Garrick v. Garrick

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 OWEN GARRICK, Case No. 22-cv-04549-JST

8 Plaintiff,

ORDER GRANTING DEFENDANTS’

9 v. MOTIONS TO DISMISS

10 JOCELYN FREEMAN GARRICK, et al., Re: ECF Nos. 48, 52

Defendants.

11

12

13 Before the Court are Defendants’ anti-SLAPP motions to strike and motions to dismiss

14 Plaintiff Owen Garrick’s second amended pro se complaint. ECF Nos. 48, 52. The Court will

15 grant the motion to dismiss the federal claims and decline to exercise supplemental jurisdiction

16 over the remaining state law claims.

17 I. BACKGROUND

18 A. Factual Background

19 The Court accepts the following allegations from the second amended complaint (“SAC”)

20 as true and views them in the light most favorable to Plaintiff. Oregon Clinic, PC v. Fireman’s

21 Fund Ins. Co., 75 F.4th 1064, 1067 (9th Cir. 2023).

22 Owen Garrick (“Garrick”) and Jocelyn Freeman Garrick (“Freeman Garrick”) are

23 physicians in Alameda County. ECF No. 46 ¶ 20. Together they founded Mentoring in Medicine

24 & Science, Inc. (“MIMS”) a 501(c)(3) non-profit organization with the mission of increasing

25 diversity in the healthcare workforce. Id. ¶ 22.

26 Freeman Garrick is the deputy medical director of Alameda County emergency services,

27 lead COVID-19 testing and vaccination coordinator, medical disaster director of Alameda County

1 Freeman Garrick is “a member of law enforcement” who “has been issued a badge by the County

2 of Alameda.” Id. ¶ 27 n.1.

3 In October 2019, Freeman Garrick “filed for dissolution of the couple’s 22-year marriage.”

4 Id. ¶ 23. Around the same time, Garrick alleges that Freeman Garrick began to abuse “her

5 considerable power, authority, and contacts within Alameda County to harass” him, and to “gain

6 an advantage in their pending divorce proceedings.” Id. ¶¶ 3, 24. Garrick identifies four incidents

7 in support of this allegation.

8 First, a complaint was filed against Freeman Garrick in August 2020 for allegedly

9 violating Alameda County’s shelter in place orders during the COVID-19 pandemic. Id. ¶ 25.

10 Sergeant Ray Kelly of the Alameda County Sheriff’s Department reached out to Freeman Garrick

11 via her county e-mail address and wrote, “[t]his came into our complaint email. I’m closing it out.

12 Just want you to be aware of this person who is keeping track of your movements.” Id. ¶ 28.

13 Freeman Garrick informed the Sheriff’s Department that Garrick was the individual who reported

14 her. Id. ¶ 30. Garrick claims that “[a]s a direct result of such abuse of power under the color of

15 her authority as an official, director, and employee of Defendant County of Alameda, the deputy

16 sheriff closed out the reported criminal complaint . . . and took no further action.” Id. ¶ 29.

17 Garrick also claims that because of Freeman Garrick’s accusation, Garrick “potentially faced

18 misdemeanor charges.” Id. ¶ 63.

19 Second, Garrick alleges that:

20 On or about November 2020, FREEMAN GARRICK refused to

serve an order (she had counsel, and the clerk facilitates) while in

21 court and all parties were present. Instead, she arranged to use the

aforementioned ALAMEDA COUNTY SHERIFF’S

22 DEPARTMENT to serve a DENIED restraining order when it was

available and in her possession in Court.

23

Id. ¶ 59.1 Garrick “was served the denied restraining order by two (2) armed sheriffs.” Id. ¶ 60.

24

One of these two officers allegedly said “Jocelyn is one of us with the County. We protect our

25

26

1 The SAC does not define “denied restraining order,” but the Court infers that Freeman Garrick

applied for a temporary restraining order from the Alameda County Superior Court and her

27

application was denied. Because it appears from the SAC that Garrick was present in court when

1 people at the County. If you continue to harass her, we will be back. It is a shame how Black men

2 are dying at the hands of the police, and we wouldn’t want that to happen in a mishap.” Id. ¶ 38.

3 The other officer added “[y]eah Mr. Garrick, it would be a shame for you to have an untimely

4 mishap if we have to come back here.” Id.

5 Third, Freeman Garrick made several disparaging statements about Garrick that caused

6 adverse employment outcomes. Garrick alleges that Freeman Garrick, “while acting in her official

7 capacity as an officer, deputy director, and employee of Defendant County of Alameda,”

8 “coerc[ed] others . . . to believe that” Garrick “was mentally impaired, a danger to himself and

9 others, was unprofessional, irresponsible and incapable of performing his duties as a member of

10 the MIMS Board of Directors.” Id. ¶ 33. As a result, Garrick claims he was “ousted from his

11 position.” Id. Next, during an Alameda County COVID-19 plan conference call, Freeman

12 Garrick “impugn[ed] his character and reputation amongst his colleagues by making false

13 statements about [him], his removal from the MIMS Board of Directors, and allegations of

14 incompetence to the point that [he] felt attacked and humiliated and was constructively forced off

15 the call.” Id. ¶ 36. Thereafter, that Freeman Garrick “while acting in her official capacity as an

16 official, director, and employee of Defendant County of Alameda, continued her false assertion”

17 of Garrick’s “threatening behavior toward her while at work,” id. ¶ 34, and that he “verbally

18 harassed and threatened her while at a County of Alameda function,” id. ¶ 35.

19 Finally, Dr. Valorie Spivey Herd––Garrick’s and Freeman Garrick’s family therapist––had

20 reported Freeman Garrick for committing acts of child abuse against two of Freeman Garrick’s

21 and Garrick’s children. Id. ¶ 62. Garrick alleges that Freeman Garrick reported Dr. Herd to the

22 California Board of Psychology in an act of retaliation. Id.

23 Garrick now brings claims for (1) violations of his Fourth Amendment and Fourteenth

24 Amendment rights pursuant to 42 U.S.C. § 1983; (2) conspiracy to interfere with civil rights

25 pursuant to 42 U.S.C. § 1985; (3) violation of the Bane Act, Cal. Civ. Code § 52.1; (4) intentional

26 infliction of emotional distress; and (5) violation of California’s Unfair Competition Law

27 (“UCL”), Cal. Bus. & Prof. Code §§ 17200 et seq. ECF No. 46.

1 and official capacities), the County of Alameda, Deputies Karl and John Doe of the Alameda

2 County Sheriff’s Department (in their individual and official capacities), and MIMS (together

3 “Defendants”). Id.

4 B. Procedural Background

5 On June 21, 2023, the Court granted in part and denied in part Defendants’ first motions to

6 dismiss and anti-SLAPP motions to strike, granting leave to amend. ECF No. 39. Garrick filed

7 his SAC on August 9, 2023. ECF No. 46. Defendants filed motions to dismiss and anti-SLAPP

8 motions to strike the SAC on August 22, 2023.2 ECF Nos. 48, 52. The Court took the motions

9 under submission without a hearing on December 1, 2023. ECF No. 64.

10 II. JURISDICTION

11 The Court has jurisdiction under 28 U.S.C. § 1331.

12 III. LEGAL STANDARD

13 To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a

14 complaint must contain “a short and plain statement of the claim showing that the pleader is

15 entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure

16 provides that a complaint may be dismissed for failure to state a claim upon which relief can be

17 granted for one of two reasons: (1) lack of a cognizable legal theory or (2) insufficient facts under

18 a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533–34 (9th

19 Cir. 1984); Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). “[A]

20 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

21 plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

22 Twombly, 550 U.S. 544, 570 (2007)). Factual allegations need not be detailed, but facts must be

23

2 Defendants request that the Court take judicial notice of four exhibits, which include a reporter’s

24

transcript in the divorce proceedings and court filings in another state court proceeding involving

MIMS, Garrick, and Freeman Garrick. See ECF No. 53. Garrick objects on a number of

25

evidentiary grounds. ECF No. 61. All the exhibits concern matters of public record and are

proper subjects of judicial notice. See United States v. Corinthian Colls., 655 F.3d 984, 999 (9th

26

Cir. 2011). Garrick’s relevance objection to Exhibit A is overruled. Because Defendant seeks to

admit Exhibit B (First Amended Complaint filed by Plaintiff Mentoring in Medicine & Science,

27

Inc. on December 1, 2021, in Alameda County Superior Court Action No. HG21097836) only to

1 “enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

2 “A claim has facial plausibility when the plaintiff pleads factual content that allows the

3 court to draw the reasonable inference that the defendant is liable for the misconduct

4 alleged.” Iqbal, 556 U.S. at 678. While this standard is not “akin to a ‘probability

5 requirement’ . . . it asks for more than a sheer possibility that a defendant has acted unlawfully.”

6 Id. (quoting Twombly, 550 U.S. at 556). In determining whether a plaintiff has met the plausibility

7 requirement, a court must “accept all factual allegations in the complaint as true and construe the

8 pleadings in the light most favorable” to the plaintiff. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th

9 Cir. 2005). A plaintiff may “plead[] facts alleged upon information and belief where the facts are

10 peculiarly within the possession and control of the defendant or where the belief is based on

11 factual information that makes the inference of culpability plausible.” Soo Park v. Thompson, 851

12 F.3d 910, 928 (9th Cir. 2017) (quoting Arista Recs., LLC v. Doe 3, 603 F.3d 110, 120 (2d Cir.

13 2010)).

14 IV. DISCUSSION

15 The Court first addresses the Defendants’ motion to strike. The Court then reviews the

16 sufficiency of Garrick’s allegations against Defendants MIMS and County of Alameda, and then

17 the sufficiency of his federal claims under Sections 1983 and 1985 against Defendants Freeman

18 Garrick and Officers Karl and John Doe (“Officers”).

19 A. Motion to Strike

20 The Court first considers Defendants’ motion to strike “new defendants, new claims, and

21 new damages” from the SAC. ECF No. 48 at 17–18. The Court previously dismissed Garrick’s

22 claims with leave to amend. ECF No. 39 at 13.

23 “Under Rule 12(f) of the Federal Rules of Civil Procedure, the Court ‘may strike from a

24 pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.’

25 The function of a motion to strike pursuant to Rule 12(f) is ‘to avoid the expenditure of time and

26 money that must arise from litigating spurious issues by dispensing with those issues prior to

27 trial.’” Scilex Pharms. Inc. v. Sanofi-Aventis U.S. LLC, No. 21-CV-01280-JST, 2021 WL

1 F.3d 970, 973 (9th Cir. 2010)). “[M]otions to strike are disfavored at the pleading stage and are

2 generally not granted unless it is clear that the matter sought to be stricken could have no possible

3 bearing on the subject matter of the litigation.” Id. at *13 (internal quotation marks and citations

4 omitted).

5 Garrick explains that he amended the SAC to “provide[] additional facts and legal

6 argument all within the scope of the Court’s direction.” ECF No. 60 at 11. Defendants argue that

7 Garrick was not granted leave to add defendants or further claims. ECF No. 48 at 17–18.

8 Because the Court below grants Defendants’ motion to dismiss on the merits, their motion

9 to strike is denied as moot.

10 B. Sufficiency of the Allegations Against Defendant MIMS

11 A “plaintiff must allege the basis of [their] claim against each defendant to satisfy Federal

12 Rule of Civil Procedure 8(a)(2), which requires a short and plain statement of the claim to put

13 defendants on sufficient notice of the allegations against them.” Ferrin v. City of San Rafael, No.

14 22-cv-02101-JST, 2022 WL 20243402, at *1 (N.D. Cal. Apr. 14, 2022) (citation omitted)

15 (alteration in original). That is, a plaintiff must “(1) identify the legal and factual basis for each

16 cause of action, (2) identify which cause of action is brought against which Defendant, and (3)

17 provide a specific statement of how each Defendant engaged in the conduct that is the basis for the

18 claims asserted against that Defendant.” Id. at *2 (quoting Fleming v. Cigna Health Corp., No.

19 15-cv-04646-EMC, 2016 WL 3439800, at *3 (N.D. Cal. June 23, 2016)).

20 Although Garrick names MIMS as a defendant in his federal claims, Garrick’s SAC does

21 not allege any specific conduct by MIMS with respect to these claims. Accordingly, MIMS is

22 dismissed from Garrick’s federal causes of action.

23 C. Sufficiency of the Allegations Against Defendant County of Alameda

24 Garrick also brings a Section 1983 claim against the County of Alameda. “A government

25 entity may be held liable under 42 U.S.C. § 1983 if an ‘action that is alleged to be unconstitutional

26 implements or executes a policy statement, ordinance, regulation, or decision officially adopted

27 and promulgated by that body’s officers.’” Samson v. City of Bainbridge Island, 683 F.3d 1051,

1 municipal liability claim is also known as a Monell claim. E.g., Quiroga v. King, No. 1:15-CV-

2 01697-AWI-MJS-PC, 2016 WL 2609805, at *2 (E.D. Cal. May 6, 2016). Under this standard, a

3 municipality is liable “in three situations: when the plaintiff was injured pursuant to an expressly

4 adopted official policy, a long-standing practice or custom, or the decision of a final policymaker.”

5 Ellins v. City of Sierra Madre, 710 F.3d 1049, 1066 (9th Cir. 2013) (internal citations and

6 quotation marks omitted).

7 Garrick has not alleged any facts in his SAC that supports the existence of a policy, a

8 longstanding custom, or a decision of a final policymaker within the County of Alameda that

9 caused the alleged constitutional violations. V.W. v. Cnty. of Los Angeles, No. 18-CV-3684-FMO

10 (AGRx), 2018 WL 6137188, at *1 (C.D. Cal. July 5, 2018) (dismissing a complaint because it did

11 not sufficiently allege the existence of a policy, practice, or custom, or the decision of a final

12 policymaker.) Accordingly, the Court dismisses Garrick’s federal claims against the County.

13 D. Sufficiency of the Section 1983 Allegations

14 The Court turns next to Garrick’s Section 1983 claims against Freeman Garrick, and

15 Officers Karl and John Doe in their individual capacities.

16 “To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

17 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that

18 the alleged violation was committed by a person acting under the color of state law.” Bryant v.

19 Motel 6 Manager, No. 03-CV-3290-VRW(PR), 2003 WL 21767461, at *1 (N.D. Cal. July 25,

20 2003) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).

21 1. Freeman Garrick

22 With respect to Freeman Garrick, Garrick claims she abused her authority as a deputy

23 medical director of Alameda County or as a deputized law enforcement official in four different

24 instances: (1) by allegedly compelling the Sheriff’s Department to close the complaint against her

25 for violating the shelter in place order; (2) by serving Garrick with a denied restraining order; (3)

26 by making disparaging statements on conference calls; and (4) by reporting Dr. Herd. See

27 generally ECF No. 46. Defendants argue that none of these four incidents constitute a state action,

1 these four incidents. ECF No. 48 at 18–20; ECF No. 52 at 15–16.

2 a. State Action

3 For a person to be subject to suit under Section 1983, the person must “fairly be said to be

4 a [governmental] actor.” Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir.

5 1999) (quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982)) (alteration in

6 original). A person acts under color of state law if she “exercise[s] power ‘possessed by virtue of

7 state law and made possible only because the wrongdoer is clothed with the authority of state

8 law.’” West, 487 U.S. at 49. “It is firmly established that a defendant in a § 1983 suit acts under

9 color of state law when he abuses the position given to him by the state.” Id. at 49–50.

10 “[G]enerally, a public employee acts under color of state law while acting in his official capacity

11 or while exercising his responsibilities pursuant to state law.” Dang Vang v. Vang Xiong X.

12 Toyed, 944 F.2d 476, 479 (9th Cir. 1991). The Court begins “with the presumption that private

13 conduct does not constitute governmental action.” Sutton, 192 F.3d at 835. “Section 1983

14 ‘excludes from its reach merely private conduct, no matter how discriminatory or wrong.’” Id.

15 (internal citations omitted).

16 Although Section 1983 makes liable only those who act “under color of” state law, even a

17 private person can, in certain circumstances, be subject to liability under section 1983. Tsao v.

18 Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012). “A private individual’s action may be

19 ‘under color of state law’ where there is ‘significant’ state involvement in the action.” Franklin v.

20 Fox, 312 F.3d 423, 444 (9th Cir. 2002) (citing Johnson v. Knowles, 113 F.3d 1114, 1118 (9th Cir.

21 1997)). “The Supreme Court has articulated four tests for determining whether a private

22 individual’s actions amount to state action: (1) the public function test; (2) the joint action test; (3)

23 the state compulsion test; and (4) the governmental nexus test.” Id. (quoting Johnson, 113 F.3d at

24 1118).

25 Only the joint action test is relevant here. To hold a private actor liable for a Section 1983

26 violation under that test, the private actor’s actions must be “inextricably intertwined” with those

27 of the government and there must be “substantial cooperation” between the private party and the

1 amended on denial of reh’g and reh’g en banc (Aug. 23, 2002). The joint action test is satisfied

2 “‘where the court finds a sufficiently close nexus between the state and the private actor so that the

3 action of the latter may be fairly treated as that of the State itself, or where the State has so far

4 insinuated into a position of interdependence with the [private party] that it was a joint participant

5 in the enterprise.’” Rawson v. Recovery Innovations, Inc., 975 F.3d 742, 748 (9th Cir. 2020)

6 (quoting Jensen v. Lane Cnty., 222 F.3d 570, 575 (9th Cir. 2000)) (alterations in original). The

7 Ninth Circuit “ha[s] been careful to require a substantial degree of cooperation before imposing

8 civil liability for actions by private individuals that impinge on civil rights.” Franklin, 312 F.3d at

9 445.

10 There is no doubt that Freeman Garrick, in her capacity as deputy medical director of

11 Alameda County emergency services and the emergency medical center, lead COVID-19 testing

12 and vaccination coordinator, and medical disaster director of Alameda County health systems, is a

13 public official. ECF No. 46 ¶ 3. Furthermore, taking Garrick’s allegations as true, Freeman

14 Garrick is also a law enforcement official because she was “cross-deputized” during the COVID-

15 19 pandemic and was “issued a badge by the County of Alameda.” Id. ¶ 27 n.1.

16 But even as a public official, Freeman Garrick’s alleged wrongful actions are not taken

17 under color of state law if they are not “performed while [she] is acting, purporting, or pretending

18 to act in the performance of [] her official duties.” Anderson v. Warner, 451 F.3d 1063, 1068 (9th

19 Cir. 2006) (internal citations and quotation marks omitted). Thus, the Court must determine

20 whether Freeman Garrick’s actions related to the duties and powers of her positions as deputy

21 medical director, COVID-19 testing and vaccination coordinator, or a deputized law enforcement

22 official.

23 First, with respect to the complaint that was filed against Freeman Garrick for allegedly

24 violating Alameda County’s shelter in place orders, Garrick claims that Sergeant Ray Kelly

25 “forwarded the complaint . . . to FREEMAN GARRICK . . . at her County email address at work.”

26 ECF No. 46 ¶ 28. Freeman Garrick, “in her official capacity reported to the Alameda County

27 Sheriff . . . that OWEN GARRICK was the individual that reported her to the complaint

1 Freeman Garrick “use[d] her influence as the director of various County of Alameda Health

2 Organizations,” to convince Sergeant Ray Kelly that the complaint was false and was made by

3 Garrick. Id. ¶ 27. “As a direct result of such abuse of power under the color of her authority . . .

4 the deputy sheriff closed out the reported criminal complaint . . . and took no further action.” Id. ¶

5 29.

6 These allegations are insufficient to find that Freeman Garrick acted under color of state

7 law. As the Defendants point out, Garrick acknowledges that Freeman Garrick was the “recipient

8 of an unsolicited email” from the Sheriff’s department. Id. ¶ 27 n.1. The email states “[t]his came

9 into our complaint email. I’m closing it out. Just want you to be aware of this person who is

10 keeping track of your movements.” Id. ¶ 28. Taking Garrick’s statements as true, the language of

11 the email indicates that Freeman Garrick did not participate in the Sheriff’s Department’s decision

12 to close the complaint, because that decision had already been made. Freeman Garrick’s response

13 to that email, complaining that Garrick was likely the individual that reported her, does not

14 convert her into a state actor. See Collins v. Womancare, 878 F.2d 1145, 1155 (9th Cir. 1989)

15 (“merely complaining to the police does not convert a private party into a state actor.”).

16 Second, Garrick alleges that Freeman Garrick made several disparaging statements about

17 Garrick that caused him to be “constructively forced off” the COVID-19 conference call, and to be

18 “ousted” from his MIMS board position. That is, Freeman Garrick “while acting in her official

19 capacity as an officer, deputy director, and employee of Defendant County of Alameda,”

20 “coerc[ed] others . . . to believe that” Garrick “was mentally impaired, a danger to himself and

21 others, was unprofessional, irresponsible and incapable of performing his duties as a member of

22 the MIMS Board of Directors,” ECF No. 46 ¶ 24, “impugn[ed] his character and reputation

23 amongst his colleagues by making false statements about [him],” id. ¶ 36, and continued her “false

24 assertion[s]” that Garrick “verbally harassed and threatened her while at a County of Alameda

25 function,” id. ¶ 35.

26 “The mere fact that the prestige of [Freeman Garrick]’s office may have enhanced her

27 influence” over MIMS, or Alameda County COVID-19 plan conference calls, “is not enough to

1 official are not, simply by virtue of the official’s governmental employ, accomplished under the

2 color of federal law.” Id. at 1117–1118 (internal citation omitted). As Garrick points out, the

3 COVID-19 planning call was open to “the top healthcare professionals in Alameda County” and

4 was also attended by “County of Alameda Employees and Directors.” ECF No. 46 ¶ 36.

5 However, Garrick does not allege any non-conclusory facts explaining how Freeman Garrick

6 invoked her “governmental status” to influence the behavior of those around her on the COVID-19

7 planning calls, or with regards to the MIMS Board. Gallegos v. Glendale Adventist Med. Ctr., No.

8 13-cv-01083-DMG-JCX, 2013 WL 12474621, at *7 (C.D. Cal. May 15, 2013) (dismissing a

9 complaint because while “public office might have provided [defendants] with influence” over a

10 medical center’s management, plaintiff failed to allege non-conclusory facts explaining how

11 defendants used or invoked their offices and influence to terminate plaintiff from his management

12 role.)

13 Third, Garrick claims that Freeman Garrick reported Dr. Herd as an act of retaliation for

14 Dr. Herd’s report of suspected child abuse. Id. ¶¶ 62, 126. Garrick does not allege how, and the

15 Court can find no mechanism by which, Freeman Garrick acted within the scope of her public

16 duties in reporting Dr. Herd.

17 Finally, Garrick alleges that Freeman Garrick “refused to serve an order . . . while in court

18 and all parties were present,” and instead “enlisted the services of the Alameda County Sheriff’s

19 Department” to serve a denied restraining order. Id. ¶ 38. As Garrick admits, private citizens may

20 use the Sheriff’s Department for service of process. ECF No. 60 at 12; Cal. Code Civ. Proc. §

21 527.6(z); Cal. Gov’t Code § 26665. However, as Garrick points out, it does not seem likely that

22 an ordinary citizen would have been able to use the Sheriff’s Department in service of a denied

23 restraining order in contravention of their internal policies. ECF No. 60 at 12–13. Garrick also

24 alleges that Freeman Garrick paid no fees relating to the service of such process. Id. Taking the

25 facts in a light most favorable to Garrick, this allegation may support how Freeman Garrick’s

26 service of a denied restraining order evidenced “substantial cooperation” between the private party

27 and the State.

1 private individual except for the service of the denied restraining order. Accordingly, the Court

2 next assesses whether there was any constitutional violation with respect to that incident.

3 b. Constitutional Violations

4 Even if the allegations demonstrated that Freeman Garrick acted in an official capacity, to

5 allege a Section 1983 claim, Garrick must demonstrate that her actions resulted in a constitutional

6 violation. Garrick alleges that Freeman Garrick’s “deliberate attempt to intimidate and coerce”

7 Garrick “shocks the conscience” in violation of his substantive due process rights. ECF No. 46 ¶

8 45. He claims that there is a “two-track system of justice”––one for Freeman Garrick and one for

9 Garrick––in violation of his right to equal protection. Id. ¶¶ 46–47. Finally, he alleges that

10 Freeman Garrick’s conduct violated his right to procedural due process. Id. ¶¶ 63–70. Defendants

11 respond that the complaint lacks the basic facts that would establish a constitutional violation.

12 ECF No. 48 at 19–20; ECF No. 52 at 15–16. The Court reviews each alleged constitutional

13 deprivation in turn.

14 i. Substantive Due Process

15 Substantive due process “forbids the government from depriving a person of life, liberty,

16 or property in such a way that shocks the conscience or interferes with the rights implicit in the

17 concept of ordered liberty.” Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998)

18 (internal citations and quotation marks omitted). Accordingly, to maintain a substantive due

19 process claim, a plaintiff must “as a threshold matter, show a government deprivation of life,

20 liberty, or property.” Id.

21 Garrick alleges that Freeman Garrick served a denied restraining order3 using the Sheriff’s

22 department which was “an overt act of use of an arm of the law to threaten, intimidate and coerce,

23 so as to shock the conscience.” ECF No. 46 ¶ 59. These allegations do not state a constitutional

24 violation because Garrick has not alleged a deprivation of life, liberty, or property as a result of

25 this alleged interaction. Nunez, 147 F.3d at 871. Indeed, the only property or liberty interest

26 Garrick identifies in his opposition is “the property and liberty interest in his employment and

27

1 reputation.” ECF No. 60 at 12. But he alleges no connection between the service of a denied

2 restraining order and his work or reputation.

3 Accordingly, the Court finds that Garrick has not adequately alleged a violation of his

4 substantive due process rights.

5 ii. Equal Protection

6 To state a claim under Section 1983 for “a violation of the Equal Protection Clause of the

7 Fourteenth Amendment a plaintiff must show that the defendants acted with an intent or purpose

8 to discriminate against the plaintiff based upon membership in a protected class.” Furnace v.

9 Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (citing Barren v. Harrington, 152 F.3d 1193, 1194

10 (9th Cir. 1998)).

11 Garrick does not allege in the SAC that his treatment was different on account of his

12 membership in a protected class. Instead, Garrick states only his belief that there is a “two-track

13 system of justice”––“[o]ne, is for the high-powered FREEMAN GARRICK and, a secondary tract

14 is for ordinary citizens such as OWEN GARRICK.” ECF No. 46 ¶¶ 46–47. Accordingly, the

15 Court finds that Garrick has not adequately alleged a violation of his rights under the Equal

16 Protection Clause.

17 iii. Procedural Due Process

18 “A section 1983 claim based upon procedural due process [] has three elements: (1) a

19 liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the

20 government; [and] (3) lack of process.” Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th

21 Cir. 1993).

22 Garrick alleges that Freeman Garrick used the Alameda County Sheriff’s Department to

23 serve a denied restraining order. ECF No. 46 ¶ 64. Garrick has not alleged that Freeman

24 Garrick’s actions deprived him of any liberty or property interests. The service of a (denied) court

25 order does not amount to a deprivation of life, liberty, or property.

26 Accordingly, a Section 1983 claim cannot be maintained against Freeman Garrick.

27 2. Karl Doe and John Doe

1 Garrick alleges that they violated his rights under the Fourth and Fourteenth Amendments. ECF

2 No. 46 ¶ 2. Specifically, Garrick claims that Karl Doe and John Doe were involved in the

3 wrongful service of a denied restraining order. Id. ¶ 38. One of these two officers allegedly said

4 “Jocelyn is one of us with the County. We protect our people at the County. If you continue to

5 harass her, we will be back. It is a shame how Black men are dying at the hands of the police, and

6 we wouldn’t want that to happen in a mishap.” Id. He further alleges that the other officer added

7 “[y]eah Mr. Garrick, it would be a shame for you to have an untimely mishap if we have to come

8 back here.” Id. Garrick claims that these statements “shock[ed] the conscience” in violation of his

9 Fourteenth Amendment rights and “constituted excessive and deadly force in violation of the

10 Fourth Amendment.” Id. ¶ 59.

11 The parties do not dispute that Officers Karl Doe and John Doe were acting under the color

12 of state authority when they served Garrick with the denied restraining order. The remaining

13 question is whether Garrick has sufficiently alleged a constitutional deprivation from these

14 actions. The Court finds that he has not.

15 a. Fourth Amendment

16 Garrick alleges that the Officers’ conduct “constituted excessive and deadly force in

17 violation of the Fourth Amendment.” Id. Defendants respond that Garrick offers no supporting

18 facts that “any law enforcement officer [used] force against Plaintiff, let alone force so

19 unreasonable as to be deemed excessive or deadly.” ECF No. 48 at 21 n.9.

20 The Fourth Amendment made applicable to the States by the Fourteenth Amendment,

21 “guarantees citizens the right ‘to be secure in their persons . . . against unreasonable . . . seizures’

22 of the person.” Graham v. Connor, 490 U.S. 386, 394 (1989). In evaluating a Fourth Amendment

23 claim of excessive force, courts ask “whether the officers’ actions are objectively reasonable in

24 light of the facts and circumstances confronting them.” Id. at 397. In determining whether an

25 officer’s actions were objectively reasonable, courts consider “(1) . . . the type and amount of force

26 inflicted, (2) the government’s interest in the use of force, and (3) the balance between the gravity

27 of the intrusion on the individual and the government’s need for that intrusion.” Lowry v. City of

1 force claims under the Fourth Amendment where the complaint alleged only verbal threats. See

2 Forte v. Hughes, Case No. 13-cv-01980-LJO-SMS, 2014 WL 2930834, at *8 (E.D. Cal. June 27,

3 2014) (“[V]erbal harassment alleged to have occurred . . . is not actionable independent of any

4 physical abuse alleged to have occurred at the same time . . . [V]erbal harassment or abuse . . . is

5 not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983”); Bennett v. San

6 Bernardino Valley Cmty. Coll., No. 16-cv-1165-MWF-KSX, 2017 WL 10526123, at *9 (C.D. Cal.

7 May 31, 2017) (dismissing an excessive force complaint against county defendants where plaintiff

8 could only allege verbal threats.).

9 Garrick’s SAC alleges that “Police Officers by their nature, height, bulk, heavily armed

10 belts, and weapons are per se intimidating,” ECF No. 46 ¶ 60, and that Officers Karl and John Doe

11 verbally threatened Garrick to stay away from Freeman Garrick, id. ¶ 38. To the extent Plaintiff

12 attempts to allege an excessive force claim against Officers Karl Doe and John Doe, the SAC

13 alleges only verbal threats that do not rise to the level of excessive force.

14 Thus, the Court finds that Garrick has not plausibly alleged a Fourth Amendment violation

15 against the Officers.

16 b. Procedural Due Process

17 “A section 1983 claim based upon procedural due process [] has three elements: (1) a

18 liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the

19 government; (3) lack of process.” Portman, 995 F.2d at 904.

20 Garrick claims that the Officers violated his procedural due process rights when they

21 served a denied restraining order. Id. ¶ 64. He argues that even if the conduct was permissible

22 under California law, the Officers violated the Sheriff’s Department policy in serving a denied

23 restraining order. ECF No. 60 at 13.

24 As a threshold matter, Garrick has not alleged that the Officers’ actions deprived him of

25 any liberty or property interests. Furthermore, the Officers’ violation of the Alameda County

26 Sheriff’s Department policies in serving a denied restraining order, on its own, does not establish a

27 constitutional violation. Dillman v. Tuolumne Cnty., No. 13-cv-00404 LJO, 2013 WL 1907379, at

1 standards to be applied to a Section 1983 claim. Section 1983 provides a civil action against state

2 actors who violate federal constitutional or federal statutory rights, not state law or local law

3 enforcement policies.”); see also Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009)

4 (citations omitted) (same).

5 The Court finds that Garrick has failed to plausibly allege a procedural due process claim.

6 c. Substantive Due Process

7 Substantive due process “forbids the government from depriving a person of life, liberty,

8 or property in such a way that ‘shocks the conscience’ or ‘interferes with the rights implicit in the

9 concept of ordered liberty.’” Nunez, 147 F.3d at 871. Accordingly, to maintain a substantive due

10 process claim, a plaintiff must “as a threshold matter, show a government deprivation of life,

11 liberty, or property.” Id. Courts in this circuit have previously found that intimidation in the form

12 of verbal threats or abuse does not rise to the level of a constitutional violation. Broemer v. Cent.

13 Intel. Agency, No. 01-cv-CV-04340-MMM-RZX, 2002 WL 35644941, at *13 (C.D. Cal. Sept. 5,

14 2002) (finding that defendant’s unspecified death threats did not give rise to a cognizable

15 deprivation of liberty claim); Black Lives Matter-Stockton Chapter v. San Joaquin Cnty. Sheriff’s

16 Off., 398 F. Supp. 3d 660, 677 (E.D. Cal. 2019) (finding that a “threat” to life or liberty, without

17 any allegations of immediacy or reality of threat, does not constitute a deprivation of either).

18 Garrick claims that the Officers violated his “right to be free from the threat of physical

19 harm, use of excessive force, threats of violence and death.” ECF No. 46 ¶¶ 2, 38. Because

20 Garrick is proceeding pro se, the Court construes this claim as a substantive due process claim

21 against Officers Karl Doe and John Doe.

22 Assuming the truth of Garrick’s allegations, as the Court must at this stage of the litigation,

23 the Court strongly disapproves of the Officers’ conduct in using a denied restraining order as a

24 pretext to approach Garrick and in making threats of bodily harm. However, Garrick’s allegations

25 regarding these threats do not give rise to a cognizable constitutional deprivation because verbal

26 threats on their own are not enough. Broemer, 2002 WL 35644941, at *13; Black Lives Matter-

27 Stockton Chapter, 398 F. Supp. 3d at 677. Thus, the Court finds that Garrick has not plausibly

1 Amendment.

2 Accordingly, because Garrick has not plausibly alleged that Freeman Garrick acted under

3 color of state authority, and because he has not alleged any constitutional deprivations resulting

4 from Freeman Garrick and Officers Karl and John Doe’s conduct, the Court dismisses Garrick’s

5 Section 1983 claims.4

6 E. Sufficiency of the Section 1985 Allegations

7 The Court previously dismissed all of Garrick’s Section 1985 claims because he failed to

8 allege the existence of “an agreement or ‘meeting of the minds’ by [Defendants] to violate his

9 constitutional rights.” ECF No. 39 at 13. Garrick once again brings claims pursuant to both

10 Section 1985(2) and Section 1985(3). See ECF No. 46 ¶¶ 71–90. Garrick claims that there were

11 two alleged conspiracies between Freeman Garrick and the Sheriff’s Department: (1) the closure

12 of the complaint against Freeman Garrick made by an unidentified third party and (2) the service

13 of a denied restraining order. Id. Defendants move to dismiss because Garrick once again fails to

14 plausibly allege any “meeting of the minds.” ECF No. 48 at 22–23.

15 “Section 1985(2) contains two clauses that give rise to separate causes of action.”

16 Portman, 995 F.2d at 908. The first clause “addresses conspiracies which deter by force,

17 intimidation, or threat a party or witness in federal court.” Bagley v. CMC Real Est. Corp., 923

18 F.2d 758, 763 (9th Cir. 1991) (internal citations and quotation marks omitted). The second clause

19 “creates a federal right of action for damages against conspiracies which obstruct the due course of

20 justice in any State or Territory with intent to deny equal protection.” Id. A claim under this

21 second clause “requires an allegation of class-based, invidiously discriminatory animus.” Id.

22 (quoting Phillips v. Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers, Loc. 118, 556

23 F.3d 939, 941 (9th Cir. 1977)). To state a claim under 1985(3), “a plaintiff must [allege], inter

24

4 With respect to Garrick’s Fourth and Fourteenth Amendment claims, the Court need not make

25

further inquiry concerning qualified immunity because, as explained above, Garrick has not

alleged any constitutional deprivation and has also not met his burden to show that the rights at

26

issue were clearly established. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998)

(finding that “the better approach to resolving cases in which the defense of qualified immunity is

27

raised is to determine first whether the plaintiff has alleged the deprivation of a constitutional right

1 alia, (1) that ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus

2 [lay] behind the conspirators’ action,’ . . . and (2) that the conspiracy ‘aimed at interfering with

3 rights’ that are ‘protected against private, as well as official, encroachment.’” Butler v. Elle, 281

4 F.3d 1014, 1028 (9th Cir. 2002) (alterations in original) (quoting Bray v. Alexandria Women’s

5 Health Clinic, 506 U.S. 263, 267–68 (1993)).

6 A Section 1985 claim relies on a Section 1983 violation. That is, “without a plausibly

7 alleged § 1983 claim, plaintiff’s conspiracy claims under § 1985 . . . must also be dismissed.” Doe

8 v. City of Concord, No. 20-cv-02432-JD, 2021 WL 3140782, at *2 (N.D. Cal. July 26, 2021)

9 (citing Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 930 (9th Cir. 2004) (“to state a claim for

10 conspiracy under § 1985, a plaintiff must first have a cognizable claim under § 1983”)).

11 “In order to survive a motion to dismiss, plaintiffs alleging a conspiracy to deprive them of their

12 constitutional rights must include in their complaint non-conclusory allegations containing

13 evidence of unlawful intent or face dismissal.” Lara Urbina v. Carson, No. 07-cv-00153-OWW-

14 TAG, 2007 WL 2814652, at *11 (E.D. Cal. Sept. 25, 2007) (internal quotations omitted). “A

15 plaintiff must plead with particularity as to which defendants conspired, how they conspired and

16 how the conspiracy led to a deprivation of his constitutional rights.” Id. Garrick’s Section 1985

17 claims fail on both fronts, for several reasons.

18 First, as explained above, Garrick has failed to allege sufficient facts to maintain a Section

19 1983 claim against Freeman Garrick, or Officers Karl and John Doe under the Fourth and

20 Fourteenth Amendment—that is, he has not pleaded facts that would support a constitutional

21 deprivation. This requires dismissal of a Section 1985 claim. City of Concord, 2021 WL

22 3140782, at *2. Second, Garrick fails to state a claim under the first clause of Section 1985(2)

23 because he has not alleged a proceeding in federal court from which Defendants’ conduct deterred

24 his participation. Third, Garrick’s claims under the second clause of Section 1985(2) and under

25 Section 1985(3) also fail because he has not alleged with particularity how Freeman Garrick and

26 the Sheriff’s Department conspired and how the conspiracy led to a deprivation of his

27 constitutional rights.

1 states that Freeman Garrick received a forwarded email from the Sheriff’s Department which

2 stated “[t]his came into our complaint email. I’m closing it out.” ECF No. 46 ¶ 82. By the plain

3 language of the email, the complaint was closed even before Freeman Garrick responded to it. Id.

4 Garrick has not pleaded how Sergeant Ray Kelly conspired with Freeman Garrick, or how the

5 conspiracy led to a deprivation of his constitutional rights. He has also not alleged how there was

6 any intent to deny equal protection, or that Freeman Garrick or Sergeant Ray Kelly possessed

7 racial or class-based animus as required under Section 1985(2) and (3). Wilkins v. Cnty. of

8 Alameda, No. 11-cv-2704 LHK-PR, 2012 WL 5464642, at *3 (N.D. Cal. Nov. 8, 2012)

9 (dismissing plaintiff’s Section 1985 claim because plaintiff alleged no facts to support a claim of

10 conspiracy, or otherwise allege how any racial discrimination furthered the conspiracy.)

11 With respect to the service of the denied restraining order, Garrick alleges that Freeman

12 Garrick used the Alameda County Sheriff’s Department to serve the order. Id. ¶ 88. He alleges

13 that using the officers “was an overt act of use of an arm of the law to threaten” Garrick. Id. He

14 also quotes specific race-based threats made by Officers Karl and John Doe. Id. ¶ 38. This

15 incident presents a closer question because Garrick has alleged racial discrimination based on the

16 Officers’ statements. However, other than alleging that Freeman Garrick asked the Sheriff’s

17 Department to serve a denied restraining order, Garrick has not alleged that Freeman Garrick was

18 motivated by any racial animus and has failed to allege with particularity “a conspiracy to

19 intimidate Plaintiff among the Defendants . . . or that he was deprived of a constitutional right as a

20 result.” Lara Urbina, 2007 WL 2814652, at *11.

21 Consequently, Garrick’s claim under Section 1985 also fails and the Court grants

22 Defendants’ motion to dismiss the Section 1985 claims.

23 V. SUPPLEMENTAL JURISDICTION

24 Because the Court has now dismissed the federal claims against the Defendants, the

25 question for the Court is whether it should decline supplemental jurisdiction under Section

26 1367(c)(3).

27 A district court “may decline to exercise supplemental jurisdiction” if it “has dismissed all

1 eliminated at an early stage of litigation, the district court has “a powerful reason to choose not to

2 continue to exercise jurisdiction.” Ochoa v. T-Mobile USA, Inc., No. 20-CV-02306-JST, 2020

3 WL 4050503, at *3 (N.D. Cal. July 20, 2020) (quoting Carnegie-Mellon v. Cohill, 484 U.S. 343,

4 351 (1988)). Ordinarily, “[w]hen federal claims are dismissed before trial, . . . pendent state

5 claims also should be dismissed.” Scholar v. Pac. Bell, 963 F.2d 264, 268 n.4 (9th Cir. 1992)

6 (quoting Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 651 (9th Cir. 1984)) (alterations in

7 original).

8 In this case, although the litigation is more than a year old and “the Court has undoubtedly

9 committed judicial resources to moving the case forward . . . the Court has not committed

10 substantial resources. The case is relatively early in the proceedings, and no trial date has been

11 set.” Chang v. Rockridge Manor Condo., No. 07-CV-4005-EMC, 2008 WL 2683075, at *11

12 (N.D. Cal. July 3, 2008), aff’d, 344 F. App’x 365 (9th Cir. 2009) (emphasis in original). Because

13 Garrick’s federal claims have been dismissed early in this litigation, before the pleadings have

14 been settled and prior to discovery, the Court declines to exercise supplemental jurisdiction.

15 Garrick’s claims under the Bane Act, for intentional infliction of emotional distress, and for unfair

16 competition are dismissed without prejudice. Defendants’ pending anti-SLAPP motion is denied

17 without prejudice. Choyce v. S.F. Bay Area Indep. Media Ctr., No. 13-cv-01842-JST, 2014 WL

18 2451122 at *6 (N.D. Cal. June 2, 2014) (denying defendants’ anti-SLAPP Motions without

19 prejudice where “the Court has declined to exercise jurisdiction over state-law claims,” and

20 finding that defendants have no presumptive right to have anti-SLAPP motions heard by a federal

21 court).

22 CONCLUSION

23 For the foregoing reasons, Defendants’ motions to dismiss the federal claims are granted.

24 “Because Plaintiff has had a previous opportunity to amend, has not remedied this deficiency, and

25 gives no indication that amendment would resolve the problems, the Court finds amendment

26 would be futile and dismisses [Plaintiff’s] claim[s] with prejudice.” Rhodes v. Scottsdale Cmty.

27 Coll., No. CV-18-02063-PHX-RCC, 2019 WL 7194694, at *4 (D. Ariz. Dec. 26, 2019); see also

1 plaintiff has previously been granted leave to amend and has subsequently failed to add the

2 || requisite particularity to its claims, the district court’s discretion to deny leave to amend is

3 particularly broad.”) (internal quotation, citation, and alterations omitted).

4 Garrick’s state law claims are dismissed without prejudice towards Garrick re-filing in

5 state court. Defendants’ anti-SLAPP motion is denied without prejudice.

6 The Clerk shall enter judgment and close the file.

7 IT IS SO ORDERED.

8 || Dated: July 24, 2024

9

JON S. TIGAR

10 nited States District Judge

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