Jeff Macy v. San Bernardino County Code Enforcement

CIVIL MINUTES – GENERAL

Case No. 5:23-cv-01955-HDV-PD Date: April 12, 2024

Title Jeff Macy, et al. v. San Bernadino County Code Enforcement, et al.

Present: The Honorable: Patricia Donahue, U.S. Magistrate Judge

Isabel Verduzco N/A

Deputy Clerk Court Reporter / Recorder

Attorneys Present for Plaintiff: Attorneys Present for Defendants:

N/A N/A

Proceedings: (In Chambers) Order to Show Cause Why the Court

Should Not Recommend Dismissal of the First

Amended Complaint for Failure to State Actionable

Claims

I. Procedural History

On September 25, 2023, Plaintiffs Jeff Macy and Lynn Macy

(collectively, “Plaintiffs”), proceeding pro se, filed a complaint pursuant to 42

U.S.C. § 1983 (“the Complaint”). [Dkt. No. 1.] The Complaint named 46

defendants and Does 1-50, and alleged 12 claims, including trespass,

harassment, theft, violations of the Bane Act and Plaintiffs’ constitutional

rights, inter alia. [Id.] The gravamen of the Complaint appeared to concern

an incident or series of incidents between Plaintiffs and San Bernadino

County Code Enforcement officers on or near Burnt Mill Canyon Road. [See

generally id.] The Court determined that the Complaint failed to comply with

Federal Rule of Civil Procedure 8. Accordingly, on December 19, 2023, the

Court ordered Plaintiffs to show cause why the Court should not recommend

the Complaint be dismissed for failure to state actionable claims. [Dkt. No.

6.]

CIVIL MINUTES – GENERAL

Case No. 5:23-cv-01955-HDV-PD Date: April 12, 2024

Title Jeff Macy, et al. v. San Bernadino County Code Enforcement, et al.

On December 28, 2023, Plaintiffs filed the first amended complaint

(“FAC”). [Dkt. No. 7.] The FAC alleges claims against five San Bernadino

County entities (San Bernadino County Code Enforcement, Fire Abatement,

CSA-18, Waste Management, and Public Records), as well as 36 individuals

who appear to work for these county entities, other “code enforcement officers

et al.”, and Does 1-50. [See id. at 9-10.]

II. The FAC

The allegations in the FAC center around Plaintiffs’ property and their

interactions with various San Bernadino County entities and county

employees over the last 18 years. [See generally id.]

Plaintiffs allege that Defendants San Bernadino County Code

Enforcement, CSA-181, Fire Abatement, Waste Management, San Bernadino

County Public Records, Jennifer Bonnar, Lauren Zazueta, Jessica Hemsley,

Aldair Jimenez, and Pam Adams have not responded to Plaintiffs’ public

records act requests. [Id. at 13.]

Plaintiffs further assert that Defendant Adena Lozano, a land use

technician, was not able to locate any permits issued for Plaintiffs’ property

from 1987 to June 2023. [Id.] Plaintiffs do not provide further details on

their interaction with Defendant Lozano or what county entity she works for.

Plaintiffs similarly allege that Defendants Jessica Ruiz, Andres Diaz, and

Philip Salazar refused to give Plaintiffs a meeting with the San Bernadino

Board of Supervisors, but do not state what exactly the meeting request was

in connection with, when, how each Defendant contributed to the denial, or if

1 CSA-18 appears to be a San Bernadino County Public Works Special District for

the Cedarpines Park area. According to the County’s website, CSA-18 maintains

paved and dirt roadways, one community center, and one five-acre park within its

service area. See https://specialdistricts.sbcounty.gov/roads/road-districts/csa18/.

CIVIL MINUTES – GENERAL

Case No. 5:23-cv-01955-HDV-PD Date: April 12, 2024

Title Jeff Macy, et al. v. San Bernadino County Code Enforcement, et al.

these individual Defendants work for the same or different county entities.

[Id.]

The next set of allegations in the FAC relate to Plaintiff’s interactions

with San Bernadino County Service Area 18 (“CSA-18”) employees. Plaintiffs

allege that Defendant CSA-18 has intentionally deprived Plaintiffs of their

property interest by trespassing onto their property and failing to repair

certain roads. [Id.] Plaintiffs allege that Defendants Crystal Chavez-Jones,

Anthony Pham, Michele Martin, and Alexandra Calderon denied their pre-

application for building and safety conditions. [Id.] Plaintiffs do not provide

any further details on this. [Id.] Next, Plaintiffs allege that Defendant

Adrianna Wimenta, an engineering technician in the traffic division of the

Department of Public Works2, refused to “fix the road or rename the road.”

[Id.] Plaintiffs do not specify which road they are referring to. Plaintiffs

allege that Suzan Garrido, Philip Salazar, Glenn Jacklin, Rudy Guerrero,

John Bradford, and Brandon Sorby are supervisors for CSA-18 and allowed

their workers to trespass onto Plaintiffs’ property. [Id.] Plaintiffs further

allege that they made complaints about these CSA-18 officers, but that their

complaints were never properly filed with the County of San Bernadino Risk

Management. [Id. at 13-14.]

Plaintiffs further allege that Defendants Victor Tordesillas and Sophia

Salas investigated and denied Plaintiffs’ “claim”. [Id.] Plaintiffs do not

provide any further details about what their claim is or if it is related to the

complaints described above. [Id. at 14.] Plaintiffs state that Defendant CSA-

18 admitted to damaging Plaintiffs’ property, but the local police department

refused to prosecute. [Id.] Plaintiffs allege CSA-18 violated California Penal

Code § 594 regarding destruction of private property, and that their officers

“have been dumping base rock, trash, waterflow, and water pipes on

Plaintiffs’ property for years without permission.” [Id.] Plaintiffs further

allege that CSA-18 removed and stole signs and chains from their property.

2 It is unclear from the FAC whether the traffic division is a part of CSA-18 or a

separate division of the Department of Public works.

CIVIL MINUTES – GENERAL

Case No. 5:23-cv-01955-HDV-PD Date: April 12, 2024

Title Jeff Macy, et al. v. San Bernadino County Code Enforcement, et al.

[Id.] Plaintiffs allege that CSA-18 refuses to repair Burnt Mill Canyon Road

due to budgetary issues.3 [Id.] However, it is unclear if Burnt Mill Canyon

Road is a public or private road. Plaintiffs assert the refusal to repair the

road is a form of discrimination and in retaliation of Plaintiffs’ complaints

about CSA-18’s failure to properly maintain the road. [Id.] As a result,

Plaintiffs allege that they are constantly at risk of having their vehicles

towed. [Id.]

Plaintiffs further allege that Defendants’ actions – including the

trespassing, notices, and code violations – are intended to harass Plaintiffs

and a form of elder abuse. [Id. at 15.] Plaintiffs state that Defendant

Abraham Ramirez works for the County as an Equal Opportunity specialist.

[Id.] Plaintiffs state Defendant Ramirez was unwilling to investigate the

County for housing discrimination. [Id.]

Plaintiffs’ next set of allegations relate to the San Bernadino County

Code Enforcement department and officers. Plaintiffs allege that they have

been receiving unfounded Code violation notices for the last 18 years. [Id.]

Plaintiffs state that Defendants Code Enforcement Officers “forced Plaintiffs

to get a permit for a preexisting structure [on Plaintiffs land],” which resulted

in higher property taxes. [Id.] Plaintiff alleges that Defendant Irene Romero

is a planner for the Land Use Service Department and was one of these

officers. [Id. at 16.] Plaintiffs allege that some of these code violation notices

contradict California Fire Department Code regulations. [Id.] Plaintiffs

state that Code Enforcement Officer Amber Sharf “illegally gave us a notice

for firewood and misquoted the law regarding firewood.” [Id.] Plaintiffs

further state that Defendant Danielle McMahon is a Code enforcement

Officer “who refused to clear our property even after receiving photos.” [Id.]

3 It is also unclear from the FAC whether Burnt Mill Canyon Road is a public or

private road, and whether Plaintiffs’ property is on this road, adjacent to it, or

located elsewhere.

CIVIL MINUTES – GENERAL

Case No. 5:23-cv-01955-HDV-PD Date: April 12, 2024

Title Jeff Macy, et al. v. San Bernadino County Code Enforcement, et al.

Plaintiffs allege that Defendants Melissa Chapman, Brendon Biggs,

David Doublet, Granville M. Bowman, Kathleen Bingham, Dena Smith,

Tracy A. Sweeney, and Darren Meeka “are responsible for making it so that

property owners that do not obtain an exemption or subscribe to curbside

service will be automatically enrolled in Clean Mountain Service.” [Id.]

Last, Plaintiffs allege that Defendant Officer Grim intimidated and

bullied Plaintiffs by parking and blocking their private road and leaving a

notice. [Id. at 17.] Plaintiffs also allege that Defendant Officer Gabriel

Garcia fined Plaintiffs for having an RV on their land. [Id.] Plaintiffs assert

that CSA-18 cut down Plaintiffs’ chains, allowing squatters to enter their

property, and thus are at fault for the RV’s presence on their property. [Id.]

Plaintiffs assert nine causes of action in the FAC, which Plaintiffs title

as: (1) unreasonable search; (2) municipal and supervisory liability under 42

U.S.C. § 1983; (3) intentional infliction of emotional distress; (4) violation of

California’s Bane Act; (5) forced demolition permit; (6) forced address; (7)

trespass; (8) failure to respond to a public record’s act request; and (9)

excessive fines.4 [Id. at 17-28.]

Plaintiffs seek $100,000 from each public entity defendant and $10,000

from each individual defendant in compensatory, treble, and punitive

damages. [Id. at 6, 28.] Plaintiffs also seek attorney’s fees.5

4 Plaintiffs list twelve causes of action on the cover page, but include only nine of

them in the FAC.

5 It has long been established that “pro se civil rights litigants are not entitled to

attorney’s fees under 42 U.S.C. § 1988.” Ramirez v. Guinn, 271 F. App’x 574, 576

(9th Cir. 2008). Therefore, Plaintiffs cannot obtain attorney’s fees in this case

unless they retain counsel to represent them.

CIVIL MINUTES – GENERAL

Case No. 5:23-cv-01955-HDV-PD Date: April 12, 2024

Title Jeff Macy, et al. v. San Bernadino County Code Enforcement, et al.

III. Legal Standard

The Court is required to screen pro se complaints and dismiss claims

that, amount other things, are frivolous, malicious, or fail to state a claim

upon which relief may be granted. 28 U.S.C. § 1915(e)(2). Even when a

plaintiff is not proceeding in forma pauperis, Federal Rule of Civil Procedure

12(b)(6) permits a court to dismiss a claim sua sponte and without notice

“where the claimant cannot possibly win relief.” See Omar v. Sea-Land Serv.,

Inc., 813 F.2d 986, 991 (9th Cir. 1987).

In determining whether the FAC should be dismissed at screening, the

Court applies the same standard as applied in a motion to dismiss pursuant

to Federal Rule of Civil Procedure 12(b)(6). Rosati v. Igbinoso, 791 F.3d 1037,

1039 (9th Cir. 2015). Under that standard, “a complaint must contain

sufficient factual matter, accepted as true” and viewed in the light most

favorable to the nonmoving party, “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)). This does not require “detailed

factual allegations,” but it does require “more than an unadorned, the

defendant-unlawfully-harmed-me accusation.” Id. The Court does not,

however, “accept as true allegations that are merely conclusory, unwarranted

deductions of fact, or unreasonable inferences.” Sprewell v. Golden State

Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Because Plaintiffs are

proceeding pro se, the Court construes the FAC liberally. Barrett v. Belleque,

544 F.3d 1060, 1061-62 (9th Cir. 2008) (per curiam).

I. Discussion

A. Failure to Comply with Rule 8

Federal Rule of Civil Procedure 8 requires that a complaint contain a

short and plain statement of the claim showing that the pleader is entitled to

CIVIL MINUTES – GENERAL

Case No. 5:23-cv-01955-HDV-PD Date: April 12, 2024

Title Jeff Macy, et al. v. San Bernadino County Code Enforcement, et al.

relief. Fed. R. Civ. P. 8(a). While Rule 8 does not require detailed factual

allegations, at a minimum, a complaint must allege factual allegations to

provide “fair notice” of both the particular claim being asserted and “the

grounds upon which [the particular claim] rests.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 & n.3 (2007) (citation and quotation marks

omitted). If a complaint does not clearly and concisely set forth factual

allegations sufficient to provide defendants with notice of which defendant is

being sued, on which theory, and what relief is being sought against them,

the complaint fails to comply with Rule 8. See, e.g., McHenry v. Renne, 84

F.3d 1172, 1177-78 (9th Cir. 1996) (a complaint must make clear “who is

being sued, for what relief, and on what theory, with enough detail to guide

discovery”); Exmundo v. Kane, 553 Fed. App’x 742, 743 (9th Cir. 2014)

(affirming district court dismissal of Section 1983 claims where plaintiff’s

allegations “were unclear as to the timing and nature of [the defendant’s]

actions”).

As an initial matter, it was not clear from the Complaint – and it is still

not clear from the FAC – exactly where or when any of the events described

therein occurred. The factual allegations in the FAC are disjointed, and it is

difficult to ascertain what facts go to what claims and how some of the facts

are relevant to any claim. It is similarly unclear which Defendant county

entity certain individual Defendants work for. Further, while Plaintiffs seem

to have had negative interactions with several different county entities or

departments, it is unclear whether any of these interactions or events are

even related to one another. Moreover, while Plaintiffs name Does 1-50 as

Defendants, the FAC contains no concrete allegations against any Doe.

As a result, as currently pled, the FAC consists of nothing more than

“unadorned, the defendant-unlawfully-harmed-me accusations” that fails to

CIVIL MINUTES – GENERAL

Case No. 5:23-cv-01955-HDV-PD Date: April 12, 2024

Title Jeff Macy, et al. v. San Bernadino County Code Enforcement, et al.

support a claim under Section 1983 or any of the accompany state law claims.

Ashcroft, 556 U.S. at 678; see also Exmundo, 553 F. App’x. at 743.

In order to comply with Rule 8, Plaintiffs must provide a short and

plain statement of the elements of their claims, identifying the transaction or

occurrence giving rise to the claim(s) and the elements of the prima facie

case. Bautista v. Los Angeles County, 216 F.3d 837, 840 (9th Cir. 2000).

Moreover, each claim and the facts supporting each claim should be set forth

in a separate count, because a separation “facilitates the clear presentation of

the matters set forth.” Id. at 841; Fed. R. Civ. P. 10(b). This is important

because, as it currently stands, Plaintiffs’ allegations are disjointed and

confusing and do not describe or their interactions with Defendants in a

linear or clear way. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512

(2002) (stating that a complaint must give the defendant fair notice of what

the plaintiff’s claim is); McHenry, 84 F.3d at 1179 (“Prolix, confusing

complaints … impose unfair burdens on litigants and judges”).

Consequently, the FAC fails to comply with Rule 8 and Plaintiffs are

ordered to show cause why the Court should not recommend dismissal of this

action for failure to state actionable claims. To discharge this Order,

Plaintiffs will be permitted to file an amended complaint if they can cure the

factual and legal deficiencies identified in this Order, following the Court’s

guidance below.

B. Plaintiffs’ Claims

In order to streamline any potential amended complaint in this action,

the Court will provide Plaintiffs with guidance as to the elements necessary

to state actionable claims so that Plaintiffs may consider whether

amendment of certain claims would be futile.

CIVIL MINUTES – GENERAL

Case No. 5:23-cv-01955-HDV-PD Date: April 12, 2024

Title Jeff Macy, et al. v. San Bernadino County Code Enforcement, et al.

1. Fourth Amendment, Fourteenth Amendment, and

Monell Claims under Section 1983

“To prevail on a section 1983 claim based on the Fourth Amendment, a

plaintiff must show that the state actor’s conduct was an unreasonable

search or seizure.” Mendez v. Cty. of Los Angeles, 897 F.3d 1067, 1074-75

(9th Cir. 2018). “A Fourth Amendment ‘search’ occurs when a government

agent ‘obtains information by physically intruding on a constitutionally

protected area, or infringes upon a ‘reasonable expectation of privacy.’”

Whalen v. McMullen, 907 F.3d 1139, 1146 (9th Cir. 2018) (quoting United

States v. Jones, 565 U.S. 400, 406 n.3, (2012); Katz v. United States, 389 U.S.

347, 360 (1967). Thus, “[s]earches and seizures inside a home without a

warrant are presumptively unreasonable. Because the curtilage is part of

the home, searches and seizures in the curtilage without a warrant are also

presumptively unreasonable.” United States v. Perea-Rey, 680 F.3d 1179,

1184 (9th Cir. 2012).

Plaintiffs make vague allegations of an unreasonable search of their

property and various incidents of trespass by several individual Defendants,

who appear to work for either the San Bernadino County Code Enforcement

or CSA-18. However, the FAC is devoid of any concrete details of these

interactions. For example, Plaintiffs allege that Suzan Garrido, Philip

Salazar, Glenn Jacklin, Rudy Guerrero, John Bradford, and Brandon Sorby

are supervisors for CSA-18 and allowed their workers to trespass onto

Plaintiffs’ property. [Dkt. No. 7 at 13.] Yet, the FAC does not provide any

dates, state whether these individuals entered Plaintiffs’ home, curtilage, or

just the perimeter of their property, conducted a search, or engaged in any

other activity on Plaintiffs’ property.

The FAC fails to sufficiently allege a fourth amendment violation

against any Defendant. If Plaintiffs can cure the factual and legal

CIVIL MINUTES – GENERAL

Case No. 5:23-cv-01955-HDV-PD Date: April 12, 2024

Title Jeff Macy, et al. v. San Bernadino County Code Enforcement, et al.

deficiencies outlined above, Plaintiffs are permitted to file an amended

complaint alleging a Fourth Amendment claim. Plaintiffs are cautioned that

they must plead a fourth amendment claim with sufficient particularity that

it makes the timing and nature of the Defendant(s) actions clear. Exmundo,

553 F. App’x. at 743.

Plaintiffs also allege a Fourteenth Amendment claim under Section

1983. [See Dkt. No. 7 at 18.] However, the FAC contains no facts or

allegations that would support either an equal protection or due process

claim under the Fourteenth Amendment.

Plaintiffs also allege a Monell claim against Defendants San Bernadino

County Code Enforcement, Fire Abatement, and CSA-18. [See id.]; see also

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). To bring a Section

1983 claim against a local government entity, a plaintiff must allege that the

execution of an official policy or unofficial custom inflicted the injury of which

the plaintiff complains. Id. The plaintiff must show: (1) the plaintiff was

deprived of a constitutional right; (2) the entity had a policy or custom; (3) the

policy or custom amounted to deliberate indifference to plaintiff’s

constitutional right; and (4) the policy or custom was the moving force behind

the constitutional violation. Anderson v. Warner, 451 F.3d 1063, 1070 (9th

Cir. 2006) (citations and internal quotation marks omitted).

The FAC does not identify any official policy or well-settled custom of

the San Bernadino County Code Enforcement, Fire Abatement, or CSA-18

with respect to the employment, retention, supervision, training, control,

assignment, discipline, and maintenance of procedures for their employees.

Further, Plaintiffs do not allege any facts from which the Court plausibly

may infer that their constitutional rights were denied pursuant to an official

policy, custom, or practice of San Bernadino County Code Enforcement, Fire

CIVIL MINUTES – GENERAL

Case No. 5:23-cv-01955-HDV-PD Date: April 12, 2024

Title Jeff Macy, et al. v. San Bernadino County Code Enforcement, et al.

Abatement, or CSA-18. See Ashcroft, 556 U.S. at 678 (a pleading that “offers

labels and conclusions or a formulaic recitation of the elements of a cause of

action will not do.”); see also Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996)

(“Liability for improper custom may not be predicated on isolated or sporadic

incidents; it must be founded upon practices of sufficient duration, frequency

and consistency that the conduct has become a traditional method of carrying

out policy.”). Consequently, Plaintiffs’ vague allegations, which are

conclusory in nature and without factual support, are insufficient to state a

Monell claim against any of the five Defendant county entities.

2. State Law Claims

Plaintiffs additionally allege several claims under California law. [See

Dkt. No. 7 at 17-28.] For the reasons discussed below, these claims also fail

to comply with Rule 8, and amendment would likely be futile.

a) State Law Criminal Claims

Plaintiffs assert Defendants violated several California Penal Code

sections. [See Dkt. No. 7 at 14-15.] “Generally, criminal statutes do not

confer private rights of action ....” Bailey v. Clarke, 2012 WL 6720628, at *2

(S.D. Cal. Dec. 21, 2012) (citing Stupy v. U.S. Postal Serv., 951 F.2d 1079,

1081 (9th Cir. 1991)). Thus, Plaintiffs’ allegations that Defendants violated

state criminal statutes does not create a cognizable civil claim that they may

pursue in this action. See Ellis v. City of San Diego, 176 F.3d 1183, 1189 (9th

Cir. 1999) (affirming district court’s dismissal of sixteen claims based on

California Penal Code sections because “these code sections do not create

enforceable individual rights”); Sohal v. City of Merced Police Dep’t, 2009 WL

961465 at *7 (E.D. Cal. Apr. 8, 2009) (“This court and courts of this circuit

routinely dismiss claims based on violation of state criminal statutes where

the language of the statute does not confer a private right of action.”); Bonty

v. Escutia, 2007 WL 3096587, at *3 (E.D. Cal. Oct. 22, 2007) (citing Chrysler

CIVIL MINUTES – GENERAL

Case No. 5:23-cv-01955-HDV-PD Date: April 12, 2024

Title Jeff Macy, et al. v. San Bernadino County Code Enforcement, et al.

Corp. in holding that a plaintiff may not impose liability on defendants for

violation of penal code sections).

Absent a clear indication from Congress, courts should not infer a civil

cause of action from a criminal statute. See Chrysler Corp. v. Brown, 441

U.S. 281, 316 (1979) (Supreme Court rarely implies a private right of action

under a criminal statute, and never unless there is a statutory basis for

inferring that a civil cause of action lies in favor of someone); California v.

Sierra Club, 451 U.S. 287, 297 (1981). Moreover, it is “well settled that a

private citizen may not use the courts as a means of forcing a criminal

prosecution.” Johnson v. Wennes, 2009 WL 1228500, at *4 (S.D. Cal. May 5,

2009) (citing U.S. v. Nixon, 418 U.S. 683, 694 (1974)). As a private citizen,

Plaintiff lacks “a judicially cognizable interest in the prosecution or

nonprosecution” of Defendants under these statutes. Linda R.S. v. Richard

D., 410 U.S. 614, 619 (1973).

As such, Plaintiffs’ claims based on state criminal laws are not

cognizable and any amendment would be futile.

b) Bane Act Claim

Plaintiffs also allege a claim under the Bane Act against all

Defendants. [See Dkt. No. 7 at 25.] California’s Bane Act provides a cause of

action for individuals whose federal or state constitutional rights have been

interfered with by threats, intimidation, or coercion. Cal. Civ. Code § 52.1(b);

see also Johnson v. Shasta Cnty., 83 F. Supp 3d 918, 934 (E.D. Cal. 2015).

Plaintiffs state that Defendants “intentionally interfered with Plaintiffs’ civil

rights by threats, intimidation, or coercion in that Defendants acted violently

against Plaintiffs Jeff Macy and Lynn Macy from exercising their right to

unreasonable search by trespassing into their home.” [Dkt. No. 7 at 25.]

However, Plaintiffs do not actually allege anywhere in the FAC that any

CIVIL MINUTES – GENERAL

Case No. 5:23-cv-01955-HDV-PD Date: April 12, 2024

Title Jeff Macy, et al. v. San Bernadino County Code Enforcement, et al.

individual Defendant entered their home. Similarly, the FAC does not

describe any verbal or physical threats made by a Defendant. While the FAC

implies that some of the Defendants’ actions could be perceived as

intimidating and an interference with their property rights – as currently

pled – these allegations are too conclusory to state a plausible claim for relief

under the Bane Act.

c) Intentional Infliction of Emotional Distress

Plaintiffs further allege that Defendants actions caused them serious

emotional distress and the actions were intentional, extreme, and outrageous.

[Dkt. No. 7 at 24.] Under California law, “the elements of a prima facie case

of intentional infliction of emotional distress are ‘(1) extreme and outrageous

conduct by the defendant with the intention of causing, or reckless disregard

of the probability of causing, emotional distress; (2) the plaintiff’s suffering

severe or extreme emotional distress; and (3) actual and proximate causation

of the emotional distress by the defendant’s outrageous conduct.’” Corales v.

Bennett, 567 F.3d 554, 571 (9th Cir. 2009) (quoting Tekle v. United States,

511 F.3d 839, 855 (9th Cir. 2007)).

The FAC does not contain any allegations of extreme or outrageous

conduct. As discussed above, the FAC alleges what appears to be a series of

separate incidents in which Plaintiffs received citations or notices from

various county entities. These events on occasion resulted in Plaintiffs

having to pay monetary fines, and also appear to have in increased their

property taxes. While Plaintiffs may be upset, frustrated, or displeased by

these events, none of the Defendant’s alleged conduct “exceeded the bounds of

what is generally tolerated in a civilized society.” Braunling v. Countrywide

Home Loans Inc., 220 F.3d 1154, 1158 (9th Cir. 2000). Accordingly, Plaintiffs

have not plausibly stated an intentional infliction of emotional distress claim

under California law.

CIVIL MINUTES – GENERAL

Case No. 5:23-cv-01955-HDV-PD Date: April 12, 2024

Title Jeff Macy, et al. v. San Bernadino County Code Enforcement, et al.

d) Public Records Act Request Claim

Plaintiffs also allege that Defendants failed to conduct their public

records act requests. [Dkt. No. 7 at 27.] There is a difference of opinion

among district courts in this circuit as to whether a plaintiff may bring a

California Public Records Act (“CPRA”) claim in federal court. Compare

Prevedello v. Cnty. Of Los Angeles, 2024 WL 113750, at *4 (C.D. Cal. Jan. 8,

2024) (exercising supplemental jurisdiction over a CPRA claim where it found

it was sufficiently related to the plaintiff’s federal claims); Brooks v. Vallejo

City Unified School Dist., 2013 WL 943460, at *4 (E.D. Cal. Mar. 11, 2013)

(“The exclusive remedy for challenges under the CPRA is to file a writ of

mandamus in state court and money damages are not an available remedy.”).

The FAC states that Defendants San Bernadino County Code

Enforcement, CSA-18, Fire Abatement, Waste Management, San Bernadino

County Public Records, Jennifer Bonnar, Lauren Zazueta, Jessica Hemsley,

Aldair Jimenez, and Pam Adams have not responded to Plaintiffs’ public

records act requests. Plaintiffs do not provide any further details such as

when these public records act requests were made, what they were for, what

response of any they received from Defendants, inter alia.

Since Plaintiffs have failed to state a cognizable federal claim at this

stage in the litigation, the Court does not have jurisdiction over any potential

CPRA claim at this time. If Plaintiffs intend to pursue a CPRA claim in this

action, they must plead it with sufficient particularity to provide “fair notice”

of “the grounds upon which [the CPRA claim] rests.” Bell Atlantic Corp., 550

U.S. at 555 & n.3.

e) Forced Demolition Permit Claim

Plaintiffs allege that Defendant San Bernadino County Code

Enforcement forced Plaintiffs to get a demolition permit “for a house that was

already demolished costing $266.” [Dkt. No. 7 at 25-26.] Plaintiffs go on to

CIVIL MINUTES – GENERAL

Case No. 5:23-cv-01955-HDV-PD Date: April 12, 2024

Title Jeff Macy, et al. v. San Bernadino County Code Enforcement, et al.

state “Defendants County told Plaintiffs they had to get another demolition

permit for a building that was demolished before Plaintiffs could buy the

property, trying to extort more money.” Id. Consequently, Plaintiffs assert

their fourth amendment rights were violated.

Plaintiffs’ legal theory that the above listed actions result in a violation

their fourth amendment rights is unclear and conclusory. As such, Plaintiffs

do not sufficiently allege facts that would give rise to a constitutional

violation based on “forced demolition permit.”

f) Excessive Fines

Last, Plaintiffs allege that “Defendants have been excessively giving

fines for trash in front of trash cans, leaves on the roof, yard, and firewood.”

[Id. at 28.] Again, Plaintiffs’ legal theory as to how these actions violated

their constitutional rights – or even which rights they believe were violated –

is unclear.

For these reasons, the FAC is subject to dismissal.

II. Order

For the foregoing reasons, Plaintiffs are ORDERED TO SHOW

CAUSE why the Court should not recommend that the FAC be dismissed for

failure to state actionable claims. See 28 U.S.C. § 1915(e)(2)(B). To discharge

and satisfy this order, Plaintiffs can either:

(1) File a second amended complaint (“SAC”), which would entirely

supersede the FAC, if they can cure the factual and legal deficiencies outlined

in this Order. Plaintiffs are advised that a SAC would entirely replace the

FAC in this action. Any amended complaint must:

(a) be labeled “Second Amended Complaint”;

CIVIL MINUTES – GENERAL

Case No. 5:23-cv-01955-HDV-PD Date: April 12, 2024

Title Jeff Macy, et al. v. San Bernadino County Code Enforcement, et al.

(b) be complete in and of itself and not refer in any manner to

prior complaints, i.e., it must include all of the claims on which

Plaintiff seeks to proceed, Local Rule 15-2;

(c) contain a “short plain” statement of the claim(s) for relief, see

Fed. R. Civ. P. 8(a);

(d) make each allegation “simple, concise and direct,” Fed. R. Civ.

P. 8(d)(1);

(e) make allegations in numbered paragraphs, “each limited as

far as practicable to a single set of circumstances,” Fed. R. Civ. P.

10(b);

(f) set forth clearly the sequence of events (including specific

relevant dates) which allegedly gives rise to the claim(s) for relief,

including what each defendant did and how each specific

defendant’s conduct injured each specific plaintiff; and

(g) not add defendants or claims without leave of court.

or

(2) Voluntarily dismiss the action—without prejudice to refiling later

if justified—using the attached form CV-09.

Plaintiffs must do ones of these things by no later than May 6, 2024.

If, given the contents of this Order, Plaintiffs elect not to proceed in this

action, they may expedite matters by signing and returning the attached

Notice of Dismissal by May 6, 2024, which will result in the voluntary

dismissal of this action without prejudice.

Plaintiffs are cautioned that, absent further order of the Court,

their failure to timely file a second amended complaint or Notice of

Dismissal may result in the dismissal of this action with or without

prejudice on the grounds above or for failure to diligently prosecute.

CIVIL MINUTES – GENERAL

Case No. 5:23-cv-01955-HDV-PD Date: April 12, 2024

Title Jeff Macy, et al. v. San Bernadino County Code Enforcement, et al.

Finally, the Clerk is directed to provide a Central District of

California Civil Rights Complaint Form, CV-66, to Plaintiffs to

facilitate their filing of an amended complaint if they elect to

proceed in that fashion.

Attachments:

--Notice of Voluntary Dismissal (CV-09)

--Civil Rights Complaint Form (CV-66)

:

iv