(PS) Gifford v. Hornbrook Fire Protection District

[7] 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 ROGER GIFFORD, No. 2:16-CV-0596-DJC-DMC 12 Plaintiff, 13 v. ORDER 14 HORNBROOK FIRE PROTECTION and DISTRICT, et al., 15 AMENDED FINDINGS AND Defendants. RECOMMENDATIONS [17] 18 Plaintiff, who is proceeding in forma pauperis and pro se, brings this civil action. 19 Pending before the Court is Defendants’ motion to dismiss. See ECF No. 66. Plaintiff has filed 20 an opposition. See ECF No. 71. Defendants have filed a reply. See ECF No. 72. In response to 21 the Court’s findings and recommendations, Plaintiff filed objections. See ECF Nos. 74 and 77. In 22 light of Plaintiff’s objections, the Court will vacate the March 29, 2024, findings and 23 recommendations and issue these amended findings and recommendations addressing the 24 sufficiency of Plaintiff’s complaint in this civil case. 25 In considering a motion to dismiss, the Court must accept all allegations of 26 material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The 27 Court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer 28 v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 1 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All 2 ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, [3] 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual 4 factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). 5 In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. 6 See Haines v. Kerner, 404 U.S. 519, 520 (1972). 7 In order to survive dismissal for failure to state a claim under Rule 12(b)(6), a 8 complaint must contain more than “a formulaic recitation of the elements of a cause of action;” it 9 must contain factual allegations sufficient “to raise a right to relief above the speculative level.” [10] Id. at 555-56 . The complaint must contain “enough facts to state a claim to relief that is plausible 11 on its face.” Id. at 570 . “A claim has facial plausibility when the plaintiff pleads factual content 12 that allows the court to draw the reasonable inference that the defendant is liable for the 13 misconduct alleged.” Iqbal, 129 S. Ct. at 1949 . “The plausibility standard is not akin to a 14 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 15 unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are 16 ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and 17 plausibility for entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 557). 18 In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials 19 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 20 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The Court may, however, consider: (1) 21 documents whose contents are alleged in or attached to the complaint and whose authenticity no 22 party questions, see Branch, 14 F.3d at 454 ; (2) documents whose authenticity is not in question, 23 and upon which the complaint necessarily relies, but which are not attached to the complaint, see 24 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials 25 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 26 1994). 27 / / / 28 / / / 1 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no 2 amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 3 curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). Plaintiff is 4 informed that, as a general rule, an amended complaint supersedes the original complaint. See 5 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to 6 amend, all claims alleged in the original complaint which are not alleged in the amended 7 complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if 8 Plaintiff amends the complaint, the Court cannot refer to the prior pleading in order to make 9 Plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be 10 complete in itself without reference to any prior pleading. See id. 11 As to defects identified in this order that cannot be cured by amendment, Plaintiff 12 is not entitled to leave to amend as to such claims. Plaintiff, therefore, now has the following 13 choices: (1) Plaintiff may file an amended complaint which does not allege the claims identified 14 herein as incurable, in which case such claims will be deemed abandoned and the Court will 15 address the remaining claims; or (2) Plaintiff may file an amended complaint which continues to 16 allege claims identified as incurable, in which case the Court will issue findings and 17 recommendations that such claims be dismissed from this action, as well as such other orders 18 and/or findings and recommendations as may be necessary to address the remaining claims. [19] 20 I. BACKGROUND 21 A. Procedural History 22 Plaintiff initiated this action with his original complaint filed on March 22, 2016. 23 See ECF No. 1. The matter was reassigned to the undersigned on September 4, 2018. See ECF 24 No. 4. Thereafter, on October 24, 2018, the Court directed that summons be issued. See ECF 25 No. 5. Defendants Hornbrook Fire Protection District (HFPD), Buckley, and Morin filed an 26 answer to Plaintiff’s complaint. See ECF No. 19. 27 / / / 28 / / / 1 Plaintiff filed his first amended complaint as of right on April 19, 2019. See ECF 2 No. 23. Defendants HFPD, Buckley, Morin, and Hott filed an answer to the first amended 3 complaint on May 7, 2019. See ECF No. 24. On June 27, 2019, Plaintiff filed a motion to strike 4 affirmative defenses. See ECF No. 30. On July 10, 2019, Defendants filed a motion for 5 judgment on the pleadings. See ECF No. 31. Both motions were heard by the undersigned at a 6 hearing held on September 11, 2019. See ECF No. 40. On October 1, 2019, the Court issued 7 findings and recommendations that the motion for judgment on the pleadings be granted in part 8 and denied in part, the motion to strike be denied as moot, and Plaintiff’s first amended complaint 9 be dismissed with leave to amend. See ECF No. 41. The findings and recommendations were 10 adopted in full by the District Judge on December 19, 2019. See ECF No. 44. 11 Plaintiff filed his second amended complaint on March 3, 2020. See ECF No. 47. 12 On March 18, 2020, Defendants filed a motion to dismiss the second amended complaint. See 13 ECF No. 48. Following a stay of briefing requested by Plaintiff, the matter was fully briefed and 14 on September 14, 2021, the Court issued findings and recommendations that Defendants’ motion 15 to dismiss be granted in part and denied in part. See ECF No. 56. The September 14, 2021, 16 findings and recommendations were adopted in full by the District Judge on March 30, 2022, and 17 Plaintiff was directed to file a third amended complaint within 30 days. See ECF No. 62. Plaintiff 18 obtained an extension of time, see ECF No. 64, and thereafter timely filed his third amended 19 complaint on July 1, 2022. See ECF No. 65. Thereafter, Defendants filed the currently pending 20 motion to dismiss. See ECF No. 66. 21 B. Plaintiff’s Allegations 22 In the operative third amended complaint, Plaintiff names the following as 23 defendants: (1) HFPD; (2) Adria Buckley; (3) Sharon Morin; (4) Lee Buckley; and (4) Joseph 24 Hott. See ECF No. 65, pg. 1. As with the prior complaints, Plaintiff provides the following 25 summary of his claims at paragraph 2 of the third amended complaint: 26 2. The primary thrust of this actin is that the defendants, in attempting to dominate and control the tiny Hornbrook Fire Protection 27 District, acted to stifle, interfere with, intimidate, coerce, retaliate against, and oppress Plaintiff Gifford, in his individual and official capacities 28 [footnote omitted], for exercise (and attempted exercise) of State and 1 Federal statutory and Constitutional rights – particularly speech and petitioning (and attempted petitioning) activity, while also suffering 2 retaliation in his employment with HFPD, while being denied various notices, procedures, review, and other due process afforded him by the 3 HFPD Bylaws, Brown Act, Fire Protection District Law, and his employment contract [footnote omitted] with the District. Additionally, 4 each and all of the Defendants violated various provisions of the HFPD Bylaws, which provide certain individuals who are citizens of the District 5 a remedy for violations, along with a standing to seek “claw back” and other financial remedies to the fiduciary benefit of the District (per 6 Resolution #15-004). Plaintiff was actually harmed directly, and/or indirectly, by every wrongful action [footnote omitted] undertaken by each 7 Defendant as set forth herein. Defendants Sharon Morin (“Morin”), and Adria Kirk-Buckley (“Buckley”), are all on the Board of Directors of the 8 HFPD, and will hereafter be referred to collectively as “the Board Defendants.” Each Defendant undertook the herein described wrongful 9 conduct while acting under color of law, and of their official positions as Directors, or, in the case of Lee Buckley, as purported “Acting Chief” 10 and/or “Firefighter” [footnote omitted]; and, in the case of Defendant Joseph Hott, as “Firefighter,” of the HFPD. . . . [11] ECF No. 65, pgs. 1-2. [12] Plaintiff alleges the same general facts as with prior complains in the third [13] amended complaint at paragraphs 8-15. See id. at 4-7. Those allegations have been previously [14] outlined in detail by the Court and are not repeated here. See ECF Nos. 41 (October 1, 2019, [15] findings and recommendations) and 56 (September 14, 2021, findings and recommendations). [16] Plaintiff then alleges in paragraphs 16-20 that the HFPD Board of Directors held [17] various “illegal meetings” and took “illegal action” on December 4, 2015, December 21, 2015, [18] January 22, 2016, February 16, 2016, and February 29, 2016. See ECF No. 65. at 7-9. Plaintiff [19] alleges at paragraph 1 as follows: [20] 18. Beginning at the improper, and illegal meetings held on 21 January 22, 2016, February 16, 2016, and at several meetings, thereafter, the Board Defendants (and thus the HFPD) attempted to disenfranchise, 22 and interfere with, the right to vote of Plaintiff, and each elector within the HFPD boundaries by modifying, or revoking, without due process and the 23 required voter approval, certain of those provisions of the HFPD Bylaws which specify that they may not be revoked or altered without approval by 24 the voters of the District. [footnote omitted] 25 Id. at 8-9. [26] / / / [27] / / / [28] 1 Plaintiff alleges the following federal claims for relief, all grouped together in the 2 third amended complaint as Plaintiff’s First Claim for Relief: 3 Count I Violations of Plaintiff’s right to freedom of speech and petition. See id. at 18-20. [4] Count II Violations of right to due process regarding employment, the 5 HFPD bylaws, and voting. See id. at 20-23. 6 Count III Deprivation of free speech/petition and right to vote in violation of due process. See id. at 23-24. [7] Count IV Violation of rights to due process, free speech and petition, 8 retaliation, as to HFPD and the Board Defendants. See id. at 25-26. [9] Count V Civil conspiracy in violation of 42 U.S.C. §§ 1983 and 1985. 10 See id. at 26-28 . 11 Grouped together as Plaintiff’s Second Claim for Relief are the following state law 12 claims over which Plaintiff asks the Court to exercise jurisdiction: 13 Count I Violations of HFPD bylaws. See id. at 28-30 . 14 Count II Negligence. See id. at 30-31 . 15 Count III Retaliation in employment. See id. at 31-33 . 16 Count IV Violation of Article 1, section 2, of the California Constitution. See id. at 33 . [17] Count V Negligence as to Board Defendants. See id. at 33-34 . [18] Count VI Civil conspiracy. See id. at 34-36 . [19] Count VII Private and public nuisance. See id. at 36-37 . [20] Count VIII Violation of the covenant of good faith and fair dealing. 21 See id. at 37-38 . 22 Count IX Void official acts. See id. at 38 . 23 Count X Violation of the Bane Act as to Board Defendants and Lee Buckley. See id. at 38-39 . [24] Count XI Breach of contract. See id. at 39 . [25] Count XII Punitive damages. See id. [26] / / / [27] / / / [28] 1 C. Status of Claims in Third Amended Complaint Before this Order 2 In order to address the claims in the third amended complaint, it is necessary to 3 know the status of the claims as previously alleged and as determined by the Court. The below 4 charts organizing each claim are offered to assist: 5 1. Federal Claims 6 Third Amended Previously Identified Claim(s) Complaint Claims Disposition [7] Count I - Violations Count I Violation of Plaintiff’s Right to Freedom of Speech and 8 of Plaintiff’s right to Petition. (First Amended Complaint) See ECF No. 23, pgs. 13-15. freedom of speech 9 and petition. See Motion for judgment on the pleadings denied. See ECF No. 41, pg. 8. ECF No. 65, pgs. 1810 20. Count I – Violation of Plaintiff’s Right to Freedom of Speech and 11 Petition. (Second Amended Complaint) See ECF No. 47, pgs. 14-16. 12 Motion to dismiss denied as to this claim. See ECF No. 56, pg. 17. Count II - Violations Count II - Violations of Plaintiff’s Right to Due Process and to Equal 13 of right to due Protection of the Laws; Unlawful Seizure. (First Amended Complaint) process regarding See ECF No. 23, pg. 16. 14 employment, the HFPD bylaws, and Plaintiff granted leave to amend to allege an independent liberty 15 voting. See id. at 20- interest. See ECF No. 41, pg. 9. 23. 16 Count II - Violations of Plaintiff’s Right to Due Process and to Equal Protection of Law (Second Amended Complaint). See ECF No. 47, 17 pgs. 16-18. 18 Due process claim dismissed with leave to amend and motion to dismiss granted as to Equal Protection claim. See ECF No. 56, pg. 19. 19 Count III - Count III - Deprivation of Right to Free Speech and Petition – Right Deprivation of free to Vote. (First Amended Complaint) See ECF No. 23, pgs. 18-20. 20 speech/petition and right to vote in Motion for judgment on the pleadings denied. See ECF No. 41, pg. 10. 21 violation of due process. See id. at Count III - Deprivation of Right to Free Speech and Petition – Right 22 23-24. to Vote; 4th Amendment (Second Amended Complaint) See ECF No. 47, pgs. 19-20. [23] Motion to dismiss granted as to Fourth Amendment claim and granted 24 with leave to amend as to voting claim. See ECF No. 56, pg. 21. [25] / / / [26] / / / [27] / / / [28] 1 Count IV - Violation Count VI - Employment retaliation in violation of Title VII of the of rights to due Civil Rights Act of 1964. (First Amended Complaint) See ECF No.23, 2 process, free speech pgs. 22-23. and petition, 3 retaliation, as to Count VII - Whistleblower retaliation with respect to actions to HFPD and the Board enforce clean drinking water regulations, in violation of 42 U.S.C. § 4 Defendants. See id. 300j-9(i). (First Amended Complaint) See id. at 23-24 . at 25-26. 5 Count VIII - Criminal retaliation in violation of 18 U.S.C. § 1513 (e). (First Amended Complaint) See id. at 24 . [6] Motion for judgment on the pleadings granted as to these claims. See 7 ECF No. 41, pg. 12. Count V - Civil Count IX - Violation of 42 U.S.C. 1985 as to HFPD, Board 8 conspiracy in Defendants. (First Amended Complaint) See ECF No. 23, pgs. 25-26. violation of 42 9 U.S.C. §§ 1983 and Motion for judgment on the pleadings granted as to this claim. See 1985. See id. at 26-28 ECF No. 41, pgs. 12-13. [10] 2. State Law Claims [11] 12 Third Amended Previously Identified Claim(s) in Second Amended Complaint Complaint Claims Disposition [13] Count I - Violations Count I - Violations of HFPD bylaws (Second Amended Complaint) See 14 of HFPD bylaws. ECF No. 47, pgs. 22-23. See ECF No. 65, 15 pgs. 28-30. Motion to dismiss denied as to this claim. See ECF No. 56, pgs. 22-23. Count II – Count II – Willful Negligence; Negligence (Second Amended 16 Negligence. See id. Complaint) See ECF No. 47, pgs. 23-24. at 30-31. 17 Motion to dismiss granted with leave to amend as to this claim. See ECF No. 56, pg. 24. 18 Count III - Count IV – Retaliation in Employment and Termination in Violation of Retaliation in Public Policy (Second Amended Complaint) See ECF No. 47, pgs. 2519 employment. See 26. id. at 31-33 . 20 Motion to dismiss denied as to wrongful termination claim. See ECF No. 56, pg. 28 21 Count IV - Count V - Violation of Article I, section 2, of the California Constitution Violation of Article (Second Amended Complaint) See ECF No. 47, pgs. 26-27. 22 1, section 2, of the California Motion to dismiss granted to the extent Plaintiff is seeking money 23 Constitution. See damages. See ECF no. 56, pg. 30. id. at 33 . 24 Count V - Count VI - Negligence as to Board Defendants (Second Amended Negligence as to Complaint) See ECF No. 47, pgs. 27-28. 25 Board Defendants. See id. at 33-34 . Motion to dismiss granted with leave to amend as to this claim. See 26 ECF No. 56, pg. 31. / / / 27 / / / / / / [28] 1 Count VI - Civil Count VII – Civil Conspiracy (Second Amended Complaint) See ECF conspiracy. See id. No. 47, pgs. 28-29. 2 at 34-36. Motion to dismiss granted with leave to amend as to this claim. See 3 ECF No. 56, pg. 32. Count VII - Private Count IX – Nuisance (Second Amended Complaint) See ECF No. 47, 4 and public pgs. 29-30. nuisance. See id. at 5 36-37. Motion to dismiss granted as to nuisance per se, granted with leave to amend as to public nuisance and denied as to private nuisance. See 6 ECF No. 56, pg. 38. Count VIII - Count X - Violations of the Covenant of Good Faith and Fair Dealing 7 Violation of the (Second Amended Complaint) See ECF No. 47, pg. 30. covenant of good 8 faith and fair Motion to dismiss granted as to covenant of good faith and fair dealing dealing. See id. at but denied as to contractual breaches. See ECF No. 56, pg. 40. 9 37-38. Count IX - Void Count XI – Purported Official Acts of the Board Defendants are Void 10 official acts. See (Second Amended Complaint) See ECF No. 47, pgs. 30-31. id. at 38 . 11 Motion to dismiss granted with leave to amend as to this claim. See ECF No. 56, pg. 43. 12 Count X - Violation Count XII – Violation of Bane Act by Board Defendants and Lee of the Bane Act as Buckley (Second Amended Complaint) See ECF No. 47, pg. 31. 13 to Board Defendants and Lee Motion to dismiss denied as to this claim. See ECF No. 56, pg. 44. 14 Buckley. 38- 39. Count XI - Breach Count X - Violations of the Covenant of Good Faith and Fair Dealing 15 of contract. See id. (Second Amended Complaint) See ECF No. 47, pg. 30. at 39. 16 Motion to dismiss granted as to covenant of good faith and fair dealing but denied as to contractual breaches. See ECF No. 56, pg. 40. 17 Count XII - Count XIII – Punitive Damages (Second Amended Complaint) Punitive damages. 18 See id. Court did not address punitive damages. See ECF No. 56, pg. 45. [19] 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / [28] 1 II. DISCUSSION 2 In their motion to dismiss, Defendants argue that the Court should dismiss this 3 action in its entirety with prejudice pursuant to Federal Rule of Civil Procedure 41(b) for 4 Plaintiff’s continued failure to “plead in compliance with the court’s orders and with the Federal 5 Rules of Civil Procedure.” ECF No. 66-1, pg. 2. Defendants alternatively seek dismissal under 6 Rule 12(b)(6) of certain specific counts in Plaintiff’s third amended complaint. See id. 7 Defendants further contend that “Plaintiff has. . . abused the court’s leave to amend by adding 8 new claims to the TAC [third amended compliant] which were not stated in the SAC [second 9 amended complaint], including a claim previously dismissed from Plaintiff’s First Amended 10 Complaint without leave to amend.” Id. at 2 . 11 A. Claims Previously Dismissed Without Leave to Amend 12 1. Federal Claims 13 The following federal claims alleged in the first amended complaint have been 14 dismissed without leave to amend: Count IV (Deprivation of Right to Vote – Conspiracy for 15 Deprivation of Rights – 42 U.S.C. 1985); Count VI (Violation of Title VII of the Civil Rights 16 Act – Unlawful Retaliation); Count VII (Retaliation in Employment by HFPD, Board Defendants; 17 42 U.S.C. 300j-9(i)); Count VIII (Retaliation by HFPD and Board Defendants; 18 U.S.C. 18 1513(e)); and Count IX (Violation of 42 U.S.C. 1985 as to HFPD, Board Defendants). 19 Plaintiff has renumbered his conspiracy claim from Count VI to Count V. In 20 federal Count IV of the first amended complaint, Plaintiff alleged that Defendants engaged in a 21 conspiracy to deprive Plaintiff of his right to vote. See ECF No. 23, pgs. 20-21. In federal Count 22 V of the third amended complaint, Plaintiff alleges a civil conspiracy, but not with respect to 23 Plaintiff’s right to vote. See ECF No. 65, pgs. 26-28. Current federal Count V is, therefore, not 24 foreclosed by the Court’s prior ruling as to Count VI in the first amended complaint. 25 In federal Count IX of the first amended complaint, Plaintiff alleged, again, 26 conspiracy. See ECF No. 23, pgs. 25-26. Specifically, Plaintiff claimed Defendants conspired to 27 interfere with his position as Administrator/General Manager of HFPD. See id. at 25 . In federal 28 Count V of the third amended complaint, Plaintiff alleges a conspiracy to interfere with his 1 position as Administrator/General Manager of HFPD. See ECF No. 65, pgs. 26-28. While Count 2 V of the third amended complaint is not foreclosed by the Court’s prior ruling on Count VI of the 3 first amended complaint, the Court agrees with Defendants that Count V of the third amended 4 complaint is foreclosed by dismissal of Count IX of the first amended complaint. The Court will 5 recommend that Defendants’ motion be granted as to Count V of the third amended complaint, 6 which has previously been dismissed. 7 In federal Counts VI, VII, and VIII of the first amended complaint, Plaintiff 8 alleged various claims of retaliation. See ECF No. 23, pgs. 22-24. In Count VI, Plaintiff alleged 9 employment retaliation in violation of Title VII of the Civil Rights Act of 1964. See id. at 22-23 . 10 In Count VII, Plaintiff alleged whistleblower retaliation with respect to actions to enforce clean 11 drinking water regulations, in violation of 42 U.S.C. § 300j-9(i). See id. at 23-24. In Count VIII, 12 Plaintiff alleged criminal retaliation in violation of 18 U.S.C. § 1513 (e). See id. at 24 . Plaintiff’s 13 federal Count IV in the third amended complaint alleges, among other things, retaliation against 14 Plaintiff for his having reported claimed abuses by HFPD and individual Defendants with respect 15 to management of HFPD. See ECF No. 65, pgs. 25-26. The Court agrees with Defendants that 16 such retaliation claims are subsumed within the various retaliation claims dismissed with 17 prejudice from the first amended complaint or otherwise proceeding in Count I. Therefore, 18 federal Count IV in the third amended complaint cannot proceed under a retaliation theory. 19 Plaintiff alleged a stand-alone retaliation claim, Count I, in the first and second 20 amended complaints, which was not dismissed. See ECF No. 56, pgs. 22-23 In the third amended 21 complaint, Plaintiff reiterated this stand-alone retaliation claim, Count I. Thus, Count I of the 22 third amended complaint should proceed. 23 2. State Law Claims 24 The following state law claims have been dismissed from the second amended 25 complaint without leave to amend: Count III (Violations of Government Code Section 1090 and 26 87100 – Self-Dealing); Count V (Violation of Article I, section 2, of the California Constitution); 27 Count IX (nuisance per se); and Count X (Violations of the Covenant of Good Faith and Fair 28 Dealing). See ECF No. 56. 1 Plaintiff’s state law Count IV of the third amended complaint has been previously 2 dismissed (as state law Count V of the second amended complaint) to the extent that Plaintiff was 3 seeking monetary damages. See id. at 30 . Given Plaintiff amended this claim to only seek 4 injunctive relief, Plaintiff’s state law Count IV remains cognizable. Plaintiff’s state law Count 5 VIII of the third amended complaint has also previously been dismissed (as state law Count X of 6 the second amended complaint). See ECF No. 56, pg. 40. Therefore, the undersigned will 7 recommend dismissal of Count VIII. 8 B. New Claims Added Without Leave of Court 9 1. Federal Claims 10 The following federal claims alleged in the second amended complaint have been 11 dismissed with leave to amend: Count II (Due Process and Equal Protection); Count III (Right to 12 Petition, Vote); and Count IV (Due Process, Equal Protection, Right to Free Speech, Right to 13 Petition, as to Morin, Buckley, and HFPD). See ECF No. 56. As discussed above, the Court finds 14 that federal Count V as alleged in the third amended complaint is foreclosed because that claim 15 was previously dismissed without leave to amend. The Court also finds that the portion of federal 16 Count IV as alleged in the third amended complaint based on retaliation is foreclosed as having 17 been previously dismissed without leave to amend. Plaintiff appears to have re-crafted and re18 numbered his federal conspiracy claim in the third amended complaint. Plaintiff added an 19 allegation of a due process violation based on his protected interest in voting. See ECF No. 65, 20 pgs. 15-18. However, as discussed below, Plaintiff was granted leave to amend his due process 21 claim regarding a specific protected interest, not in voting. Thus, a due process claim based on his 22 interest in voting is a new claim that Plaintiff was not granted leave of court to include.1 23 / / / 24 / / / 25 / / / [26] 1 The Court notes, even if Plaintiff properly alleged this due process claim based on his interest in [27] voting for municipal bylaw changes, that is not a constitutionally protected interest. Cf. Reynolds v. Sims, 377 U.S. 533, 554 (1964) (holding that “the Constitution of the United States protects the right of all qualities citizens to vote, 28 in state as well as federal elections.” (emphasis added)). 1 2. State Law Claims 2 As with the federal claims, Plaintiff has re-crafted and re-numbered his various 3 state law claims in the third amended complaint. However, the Court does not find that Plaintiff 4 included new claims that were not previously raised in the third amended complaint. In the 5 second amended complaint, Plaintiff alleged Count X as a violation of good faith and fair dealing 6 and contractual breach. See ECF No. 47, pg. 30. In the third amended complaint, Plaintiff 7 separated this out into Count VIII, violation of covenant of good faith and fair dealing, and Count 8 XI, breach of contract. As noted above, because Plaintiff’s Count X was dismissed without leave 9 to amend as to the violation of the covenant of good faith and fair dealing, Count VIII of the third 10 amended complaint is not cognizable. However, Plaintiff’s Count XI can proceed as the Court 11 reads this as a rearticulation of what was previously Count X, rather than a new claim added 12 without leave of court. 13 C. Claims Previously Dismissed With Leave to Amend 14 1. Federal Claims 15 As to claims previously dismissed with leave to amend, Defendants’ argument is 16 twofold. First, Defendants contend that Plaintiff’s third amended complaint continues to fall 17 short of the threshold pleading standards of Federal Rule of Civil Procedure 8, as well as the 18 Court’s prior orders, and that, as a result, the entire action should be dismissed as an appropriate 19 sanction pursuant to Federal Rule of Civil Procedure 41(b). Second, Defendants argue that, due 20 to Plaintiff’s continued failure to plead in compliance with Rule 8, Plaintiff fails to state claims 21 upon which relief can be granted and that such claims should be dismissed under Federal Rule of 22 Civil Procedure 12(b)(6). 23 In support of their request that this action be dismissed its entirety pursuant to Rule 24 41(b), Defendants offer the following background comments: 25 Plaintiff filed the TAC [third amended complaint] pursuant to the court’s partial grant of Defendants’ motion to dismiss the Second 26 Amended Complaint (“SAC”). The SAC consisted of four federal law claims and thirteen state law claims. Plaintiff was given leave to amend 27 three of the four federal claims and eight of the thirteen state law claims. Overall, the TAC fails to make material changes to the claims 28 Plaintiff was permitted to amend, as discussed below. Plaintiff has now 1 had multiple opportunities to amend these claims to state a valid cause of action but has failed to do so. Defendants respectfully request the court 2 dismiss those claims without further leave to amend. 3 ECF No. 66-1, pg. 2. 4 Pursuant to Rule 41(b), “If the plaintiff fails to prosecute or to comply with these 5 rules or a court order, a defendant may move to dismiss the action or any claim against it.” See 6 Fed. R. Civ. P. 41(b). The Court must weigh five factors before imposing the harsh sanction of 7 involuntary dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); 8 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the 9 public's interest in expeditious resolution of litigation; (2) the Court's need to manage its own 10 docket; (3) the risk of prejudice to opposing parties; (4) the public policy favoring disposition of 11 cases on their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. 12 Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). Dismissal has been held to be an appropriate 13 sanction for failure to follow local rules, see Ghazali, 46 F.3d at 53 , failure to comply with an 14 order to file an amended complaint, see Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 15 1992), failure to inform the district court and parties of a change of address pursuant to local 16 rules, see Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (per curiam), failure to appear at 17 trial, see Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996), and discovery abuses, see 18 Henry v. Gill Indus., Inc., 983 F.2d 943, 948 (9th Cir. 1993). 19 The Court finds that Defendants’ Rule 41(b) argument is well-taken. While the 20 Court must construe pro se pleadings liberally, at some point the Court must insist on compliance 21 with Rule 8, which is designed to provide Defendants with fair notice of the specific of Plaintiff’s 22 claims such that they can fairly mount a defense. Here, certain claims within Plaintiff’s third 23 amended complaint fail to do so despite numerous attempts at amendment and guidance provided 24 by this Court. The Court found that Claims II and III alleged in prior pleadings were subject to 25 dismissal and Plaintiff was provided leave to amend. By providing leave to amend these Claims, 26 Plaintiff had an opportunity to remedy the deficiencies as the Court described them. Rather than 27 address these deficiencies, Plaintiff reiterated the claims exactly as before. Therefore, as to 28 Claims II and III, Plaintiff’s continued failure to comply with Rule 8 warrants dismissal under 1 Rule 41(b). See McHenry, 84 F.3d 1172 . The undersigned will recommend such dismissal. 2 As to Claim IV, the Court dismissed the claim with leave to amend because 3 Plaintiff did not provide facts to support a due process nor equal protection claim. See ECF No. 4 56, pg. 21. In the third amended complaint, Plaintiff added an argument about exhaustion and the 5 below language to Claim IV, but the claim was otherwise repeated from the second amended 6 complaint. Plaintiff again failed to make any argument as to equal protection. 7 As to Plaintiff’s due process claim, the Court previously granted leave to amend 8 Plaintiff’s due process claim “[b]ecause, however, Plaintiff may have a protected property interest 9 as a public employee and may possibly state sufficient facts to state a claim.” ECF No. 56, pg. 19. 10 The Court takes the below addition as an attempt to address the deficiencies in Plaintiff’s 11 assertion of a liberty interest: 12 These Defendants also thus seized Plaintiffs individual, employment, positional, and contractual rights and privileges; and, his contractual duties and benefits, 13 without any notice, opportunity for hearing, nor any actual hearing relating to any allegations of wrongful conduct on his part, and/or any other “good cause” basis 14 for emasculation of his status and/or position, and ultimate removal. 15 ECF No. 65, pg. 25. 16 Defendants argue in their motion to dismiss that Plaintiff “did not state facts to 17 establish a property interest in his employment per the court’s order.” ECF No. 66-1, pg. 6. The 18 Court agrees. Plaintiff’s general, legally conclusory claim of “individual, employment, positional, 19 and contractual rights and privileges” does not establish a property interest in Plaintiff’s 20 employment. Thus, Plaintiff’s failure to address the deficiencies in Claim IV, after being 21 provided leave to amend, warrants dismissal of Claim IV with prejudice. The undersigned will 22 recommend such dismissal. 23 2. State Law Claims 24 In resolving the prior motion to dismiss the second amended complaint, the Court 25 dismissed the following state law claims with leave to amend: Count II (Negligence); Count VI 26 (Negligence as to Morin and Buckley); Count VII (Conspiracy); Count VIII (Intentional Infliction 27 of Emotional Distress); Count IX (Public Nuisance); and Count XI (Violation of the Brown Act). 28 See ECF Nos. 56, 62. 1 Count II and Count V2 were previously dismissed with leave to amend because the 2 allegations were conclusory, referenced dozens of laws without identifying the duty or standard 3 of care, and therefore did not provide Defendants with fair notice. See ECF No. 56, pgs. 24, 31. In 4 the third amended complaint, Plaintiff was a bit more specific but still fails to properly give notice 5 to Defendants. As to Count II, Plaintiff added “[a]ll of the Defendants were under a duty of care 6 imposed by the Health and Safety Code, the Vehicle Code, the HFPD Bylaws, their status as 7 fiduciaries to the HFPD and the residents of the District, and by Plaintiff’s contract with the 8 HFPD.” ECF No. 65, pg. 30. As to Count V, Plaintiff added “the HFPD, Board Defendants, Lee 9 Buckley, and Joseph Hott, owed a duty to Plaintiff to: reasonably conform their conduct to the 10 law of the United States, the State of California, and the HFPD Bylaws; and, as fiduciaries to the 11 District, and the taxpayers, residents, and citizens thereof.” Id. at 33. Defendants argue that 12 Plaintiff “made no meaningful amendment of this claim.” The Court agrees. The way the 13 Plaintiff’s negligence claims are pled leaves Defendants and the Court guessing as to what 14 specific duty was owed by which Defendants and which allegations constituted a breach of said 15 duty. See Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678 . Merely adding the legally conclusory 16 language stating that Defendants breached a general “duty of care” under the listed laws does not 17 address the deficiencies previously identified by the Court. Thus, the undersigned recommends that 18 Count II and Count V be dismissed without leave to amend. 19 Plaintiff’s conspiracy claim, here Count VI, was previously dismissed with leave to 20 amend because Plaintiff failed to identify an actionable tort that was the basis of Defendants’ alleged 21 collusion. See ECF No. 56, pg. 32. Defendants argue that the third amended complaint did not resolve 22 this defect. See ECF No. 66-1, pg. 8. The Court disagrees. Plaintiff linked this conspiracy claim with 23 two underlying torts, a constitutional tort arising from the violation of Plaintiff’s free speech rights, 24 and public nuisance.3 As to the constitutional tort, Plaintiff contends that Defendants acted “to 25 retaliate against Plaintiff for his religious practice, political positions, and attempts to exercise his [26] 2 Count VI in the Second Amended Complaint. See ECF No. 47, pgs. 27-28. 3 To the extent that Plaintiff alleges that Defendants’ negligent actions were part of a conspiracy, the [27] Court notes that it is legally impossible to conspire to commit negligence. See Land v. Credit Suisse Grp. Sec. (USA) Ltd. Liab. Co., 720 F. App'x 860 , 862 n.3 (9th Cir. 2018) (holding that “conspiracy requires an agreement to perform 28 some unlawful act. As such, one cannot conspire to commit a negligent act.”). 1 authority . . . and, to retaliate for Plaintiff’s assistance (sic) others in making complaints to 2 government agencies, and for making such complaints himself, concerning the Defendants and/or the 3 operation of the HFDP.” ECF No. 65, pg. 11. Thus, Plaintiff’s federal claim Count I provides an 4 underlying tort for Plaintiff’s conspiracy claim. As to public nuisance, Plaintiff asserts that 5 Defendants “willfully and knowingly plac[ed] Plaintiff and the public at risk by ratifying, 6 encouraging, and/or participating in the driving of uncertified, faulty, unregisters, and uninsured 7 vehicles upon the streets.” Id. These facts are the basis of Plaintiff’s public nuisance claim, discussed 8 further below. Thus, Plaintiff linked his conspiracy claim to two of his tort claims, providing the 9 underlying tort necessary for a conspiracy claim. 10 Previously, the Court found Plaintiff’s private nuisance claim to be cognizable and 11 granted leave to amend as to his public nuisance claim. See ECF No. 56, pg. 38. In the current third 12 amended complaint, Plaintiff alleged that Defendants improper use of fire department vehicles harms 13 the general public because it leaves them without protection from their fire department, which “puts 14 all of the properties and homes Hornbrook at great (unreasonable) risk.” ECF No. 65, pgs. 36-37. The 15 Court finds this meets the minimum required showing for a public nuisance claim. Thus, the Court 16 finds Count VII alleging both public and private nuisance should proceed. 17 The Court previously dismissed Plaintiff’s Brown Act claim, with leave to amend. See 18 ECF No. 56, pg. 43. In the third amended complaint, Plaintiff realleged the same facts as before in 19 Count IX but simply removed the reference to the Brown Act. See ECF No. 65, pg. 38. Plaintiff did 20 not address the deficiencies identified by the Court despite having the opportunity to do so. Thus, the 21 undersigned finds dismissal of Count IX is warranted and will recommend such dismissal. 22 D. State Claims Previously Identified as Cognizable 23 As to Count I, which was also Count I in the second amended complaint, the Court 24 previously said “the Court expresses no opinion on the viability of an action under the bylaws. But 25 because Defendants did not brief that issue, the Court will not address it. The undersigned 26 recommends that the District Court deny the motion to dismiss on Plaintiff’s first state law count.” 27 ECF No. 56, pgs. 22-23. Again, Defendants provided no argument specific to Count I in their motion 28 to dismiss. See ECF No. 66. Thus, the Court will maintain the recommendation that Plaintiff’s state 1 claim Count I proceed. 2 Count III, previously Count IV in second amended complaint, and Count X, 3 previously Count XII in second amended complaint, were identified as cognizable. See ECF No. 56. 4 Defendants offer no new arguments in their motion to dismiss specific to those claims. See ECF No. 5 66. As such, those claims should proceed. 6 E. Recommended Disposition of Claims 7 The following summarizes this Court’s recommendations, as detailed in the above analysis: 8 1. Federal Claims 9 Third Amended Complaint Claims Recommended Disposition 10 Count I - Violations of Plaintiff’s right to Claim remains cognizable and should freedom of speech and petition. See ECF No. proceed. 11 65, pgs. 18-20. 12 Count II - Violations of right to due process Despite being granted leave to amend, regarding employment, the HFPD bylaws, Plaintiff did not address deficiencies. 13 and voting. See id. at 20-23 . Dismissal recommended. 14 Count III - Deprivation of free speech/petition Despite being granted leave to amend, and right to vote in violation of due process. Plaintiff did not address deficiencies. 15 See id. at 23-24 . Dismissal recommended. 16 Count IV - Violation of rights to due process, Claim was previously dismissed and should free speech and petition, retaliation, as to not be permitted now. 17 HFPD and the Board Defendants. See id. at 25-26 . [18] Count V - Civil conspiracy in violation of 42 Claim was previously dismissed, and should 19 U.S.C. §§ 1983 and 1985. See id. at 26-28 not be permitted now. [20] 2. State Law Claims [22] Third Amended Complaint Claims Recommended Disposition [23] Count I - Violations of HFPD bylaws. See Claim remains cognizable and should ECF No. 65, pgs. 28-30. proceed. [24] Count II – Negligence. See id. at 30-31 . Despite being granted leave to amend, 25 Plaintiff did not address deficiencies. Dismissal recommended. [26] Count III - Retaliation in employment. See Claim remains cognizable and should [27] id. at 31-33 . proceed. Count IV - Violation of Article 1, section 2, of Claim is cognizable insofar as Plaintiff seeks 28 the California Constitution. See id. at 33 . injunctive relief and should proceed. 1 Count V - Negligence as to Board Despite being granted leave to amend, Defendants. See id. at 33-34 . Plaintiff did not address deficiencies. 2 Dismissal recommended. Count VI - Civil conspiracy. See id. at 34-36 . Despite being granted leave to amend, 3 Plaintiff did not address deficiencies. Dismissal recommended. [4] Count VII - Private and public nuisance. See Claims remain cognizable and should [5] id. at 36-37 . proceed. Count VIII - Violation of the covenant of Claim was previously dismissed. 6 good faith and fair dealing. See id. at 37-38 . Count IX - Void official acts. See id. at 38 . Despite being granted leave to amend, 7 Plaintiff did not address deficiencies. Dismissal recommended. [8] Count X - Violation of the Bane Act as to Claim remains cognizable and should 9 Board Defendants and Lee Buckley. 38- 39. proceed. Count XI - Breach of contract. See id. at 39 . Claim remains cognizable and should 10 proceed. Count XII - Punitive damages. See id. Court does not address punitive damages. [11] / / / [12] / / / [13] / / / [14] / / / [15] / / / [16] / / / [17] / / / [18] / / / [19] / / / [20] / / / [21] / / / [22] / / / [23] / / / [24] / / / [25] / / / [26] / / / [27] / / / [28] 1 | /// 2 Il. CONCLUSION 3 Based on the foregoing, the undersigned orders and recommends as follows: 4 1. It is ORDERED that the findings and recommendations issued on March 5 || 29, 2024, ECF No. 74, are VACATED. 6 2. It is RECOMMENDED that Defendants’ motion to dismiss, ECF No. 66, 7 || be GRANTED IN PART and DISMISSED IN PART as explained herein. 8 These amended findings and recommendations are submitted to the United States 9 || District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within 14 10 || days after being served with these amended findings and recommendations, any party may file 11 || written objections with the Court. Responses to objections shall be filed within 14 days after 12 || service of objections. Failure to file objections within the specified time may waive the right to 13 || appeal. See Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). [14] 15 | Dated: March 26, 2025 Ss..c0_, 16 DENNIS M. COTA 17 UNITED STATES MAGISTRATE JUDGE