McHugh v. County of Tehama

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 MARCIA McHUGH, et al., No. 2:19-cv-02292-TLN-DMC 12 Plaintiffs, 13 v. ORDER 14 COUNTY OF TEHAMA, et al., 15 Defendants. [16] 17 This matter is before the Court on Defendants County of Tehama (“County”), Tehama 18 County Sheriff’s Office (“Sheriff’s Office”), Sheriff Dave Hencratt (“Hencratt”), and Assistant 19 Sheriff Phil Johnston (“Johnston”) (collectively, “County Defendants”) Motion to Dismiss. (ECF 20 No. 32.) Plaintiffs Marcia McHugh and Grace McHugh (collectively, “Plaintiffs”) filed an 21 opposition. (ECF No. 35.) County Defendants filed a reply. (ECF No. 38.) 22 Also before the Court is Defendant Rancho Tehama Association, Inc.’s (“RTA”) Motion 23 to Dismiss. (ECF No. 33.) Plaintiffs filed an opposition. (ECF No. 34.) RTA filed a reply. 24 (ECF No. 39.) 25 For the reasons set forth below, the Court GRANTS County Defendants’ motion (ECF 26 No. 32) and DENIES RTA’s motion (ECF No. 33) as moot. 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 This action arises from a mass shooting that occurred on November 14, 2017. (ECF No. 3 31 at 6.) The shooter, Kevin Neal (“Neal”) killed at least five people and wounded at least a 4 dozen more. (Id.) One of the deceased victims was Joseph McHugh. (Id.) Plaintiffs are the 5 heirs at law and successors-in-interest of Joseph McHugh. (Id. at 8.) 6 Plaintiffs filed the instant action on November 13, 2019. (ECF No. 1.) Plaintiffs filed the 7 operative First Amended Complaint (“FAC”) on October 8, 2020. (ECF No. 31.) Plaintiffs assert 8 the following claims: (1) a 42 U.S.C. § 1983 (“§ 1983”) claim for violation of due process under 9 the Fourteenth Amendment against County Defendants; (2) a § 1983 claim for violation of equal 10 protection under the Fourteenth Amendment against County Defendants; (3) a § 1983 Monell 11 claim for failure to train/supervise against County Defendants; and (4) negligence/negligent 12 premises liability against RTA. (See generally id.) 13 RTA and County Defendants filed separate motions to dismiss the FAC. (ECF Nos. 32, 14 33). Both motions are brought pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). 15 II. STANDARD OF LAW 16 A motion to dismiss for failure to state a claim upon which relief can be granted under 17 Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th 18 Cir. 2001). Rule 8(a) requires that a pleading contain “a short and plain statement of the claim 19 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a); see also Ashcroft v. Iqbal, 556 20 U.S. 662 , 677–78 (2009). Under notice pleading in federal court, the complaint must “give the 21 defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic 22 v. Twombly, 550 U.S. 544, 555 (2007) (internal citation and quotations omitted). “This simplified 23 notice pleading standard relies on liberal discovery rules and summary judgment motions to 24 define disputed facts and issues and to dispose of unmeritorious claims.” Swierkiewicz v. Sorema 25 N.A., 534 U.S. 506, 512 (2002). 26 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 27 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court must give the plaintiff the benefit of every 28 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 1 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746 , 753 n.6 (1963). A plaintiff need not allege 2 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 3 relief.” Twombly, 550 U.S. at 570 (internal citation omitted). 4 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 5 factual allegations.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638 , 643 n.2 (9th Cir. 1986). 6 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 7 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 8 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 9 elements of a cause of action.” Twombly, 550 U.S. at 555 ; see also Iqbal, 556 U.S. at 678 10 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 11 statements, do not suffice.”). Thus, ‘[c]onclusory allegations of law and unwarranted inferences 12 are insufficient to defeat a motion to dismiss for failure to state a claim.” Adams v. Johnson, 355, 13 F.3d 1179 , 1183 (9th Cir. 2004) (citations omitted). Moreover, it is inappropriate to assume the 14 plaintiff “can prove facts that it has not alleged or that the defendants have violated the . . . laws 15 in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State 16 Council of Carpenters, 459 U.S. 519, 526 (1983). 17 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 18 facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 . “A claim 19 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 20 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 21 680. While the plausibility requirement is not akin to a probability requirement, it demands more 22 than “a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility 23 inquiry is “a context-specific task that requires the reviewing court to draw on its judicial 24 experience and common sense.” Id. at 679. Thus, only where a plaintiff fails to “nudge [his or 25 her] claims . . . across the line from conceivable to plausible[,]” is the complaint properly 26 dismissed. Id. at 680 (internal quotations omitted). 27 In ruling on a motion to dismiss, a court may consider only the complaint, any exhibits 28 thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. 1 See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. 2 Consumers Union of U.S., Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998); see also Daniels3 Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (the court need not accept as true 4 allegations that contradict matters properly subject to judicial notice). 5 If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to 6 amend even if no request to amend the pleading was made, unless it determines that the pleading 7 could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122 , 8 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)); 9 see also Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in 10 denying leave to amend when amendment would be futile). Although a district court should 11 freely give leave to amend when justice so requires under Rule 15(a)(2), “the court’s discretion to 12 deny such leave is ‘particularly broad’ where the plaintiff has previously amended its complaint.” 13 Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013) (quoting 14 Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)). 15 III. ANALYSIS 16 County Defendants and RTA move to dismiss all Plaintiffs’ claims against them. Because 17 this Court’s subject matter jurisdiction depends on Plaintiffs’ federal claims against County 18 Defendants (see ECF No. 31 at 7), the Court first addresses Plaintiffs’ § 1983 claims for due 19 process, equal protection, and Monell violations. As will be discussed, because Plaintiffs fail to 20 state a viable federal claim — and it is unclear whether they can do so in an amended complaint 21 — the Court declines to address Plaintiffs’ state law claims in the interest of judicial economy. 22 A. Federal Claims 23 i. Claim One: Due Process 24 Plaintiffs bring their due process claim against County Defendants and Does 1–10 under 25 the state created danger theory. (ECF No. 31 at 31.) In order to prevail under a state created 26 danger theory, a plaintiff must show (1) there was “affirmative conduct on the part of the state in 27 placing the plaintiff in danger” and (2) the state acted with “deliberate indifference” to a “known 28 or obvious danger.” Patel v. Kent Sch. Dist., 648 F.3d 965, 974 (9th Cir. 2011) (citing Munger v. 1 City of Glasgow Police Dep’t, 227 F.3d 1082, 1086 (9th Cir. 2000); L.W. v. Grubbs, 92 F.3d 894 , 2 900 (9th Cir. 1996)). The Court further notes that should Plaintiffs be able to establish a 3 constitutional violation under this theory, the County and Department can only be held liable if 4 there is a municipal policy or practice which was the driving force behind the deprivation, or, on 5 the part of Hencratt and Johnston, if they had a personal involvement in the deprivation or if their 6 wrongful acts were sufficiently causally related to the deprivation. Monell v. Dep’t of Social 7 Serv., 436 U.S. 658, 691 (1978); Hansen v. Black, 885 F.2d 642 , 645–46 (9th Cir. 1989). 8 In the instant motion, County Defendants argue Plaintiffs fail to allege affirmative action. 9 (ECF No. 32-1 at 11–14.) In opposition, Plaintiffs highlight the following allegations in the FAC: 10 (1) when responding to a complaint about Neal’s shooting in 2016, officers told Neal he could 11 discharge firearms as long as he did so “in a safe manner” when they knew he had not been doing 12 so and that the discharge of firearms was prohibited in the community; (2) after a criminal 13 protective order against Neal became effective in early 2017, officers improperly left it up to Neal 14 to voluntarily turn in his firearms and did not follow up when Neal’s wife called and reported her 15 firearm as stolen, which communicated to Neal that County Defendants did not care if he 16 continued to own and discharge firearms; (3) County Defendants communicated to Neal they did 17 not enforce protective order violations or take illegal possession of firearms seriously when they 18 refused to respond to Neal’s complaints in July 2017 about other individuals brandishing firearms 19 and violating restraining orders; and (4) Neal knew that County Defendants failed to adequately 20 respond to complaints about Neal possessing and shooting firearms on his property toward his 21 neighbor’s homes. (ECF No. 35 at 17–21.) Plaintiffs argue these allegations constitute 22 affirmative action by County Defendants in that they “communicated explicitly (by direct 23 contact) and implicitly (via a general and conspicuous pattern and practice of not taking 24 complaints of Neal’s violent and illegal behavior seriously) that Neal could continue to act with 25 impunity, discharge firearms, and terrorize the community without facing law enforcement 26 repercussions.” (Id. at 16.) To support this proposition, Plaintiffs rely primarily on three Second 27 Circuit cases: Pena v. DePrisco, 432 F.3d 98 (2d Cir. 2005), Dwares v. City of N.Y., 985 F.2d 94 28 (2d Cir. 1993), and Okin v. Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415 (2d Cir. 1 2009). (Id. at 13–15.) Even if this Court were to apply the foregoing Second Circuit authority, 2 however, these cases are easily distinguishable. 3 In Dwares, police officers allegedly told skinheads in advance of a political rally that they 4 would not interfere with assaults or arrest those responsible for them. 985 F.2d at 99. The 5 Dwares court stated “[s]uch a prearranged official sanction of privately inflicted injury would 6 surely have violated the victim’s rights under the Due Process Clause.” Id. In contrast, Plaintiffs 7 do not allege any officers explicitly told Neal it was acceptable to harm others or that he would 8 not be arrested if he did so. Plaintiffs argue officers “directly communicated” their approval by: 9 (1) telling Neal in 2016 there “was nothing they could do” so as long as he was shooting his 10 firearms “in a safe manner” despite knowing Neal was not shooting in a safe manner and had 11 recently assaulted someone; (2) allowing Neal to voluntarily turn in firearms after the criminal 12 protective order was issued and failing to follow up with a subsequent report from Neal’s wife 13 that her firearm was missing; (3) refusing to respond to Neal’s reports of another individual 14 brandishing a weapon; and (4) ignoring numerous reports regarding Neal’s dangerous activities. 15 (ECF No. 35 at 17–18.) None of these communications with Neal come close to the “prearranged 16 official sanction” of violence that occurred in Dwares. As to Plaintiffs’ allegations about the 17 officers’ inaction, even the Dwares court recognized “an allegation simply that police officers had 18 failed to act upon reports of past violence would not implicate the victim’s rights under the Due 19 Process Clause.” 985 F.2d at 99. 20 In Pena, an off-duty officer killed a number of people while driving intoxicated. 432 F.3d 21 at 102 . The plaintiff alleged supervisory personnel encouraged the off-duty officer to drink in 22 excess and drive under the influence by routinely drinking with him in the precinct parking lot, 23 drinking and riding with him on the date of the incident, and otherwise communicating their 24 approval by condoning the misconduct. Id. at 110–11. The court found such allegations 25 amounted to a state created danger claim because state officials implicitly communicated to the 26 off-duty officer that he would not be “arrested, punished, or otherwise interfered with while 27 engaging in misconduct that [was] likely to endanger the life, liberty, or property of others.” Id. 28 at 111–12. Importantly, “the Ninth Circuit has not adopted the Pena [c]ourt’s holding that the 1 affirmative conduct element of the state-created danger doctrine may occur ‘implicitly.’” 2 Jamison v. Storm, 426 F. Supp. 2d 1144, 1156 (W.D. Wash. 2006). Even if this Court found 3 Pena to be persuasive, the facts are much different here. In Pena, officers and supervisors 4 routinely drank at work with the off-duty officer and knew he was driving while drunk. 432 F.3d 5 at 110–11. Here, there are no allegations that County Defendants or any other officers 6 participated in or encouraged Neal’s violence. There are no allegations to suggest that officers 7 implicitly communicated to Neal that he would “not be arrested, punished, or otherwise interfered 8 with” if he harmed others. Id. at 111 . To the contrary, Plaintiffs allege Neal was arrested for 9 threatening individuals and firing a gun over their heads in January 2017, which resulted in the 10 issuance of the criminal protective order and a civil restraining order. (ECF No. 31 at 17.) At 11 most, Plaintiffs assert “a failure to prevent misbehavior and to reprimand or punish” Neal for 12 complaints about owning and shooting firearms on his property after January 2017, which is 13 insufficient to state a due process claim. 432 F.3d at 112. 14 In Okin, the court found there was “a genuine issue of material fact as to whether 15 [officers] implicitly but affirmatively encouraged [the assailant’s] domestic violence.” 577 F.3d 16 at 430. The court cited an occasion when officers discussed football with the assailant during 17 their response to the victim’s complaint that he had beaten and tried to choke her. Id. The court 18 also emphasized there were numerous occasions when the officers responded to the victim’s 19 complaints without filing a domestic incident report, interviewing the assailant, or making an 20 arrest, even after the assailant told the officers he could not “help it sometime when he smack[ed] 21 . . . [the victim] around.” Id. The court stated the evidence showed “an escalating series of 22 incidents” where the officers “openly expressed camaraderie with [the assailant] and contempt for 23 [the victim],” which could be viewed as ratcheting up the threat of danger to the victim. Id. 24 Unlike Okin, there are no allegations here that officers ever expressed camaraderie with Neal or 25 contempt for potential victims. 26 The only Ninth Circuit case Plaintiffs cite on this issue is Kennedy v. City of Ridgefield, [27] 439 F.3d 1055 (9th Cir. 2006). (ECF No. 35 at 13.) In Kennedy, Kimberly Kennedy contacted a 28 police department to report that a neighbor molested her young daughter. Id. at 1057 . Kennedy 1 warned the officer that the neighbor had “violent tendencies.” Id. The officer “assured Kennedy 2 she would be given notice prior to any police contact with the [neighbor’s family] about her 3 allegations.” Id. at 1058 . Despite this promise, the officer drove to the neighbor’s residence and 4 informed the neighbor’s family of the allegations prior to warning Kennedy. Id. Later that 5 evening, the suspect broke into Kennedy’s house and shot Kennedy and her husband, killing the 6 husband. Id. The Ninth Circuit found that, by notifying the neighbor’s family of the allegations 7 “before the Kennedys had the opportunity to protect themselves from this violent response to the 8 news,” the officer “affirmatively created an actual, particularized danger Kennedy would not 9 otherwise have faced.” Id. at 1063 (emphasis added). 10 Unlike Kennedy, Plaintiffs’ allegations do not lend even a reasonable inference that 11 officers “affirmatively created an actual, particularized” danger to Plaintiffs. Consistent with 12 Kennedy, other Ninth Circuit courts have permitted claims to proceed under the state created 13 danger theory only where the state actor played a significant role in creating the dangerous 14 situation. See Munger, 227 F.3d at 1082 (holding police officers could be held liable for the 15 death of a visibly drunk patron from hypothermia they had ejected from a bar on an extremely 16 cold night); Penilla v. City of Huntington Park, 115 F.3d 707 (9th Cir. 1997) (holding as viable a 17 state created danger claim against police officers who, after finding a man in grave need of 18 medical care, cancelled a request for paramedics and locked him inside his house); L.W. v. 19 Grubbs, 974 F.2d 119 (9th Cir. 1992) (holding state employees could be liable for the rape of a 20 registered nurse assigned to work alone with a known, violent sex-offender); Wood v. Ostrander, [21] 879 F.2d 583 (9th Cir. 1989) (holding state could be liable for the rape of a woman that an officer 22 had left stranded in a known high-crime area late at night). Here, the officers’ alleged conduct 23 falls far short of this standard. Although the officers may have been able to prevent the injuries, 24 that does not mean they created an “actual, particularized” danger that did not otherwise exist. 25 See DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 203 (1989) (“The most that 26 can be said of the state functionaries in this case is that they stood by and did nothing when 27 suspicious circumstances dictated a more active role for them.”). Plaintiffs’ allegations make 28 clear that “Neal was, and would have remained, a dangerous individual prone to violent behavior” 1 regardless of the officers’ conduct.1 2 For all these reasons, Plaintiffs fail to allege affirmative action by County Defendants or 3 any particular officer that created the danger posed by Neal. As such, Plaintiffs fail to assert a 4 viable due process claim under the state created danger theory. In its prior order in the related 5 cases, the Court informed Plaintiffs’ counsel what was necessary to state a plausible due process 6 claim.2 Plaintiffs failed to do so and instead relied on many of the same allegations and 7 arguments the Court previously rejected. Plaintiffs fail to persuade the Court that they can allege 8 additional facts that would cure the deficiencies in this claim. Therefore, the Court DISMISSES 9 Plaintiffs’ due process claim without leave to amend.3 10 ii. Claim Two: Equal Protection 11 Plaintiffs bring their equal protection claim against County Defendants and Does 1–10. 12 (ECF No. 31 at 51.) As a preliminary matter, Plaintiffs argue the Court should deny County 13 Defendants’ challenge to the equal protection claim because County Defendants did not challenge [14] 1 Plaintiffs also argue County Defendants “cut off other sources of assistance to Rancho 15 Tehama, for example, instructing CalFire not to respond to pleas for assistance.” (ECF No. 35 at 16.) Plaintiffs do not cite where in the FAC these allegations can be found. The Court can locate [16] only one reference to a situation in July 2017 when CalFire received a call from Neal alleging he 17 could smell a “burning perfume” he thought was methamphetamine. (ECF No. 31 at 24.) Plaintiffs allege County Defendants recommended CalFire not investigate this incident because 18 Neal “had reality issues and was also a firearms owner.” (Id.) Plaintiffs allege this shows County Defendants instructed CalFire not to respond, but they fail to explain how this allegation is 19 relevant to or contributed to the danger that occurred on November 14, 2017. (Id.) 20 2 Plaintiffs referenced the Court’s order in the related cases as the basis for filing a 21 stipulation to file a FAC. (ECF No. 26.) Plaintiffs conceded that they anticipated a similar order would be issued as to the then-pending motion to dismiss in the instant case. (Id.) As such, 22 Plaintiffs were well aware of the Court’s expectations for an amended due process claim. It also bears mentioning that Plaintiffs are represented by the same counsel in all but one of the related 23 cases, and the briefing in those cases is identical to the instant case. 24 3 The Court also notes that to the extent Plaintiffs’ claim is based on the actions of individual “Doe” officers, those officers would likely be granted qualified immunity based on the [25] lack of clearly established law on this issue. See, e.g., Decoria v. Cnty. of Jefferson, 333 F. App’x 26 171, 173 (9th Cir. 2009) (“[W]e have never decided the question of whether a defendant officer violates a plaintiff’s constitutional rights when, as in this case, the officer’s challenged actions 27 were not directed toward the plaintiff, but rather toward another person who later harmed the plaintiff.”). [28] 1 this claim in their original motion to dismiss. (ECF No. 35 at 23.) “If a failure-to-state-a-claim 2 defense under Rule 12(b)(6) was not asserted in the first motion to dismiss under Rule 12, Rule 3 12(h)(2) tells us that it can be raised, but only in a pleading under Rule 7, in a post-answer motion 4 under Rule 12(c), or at trial.” In re Apple iPhone Antitrust Litig., 846 F.3d 313, 318 (9th Cir. 5 2017). However, the Ninth Circuit has adopted a “very forgiving” approach and allows district 6 courts to consider new arguments in successive motions to dismiss in the interest of judicial 7 economy. Id. at 318–19. Because the issue has now been fully briefed, the Court will consider 8 the merits of County Defendants’ arguments. 9 “The Equal Protection Clause of the Fourteenth Amendment commands that no state shall 10 ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a 11 direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne 12 Living Ctr., Inc., 473 U.S. 432, 439 (1985). In order to state an equal protection claim, a plaintiff 13 must allege: (1) the municipal defendants treated him differently from others similarly situated; 14 (2) this unequal treatment was based on an impermissible classification; (3) the municipal 15 defendants acted with discriminatory intent in applying this classification; and (4) the plaintiff 16 suffered injury as a result of the discriminatory classification. Moua v. City of Chico, 324 F. 17 Supp. 2d 1132, 1137 (E.D. Cal. 2004). The denial of police protection to disfavored persons 18 stemming from discriminatory intent or motive violates the Equal Protection Clause. Estate of 19 Macias v. Ihde, 219 F.3d 1018 (9th Cir. 2000). However, “in police failure-to-serve cases, the 20 courts consistently have required more evidence of discriminatory intent than a simple failure of 21 diligence, perception, or persistence in a single case. . . .” Moua, 324 F. Supp. 2d at 1140. 22 County Defendants argue Plaintiffs fail to allege discriminatory intent or motive. (ECF 23 No. 32-1 at 17.) In opposition, Plaintiffs argue the following allegations in the FAC show 24 discriminatory intent: (1) Defendants were biased and prejudiced against Rancho Tehama based 25 on the perception that the community was impoverished, isolated, and a haven for “lowlifes, drug 26 use, and general lawlessness”; (2) based on these biases and prejudices, Defendants withheld 27 from the community ordinary and reasonable police response, protection, and enforcement 28 services compared to other communities within their jurisdiction, “particularly involving [Neal]”; 1 (3) Defendants’ discriminatory purpose was to allow the community to experience and suffer the 2 dangerous and lawless effects of the community’s own fault and making; and (4) Defendants’ 3 conduct had the discriminatory effect of exposing Plaintiffs to the danger posed by Neal. (ECF 4 No. 35 at 25–26.) 5 Plaintiffs’ somewhat attenuated claim seems to allege that officers violated their equal 6 protection rights by failing to respond to complaints about Neal because the parties resided in the 7 “impoverished,” “lowlife,” and “lawless” community of Rancho Tehama. (See ECF No. 31 at 8 52–53.) Plaintiffs fail to cite any case law where an individual raised a similar equal protection 9 claim. Indeed, “the typical fact pattern in . . . cases [regarding alleged unequal protection of 10 police services] involves domestic violence and repeated calls for police intervention by a female 11 victim,” which is not analogous to the instant case. Moua, 324 F. Supp. 2d at 1139–40. 12 Moreover, Plaintiffs fail to cite any factual allegations suggesting that officers withheld police 13 services in response to complaints about Neal because of any bias or perception about Rancho 14 Tehama, or that officers would have acted differently under the circumstances if Neal resided in 15 another community. The FAC includes numerous allegations suggesting police responded to 16 complaints about Neal in a particular way because of Neal’s specific characteristics. For 17 example, Plaintiffs allege officers indicated Neal was “not law enforcement friendly,” “would not 18 come to the door,” “had reality issues,” and “was also a firearms owner.” (ECF No. 31 at 55–57.) 19 While the FAC also alleges the officers dismissed complaints about Neal because the callers were 20 deemed “not credible,” there are no factual allegations to suggest officers based these credibility 21 determinations on broad perceptions about Rancho Tehama. (Id. at 56.) Put simply, there are no 22 factual allegations to lend even a reasonable inference that officers treated Rancho Tehama 23 residents, including Plaintiffs, worse than residents of other communities, much less that officers 24 did so based on any bias or perception about Rancho Tehama. It seems that Plaintiffs’ claim 25 relates to “a simple failure of diligence, perception, or persistence” in cases involving Neal 26 specifically, not Rancho Tehama generally. See Moua, 324 F. Supp. 2d at 1140. Plaintiffs fail to 27 explain how this is sufficient to state an equal protection claim. Accordingly, the first element for 28 such a claim — different treatment from others similarly situated — is not met. 1 For these reasons, the Court DISMISSES Plaintiffs’ equal protection claim. Although the 2 Court is hard-pressed to imagine how Plaintiffs could cure the aforementioned deficiencies in this 3 claim, the Court will allow Plaintiffs an opportunity to amend based on the liberal standard in 4 favor of granting leave to amend. See Lopez, 203 F.3d at 1130 . 5 iii. Claim Three: Monell Claim 6 Plaintiffs assert a separate cause of action against County Defendants for failure to 7 train/supervise and ratification of procedures in violation of § 1983 based on the constitutional 8 violations alleged in the due process and equal protection claims. (ECF No. 31 at 60.) County 9 Defendants assert this cause of action should be dismissed because Plaintiffs fail to allege the 10 underlying constitutional violations or that any violation occurred as a result of a policy or custom 11 adopted or ratified by a municipal policymaker. (ECF No. 32-1 at 19.) 12 Municipalities cannot be held vicariously liable for the unconstitutional acts of their 13 employees based solely on a respondeat superior theory. Monell, 436 U.S. at 691 . Rather, 14 municipalities are only “responsible for their own illegal acts.” Pembaur v. Cincinnati, 475 U.S. 15 469, 479 (1986). “In order to establish municipal liability, a plaintiff must show that a ‘policy or 16 custom’ led to the plaintiff’s injury. The Court has further required that the plaintiff demonstrate 17 that the policy or custom of a municipality ‘reflects deliberate indifference to the constitutional 18 rights of its inhabitants.’” Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016) 19 (quoting Monell, 436 U.S. 658 ; City of Canton v. Harris, 489 U.S. 378, 392 (1989)). 20 Similarly, “[u]nder [§] 1983, supervisory officials are not liable for actions of 21 subordinates on any theory of vicarious liability.” Hansen, 885 F.2d at 645–46. However, “[a] 22 supervisor may be liable if there exists either (1) his or her personal involvement in the 23 constitutional deprivation, or (2) a sufficient causal connection between the supervisor’s wrongful 24 conduct and the constitutional violation.” Id. 25 In its prior order in the related cases, the Court dismissed Plaintiffs’ Monell claim because 26 they failed to plead an underlying constitutional violation. Without an underlying constitutional 27 violation, Plaintiffs have no claim against anyone, including County Defendants. Because 28 Plaintiffs fail to allege an underlying due process or equal protection violation — which form the 1 basis of Plaintiffs’ Monell claim — the Court dismisses this claim. To the extent Plaintiffs are 2 capable of alleging a viable equal protection claim, the Court grants leave to amend. Lopez, 203 3 F.3d at 1130. 4 B. State Claims 5 County Defendants and RTA also move to dismiss Plaintiffs’ five remaining state law 6 claims. (See ECF Nos. 32, 33.) When a federal court has dismissed all claims over which it has 7 original jurisdiction, it may, at its discretion, decline to exercise supplemental jurisdiction over 8 the remaining state law claims. 28 U.S.C. § 1367 (c)(3); Carlsbad Tech., Inc. v. HIF Bio, Inc., [9] 556 U.S. 635 , 639–40 (2009). Because this Court’s jurisdiction depends on Plaintiffs stating a 10 viable equal protection claim — and the Court has indicated its doubt as to whether Plaintiffs can 11 do so — the Court declines to rule on Defendants’ challenges to Plaintiffs’ remaining state law 12 claims at this time. See Landis v. North Am. Co., 299 U.S. 248, 254 (1936) (stating that courts 13 have inherent power “to control the disposition of the causes on its docket with economy of time 14 and effort for itself, for counsel, and for litigants”). 15 IV. CONCLUSION 16 For the foregoing reasons, the Court hereby GRANTS County Defendants’ Motion to 17 Dismiss (ECF No. 32) as follows: 18 1. Plaintiffs’ due process claim (Claim One) is DISMISSED without leave to amend; 19 2. Plaintiffs’ equal protection claim (Claim Two) is DISMISSED with leave to amend; 20 3. Plaintiffs’ Monell claim (Claim Three) is DISMISSED with leave to amend to the 21 extent Plaintiffs can plausibly allege an underlying equal protection claim; and 22 4. In the interest of judicial economy, the Court declines to consider Defendants’ 23 arguments regarding Plaintiffs’ remaining state law claims, which depend on 24 supplemental jurisdiction to be heard in this Court. 25 Further, the Court DENIES RTA’s Motion to Dismiss (ECF No. 33) as moot. 26 Plaintiffs may file an amended complaint consistent with this Court’s ruling not later than 27 thirty (30) days from the electronic filing date of this Order. Defendants shall file a responsive 28 pleading not later than twenty-one (21) days thereafter. If Plaintiffs choose not to amend their 1 | federal claims, the Court will decline to exercise supplemental jurisdiction over the remaining 2 || state claims and dismiss the action. 3 IT IS SO ORDERED. 4 | DATED: September 2, 2021 5 /) 6 “ Troy L. Nuhlep> 8 United States District Judge