Lajuana Danette White v. Fesia Davenport

CIVIL MINUTES – GENERAL

Case No. 8:23-cv-02300-HDV-MAA Date: March 26, 2024

Title Lajuana Danette White v. Fesia Davenport et al.

Present: The Honorable MARIA A. AUDERO, United States Magistrate Judge

Cindy Delgado N/A

Deputy Clerk Court Reporter / Recorder

Attorneys Present for Plaintiff: Attorneys Present for Defendants:

N/A N/A

Proceedings (In Chambers): Order Dismissing Complaint With Leave to Amend

(ECF No. 1)

I. INTRODUCTION

On December 6, 2023, Plaintiff Lajuana Danette White (“Plaintiff”) filed a Complaint

alleging violations of her civil rights pursuant to 42 U.S.C. §§ 1983, 1985, and 1986. (Compl., ECF

No. 1.) On January 10, 2024, the District Judge granted Plaintiff’s Application to Proceed In Forma

Pauperis. (ECF Nos. 3, 5.)

The Court has screened the Complaint and, for the reasons stated below, dismisses it with

leave to amend. Plaintiff must file a response to this Order, as set forth in Part V infra, no later than

April 25, 2024.

II. ALLEGATIONS AND CLAIMS1

The Complaint is filed against: (1) Fesia Davenport, C.E.O.; (2) Lisa Garrett, Director of

Personnel; (3) Mona Patuano, Assistant Nursing Director; (4) Renee Bernardo, Nurse Manager;

(5) Grace Meza, Staff Assistant II; (6) Diane Sanchez, Clinical Nursing Director I; (7) Michelle Ner,

Nurse Manager; (8) Craig Vincent-Jones, Executive Director; (9) Inell Kyles, Nursing Manager; and

(10) County of Los Angeles (“County”) (each, a “Defendant” and collectively, “Defendants”).

(Compl. ¶¶ 1–10.)2 Defendants Davenport, Garrett, Patuano, Bernardo, Meza, Sanchez, Ner,

1 The Court summarizes the allegations and claims in the Complaint, without opining on their

veracity or merit.

2 Pinpoint citations to docketed documents are to paragraphs numbers, where available, or to page

numbers in the CM/ECF-generated headers.

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Title Lajuana Danette White v. Fesia Davenport et al.

Vincent-Jones, and Kyles are employees of Los Angeles County Department of Public Health and

are sued in their individual capacities. (Id. ¶¶ 1–9.)

The Complaint concerns Defendants’ “threats, harassment, intimidation and humiliation” of

Plaintiff as a result of her invocation of religious exemptions to the County’s mandatory vaccine and

mask-wearing policies. (Id. ¶ 28.) On August 16, 2021, Plaintiff received an email stating that the

Board of Supervisors mandated that all County employees be vaccinated and show proof of

vaccination by October 1, 2021. (Id. ¶ 11.) On or about September 20, 2021, the County informed

staff about the mandatory vaccine policy and the October 1, 2021 deadline to get vaccinated and/or

file an exemption. (Id.) On or about September 28, 2021, Plaintiff submitted her religious

exemption form online to Fulgent, a third party. (Id. ¶ 12.)

On or about October 5, 2021, “Human Resources (HR) Covid Vax Support” informed

Plaintiff that she was “in non-compliance” with the vaccination policy. (Id. ¶ 13.) On or about

October 28, 2021, Plaintiff received a notice of a five-day suspension from November 1 to

November 5, 2021. (Id. ¶ 14.) On or about November 6, 2021, Plaintiff sent an affidavit of religious

rights to Davenport. (Id. ¶ 15.) On or about November 9, 2021, Plaintiff filed a grievance with

SEIU Local 721, alleging unfair suspension due to her religious beliefs. (Id. ¶ 16.)

On or about December 2, 2021, the County acknowledged receipt of Plaintiff’s religious

affidavit, accommodation, and request. (Id. ¶ 17.) On or about September 14, 2022, the County

granted Plaintiff’s religious exemption. (Id. ¶ 18.) “Sometime thereafter,” Plaintiff was given a

hearing to address her suspension. (Id. ¶ 19.) At the hearing, “they agreed to remove the notice of

[Plaintiff’s] suspension from all files,” but denied Plaintiff’s request to restore the lost time and

wages incurred during the suspension. (Id.)

On December 20, 2022, Patuano approached Plaintiff in the employee break room and asked

why she was not wearing a mask. (Id. ¶ 20.) Plaintiff told Patuano that she had an approved

religious exemption and had the right not to wear a mask. (Id.) Patuano stated that Plaintiff should

submit a copy of the exemption in her employee record and Plaintiff responded that she thought she

already had, but would submit it. (Id.) The next morning, Patuano e-mailed Bernardo, cc’ing

Plaintiff, with a subject line titled “Mandatory Mask Requirement.” (Id.) Plaintiff responded to the

e-mail by stating that she would provide the relevant pages of the exemption within the next three

business days. (Id.)

On December 27, 2022, Plaintiff submitted a copy of her exemption and provided a physical

copy of it to Sanchez. (Id. ¶ 21.) On December 28, 2022, Sanchez called Plaintiff into a meeting

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Title Lajuana Danette White v. Fesia Davenport et al.

with Ner, during which they reviewed the mask-wearing policy that went into effect on December 8,

2022. (Id. ¶ 22–23.) At the meeting, Sanchez threw a mask across the conference table to Plaintiff

and requested “in a very demanding tone” that she wear it. (Id. ¶ 24.) Plaintiff was “shocked,

disturbed and emotionally offended by the unsanitary and confrontational nature of her actions.”

(Id.) Plaintiff reminded Sanchez that she had a right not to wear the mask due to her religious

exemption, and the meeting abruptly concluded. (Id. ¶ 25.) The next day, Plaintiff received an e-

mail from Vincent-Jones requesting that Plaintiff comply with a “direct order.”3 (Id. ¶ 26.) Plaintiff

informed Vincent-Jones that she would not wear a mask because she had an approved religious

exemption on file. (Id.)

Thereafter, Plaintiff received e-mails threatening to discipline, suspend, or terminate her if

she did not wear a mask. (Id. ¶ 27.) She also received offensive looks and stares when in the

presence of Patuano, Bernardo, Meza, Sanchez, Ner, Vincent-Jones, and Kyles. (Id.) These

Defendants “initiated, participated and conspired together in this daily campaign” of threats and

intimidation and never confronted or implored the others to cease these actions against Plaintiff.

(Id.) These Defendants committed “acts of threats, harassment, intimidation, and humiliation in

violation of [Plaintiff’s] rights.” (Id. ¶ 28.) Davenport and Garrett were “cc’d in the ongoing saga

of” the e-mail attacks and “did nothing to stop it.” (Id. ¶ 29.) Plaintiff was subjected to several

suspensions without pay and threatened with termination. (Id.) She suffered severe depression from

one of the suspensions. (Id.)

Based on the foregoing, Plaintiff brings four claims pursuant to 42 U.S.C. § 1983 (“Section

1983”): (1) “Deterring, Suppressing, or Breaching Freedom of Religion” (First Amendment);

(2) “Personal Security Threatened and/or Denied” (Fourth Amendment); (3) “Liberty Denied

without Due Process of Law” (Fifth Amendment); and (4) “[D]enied Equal Protection of Law”

(Fourteenth Amendment). (Id. at 14.) Plaintiff also brings claims pursuant to 42 U.S.C. § 1985

(“Section 1985”) (conspiracy to interfere with civil rights) and 42 U.S.C. § 1986 (“Section 1986”)

(negligence in preventing conspiracy to interfere with civil rights). (Id.) Plaintiff seeks damages in

the amount of $250,000 for each violation as provided by 18 U.S.C. § 3571, punitive damages, and

restraining orders to cease Defendants’ harassment. (Id. at 15.)

///

3 The content of the direct order is not included in the Complaint. (See generally Compl.)

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III. LEGAL STANDARD

The Court is required to conduct a preliminary screening of any civil action brought by a

plaintiff who proceeds in forma pauperis, and dismiss any claims that are frivolous, malicious, fail to

state a claim upon which relief can be granted, or seek monetary relief from a defendant who is

immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Dismissal is proper only where a complaint

fails to “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that

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

alleged.” Id. In determining whether a plaintiff has stated a claim, the Court accepts as true the

factual allegations contained in the complaint and views all inferences in a light most favorable to

the plaintiff. Park v. Thompson, 851 F.3d 910, 918 (9th Cir. 2017). The Court does not, however,

“accept as true allegations that are merely conclusory, unwarranted deductions of fact, or

unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008)

(quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). Moreover, where a

plaintiff is appearing pro se, particularly in civil rights cases, courts construe pleadings liberally and

afford the plaintiff any benefit of the doubt. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

2012).

IV. DISCUSSION

A. Rule 8

Federal Rule of Civil Procedure (“Rule”) 8 requires that a complaint contain “‘a short and

plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Twombly, 550

U.S. at 555 (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Each

allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). Rule 8 may be violated

when a pleading “says too little,” and “when a pleading says too much.” Knapp v. Hogan, 738 F.3d

1106, 1109 (9th Cir. 2013). Rule 8 “does not require ‘detailed factual allegations,’ but it demands

more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678

(citing Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders

‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at

555, 557).

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Title Lajuana Danette White v. Fesia Davenport et al.

The Complaint fails to satisfy Rule 8 in several respects.

First, the Complaint does not give each Defendant fair notice of Plaintiff’s complaints about

them. For example, the Complaint complains of “harassment,” “threats,” and “humiliation,” but

does not specify the actions and Defendant responsible for such “harassment,” “threats,” or

“humiliation.” (See, e.g., Compl. ¶¶ 18, 19, 26, 28.) See Iqbal, 556 U.S. at 678 (explaining that

labels and conclusions, devoid of factual allegations, are insufficient to state a claim). Moreover, the

Complaint contains numerous instances where Plaintiff complains of actions taken against him by

“they,” but does not specify who “they” were. (See, e.g., Compl. ¶¶ 19, 27, 28.)

Second, the Complaint lumps Patuano, Bernardo, Meza, Sanchez, Ner, Vincent-Jones, and

Kyles together in claiming that they “each initiated, participated and conspired together in [] a daily

campaign” of threats and intimidation and does not specify which Defendant took what specific

action challenged in the Complaint. (Id. at ¶ 27.) “As a general rule, when a pleading fails ‘to allege

what role each Defendant played in the alleged harm,’ this ‘makes it exceedingly difficult, if not

impossible, for individual Defendants to respond to Plaintiffs’ allegations.’” Adobe Sys. v. Blue

Source Grp. Inc., 125 F. Supp. 3d 945, 964 (N.D. Cal. 2015) (quoting In re iPhone Application Litig.,

No. 11-MD-02250-LHK, 2011 U.S. Dist. LEXIS 106865, at *8 (N.D. Cal. Sept. 20, 2011)).

“Accordingly, a complaint which ‘lump[s] together . . . multiple defendants in one broad allegation

fails to satisfy [the] notice requirement of Rule 8(a)(2).’” Id. (alterations in original) (quoting Gen-

Probe, Inc. v. Amoco Corp., 926 F. Supp. 948, 961 (S.D. Cal. 1996)).

Third, aside from lumping Kyle together with other Defendants as addressed above, the

Complaint does not contain any facts regarding any specific act or omission by Kyle. (See generally

Compl.) There can be no liability under Section 1983 unless there is an affirmative link or connection

between a defendant’s actions and the claimed deprivation. See Monell v. Dep’t of Soc. Servs., 436

U.S. 658, 692 (1978). “A person ‘subjects’ another to the deprivation of a constitutional right, within

the meaning of section 1983, if he does an affirmative act, participates in another’s affirmative acts, or

omits to perform an act which he is legally required to do that causes the deprivation of which

complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Accordingly, the

Complaint fails to state any claims against Kyle. See id.

Fourth, the only specific allegation against Vincent-Jones is that he sent an e-mail to Plaintiff

entitled “DIRECT ORDER” and of “high” importance, requesting Plaintiff review the attachments

and comply accordingly. (Compl. ¶ 26.) The Complaint does not specify the content of Vincent-

Jones’ email or attachments. (See generally id.) These facts are too vague to satisfy Rule 8.

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Fifth, it is unclear whether Plaintiff challenges Defendants’ actions in carrying out the

County’s vaccine policy or mask-wearing policy. (Id. at ¶¶ 11, 23.) The Complaint references both

policies, but does not specify whether the challenged actions were carried out pursuant to the vaccine

policy or mask-wearing policy. Any amended pleading must specify which challenged actions were

carried out in accordance with which policy. See Schmidt v. City of Pasadena, No. LA CV21-08769

JAK (JCx), 2023 U.S. Dist. LEXIS 115351, at *39–40 (C.D. Cal. Mar. 8, 2023) (dismissing

complaint for failure to state a claim where it did not plead challenge to mask and testing

requirements separately from challenge to vaccine mandate).

For these reasons, the Complaint violates Rule 8(a)(2). In any amended complaint, Plaintiff

must remedy these deficiencies or risk dismissal of this action.

B. Section 1983

“Title 42 U.S.C. § 1983 provides a cause of action against ‘[e]very person who, under color

of any statute . . . of any State . . . subjects, or causes to be subjected, any citizen . . . to the

deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . . .”

Wyatt v. Cole, 504 U.S. 158, 161 (1992) (alterations in original) (quoting 42 U.S.C. § 1983). Section

1983 “‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating

federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (quoting

Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). “To state a claim under § 1983, a plaintiff must

allege the violation of a right secured by the Constitution and laws of the United States, and must

show that the alleged deprivation was committed by a person acting under color of state law.” West

v. Atkins, 487 U.S. 42, 48 (1988).

1. Supervisory Liability of Davenport and Garrett

Liability under Section 1983 cannot be established solely on a theory of respondeat superior

based on the unconstitutional conduct of subordinates. See Iqbal, 556 U.S. at 676 (“Government

officials may not be held liable for the unconstitutional conduct of their subordinates under a theory

of respondeat superior.”). “The inquiry into causation must be individualized and focus on the

duties and responsibilities of each individual defendant whose acts or omissions are alleged to have

caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1998). The

requisite causal connection can be established when a person (1) “does an affirmative act,

participates in another’s affirmative acts, or omits to perform an act which he is legally required to

do that causes the deprivation”; or (2) “set[s] in motion a series of acts by others which the actor

knows or reasonably should know would cause others to inflict the constitutional injury.” Lacey v.

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Maricopa County, 693 F.3d 896, 915 (9th Cir. 2012) (en banc) (quoting Johnson, 588 F.2d at 743–

44).

Here, the only factual allegations involving Davenport and Garrett are that they were copied

on “harassing” e-mails to Plaintiff. (Compl. ¶ 29.) However, simply being copied on e-mails is

insufficient to establish supervisory liability under Section 1983. See, e.g., OSU Student All. v. Ray,

699 F.3d 1053, 1078–79 (9th Cir. 2012) (holding that complaint failed to state a claim against vice

provost because totality of allegations against him consisted of being copied on one e-mail and

receiving an e-mail regarding the actions challenged in the complaint). There are no allegations

from which it reasonably could be inferred that Davenport or Garrett caused a constitutional

deprivation.

If Plaintiff files an amended pleading with claims against Davenport and Garrett, she must

provide specific factual allegations of how Davenport and Garrett caused a deprivation of Plaintiff’s

constitutional rights, or risk their dismissal.

2. Deterring, Suppressing, or Breaching Freedom of Religion (First Amendment)

The First Amendment, applicable to the states through the Fourteenth Amendment, prohibits

the government from making laws “prohibiting the free exercise” of religion. U.S. Const. amend. I.

A plaintiff may state a claim for infringement of the Free Exercise Clause in numerous ways,

including by alleging “that a government entity has burdened his sincere religious practice pursuant to

a policy that is not ‘neutral’ or ‘generally applicable.’” Kennedy v. Bremerton Sch. Dist., 142 S. Ct.

2407, 2421–22 (2022) (citation omitted).

a. Sincerely Held Religious Belief

The Free Exercise Clause only protects beliefs that are “sincerely held” and “rooted in

religious belief, not in purely secular philosophical concerns.” Malik v. Brown, 16 F.3d 330, 333 (9th

Cir. 1994). Here, the Complaint does not contain sufficient factual allegations from which it

reasonably could be inferred that Plaintiff’s (unspecified) religious beliefs are both sincerely held and

rooted in religious belief. Rather, the Complaint includes only conclusory allegations that

Defendants’ actions violated her right to freedom of religion, which does not suffice. See Iqbal, 556

U.S. at 678 (explaining that a complaint will not suffice if it offers “an unadorned, the defendant-

unlawfully-harmed me accusation,” “labels and conclusions,” “a formulaic recitation of the elements

of a cause of action,” or “‘naked assertion[s]’ devoid of ‘further factual enhancement’” (alteration in

original) (quoting Twombly, 556 U.S. at 555, 557)).

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b. Substantial Burden on Religious Practice

“A person asserting a free exercise claim must show that the government action in question

substantially burdens the person’s practice of her religion.” Jones v. Williams, 791 F.3d 1023, 1031

(9th Cir. 2015). “A substantial burden . . . place[s] more than an inconvenience on religious exercise;

it must have a tendency to coerce individuals into acting contrary to their religious beliefs or exert

substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Id. at 1031–32

(alteration in original) (quoting Ohno v. Yasuma, 723 F.3d 984, 1011 (9th Cir. 2013)).

Here, the Complaint does not contain sufficient factual allegations from which it reasonably

could be inferred that any Defendant substantially burdened Plaintiff’s religious practices.4 The only

factual allegation about Meza is she told Plaintiff she could file a religious exemption form. (Compl.

¶ 11.) The only factual allegations about Patuano are that she approached Plaintiff in the employee

break room, asked why Plaintiff was not wearing a mask, told Plaintiff to submit a copy of her

affidavit for her employee record, and sent Plaintiff an email the next day with a subject line titled

“Mandatory Mask Requirement.” (Id. ¶ 20.) The only factual allegation about Bernardo is that she

was copied on Patuano’s email. (Id.) The only factual allegations about Sanchez are that Plaintiff

gave her a physical copy of her approved exemption, and Sanchez invited Plaintiff to a meeting where

Sanchez reviewed the mask-wearing policy and threw a mask at Plaintiff. (Id. ¶¶ 21–24.) The only

factual allegation about Ner is that she was present at Plaintiff’s meeting with Sanchez. (Id. ¶ 22.)

Finally, the only specific factual allegation about Vincent-Jones is that he sent an email titled

“DIRECT ORDER” and of “high” importance to Plaintiff and asked her to view the attachments and

comply. (Id. ¶ 26.)

None of these facts allege a burden on Plaintiff’s religious practices, let alone a substantial

one. Indeed, courts in the Ninth Circuit have found more aggressive actions insufficient to allege a

substantial burden to religious practice. See, e.g., Maggio v. Or. Health, No. 3:23-cv-00116-JR, 2023

U.S. Dist. LEXIS 168485, at *9–10 (D. Or. June 1, 2023) (dismissing free exercise claim because

defendants’ dismissiveness toward plaintiff’s religious beliefs was insufficient to state that plaintiff’s

religious practice was substantially burdened); Rolovich v. Wash. State Univ., No. 2:22-CV-0319-

TOR, 2023 U.S. Dist. LEXIS 93926, at *18–19 (E.D. Wash. May 30, 2023) (finding that defendant

urging plaintiff to comply with vaccine mandate or disagreeing with plaintiff’s reasons for refusing to

4 The Court does not address the general allegations contained in paragraphs 27–28 that lumped

together Patuano, Bernardo, Meza, Sanchez, Ner, Vincent-Jones and Kyles, having already analyzed

them above in Section IV.A.1.

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comply with mandate insufficient to infer that defendant coerced plaintiff to act contrary to his

religious beliefs).

c. Neutral Policies of General Applicability

“[N]eutral, generally applicable laws that incidentally burden the exercise of religion usually

do not violate the Free Exercise Clause of the First Amendment’ because they need only be

‘rationally related to a legitimate government interest.’” Parents for Privacy v. Barr, 949 F.3d 1210,

1234 (9th Cir. 2020) (citations omitted). Laws that are not neutral or not generally applicable are

subject to strict scrutiny and must be “narrowly tailored” to serve a “compelling” state interest. See

Kennedy, 142 S. Ct. at 2421–22.

Here, the Complaint offers no allegations to support a reasonable inference that the County’s

vaccine or mask-wearing policies are not neutral or generally applicable. To the contrary, the

Complaint alleges the vaccine policy applied to all County employees and allows religious

exemptions. (Compl. ¶ 11.) See, e.g., Doe v. San Diego Unified Sch. Dist., 19 F.4th 1173, 1180 (9th

Cir. 2021) (finding San Diego Unified School District’s vaccine mandate neutral and generally

applicable because it did not reference any religious practice, there was no evidence that it was

implemented with the aim of suppressing religion, and it allowed for religious exemptions); Miller v.

Farris, No. CV 21-9551-SSS (AS), 2022 U.S. Dist. LEXIS 210722, at *15–16 (C.D. Cal. Oct. 17,

2022) (finding Los Angeles County’s vaccine mandate generally applicable and neutral because it

affected the entire county and was not directed at one or few individuals), accepted, 2022 U.S. Dist.

LEXIS 214068 (C.D. Cal. Nov. 28, 2022); Megeso-William-Alan v. Ige, 538 F. Supp. 3d 1063, 1076–

78 (D. Haw. 2021) (finding state and city mask mandates neutral, generally applicable, and valid

under rational basis review).

Moreover, the Complaint does not contain any allegations from which it reasonably could be

inferred that the County’s vaccine and mask-wearing policies are not related to the legitimate

government interest of curbing the spread of COVID-19. See Roman Cath. Diocese v. Cuomo, 141 S.

Ct. 63, 67 (2020) (“Stemming the spread of COVID-19 is unquestionably a compelling interest.”).

* * *

For these reasons, the Complaint fails to state a First Amendment free exercise claim. If

Plaintiff files an amended complaint with this claim, Plaintiff must correct the above deficiencies or

risk its dismissal.

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3. Personal Security Threatened and/or Denied (Fourth Amendment)

The Fourth Amendment, applicable to the states through the Fourteenth Amendment, protects

the “right of people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures.” U.S. Const. amend. IV. To state a Fourth Amendment claim, a plaintiff

must allege that there was a governmental search or seizure, and that it was unreasonable. See

Brower v. County of Inyo, 489 U.S. 593, 599 (1989). “A ‘search’ occurs when an expectation of

privacy that society is prepared to consider reasonable is infringed.” United States v. Nuesca, 945

F.2d 254, 258 (9th Cir. 1991) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984). “A

person is seized under the Fourth Amendment ‘when there is a governmental termination of freedom

of [his] movement through means intentionally applied.’” Villanueva v. California, 986 F.3d 1158,

1166 (9th Cir. 2021) (alteration in original) (quoting Brower v. County of Inyo, 489 U.S. 593, 597

(1989).

The Ninth Circuit “recognizes an ‘individual interest in avoiding disclosure of personal

matters.’” A.C. v. Cortez, 34 F.4th 783, 787 (9th Cir. 2022) (quoting Endy v. County of Los Angeles,

975 F.3d 757, 768 (9th Cir. 2020)). The right to informational privacy is a “conditional right which

may be infringed upon a showing of proper governmental interest.” Id. The Ninth Circuit has

identified a number of factors to be considered in deciding “whether the governmental interest in

obtaining information outweighs the individual’s privacy interest.” Seaton v. Mayberg, 610 F.3d

530, 538 (9th Cir. 2010) (citation omitted). Those factors include “(1) the type of information

requested, (2) the potential for harm in any subsequent non-consensual disclosure, (3) the adequacy

of safeguards to prevent unauthorized disclosure, (4) the degree of need for access, and (5) whether

there is an express statutory mandate, articulated public policy, or other recognizable public interest

militating toward access.” A.C., 34 F.4th at 787 (citation omitted).

The Complaint does not explain how the vaccine or mask-wearing policies constituted a

search or seizure of Plaintiff, or whether such purported search or seizure was unreasonable. See

Burcham v. City of Los Angeles, 562 F. Supp. 3d 694, 702 (C.D. Cal. Jan. 7, 2022) (explaining that

the court could not find any controlling case indicating that a vaccine-injection requirement was a

search under the Fourth Amendment); Penna v. N. Clackamas Sch. Dist., No. 3:22-cv-01417-YY,

2023 U.S. Dist. LEXIS 166885, at *13 (D. Or. Aug. 11, 2023) (recommending dismissal of Fourth

Amendment claim challenging vaccine and mask requirements because complaint failed to state a

claim that a search or seizure had occurred, or if it had, that they were unreasonable), accepted, 2023

U.S. Dist. LEXIS 186056 (D. Or. Oct. 17, 2023). To the extent the Complaint asserts a violation of

Plaintiff’s privacy interests, it does not contain facts stating how her privacy interests were violated

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or facts that give rise to the inference that her privacy interests outweigh the Defendants’ interest in

carrying out these policies. See Miller v. Farris, No. CV 21-9551-SSS (AS), 2023 U.S. Dist. LEXIS

127679, at *12–14 (C.D. Cal June 14, 2023) (recommending dismissal of Fourth Amendment claim

challenging Los Angeles County vaccine mandate because complaint failed to state a claim that

plaintiff’s privacy interests outweighed government’s interest in preventing spread of COVID-19),

accepted, 2023 U.S. Dist. LEXIS 131007 (C.D. Cal. July 28, 2023). Accordingly, the Complaint

fails to state a claim for a Fourth Amendment violation. If Plaintiff presents a Fourth Amendment

claim in any amended complaint, she must remedy these deficiencies or risk dismissal of the claim.

4. Liberty Denied Without Due Process of Law (Fifth Amendment)

The Fifth Amendment prohibits the federal government from violating due process, while the

Fourteenth Amendment prohibits deprivations without due process by the states. See Castillo v.

McFadden, 399 F.3d 993, 1006 n.5 (9th Cir. 2005). Because Plaintiff is not alleging due process

violations by the federal government, the Court will examine Plaintiff’s due process claim pursuant

to the Fourteenth Amendment. See Sagana v. Tenorio, 384 F.3d 731, 736–37 (9th Cir. 2004) (“A

party need not plead specific legal theories in the complaint, so long as the other side receives notice

as to what is at issue in the case.”) (internal quotation marks omitted)).

The Fourteenth Amendment’s Due Process Clause “provides heightened protection against

government interference with certain fundamental rights and liberty interests.” Washington v.

Glucksberg, 521 U.S. 702, 720 (1997). The touchstone of due process is protection of the individual

against arbitrary action of government, whether the fault lies in a denial of fundamental procedural

fairness (denial of procedural due process), or in the exercise of power without any reasonable

justification in the service of a legitimate governmental objective (denial of substantive due process).

County of Sacramento v. Lewis, 523 U.S. 833, 845–46 (1998).

Plaintiff does not specify whether she asserts a substantive or procedural due process claim.

If Plaintiff includes a due process claim in any amended complaint, the type of due process claim

should be specified. Construing the Complaint liberally, the Court analyzes the Complaint in light of

both substantive and procedural due process.

a. Substantive Due Process

“To state a substantive due process claim, the plaintiff must show as a threshold matter that

a state actor deprived it of a constitutionally protected life, liberty or property interest.” Shanks v.

Dressel, 540 F.3d 1082, 1087 (9th Cir. 2008). “The Supreme Court has described the ‘fundamental’

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rights protected by substantive due process as ‘those personal activities and decisions that this Court

has identified as so deeply rooted in our history and traditions, or so fundamental to our concept of

constitutionally ordered liberty, that they are protected by the Fourteenth Amendment.’” United

States v. Juvenile Male, 670 F.3d 999, 1012 (9th Cir. 2012) (quoting Washington, 521 U.S. at 727).

If the action abridges a fundamental right, it “will be subject to strict scrutiny and is invalidated

unless it is ‘narrowly tailored to serve a compelling state interest.’” Id. (quoting Reno v. Flores, 507

U.S. 292, 302 (1993)). “If not, the [action] need only bear a ‘reasonable relation to a legitimate state

interest to justify the action.’” Id. (quoting Washington, 521 U.S. at 722).

Here, the Complaint does not allege a violation of Plaintiff’s fundamental rights. (See

generally Compl.) “There is no liberty interest in being free from harassment [or] discrimination.”

Blackwell v. Tsui, No. 2:21-cv-2207 KJM AC P, 2023 U.S. Dist. LEXIS 36838, at *9 (E.D. Cal.

Mar. 3, 2023) (finding that plaintiff failed to state a claim for substantive due process because “there

is no liberty interest in being free from harassment, discrimination, or stereotyping”). Nor is there a

fundamental right to be free from a vaccine mandate at a workplace. See Kheriaty v. Regents of the

Univ. of Cal., No. 22-55001, 2022 U.S. App. LEXIS 32406, at *4 (9th Cir. Nov. 23, 2022) (holding

that California educator’s substantive due process challenge to University of California’s COVID-19

vaccination policy failed because it did not implicate a fundamental constitutional right). Finally,

there is no fundamental right to be free from wearing a mask mandated in response to the COVID-19

pandemic. See Schmidt, 2023 U.S. Dist. LEXIS 115351, at *39–40 (rejecting substantive due

process claim based on mask requirement because no fundamental right was asserted); Megeso-

William-Alan, 538 F. Supp. 3d at 1076–78 (dismissing plaintiff’s substantive due process claim to

mask mandates because the “right to breathe oxygen without restriction” was not a fundamental

right).

To the extent that Plaintiff argues that the harassment abridged her fundamental right to

freedom of religion, that claim is duplicative of her First Amendment free exercise claim addressed

above. See Albright v. Oliver, 510 U.S. 266, 273 (1994) (“Where a particular Amendment ‘provides

an explicit textual source of constitutional protection’ against a particular sort of government

behavior, ‘that Amendment, not the more generalized notion of ‘substantive due process,’ must be

the guide for analyzing these claims.”) (quoting Graham, 490 U.S. at 395); see Quezada v. Long,

No. EDCV 15-613-VBF (KS), 2016 U.S. Dist. LEXIS 184551, at *17 (C.D. Cal. Dec. 19, 2016)

(recommending dismissal of substantive due process claim based on defendant’s refusal to allow

plaintiff to remove kosher meals from dining hall as duplicative of free exercise of religion claim),

adopted, 2017 U.S. Dist. LEXIS 27223 (C.D. Cal. Feb. 23, 2017).

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In addition, the Complaint does not state facts giving rise to the inference that the County’s

vaccine and mask-wearing policies are not reasonably related to the legitimate government interest

in curbing the spread of COVID-19. See Juvenile Male, 670 F.3d at 1012.; see also Miller, 2023

U.S. Dist. LEXIS 127679, at *25–26 (recommending dismissal of substantive due process claim

challenging Los Angeles County vaccine mandate because mandate was reasonably related to

legitimate interest in preventing spread of COVID-19).

For these reasons, the Complaint fails to state a substantive due process claim. If Plaintiff

files an amended complaint with this claim, she must correct these deficiencies or risk its dismissal.

b. Procedural Due Process

“The Due Process Clause forbids the governmental deprivation of substantive rights without

constitutionally adequate procedure.” Shanks v. Dressel, 540 F.3d 1082, 1090–91 (9th Cir. 2008).

To plead a procedural due process violation, a plaintiff must plead: (1) a “liberty or property interest

which has been interfered with by the State”; and (2) procedures employed to deprive the plaintiff of

liberty or property were constitutionally insufficient. Ky. Dep’t. of Corr. v. Thompson, 490 U.S. 454,

460 (1989). However, in cases involving laws of general applicability—that is, “governmental

decisions which affect large areas and are not directed at one or a few individuals”—“ constitutional

procedural due process requirements of individual notice and hearing” are not required; “general

notice as provided by law is sufficient.” Halverson v. Skagit County, 42 F.3d 1257, 1261 (9th Cir.

1994)), as amended on denial of reh’g (Feb. 9, 1995).

Here, as explained above in Section IV.B.2.c, the Complaint contains no facts indicating that

the County’s vaccine and mask-wearing policies are not generally applicable. (See generally

Compl.) Therefore, Plaintiff is not entitled to procedures greater than those provided in the policies

themselves. See Miller, 2022 U.S. Dist. LEXIS 210722, at *10–11 (rejecting procedural due process

claim challenging lack of notice of disciplinary action in response to refusal to comply with vaccine

mandate because the vaccine mandate was generally applicable); Bacon v. Woodward, No. 2:21-CV-

0296-TOR, 2021 U.S. Dist. LEXIS 215778, at *8–9 (E.D. Wash. Nov. 8, 2021) (rejecting procedural

due process claim to implementation of vaccine mandate because mandate was generally applicable

and collecting cases holding the same). Accordingly, the Complaint fails to state a claim for a

violation of Plaintiff’s procedural due process rights. If Plaintiff files an amended complaint with a

procedural due process claim, she must remedy these deficiencies or risk dismissal of the claim.

///

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5. Denied Equal Protection of Law (Fourteenth Amendment)

“The Equal Protection Clause of the Fourteenth Amendment provides that ‘[n]o State shall . .

. deny to any person within its jurisdiction the equal protection of the laws.’” Angelotti Chiropractic

v. Baker, 791 F.3d 1075, 1085 (9th Cir. 2015) (quoting U.S. Const. amend. XIV, § 1) (alteration in

original). To state an equal protection claim, a claimant “must allege facts plausibly showing that

‘the defendants acted with an intent or purpose to discriminate against [them] based upon

membership in a protected class.’” Id. (quoting Thornton v. City of St. Helens, 425 F.3d 1158, 1166

(9th Cir. 2005) (alteration in original); see also New Orleans v. Dukes, 427 U.S. 297, 303 (1975)

(noting that “suspect distinctions such as race, religion, or alienage” are protected classes for equal

protection purposes). The Complaint fails to state an equal protection claim for two reasons.

First, though the Complaint references “racial discrimination and religious rights

deprivation,” these allegations are conclusory and are not accompanied by facts to support the

reasonable inference that Plaintiff is a member of either of these protected classes. (Compl. ¶ 10.)

See Iqbal, 556 U.S. at 678 (“A pleading that offers ‘labels and conclusions’ or . . . ‘naked

assertion[s]’ devoid of ‘further factual enhancement’” are insufficient to state a claim under Rule 8.)

(quoting Twombly, 550 U.S. at 555, 557). Second, the Complaint states that the violations described

therein “are acts of . . . racial discrimination,” but does not allege facts showing that Defendants

acted with an intent or purpose to discriminate against Plaintiff because of her race or religion.

(Compl. ¶ 10.) See Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (holding that

bare allegations of discrimination against African-Americans “unsupported by any facts as to how

race entered into any decisions” were insufficient to state a Section 1983 claim); Miller, 2022 U.S.

Dist. LEXIS 210722, at *19–20 (recommending dismissal of equal protection claim with leave to

amend because complaint did not state facts showing discriminatory intent or different treatment

from similarly situated individuals). If Plaintiff files an amended complaint with an Equal Protection

Clause claim, she must remedy these deficiencies or risk dismissal of the claim.

6. County Defendant

In Monell, the Supreme Court held that municipalities and other local government entities

cannot be held liable under Section 1983 “unless action pursuant to official municipal policy of some

nature caused a constitutional tort.” 436 U.S. at 691. [A] municipality cannot be held

liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable

under § 1983 on a respondeat superior theory.” Id. To state a claim for municipal liability under

Section 1983, a plaintiff must plead that: “(1) he was deprived of a constitutional right; (2) the

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municipality had a policy; (3) the policy amounted to deliberate indifference to [plaintiff’s]

constitutional right; and (4) the policy was the moving force behind the constitutional violation.”

Lockett v. County of Los Angeles, 977 F.3d 737, 741 (9th Cir. 2020). There must be a “direct causal

link between a municipal policy or custom and the alleged constitutional deprivation.” Collins v.

City of Harker Heights, 503 U.S. 115, 123 (1992) (quoting City of Canton v. Harris, 489 U.S. 378,

385 (1989)).

Here, Plaintiff’s allegations are insufficient to plead a Monell claim against the County

because, as explained above, the Complaint fails to allege any violation of Plaintiff’s constitutional

rights. Because there can be no Monell claim without a constitutional violation, the Complaint does

not state any Section 1983 claims against the County. See Lockett, 977 F.3d at 741 (“Monell claims

thus require a plaintiff to show an underlying constitutional violation.”) If Plaintiff files an amended

complaint asserting Section 1983 claims against the County, she must satisfy the requirements of

Monell or risk dismissal of such claims.

C. Conspiracy to Interfere with Civil Rights (Section 1985) and Negligence in

Preventing Conspiracy to Interfere with Civil Rights (Section 1986)

“Section 1985 proscribes conspiracies to interfere with civil rights.” Sanchez v. City of Santa

Ana, 936 F.2d 1027, 1039 (9th Cir. 1990). Plaintiff does not specify the subsection of Section 1985

under which her claims are asserted. (See generally Compl.) The only potentially applicable

subsection is the first clause of Section 1985(3), which prohibits private conspiracies from depriving

a person of equal protection of the law. See Kush v. Rutledge, 460 U.S. 719, 725 (1983); Bretz v.

Kelman, 773 F.2d 1026, 1032 n.3 (9th Cir. 1985). “A plaintiff alleging a conspiracy under § 1985(3)

must establish: the existence of a conspiracy to deprive the plaintiff of the equal protection of the

laws; an act in furtherance of the conspiracy; and a resulting injury.” Scott v. Ross, 140 F.3d 1275,

1284 (9th Cir. 1998). Under this subsection of Section 1985, “a properly pleaded claim must include

an allegation of racial or class-based animus.” Usher v. Los Angeles, 828 F.2d 556, 561 (9th Cir.

1987). “To establish racial or class-based animus, a plaintiff must show ‘invidiously discriminatory

motivation . . . behind the conspirator’s action.” Id. (alteration in original) (quoting Griffin v.

Breckenridge, 403 U.S. 88, 102 (1971)).

“Section 1986 imposes liability on every person who knows of an impending violation of

section 1985 but neglects or refuses to prevent the violation.” Karim-Panahi v. L.A. Police Dep’t,

839 F.2d 621, 626 (9th Cir. 1988). A Section 1986 claim can be stated only if a complaint contains a

valid Section 1985 claim. Id.

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Plaintiff’s allegations of conspiracy are conclusory and insufficient to state a claim under

Section 1985(3). “A claim under [Section 1985] must allege facts to support the allegation that

defendants conspired together. A mere allegation of conspiracy without factual specificity is

insufficient.” Id.; see also Olsen v. Idaho Bd. of Med., 363 F.3d 916, 929–30 (9th Cir. 2004)

(dismissing Section 1985 claim because the “complaint is devoid of any discussion of an agreement

amongst the [defendants] to violate [plaintiff’s] constitutional rights”). The Complaint’s only

reference to a conspiracy is that each Defendant “initiated, participated and conspired together in this

daily campaign of” threats and intimidation. (Compl. ¶ 27.) The Complaint does not allege any

facts showing an agreement among any Defendants to violate Plaintiff’s constitutional rights. (See

generally Compl.) In addition, as discussed above, there are no allegations from which it reasonably

could be inferred that Defendants acted with religious or race-based animus. See Sever v. Alaska

Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (“[A] plaintiff must demonstrate a deprivation of

that right motivated by ‘some racial, or perhaps otherwise class-based, invidiously discriminatory

animus behind the conspirators’ action.’” (quoting Griffith v. Breckenridge, 403 U.S. 88, 102

(1971))).

Furthermore, because the Complaint fails to state a Section 1985 claim, it also fails to state a

Section 1986 claim. See Sanchez, 936 F.2d at 1040 (“A violation of section 1986 thus depends on

the existence of a valid claim under 1985.”); Vahidallah v. San Diego Hous. Comm’n, No. 07 CV

0371 JM (CAB), 2008 U.S. Dist. LEXIS 28621, at *15 (S.D. Cal. Apr. 7, 2008) (“Because Plaintiff

fails to allege a valid § 1985 claim, his attempt to allege a violation of § 1986 fails.”).

For these reasons, the Complaint fails to state claims pursuant to Sections 1985 and 1986. If

Plaintiff files an amended complaint with Section 1985(3) and Section 1986 claims, she must correct

these deficiencies or risk dismissal of such claims.

V. CONCLUSION

In light of the foregoing, the Court DISMISSES the Complaint with leave to amend.

Plaintiff is ordered to file a response to this Order, electing to proceed with one of the following

options, by no later than April 25, 2024.

 Option 1: File a First Amended Complaint

Plaintiff may file a signed First Amended Complaint that cures the defects

discussed in this Order. Plaintiff is cautioned that if she continues to raise allegations in

any amended complaint that fail to state a claim upon which relief can be granted, the

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Court likely will not order that the First Amended Complaint be served on any

Defendant, but instead likely will recommend to the District Judge that the deficient

claims and Defendants be dismissed without further leave to amend.

Plaintiff is reminded to provide a short, plain statement of what happened,

identify her claims against each Defendant, and clearly describe each Defendant’s

wrongful conduct. Plaintiff should clearly identify each Defendant being sued and the

capacity in which Plaintiff is suing each Defendant. Plaintiff should state specific facts

meeting the legal standard for each claim she is bringing. Plaintiff is encouraged to use

the attached Central District civil rights complaint form when filing the amended

complaint.

Plaintiff is advised that an amended complaint supersedes the prior complaint.

This means that the filing of a First Amended Complaint entirely supplants or replaces

the original or any prior complaint, which is treated thereafter as nonexistent. Thus, the

First Amended Complaint must be complete in itself including exhibits, without reference

to the Complaint. See C.D. Cal. L.R. 15-2. Plaintiff must name all Defendants and

allege claims against each of them in one complaint. Therefore, the First Amended

Complaint, if Plaintiff chooses to file one, must contain all claims Plaintiff intends to

bring in this action against all Defendants she intends to sue.

Plaintiff is advised that this Court’s determination herein that the allegations in

the Complaint are insufficient to state a particular claim should not be seen as dispositive

of the claim. Accordingly, although the undersigned Magistrate Judge believes Plaintiff

has failed to plead sufficient factual matter in the pleading, accepted as true, to state a

claim for relief that is plausible on its face, Plaintiff is not required to omit any claim or

Defendant in order to pursue this action. However, if Plaintiff decides to pursue a claim

in an amended complaint that the undersigned previously found to be insufficient, then

pursuant to 28 U.S.C. § 636, the undersigned ultimately likely will submit to the assigned

District Judge a recommendation that such claim may be dismissed with prejudice for

failure to state a claim, subject to Plaintiff’s right at that time to file objections. See Fed.

R. Civ. P. 72(b); C.D. Cal. L.R. 72-3.

 Option 2: Proceed with the Complaint

Plaintiff may proceed with the Complaint in its current form. To do so, Plaintiff

must file a statement with the Court stating that she wishes to select Option 2 and request

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that the Court reinstate the Complaint, despite the infirmities described in this Order.

Plaintiff is cautioned that, for the reasons detailed in this Order, the Complaint

likely will be found to be insufficiently pled. If Plaintiff selects Option 2, it will be

viewed by the Court as the inability to cure the defects identified in this Order. As such,

the Court would recommend dismissal of this lawsuit to the District Judge.

 Option 3: Voluntary Dismissal

Plaintiff is not required to file an amended complaint. If Plaintiff no longer

wishes to pursue this action in its entirety or with respect to particular Defendants, she

voluntarily may dismiss this action or particular Defendants by filing a Notice of

Dismissal in accordance with Rule 41(a)(1) (a Notice of Voluntary Dismissal form is

attached).

Plaintiff is cautioned that failure to respond to this Order may result in a

recommendation that the lawsuit be dismissed without prejudice for failure to prosecute

and/or failure to comply with a court order pursuant to Federal Rule of Civil Procedure 41(b).

See C.D. Cal. L.R. 41-1.

IT IS SO ORDERED.

Attachments

Notice of Voluntary Dismissal Form

Civil Rights Complaint Form (CV-66)