, 54 (1996). California has not waived its immunity from § 1983
3 suits. Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999). “[A] suit against state
4 officials that is in fact a suit against a State is barred regardless of whether it seeks damages or
5 injunctive relief.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984).
6 However, “a suit challenging the constitutionality of a state official’s action is not one against the
7 State.” Id. The Eleventh Amendment does not “bar actions for prospective declaratory or
8 injunctive relief against state officers in their official capacities for their alleged violations of
9 federal law.” Coal. to Defend Affirmative Action, 674 F.3d at 1134; see also Cardenas v. Anzai,
10 311 F.3d 929, 934-35 (9th Cir. 2002) (“Under the Ex parte Young doctrine, a plaintiff may
11 maintain a suit for prospective relief against a state official in his official capacity, when that suit
12 seeks to correct an ongoing violation of the Constitution or federal law.”).
13 So, to the extent Plaintiff seeks damages from Defendant Stanislaus in her official
14 capacity, his claim is barred by the Eleventh Amendment because “a State is not a ‘person’ against
15 whom a § 1983 claim for money damages might be asserted.” Lapides v. Bd. of Regents of Univ.
16 Sys. of Georgia, 535 U.S. 613, 617 (2002).
17 III. Failure to State a Claim
18 Finally, Plaintiff’s claim for prospective relief against Defendant Stanislaus fails for the
19 additional reason Plaintiff has not plausibly alleged Defendant Stanislaus violated any of
20 Plaintiff’s federal rights. Plaintiff seeks to enjoin the tax levy Defendant Stanislaus executed
21 against him. (Dkt. No. 5 at 7-8.) Defendant Stanislaus seeks dismissal of Plaintiff’s § 1983
22 prospective relief claim for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
23 Dismissal under Rule 12(b)(6) “may be based on either a lack of a cognizable legal theory
24 or the absence of sufficient facts alleged under a cognizable legal theory.” Johnson v. Riverside
25 Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008) (cleaned up). For Plaintiff’s challenged §
26 1983 claim to survive, the complaint’s factual allegations must raise a plausible right to relief.
27 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-56 (2007). Though the Court must accept the
1 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible when the plaintiff pleads
2 enough factual content to justify the reasonable inference the defendant is liable for the
3 misconduct alleged. Id. Because Plaintiff is unrepresented by an attorney, his complaint is held to
4 less stringent standards than formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S.
5 89, 94 (2007).
6 Plaintiff’s § 1983 claim against Defendant Stanislaus challenges the constitutionality of
7 California statutes § 706.050 and § 17041 under the Contract Clause, Article I, § 10 of the United
8 States Constitution. The Contract Clause provides:
9 No State shall enter into any Treaty, Alliance, or Confederation; grant
Letters of Marque and Reprisal; coin Money; emit Bills of Credit;
10 make any Thing but gold and silver Coin a Tender in Payment of
Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing
11 the Obligation of Contracts, or grant any Title of Nobility.
12 U.S. Const. art. I, § 10, cl. 1. California Code of Civil Procedure § 706.050 provides the
13 “maximum amount of disposable earnings of an individual judgment debtor subject to levy.”
14 California Revenue and Taxation Code § 17041 sets forth California tax rates. Plaintiff asserts
15 these statutes, which led to the garnishment of his wages, are unconstitutional because his wages
16 are denominated in “Bills of Credit (Federal Reserve Notes)” instead of gold or silver coin. (Dkt.
17 No. 45 at 1-2.) Because “[t]he States are directly prohibited to make any Thing but gold and silver
18 Coin a tender in payment of Debts[,]” Plaintiff insists the garnishment of his wages paid in Federal
19 Reserve Notes is unconstitutional. (Id. at 2.)
20 Plaintiff’s theory of unconstitutionality is unsupported by the law. See, e.g., United States
21 v. Wangrud, 533 F.2d 495, 495 (9th Cir. 1976) (“By statute it is established that federal reserve
22 notes, on an equal basis with other coins and currencies of the United States, shall be legal tender
23 for all debts, public and private, including taxes. This statute is well within the constitutional
24 authority of Congress.”); see 12 U.S.C. § 411; see also Milam v. United States, 524 F.2d 629, 630
25 (9th Cir. 1974) (“Appellant is entitled to redeem his note, but not in precious metal. Simply
26 stated, we find his contentions frivolous.”); United States v. Howell, No. 15-CR-00456-SI-2, 2020
27 WL 3268667, at *6 n.2 (N.D. Cal. June 17, 2020) (“The Supreme Court has unequivocally held
1 the form of treasury notes and the power to make the notes of the government a legal tender in
2 payment of private debts.” (cleaned up)); DeLaRosa v. Agents for Int’l Monetary Fund, No. Civ-s-
3 95-1170-DFL-GGH, 1995 WL 769345, at *3 (E.D. Cal. Oct. 16, 1995) (“While Article I, section
4 10, clause 1 prohibits the States from making anything but gold and silver coin a tender in
5 payment of debts, no intention can be inferred from this to deny Congress this power. The United
6 States Congress has the power to make anything it wishes legal tender.” (cleaned up)). Indeed,
7 the sole evil at which the Contract Clause was directed was the
theretofore rampant state legislative interference with the ability of
8 creditors to obtain the payment or security provided for by contract.
The Framers regarded the Contract Clause as simply an adjunct to the
9 currency provisions of Art. I, § 10, which operated primarily to bar
legislation depriving creditors of the payment of the full value of their
10 loans. The Clause was thus intended by the Framers to be applicable
only to laws which altered the obligations of contracts by effectively
11 relieving one party of the obligation to perform a contract duty.
12 Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 257 (1978) (Brennan, J., dissenting). So,
13 Plaintiff fails to state a claim for deprivation of federal rights because the complaint fails to
14 plausibly allege Defendant Stanislaus violated any of Plaintiff’s federal rights by executing a tax
15 levy against him. Accordingly, Plaintiff’s claim for prospective relief against Defendant
16 Stanislaus is DISMISSED without leave to amend. Yagman v. Garcetti, 852 F.3d 859, 863 (9th
17 Cir. 2017) (“In dismissing for failure to state a claim, a district court should grant leave to amend
18 even if no request to amend the pleading was made, unless it determines that the pleading could
19 not possibly be cured by the allegation of other facts.”).
20 //
21 //
22 //
23 //
24 //
25 //
26 //
27 //
1 CONCLUSION
2 For the reasons stated, Plaintiff's complaint against Defendant Stanislaus is DISMISSED
3 without leave to amend. Plaintiff failed to properly serve Defendant Stanislaus. Additionally,
4 || Plaintiff's damages claim is barred by the Eleventh Amendment. To the extent Plaintiff's
5 prospective relief claim is not also barred by the Eleventh Amendment, Plaintiff fails to plausibly
6 || allege a claim against Defendant Stanislaus for deprivation of federal rights. For these same
7 || reasons, Plaintiff's motion for preliminary injunction is DENIED.
8 This Order disposes of Docket Nos. 40, 43.
9 IT IS SO ORDERED.
10 Dated: July 16, 2024
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ACQUELINE SCOTT CORLE
13 United States District Judge
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