Opinion

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 WAYNE MCKAY, Case No. 2:25-cv-2024-DAD-JDP (PS)

12 Plaintiff, ORDER; FINDINGS AND

RECOMMENDATIONS

13 v.

14 YUBA COUNTY, et al.,

15 Defendants.

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18 This action proceeds based on plaintiff’s second amended complaint. ECF No. 24.

19 Therein, he alleges that defendants Yuba County and Yuba County Sheriff’s Deputies Keith

20 Gelber and Brian Clegg violated his Fourth Amendment rights by forcing him to leave a property

21 that he won at auction after its previous owner contended he was trespassing. Id. at 4-8. The

22 deputy defendants ordered him to leave because, faced with competing claims about ownership of

23 the property by plaintiff and the previous owner, they could not determine who had title. Id.

24 Plaintiff alleges that the officers’ actions amounted to a seizure of both his person and his

25 property. Id. at 8. With respect to the county, he alleges that its policies and customs contributed

26 to the seizure. Id. at 9-10.

27 Now, defendants have moved to dismiss the complaint, arguing that defendants Gelber

28 and Clegg are entitled to qualified immunity and that plaintiff has failed to adequately allege a

1 Monell claim1 against Yuba County. ECF No. 25. Plaintiff has filed an opposition, ECF No. 26,

2 defendants have filed a reply, ECF No. 27, and plaintiff has motioned to file a sur-reply, ECF No.

3 29, which I will consider. After review of the pleadings, I recommend that the motion to dismiss

4 be granted.

5 Motion to Dismiss

6 I. Legal Standards

7 A complaint may be dismissed under that rule for “failure to state a claim upon which

8 relief may be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to

9 state a claim, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its

10 face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility

11 when the plaintiff pleads factual content that allows the court to draw the reasonable inference

12 that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

13 (2009) (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability

14 requirement,” but it requires more than a sheer possibility that a defendant has acted unlawfully.

15 Iqbal, 556 U.S. at 678.

16 For purposes of dismissal under Rule 12(b)(6), the court generally considers only

17 allegations contained in the pleadings, exhibits attached to the complaint, and matters properly

18 subject to judicial notice, and construes all well-pleaded material factual allegations in the light

19 most favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710

20 F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).

21 Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal

22 theory, or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d

23 at 956. Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the

24 claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984).

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28 1 Referencing Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978).

1 II. Analysis

2 In May 2023, plaintiff purchased a residential property in Marysville, California in an

3 online real estate auction. ECF No. 24 at 4. In July 2023, after an escrow company notified

4 plaintiff of the recording of a trustee’s deed, plaintiff claims that he lawfully acquired the

5 property. Id. On July 21, 2023, he went to the property to take possession and inspect it. Id. at 5.

6 A few hours after his arrival, plaintiff alleges that the former owner, Amit Tumber, arrived at the

7 property and confronted him, ordering plaintiff to “get the fuck out of my house” and threatening

8 to call the police. Id. Plaintiff claims that Tumber used threats and “assaultive behavior” to try to

9 force him to leave and, ultimately, law enforcement was called. Id. at 5-6.

10 Defendants Gelber and Clegg arrived, and plaintiff presented them with his recorded deed,

11 but Tumber maintained that he was the lawful owner. Id. at 6. The officers interviewed the two

12 claimants separately and, after they were unable to determine ownership, contacted a supervisor.

13 Id. An unnamed supervisor ultimately made the decision that plaintiff would be ordered to leave

14 the premises for the time being. Id. at 6-7. Plaintiff ultimately reached a settlement with Tumber

15 in February 2024, that allowed him to take possession of the property. Id. at 8.

16 Plaintiff alleges that defendant Gelber and Clegg’s actions constituted an illegal search

17 and seizure (of both person and property), violating his Fourth Amendment rights. Id. at 8. He

18 also alleges that Yuba County violated his rights by maintaining an unconstitutional policy,

19 custom, or procedure, insofar as it “routinely dispatches” its law enforcement to foreclosure and

20 ownership disputes without sufficient training to handle them. Id. at 9.

21 I note that I previously dismissed with leave to amend plaintiff’s Fourth Amendment

22 claim for seizure of his person against Gelber and Clegg, finding that these individuals were

23 entitled to qualified immunity. ECF No. 23 at 3-4. I also dismissed plaintiff’s claim against

24 Yuba County for failure to adequately allege the existence of a custom or policy contributing to

25 the violation of his rights. Id. at 6-7.

26 A. Qualified Immunity

27 Defendants Gelber and Clegg are entitled to qualified immunity on plaintiff’s claims that

28 their actions constituted an unlawful seizure of both his person and his property. Qualified

1 immunity precludes civil liability under 42 U.S.C. § 1983 for state officials if “their conduct does

2 not violate clearly established statutory or constitutional rights of which a reasonable person

3 would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Additionally, defendants

4 may be entitled to qualified immunity “even if they acted unconstitutionally, as long as a

5 reasonable officer could have believed the conduct lawful.” Alexander v. County of Los Angeles,

6 64 F.3d 1315, 1322 (9th Cir. 1995).

7 The analysis of the seizure of his person is substantively identical to the one I set forth in

8 my previous order granting defendants’ motion to dismiss, as the allegations have not

9 meaningfully changed. See ECF No. 23 at 3-4. Therein, I found that:

10 [I]t is unclear whether excluding an individual from a piece of real

property, but otherwise allowing him full freedom of movement,

11 amounts to a seizure of his person. See White v. City of Markham,

310 F.3d 989, 995 (7th Cir. 2002). Generally, a personal seizure

12 occurs when “there is a restraint on liberty to the degree that a

reasonable person would not feel free to leave.” Doe v. Haw. Dep’t

13 of Educ., 334 F.3d 906, 909 (9th Cir. 2003). Here, plaintiff was not

only free to leave, he was asked to do so.

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. . .

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Moreover, even if asking plaintiff to leave the premises did amount

16 to an unlawful seizure of his person, defendants could have

reasonably believed their conduct was lawful. The complaint

17 acknowledges that the resources required to make a definitive

finding of ownership, including county records, could not be

18 accessed at the time defendants arrived at the property. ECF No. 1

at 10. Plaintiff also alleged that Tumber was confrontational and

19 verbally aggressive toward him during their encounter. Id. at 6.

Faced with the possibility that violence could escalate in their

20 absence, officers could have reasonably believed that asking one of

the two claimants, neither of whom had a conclusive claim of

21 ownership, to leave was lawful.

22 ECF No. 23 at 3-4. The same allegations recur in the second amended complaint. Therein,

23 plaintiff again alleges that Tumber made threats and demonstrated “assaultive behavior.” ECF

24 No. 24 at 5. The complaint also acknowledges that the incident occurred after business hours,

25 when it was almost certainly impossible to access county records. Id. (noting that Tumber first

26 arrived at the property sometime after 4:30 p.m.). Thus, the same analysis applies. I find that an

27 officer in defendants’ place could have reasonably believed that asking plaintiff to leave, pending

28 resolution of the ownership dispute, was lawful.

1 In his surreply, plaintiff alleges that the second amended complaint corrects the foregoing

2 issues by alleging that he was ordered to vacate under threat of arrest and that the deputies

3 remained on site to ensure he did not return. ECF No. 29 at 5. This argument makes little sense.

4 My analysis did not rest on an assumption that the deputies’ order that he temporarily vacate the

5 property was toothless or made in jest.

6 I also find that defendants are entitled to qualified immunity as to the claim that

7 defendants’ actions amounted to an unlawful seizure of his property. A seizure of property

8 implicating the Fourth Amendment “occurs when there is some meaningful interference with an

9 individual’s possessory interests in that property.” Soldal v. Cook County, 506 U.S. 56, 61

10 (1992). Additionally, to violate the Fourth Amendment, the seizure must be unreasonable. Id. at

11 61-62 (“Whether the Amendment was in fact violated is, of course, a different question that

12 requires determining if the seizure was reasonable.”). I agree with defendants that here, faced

13 with an uncertain situation, where two men each advanced a claim to ownership of a property and

14 one (Tumber) was allegedly agitated, asking plaintiff to leave temporarily did not amount to a

15 “meaningful interference” with his possessory interest. Notably the complaint does not allege

16 that the officers rendered any kind of final adjudicatory decision about ownership of the property

17 that would have precluded plaintiff from settling the issue through the appropriate administrative

18 or judicial channels in the days that followed.

19 And, even if asking plaintiff to leave was a “meaningful interference” with his possessory

20 interest, it was not unreasonable. In a case cited by defendants, and that I find analogous,

21 authorities issued a trespass citation to the plaintiff “for the purpose of keeping the peace pending

22 resolution of the property dispute in the civil courts . . . .” Burgan v. Nixon, 711 F. App’x 855,

23 857-58 (9th Cir. 2017). The Ninth Circuit found that, in doing so, the defendant officials were

24 entitled to qualified immunity because, in part, the question of whether the plaintiff had exceeded

25 the scope of the easement at issue “remained murky.” Id. at 858. Here, faced with both an

26 uncertain (and, in the moment, unanswerable) question of ownership and a brewing animosity

27 between the property’s claimants, a reasonable officer could have believed that ordering one to

28 leave temporarily was lawful.

1 In his surreply, plaintiff argues that Burgan is inapposite, because it involved the issuance

2 of a citation, rather than an order to vacate under threat of arrest. ECF No. 29 at 6. I fail to see

3 how the distinction is of legal consequence. In both cases, officials invoked their authority to

4 temporarily restrain an individual plaintiff from accessing a disputed piece of property. The

5 terms of that temporary restraint do not appear relevant.

6 B. Monell Claim

7 I also find that, as before, plaintiff’s Monell claims against Yuba County are inadequate to

8 proceed. The second amended complaint alleges that:

9 On information and belief, the County routinely dispatches deputies

to civil possession disputes involving foreclosure and ownership

10 conflicts, including unlawful detainer situations, tenant lockouts,

and post-judgment enforcement, yet provides no written policy,

11 training materials, or standardized guidance instructing deputies or

supervisors how to lawfully handle such disputes or preserve the

12 status quo absent a court-issued writ of possession, leaving such

matters to be resolved ad hoc in the field.

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14 ECF No. 24 at 9. This allegation is not substantively different from the one in the previous

15 complaint that I found was insufficient. There, plaintiff alleged that:

16 The unlawful conduct of the deputies was undertaken pursuant to a

widespread practice, policy, or custom of the Yuba County

17 Sheriff’s Department, including but not limited to: (a) [t]olerating

or encouraging self-help evictions in violation of due process;

18 (b) [f]ailing to train deputies on legal standards governing civil

possession disputes; (c) [r]efusing to investigate or confirm lawful

19 title or possession before removing individuals from property.

20 ECF No. 6 at 16. I noted that these allegations were a thinly disguised attempt to recast his

21 allegations as a county “policy” or “custom” and that requiring the county to train its law

22 enforcement officers in every area of the law that might arise during their duties was unrealistic.

23 ECF No. 23 at 6-7. That analysis holds here. No plausible policy promulgated by the county

24 could have settled a fact-specific question of property ownership that is better reserved to court or

25 administrative processes. Plaintiff does not explain how any written policy or “standardized

26 guidance” could have resolved the sudden dispute that arose between him and Tumber. For these

27 reasons, I also find that any failure to train claim levied against the county also fails.

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1 In his surreply, plaintiff argues that “deputies responding to civil dispossession receive no

2 training on distinguishing civil dispossession conflicts from criminal enforcement or on

3 preserving the status quo absent judicial process.” ECF No. 29 at 7. He does not allege that he

4 was arrested or criminally charged, however. And the fact that arrest was threatened if he

5 deliberately disobeyed a deputy’s orders does not convert his interaction with the defendants into

6 a “criminal enforcement.” All orders given by law enforcement officers are ultimately

7 backstopped by the threat of arrest if their target refuses to comply.

8 C. Leave to Amend

9 I find that plaintiff’s claims against the defendants should be dismissed without leave to

10 amend. I granted a previous motion to dismiss and offered plaintiff an opportunity to amend.

11 ECF No. 23. His second amended complaint contains the same deficiencies, leading me to

12 conclude that further opportunities to amend would be futile.2

13 Conclusion

14 Accordingly, it is ORDERED that:

15 1. Plaintiff’s motion to file a surreply, ECF No. 29, is GRANTED.

16 2. The Clerk of Court is directed to administratively terminate defendant Wendell

17 Anderson because he is not named in the second amended complaint.

18 Further, it is RECOMMENDED that:

19 1. Defendants’ motion to dismiss, ECF No. 25, be GRANTED and the claims against

20 defendants Yuba County, Keith Gelber, and Brian Clegg be DISMISSED without leave to amend.

21 2. The Clerk of Court be directed to enter judgment and close this action.

22 These findings and recommendations are submitted to the United States District Judge

23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days of

24 service of these findings and recommendations, any party may file written objections with the

25 court and serve a copy on all parties. Any such document should be captioned “Objections to

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27 2 I note that the second amended complaint also purports to sue an indeterminate number

of “Doe” defendants that have not been served. The body of the complaint, however, fails to state

28 any discernable claim against any of these individuals.

1 | Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed

2 | within fourteen days of service of the objections. The parties are advised that failure to file

3 | objections within the specified time may waive the right to appeal the District Court’s order. See

4 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir.

5 | 1991).

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7 IT IS SO ORDERED.

Dated: _ June 9, 2026 aw——

9 JEREMY D. PETERSON

10 UNITED STATES MAGISTRATE JUDGE

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