# Pifferini v. City of Eureka

> District Court, N.D. California · August 4, 2025

URL: https://www.frixlaw.com/law-library/cases/11113973

## Case

- **Court:** District Court, N.D. California
- **Decided:** August 4, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6 EUREKA DIVISION
7
8 KELLY SHANE PIFFERINI, Case No. 24-cv-09191-RMI

9 Plaintiff,
ORDER ON MOTION TO DISMISS
10 v.
Re: Dkt. No. 16
11 CITY OF EUREKA, et al.,
12 Defendants.

13 Now pending before the court is the motion (Dkt. 16) of Defendants City of Eureka, Brian
14 Stevens, Victoria Graham, and Jon Omey1 to dismiss Plaintiff Kelly Shane Pifferini’s complaint
15 (dkt. 1), and for clarification. Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local
16 Rule 7-1(b), the court finds the matter suitable for disposition without oral argument. For the
17 reasons stated below, Defendants’ motion to dismiss is GRANTED IN PART AND DENIED IN
18 PART, and their motion for clarification is DENIED.
19 I. Background2
20 Plaintiff is an unhoused resident of Eureka, California (“the City”). (Dkt. 1, p. 2). He
21 “ha[s] no access to anywhere but public areas at all times” and cannot access indoor shelter or
22 available public storage. Id. Accordingly, he and his possessions must be in public at all times.
23 Id.
24

25
1 Officer Graham’s name is spelled “Grham” in the complaint, and Sergeant Omey’s name is
spelled “Omme.” (Dkt. 1, p. 3). This order uses the spelling these Defendants use in their motion
26
to dismiss.

27
2 For purposes of a motion to dismiss, “[a]ll allegations of material fact are taken as true and
1 In 2019, the Ninth Circuit decided Martin v. City of Boise, 920 F.4th 584. Martin held that
2 “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or
3 lying outside on public property for homeless individuals who cannot obtain shelter.” Id. at 616.
4 In response, the Eureka City Council amended its public camping laws. (Dkt. 1, p. 5). The
5 resulting ordinance, Eureka Municipal Code (“E.M.C.”) § 93.02, forbids involuntary camping3 at
6 certain specified locations.4 E.M.C. §§ 93.02(B), (C)(2).5 It provides that “[i]nvoluntary camping
7 on public property is lawful when and where it is not otherwise unlawful” under the statute’s
8 provisions. Id. § 93.02(D).
9 However, E.M.C. § 93.02 does not go so far as to specifically designate the areas where
10 involuntary camping is lawful. Indeed, the ordinance specifically declines to do so, stating that
11 “[t]here is no specific site or sites that should be designated for camping because it is the
12 experience of the city and other municipalities that sites where camping is continuous or camping
13 populations are numerous become public health, environmental degradation, and policing
14 problems.” Id. § 93.02(A)(2). Plaintiff alleges that while the City Council said it would “add
15 precise coordinates to the borders and boundaries of the[] prohibited areas, and would supply
16 maps to show these locations[,]” it said it “would also make public statements that there would be
17 no designated borders and boundaries for the portions of the public space where camping would
18 be tolerated, and that no maps would be made of these legal camping areas.” (Dkt. 1, p. 7).
19 Plaintiff alleges that this leaves “all citizens clueless as to the whereabouts of these legal areas.”
20 Id.
21 Further, Plaintiff alleges that “police treat more than just the prohibited areas as unlawful
22 for camping[]” and “enforce [camping in] all public areas as unlawful.” (Dkt. 1, p. 7). Plaintiff
23 claims that to prevent officers from directing campers to legal camping sites, the City refuses to
24
3 “Camping by a person at such time as there is no accommodation accepting homeless persons
25
within the city that is available for that same person.” E.M.C. § 93.02(B).

26
4 These include city parks, certain business districts, and areas within 75 feet of recreational trails.
E.M.C. § 93.02(B).
27
1 tell the police where the legal camping sites are. Id. at 8. Plaintiff further claims that the City
2 “instruct[s] police to tell unhoused citizens that there is nowhere in Eureka where camping is
3 legal.” Id. at 9. Plaintiff asserts that the “city council was fully aware that the rules and
4 regulations would never get to be used by any body [sic] and that this way nobody would ever be
5 able to gain access to a portion of public where any type of camping could take place.” Id. at 7–8.
6 Indeed, Plaintiff claims that “not a single person has ever been aloud [sic] by the police to actually
7 involuntarily camp.” Id. at 9. Therefore, Plaintiff alleges that the City’s passage and enforcement
8 of E.M.C. § 93.02 has violated his Eighth Amendment rights under Martin. Id. at 8.
9 Plaintiff states that Officer Graham “harassed” him for violations of E.M.C. § 93.02, which
10 he says is “a common EPD practice.” (Dkt. 1, p. 12). Further, he alleges that Officer Graham has
11 never offered him shelter during these encounters “because all of our encounters occurred before
12 5pm, and there is no sheltering service open until 5pm everyday.” Id.
13 Plaintiff also takes issue with another Eureka ordinance, E.M.C. § 130.14. This ordinance
14 forbids storage of personal property in public areas. E.M.C. § 130.14(C). The ordinance defines
15 “store” as “to put aside or accumulate for use when needed, to put for safekeeping, and/or to place
16 or leave in a location.” Id. §130.14(B). Under the ordinance, “[p]ersonal property placed in
17 public areas shall be deemed to be stored personal property if it has not been removed from public
18 areas within 24 hours of service of written notice, requiring such removal.” Id. § 130.14(C)(3).
19 However, “[m]oving personal property to another location in a public area or returning personal
20 property to the same block on a daily or regular basis” is not considered removal. Id. Such
21 property may be removed and impounded after the 24 hours have passed. Id.
22 E.M.C. § 130.14 contains some exceptions to the general rule. Property left within 10 feet
23 of entrances, exits, driveways, and loading docks may be removed without prior notice if post-
24 removal notice is given. Id. § 130.14(C)(4). The same is true of property left in an area with a
25 posted closure time after the area has closed. § 130.14(C)(5). Contraband and evidence of crimes
26 may be immediately removed without prior notice. Id. § 130.14(C)(8). Property which poses “an
27
1 immediate threat to the health or safety of the public” or is “bulky”6 may be immediately removed
2 without prior notice and discarded. Id. § 130.14(C)(6)–(7).
3 Both pre- and post-removal notices under § 130.14 must contain “[t]he location where the
4 removed personal property will be” stored or located, “including a telephone number and internet
5 website of the city through which a person may receive information as to impounded personal
6 property[.]” E.M.C. §§ 130.14(D)(1)(g), (D)(2)(d). Pre-removal notices must also state “that the
7 personal property will be impounded if not removed from public areas within 24 hours.” Id. §
8 130.14(D)(1)(d). Impounded property “shall be stored by the city for 90 days” and notices must
9 state that the property may be discarded after that time. Id. §§ 130.14(D)(1)(h), D(2)(e), (F)(2).
10 Plaintiff alleges that § 130.14 “allows police officers to seize an unhoused person’s
11 property for simply using those items in a public place.” (Dkt. 1, p. 10). He states that “[whe]ther
12 those items are left unattended, or in a person’s possession, police can seize such property, and in
13 most cases immediately discard those items as trash.” Id. He states that the ordinance makes it
14 “unlawful for me to even part ways with my possessions long enough to even enter a building or
15 establishment” to shop, receive services, or appear in court. Id. However, he alleges that having
16 all of his property in his possession at all times puts him in violation of the camping ordinance,
17 which he interprets as “mak[ing] it unlawful to possess any camping items in public.” Id. at 11.
18 Plaintiff claims that City police issue notices and seize property under § 130.14 even when
19 the property is not being “stored in public” within the meaning of that statute. (Dkt. 1, p. 11).
20 Plaintiff alleges that City police “allow[] housed citizens to store personal property in public
21 areas[,]” whether “to leave these items unattended momentarily while in side [sic] an
22 establishment, or for days, weeks, months and some times [sic] even years on the public streets.”
23 Id. at 11–12, 20. By contrast, “[u]nhoused citizens are not allowed to have any more possessions
24 than a person can carry in their hands, and any personal property that has to be set on the ground,
25 or left unattended is considered to be stored in public” and “can and will be seized by the city and
26

27
6 Defined as “[a]ny item, with the exception of a rent [sic], that is too large to fit in one of the
1 the police.” Id. at 15. For instance:

2 A housed citizen with a baby stroller out in public with a baby in it is
allowed, but a baby stroller full of an unhoused citizens [sic]
3 possessions is unlawful and can be seized immediately as a bulky
item, without any notice, and immediately discarded as trash.
4 Whether the item is accompanied by its owner, or left unattended.
5 Id. at 20. When notices are issued, Plaintiff says they are often “confusing[,]” giving a 72-hour
6 removal period instead of the statutory 24-hour period and omitting information about the length
7 of time property will be held and how to reclaim it. Id. at 12.
8 Plaintiff alleges that he has “had a loss of property of more than $8,000 at the hands of”
9 E.M.C. § 130.14. (Dkt. 1, p. 23). Additionally, he has been forced to “forfeit my entire life
10 agenda in order to at all times accompany my personal possessions[.]” Id.
11 Plaintiff specifically names Officer Graham as an officer who gave him these defective
12 notices. (Dkt. 1, p. 12). He states that she gave him five such notices during three encounters in
13 late 2023 and early 2024. Id. at 13. In at least one instance, Graham “hand[ed] a notice directly to
14 me the owner, while my personal property was in my possession the entire time.” Id. at 26.
15 Ultimately, he alleges that Officer Graham had an arrest warrant issued for him “under false
16 pretenses, resulting in my arrest on” February 12, 2024. Id. at 13.
17 On that day, Plaintiff was at a picnic table in the park when Sergeant Omey arrested him
18 “for two fish and game codes for having my bike and trailer parked close to the water.” (Dkt. 1, p.
19 12). Before his arrest, Plaintiff left his belongings with a friend. Id. However, Plaintiff says that
20 Omey “forced my friend to leave the area and would not let him take my things with him as I
21 wished him to.” Id. Omey seized Plaintiff’s property without a homeless liaison or supervisor
22 present, a violation of City police policy. Further, the property was not stored for the required 90
23 days. Id. Elsewhere, Plaintiff alleges that Omey discarded Plaintiff’s possessions at the dump,
24 although it is unclear whether these were the possessions seized after the February 12 arrest or
25 other items of Plaintiff’s seized at another time. Id. at 27. Plaintiff also alleges that Sergeant
26 Omey “entered my home without probabl[e] cause, and without a search and seizure warrant.” Id.
27 at 26.
1 EPD officers” to “incorrectly and unconstitutionally enforce[] both of the ordinances in question.”
2 (Dkt. 1, p. 11). He further alleges that “Brian Stevens is the chief of police and has failed to
3 properly train and supervise all officers and instead allows for the unconstitutional enforcement of
4 the two ordinances in question.” Id. at 25.
5 Finally, Plaintiff alleges that “[a]n unknown city worker violated my 1st amendment by
6 stopping my protest and destroying my signs impeding on my freedom of speech and my right to
7 assemble.” (Dkt. 1, p. 29).
8 II. Standard
9 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the
10 claim showing that the pleader is entitled to relief.” Although a plaintiff need not include detailed
11 factual allegations in a complaint, the complaint must do more than recite elements of a cause of
12 action and state conclusions; rather, a plaintiff must state factual allegations sufficient to raise the
13 entitlement to relief “above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
14 555 (2007). A complaint must proffer “enough facts to state a claim to relief that is plausible on
15 its face[]” and “give the defendant fair notice of what the . . . claim is and the grounds upon which
16 it rests.” Id., id. at 570.
17 III. Anti-Camping Ordinance (E.M.C. § 93.02)
18 Defendants argue that Plaintiff’s Eighth Amendment claims regarding Eureka’s anti-
19 camping ordinance should be dismissed in light of the Supreme Court’s recent decision in City of
20 Grants Pass v. Johnson, 603 U.S. 520 (2024). The court agrees.
21 In Grants Pass, the Supreme Court overturned the Ninth Circuit’s Martin decision in
22 relevant part. Id. at 542. Specifically, it held that “[t]he Cruel and Unusual Punishments Clause
23 [of the Eighth Amendment] focuses on the question [of] what ‘method or kind of punishment’ a
24 government may impose after a criminal conviction, not on the question [of] whether a
25 government may criminalize behavior in the first place[.]” Id. (quoting Powell v. Texas, 392 U.S.
26 514, 531–32 (1968) (plurality op.)) The Supreme Court determined that a law against camping on
27 any public property within the City of Grants Pass did not criminalize the mere status of being
1 homeless, a backpacker on vacation passing through town, or a student who abandons his dorm
2 room to camp out in protest on the lawn of a municipal building.” Id. at 546–47. While repeated
3 violations of the Grants Pass ordinance could result in a temporary camping ban, and violation of
4 that ban could result in “a criminal punishment of up to 30 days in jail and a larger fine[,]” the
5 Supreme Court held that such punishment was not “cruel and unusual.” Id. at 543. Accordingly,
6 the Court concluded that “the Eighth Amendment [is] a poor foundation on which to rest the kind
7 of decree [which] the Ninth Circuit has endorsed since Martin.” Id. at 542.
8 In this case, Plaintiff alleges that E.M.C. § 93.02 is enforced as a total ban on camping on
9 public property. However, Grants Pass held that such bans do not violate the Eighth Amendment.
10 E.M.C. § 93.02, as written, does not criminalize the status of homelessness; indeed, it subjects so-
11 called “voluntary campers” who have access to alternative accommodations to more restrictions
12 than “involuntary campers” for whom no shelter is available. E.M.C. §§ 93.02(B), (C)(1)–(2),
13 (D). And the fines imposed for violations of E.M.C. § 93.02, which are capped at $50.00 for a
14 third or subsequent violation within one year, are less severe than the potential punishments under
15 the Grants Pass ordinance which the Supreme Court held to be constitutional. Id. §(F)(3).
16 Accordingly, in light of Grants Pass, Plaintiff’s Eighth Amendment challenge to E.M.C. § 93.02
17 must fail.
18 Plaintiff also argues that E.M.C. § 93.02 criminalizes mere possession of camping
19 paraphernalia in public. He further argues that, by virtue of being homeless and by operation of
20 E.M.C. § 130.14, he is compelled to possess his camping paraphernalia (along with all of his other
21 belongings) in public. The upshot appears to be that the statutory scheme criminalizes Plaintiff for
22 the status of being homeless because, as a homeless person, he has no choice but to violate it.
23 However, as Defendants point out, the plain text of E.M.C. § 93.02 governs only the “use [of]
24 camp paraphernalia[,]” not its mere possession. E.M.C. § 93.02(B). Plaintiff has not alleged that
25 Defendants enforce E.M.C. § 93.02 as a ban on mere possession as opposed to a ban only on use.
26 And Grants Pass makes clear that a city may prohibit an “act [which] society has an interest in
27 preventing[,]” even when “the defendant’s act ‘in some sense’ might be described as ‘involuntary’
1 city may permissibly regulate camping in public, the use of camping equipment is an act which
2 can be prohibited. Accordingly, Plaintiff has not stated an Eighth Amendment claim on this
3 theory, either.
4 For the foregoing reasons, Plaintiff’s challenges to E.M.C. § 93.02 must fail.
5 IV. Storage of Personal Property (E.M.C. § 130.14)
6 For purposes of this motion to dismiss, Defendants do not contest Plaintiff’s claims that

7 (1) The ordinance [§ 130.14] is enforced differently against housed
and unhoused citizens in violation of the Equal Protection Clause of
8 the Fourteenth Amendment; (2) The Bulky Item’s [sic] provision
permits unreasonable searches and seizures in violation of the Fourth
9 Amendment; or that (3) The Bulky Item’s [sic] provision does not
require notice in violation of the Due Process Clause of the Fourteenth
10 Amendment.
11 (Dkt. 16, p. 12).7
12 Defendants do, however, argue that Plaintiff has failed to state a claim relating to this
13 ordinance. First, Defendants appear to claim that Plaintiff lacks standing to challenge § 130.14’s
14 notice provision.8 This is so, they assert, because Plaintiff does not contend that the ordinance’s
15 procedures violate due process, nor does he contend that any of his property was ever seized
16 pursuant to deficient process. Id.
17 The court agrees with Defendants in part, specifically as it relates to Plaintiff’s ability to
18 seek money damages for a due process violation relating to the notice provision. Plaintiff does not
19 allege that the notice provision is unconstitutional as written. It is true that even if the procedures
20 set forth in an ordinance comply with due process, the actual procedures used by officers can
21 violate the Fourteenth Amendment. See, e.g., Sanders v. City of San Diego, 93 F.3d 1423, 1430
22 (concluding “that the statutory procedures [at issue] satisfy due process” but “find[ing] that the
23 district court erred in granting summary judgment on the issue of whether the City in fact
24
7 Citations to docketed documents use the pagination automatically added by CM/ECF, which
25
may differ from the document’s original numbering.

26
8 Defendants specifically assert that the ordinance is “constitutional as applied to Plaintiff.” (Dkt.
16, p. 19). However, in context, Defendants seem to be challenging Plaintiff’s standing—that is,
27
whether Plaintiff has suffered a concrete, particularized, and actual or imminent “injury in fact”
1 complied with these procedures[]”). However, Plaintiff has not alleged that any of his property
2 was seized with insufficient notice. While he does allege that he has received insufficient notice
3 in the past, and also that he has been permanently deprived of $8000 worth of property under this
4 ordinance, he has not alleged that he received insufficient notice and was then permanently
5 deprived of his property as a result. Therefore, Plaintiff has not shown that he lost anything due
6 to a lack of notice, and so he has not stated a claim for money damages based on deficient notice.
7 However, Plaintiff’s allegations do make out a case for injunctive relief. The Supreme
8 Court has sometimes “found standing based on a ‘substantial risk’ that the that the harm will
9 occur, which may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm.”
10 Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 n. 5 (2013). In these circumstances, “a person
11 exposed to a risk of future harm may pursue forward-looking, injunctive relief to prevent the harm
12 from occurring, at least so long as the risk of harm is sufficiently imminent and substantial.”
13 TransUnion LLC v. Ramirez, 594 U.S. 413, 435 (2021). Here, Plaintiff has alleged facts which
14 indicate there is a “substantial risk” that his property will be seized without due process. He
15 alleges that if he ever needs to set property on the ground or leave it momentarily unattended to
16 enter a building, it “can and will be seized by the city.” He further alleges that he is forced to
17 carry all of his property with him at all times, which results in him having to “forfeit my entire life
18 agenda” to prevent the property’s seizure, thereby incurring costs in order to mitigate the risk of
19 harm. Accordingly, Plaintiff may pursue injunctive relief to prevent the city from using
20 inadequate process when seizing his belongings.
21 Next, Defendants argue that Plaintiff has not alleged that the health-and-safety exception to
22 § 130.14’s notice provision is unconstitutional. Plaintiff claims that this provision “provides no
23 definition or guidance of what is considered to be a health and safety threat. Instead this provision
24 relies solely on the opinion of an officer as to what exactly qualifies as a threat.” (Dkt. 1, p. 17).
25 Several district courts in the Ninth Circuit have held that similar health and safety exceptions to
26 notice provisions are constitutionally permissible. Janosko v. City of Oakland, 2023 WL 3029256,
27 at *4 (N.D. Cal. April 19, 2023) (rule allowing for destruction of “only belongings that are
1 carveout”); Garcia v. City of Los Angeles, 611 F. Supp. 3d 918, 934 (C.D. Cal. 2020) (“The phrase
2 ‘immediate threat to public health and safety’ is not vague on its face.”). However, Plaintiff’s
3 claims relating to this exception fail for a more fundamental reason: he has not alleged that he has
4 ever had any property confiscated without notice under the health-and-safety exception.
5 Therefore, Plaintiff’s complaint does not show that he has standing to challenge it, so the claim
6 about the health-and-safety exception must be dismissed.
7 Defendants further argue that Plaintiff has not alleged that the bulky items exception is
8 “unconstitutional as applied to Plaintiff.” (Dkt. 16, p. 20 (some capitalization omitted)). Despite
9 the phrasing, Defendants appear to actually be arguing that Plaintiff lacks standing to challenge
10 this provision. See id. (“Plaintiff has not alleged that he had any property seized without notice
11 pursuant to this section.”); cf. supra n.8. Indeed, Plaintiff does not allege that any of his items
12 were seized under the bulky items exception. Accordingly, Plaintiff’s claims about this exception
13 must be dismissed.
14 Finally, Defendants say Plaintiff has not shown that the evidence-of-a-crime exception is
15 unconstitutional. Their argument on this front is twofold. First, they claim that the statute has
16 never unconstitutionally been applied to Plaintiff. The court’s review of the complaint shows no
17 plausible allegations that Plaintiff’s property was seized under this provision. To be sure, it is
18 possible that Plaintiff’s bike and trailer were seized under this provision when he was arrested, as
19 they could have been considered “evidence” of the parking violation. However, the complaint
20 does not allege this, and the bike and trailer could have been confiscated for any number of other
21 reasons. Accordingly, Plaintiff has not shown that he has suffered damages from the evidence-of-
22 a-crime exception. Twombly, 550 U.S. at 555 (plaintiffs must state factual allegations sufficient to
23 raise their entitlement to relief “above the speculative level[]”).
24 As discussed above, a plaintiff who has not yet been damaged by a law may seek to enjoin
25 it if they are at an “imminent and substantial” risk of being harmed by it. Plaintiff argues that he is
26 in constant danger of having his belongings seized without notice pursuant to this exception
27 because it is illegal to store property in public areas, meaning that any property stored in public
1 130.14’s notice provisions entirely inoperative. The Ninth Circuit has held that “courts must
2 construe a statute ‘so that effect is given to all its provisions, so that no part will be inoperative or
3 superfluous, void or insignificant.’” In re Saldana, 122 F.4th 333, 342 (9th Cir. 2024) (quoting
4 Corley v. United States, 556 U.S. 303, 314 (2009)). Construing § 130.14 as Plaintiff suggests
5 would make most of the ordinance’s language “inoperative or superfluous, void or insignificant.”
6 Because the court cannot construe § 130.14 this way, and because Plaintiff has not alleged that §
7 130.14 is being enforced in this way, the court cannot conclude that there is an imminent or
8 substantial risk of Plaintiff’s belongings being seized without notice under this reading.
9 In a similar vein, Plaintiff argues that having to constantly carry his possessions puts him
10 in perpetual violation of the public camping ordinance. To the extent Plaintiff is arguing that this
11 may cause authorities to seize his belongings without notice as evidence of a crime, the court
12 disagrees. The plain language of E.M.C. § 93.02 forbids only the use, not the possession, of
13 camping paraphernalia. As Plaintiff has not alleged that Eureka police are enforcing § 93.02
14 against people who merely possess camping paraphernalia, the court cannot conclude that Plaintiff
15 is at an imminent or substantial risk of having his belongings seized without notice under this
16 provision, either.
17 For the foregoing reasons, Plaintiff’s constitutional claims regarding the Ordinances must
18 be dismissed, except for Plaintiff’s claim for injunctive relief against the City’s violations of due
19 process when seizing items under § 130.14.
20 V. Liability of Individual Officers
21 a. Official Capacity Claims
22 Defendants argue that Plaintiff’s official-capacity claims against the individual Defendants
23 should be dismissed because they are redundant of Plaintiff’s claims against the City. Defendants
24 are correct that “[a]s long as the government entity receives notice and an opportunity to respond,
25 an official-capacity suit is, in all respects other than name, to be treated as a suit against the
26 entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). For his part, Plaintiff does not object to
27 dismissing the individual defendants in their official capacities “as long as the liability is
1 would be transferred to the City: “a judgment against a public servant ‘in his official capacity’
2 imposes liability on the entity that he represents.” Graham, 473 U.S. at 169. Therefore, the court
3 will dismiss Plaintiff’s claims against the individual defendants in their official capacities.
4 b. Officer Graham
5 Defendants argue that Plaintiff has not alleged a claim against Officer Graham regarding
6 the confiscation notices because Plaintiff has not alleged that his property was ever confiscated
7 pursuant to such a notice. As stated above, because Plaintiff has not alleged that his property was
8 actually confiscated under such a notice, the only relief he has standing to obtain is an injunction
9 prohibiting Officer Graham from confiscating his property without adequate notice.
10 Defendants further argue that Plaintiff has not sufficiently alleged that Officer Graham
11 “harassed” him while enforcing the anti-camping ordinance. The court agrees. Plaintiff has not
12 detailed exactly how Officer Graham is supposed to have harassed him. Simply stating that
13 Officer Graham committed harassment pleads a legal conclusion, which is insufficient to survive a
14 motion to dismiss. Twombley, 550 U.S. at 555.
15 Similarly, Defendants argue that Plaintiff has not demonstrated the “false pretenses”
16 underlying his arrest warrant. The court agrees with this assessment. While Plaintiff’s response to
17 the motion to dismiss includes more details about the alleged falsehood, the court is not allowed to
18 consider Plaintiff’s response when evaluating the adequacy of his complaint for purposes of a
19 motion to dismiss. City of Royal Oak Retirement Sys. v. Juniper Networks, Inc., 880 F. Supp. 2d
20 1045, 1060 (N.D. Cal. 2012) (“[A] court cannot consider evidence outside the pleadings without
21 converting the motion to dismiss into one for summary judgment and giving the opposing party an
22 opportunity to respond.”). This is a problem for Plaintiff because “[i]n alleging fraud or mistake, a
23 party must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ.
24 P. 9(b). Because Plaintiff does not specifically state in his complaint which pretenses in the
25 warrant were false, Plaintiff has failed to state a claim that Officer Graham arrested him under
26 false pretenses. Therefore, Plaintiff’s claims against Officer Graham relating to the false arrest
27 warrant must be dismissed.
1 Plaintiff alleges that “Brian Stevens is the chief of police and has failed to properly train
2 and supervise all officers and instead allows for the unconstitutional enforcement of the two
3 ordinances in question.” (Dkt. 1, p. 25). Defendants argue that Chief Stevens took no actions in
4 his individual capacity which would warrant § 1983 liability. In his response, Plaintiff states that
5 “as long as this claim gets transferred over to the city then I would have no objections to the
6 dismissal of Chief Stevens from being named in this lawsuit.” (Dkt. 23, p. 9).
7 Here, it appears that to the extent a claim can be stated against Chief Stevens in his
8 individual capacity, a claim could also be stated against the city. “A supervisor can be liable in his
9 individual capacity for his own culpable action or inaction in the training, supervision, or control
10 of his subordinates; for his acquiescence in the constitutional deprivation; or for conduct that
11 showed a reckless or callous indifference to the rights of others.” Starr v. Baca, 652 F.3d 1202,
12 1208 (9th Cir. 2011) (internal citation omitted). Similarly, a municipality can be held liable for
13 omissions such as failing to train or supervise officers, as well as for constitutional injuries
14 inflicted by its “official policies or established customs.” Clouthier v. County of Contra Costa,
15 591 F.3d 1232, 1249 (9th Cir. 2010), overruled in part on other grounds by Castro v. County of
16 Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016). Importantly, a municipality is also liable when
17 an official with final policy-making authority either commits or ratifies the constitutional
18 violation. Clouthier, 591 F.3d at 1250. “As to matters of police policy, the chief of police under
19 some circumstances may be considered the person possessing final policy-making authority.”
20 Trevino v. Gates, 99 F.3d 911, 920 (9th Cir. 1996).
21 Because it appears that Plaintiff’s claims against Chief Stevens could also be brought
22 against the City, the Court will grant Plaintiff’s request to voluntarily dismiss Chief Stevens from
23 the case.
24 d. Sergeant Omey
25 Defendants argue that, because Plaintiff does not contest that he violated the fish and game
26 code or that his property could be seized when he was arrested, Plaintiff has not stated a claim
27 against Sergeant Omey. However, “even when supported by probable cause, a search or seizure
1 (9th Cir. 1994). For example, “a seizure lawful at its inception can nevertheless violate the Fourth
2 Amendment because its manner of execution unreasonably infringes possessory interests protected
3 by the Fourth Amendment’s prohibition on unreasonable seizures.” U.S. v. Jacobsen, 466 U.S.
4 109, 124 (1984) (internal quotations omitted). Accordingly, the fact that Plaintiff’s property could
5 legally have been seized does not mean that the particular way in which it was seized did not
6 violate Plaintiff’s Fourth Amendment rights.
7 Defendants are, however, correct that Plaintiff does not argue or allege that the actual
8 confiscation of his property at the arrest was unreasonable. Further, Plaintiff has not alleged that
9 this property was actually confiscated or that, if confiscated, it was destroyed. While Plaintiff
10 argues that Sergeant Omey’s actions violated City law and policy, the “reasonableness” standard
11 for searches does not take account of local laws. See Virginia v. Moore, 553 U.S. 164, 178 (2008)
12 (“[I]t is not the province of the Fourth Amendment to enforce state law.”) Accordingly, Plaintiff
13 has not proffered enough facts to indicate beyond a speculative level that the seizure violated
14 Plaintiff’s rights.
15 Defendants argue that because Plaintiff does not allege the ultimate fate of his belongings
16 (i.e., whether they were seized, stored, destroyed, or left in Plaintiff’s possession), Plaintiff has not
17 stated a Due Process claim under the Fourteenth Amendment. While Plaintiff does allege that
18 Omey “discarded my items at the dump” (dkt. 1, p. 27), it is unclear which items Plaintiff is
19 talking about. Even assuming that Plaintiff is talking about the belongings seized at this arrest,
20 Plaintiff does not allege that the belongings were discarded without notice or an adequate waiting
21 period. Accordingly, Plaintiff has not stated a claim on this theory, either.
22 Defendants further argue that because Plaintiff alleges that Omey entered his home without
23 a warrant but arrested him pursuant to a warrant, and because Plaintiff does not allege more than
24 one interaction with Omey, Omey permissibly entered Plaintiff’s home to arrest Plaintiff. Id. As
25 Plaintiff states that he is unhoused and that Omey arrested him in the park, the court cannot infer
26 that these interactions were the same incident. However, because Plaintiff provides no detail
27 about the home-entry incident besides the fact that Omey lacked a warrant and the legal
1 Defendants adequate notice of his claim. Therefore, Plaintiff has not stated a claim against Omey
2 for warrantless entry into Plaintiff’s home.
3 The court notes that, as with his claims against Officer Graham, Plaintiff provided more
4 detailed allegations against Officer Omey in his response to Defendants’ motion to dismiss.
5 However, as discussed above, in order for the court to consider this additional information, it
6 needs to be incorporated into a complaint.
7 Accordingly, Plaintiff’s claims against Sergeant Omey in his individual capacity must be
8 dismissed.
9 e. Qualified Immunity
10 Defendants argue that they are entitled to qualified immunity in their individual capacities.
11 However, the Ninth Circuit has cautioned that “[d]etermining claims of qualified immunity at the
12 motion-to-dismiss stage raises special problems for legal decision making.” Keates v. Koile, 883
13 F.3d 1228, 1234 (9th Cir. 2018) (citing Kwai Fun Wong v. United States, 373 F.3d 952, 956–57
14 (9th Cir. 2004)). Here, Plaintiff’s allegations of fact are barebones and will generally need to be
15 repleaded if Plaintiff wishes to proceed with most of his claims. In order to ensure an informed
16 and accurate ruling, the court will defer consideration of qualified immunity until more fulsome
17 factual allegations are put forth or a factual record is developed.
18 VI. Manner of Dismissal
19 When dismissing a claim, a court “should grant leave to amend even if no request to
20 amend the pleading was made, unless it determines that the pleading could not possibly be cured
21 by other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). This court concludes that
22 Plaintiff’s Eighth Amendment challenge to § 93.02, the anti-camping ordinance, is not viable as a
23 matter of law after Grants Pass and must therefore be dismissed with prejudice. However,
24 Plaintiff will be granted leave to amend his other claims by filing an amended complaint. If
25 Plaintiff wishes to file an amended complaint, he should do so within 60 days of the issuance of
26 this order.
27 VII. Motion for More Definite Statement
1 determine the sufficiency of Plaintiffs claims and a more definite statement should be required.”
2 || (Dkt. 16, p. 22). Accordingly, they have moved for a more definite statement.
3 “A party may move for a more definite statement of a pleading to which a responsive
4 || pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a
5 || response.” Fed. R. Civ. P. 12(e). The grant or denial of a 12(e) motion is within the court’s
6 || discretion. Griffin v. Cedar Fair, L.P., 817 F.Supp.2d 1152, 1154 (N.D. Cal. 2011). Here, because
7 Plaintiff will have the opportunity to file an amended complaint to remedy the lack of specificity
8 in his original allegations, the court does not currently feel it necessary to formally order a more
9 definite statement. Accordingly, this motion is DENIED WITHOUT PREJUDICE.
10 IT IS SO ORDERED.
11 Dated: August 4, 2025
12

ROBERT M. ILLMAN
14 United States Magistrate Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11113973. Public record. Not legal advice.