Lucero v. Ramirez

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 ESTEVAN R. LUCERO, Case No.: 20-CV-2411-CAB-JLB 11 Plaintiff, ORDER GRANTING MOTION TO 12 v. DISMISS 13 SANDY RAMIREZ et al., [Doc. No. 10] 14 Defendants. [16] 17 This matter is before the Court on Defendants’ motion to dismiss the first amended 18 complaint (“FAC”). The motion has been fully briefed, and the Court deems it suitable for 19 submission without oral argument. As discussed below, the motion is granted. 20 I. California State Bar Disciplinary Procedures 21 Plaintiff alleges various violations of his federal constitutional rights in connection 22 with disciplinary proceedings before the State Bar of California (the “State Bar”). The 23 FAC contains various claims about how the State Bar’s disciplinary proceedings operate, 24 and a general understanding of the disciplinary system is necessary to evaluate the merits 25 of Defendants’ motion to dismiss. To that end, the California Supreme Court has 26 summarized the disciplinary system as follows: [28] 1 Pursuant to procedures it has adopted by rule, this court appoints the judges of the State Bar Court (rule 961), which includes a Hearing Department and a [2] Review Department (([Cal. Bus. & Prof Code] §§ 6079.1, 6086.65). [3] The Hearing Department conducts evidentiary hearings on the merits in 4 disciplinary matters. (Rules Proc. of State Bar (hereafter, Rules of Procedure), rules 2.60, 3.16.) An attorney charged with misconduct is entitled to receive [5] reasonable notice, to conduct discovery, to have a reasonable opportunity to 6 defend against the charge by the introduction of evidence, to be represented by counsel, and to examine and cross-examine witnesses. (§ 6085.) The [7] Hearing Department renders a written decision recommending whether the 8 attorney should be disciplined. (Rules Proc., rule 220.) Any disciplinary decision of the Hearing Department is reviewable by the Review Department [9] at the request of the attorney or the State Bar. (Id., rule 301(a).) In such a 10 review proceeding, the matter is fully briefed, and the parties are given an opportunity for oral argument. (Id., rules 302–304.) The Review Department [11] independently reviews the record, files a written opinion, and may adopt 12 findings, conclusions, and a decision or recommendation at variance with those of the Hearing Department. (Id., rule 305.) A recommendation of [13] suspension or disbarment, and the accompanying record, is transmitted to this 14 court after the State Bar Court's decision becomes final. (§ 6081; Rules Proc., rule 250.) [15] Although disciplinary proceedings in the State Bar Court include quasi16 judicial evidentiary hearings and decisions rendered by official adjudicators, 17 the State Bar Court is not an ordinary administrative agency. “[The State Bar Court] is not an administrative board in the ordinary sense of the phrase. It is 18 sui generis. ... [¶] ... [I]n matters of discipline and disbarment, the State Bar 19 [Court] is but an arm of this court, and ... this court retains its power to control any such disciplinary proceeding at any step. [Citation.]” (Brotsky v. State Bar 20 (1962) 57 Cal.2d 287 , 300–301, 19 Cal.Rptr. 153 , 368 P.2d 697 ; see also In 21 re Attorney Discipline System, [ 19 Cal. 4th 592, 599 (1998)] [The State Bar is not in the same class as state administrative agencies placed within the 22 executive branch].) In creating the State Bar and the State Bar Court, the 23 Legislature expressly acknowledged that this court retains all disciplinary authority the court had prior to the passage of the State Bar Act. (§§ 6087, 24 6100.) The State Bar may make only recommendations to this court, which 25 undertakes an independent determination whether the attorney should be disciplined as recommended. (In re Attorney Discipline System, supra, [19] 26 Cal.4th at pp. 600–601, 79 Cal.Rptr.2d 836 , 967 P.2d 49 ; In re Shattuck (1929) [27] 208 Cal. 6, 12 , 279 P. 998 .) 28 In re Rose, 22 Cal. 4th 430 , 438–39 (2000). 1 II. Allegations in the First Amended Complaint 2 Pro se Plaintiff Estevan R. Lucero is the subject of a conviction referral disciplinary 3 action State Bar. [Doc. No. 8 at ¶ 1.] Defendants are each attorneys for the State Bar. 4 Defendant Sandy Ramirez is a trial prosecutor with the Office of Chief Trial Counsel 5 (“OCTC”) of the State Bar. [Id. at ¶ 2.] Defendant Melanie Lawrence is Interim Chief 6 Trial Counsel of OCTC. [Id. at ¶ 3.] Defendant Vanessa Holton is General Counsel of the 7 State Bar. [Id. at ¶ 4.] Defendant Lawrence Jeffrey Dal Cerro is Special Deputy Trial 8 Counsel Administrator for the State Bar. [Id. at ¶ 5.] 9 According to the FAC, the State Bar initiated disciplinary proceedings against 10 Plaintiff in December 2019. In March 2020, Plaintiff’s proceedings were referred to the 11 State Bar’s Alternative Discipline Program (“ADP”). [Id. at ¶ 15.] In April 2020, the ADP 12 judge determined that Plaintiff was eligible to participate in the ADP because Plaintiff’s 13 substance abuse contributed to the misconduct at issue in the disciplinary proceedings. [Id. 14 at ¶ 19.] Ramirez had argued to the ADP judge that Plaintiff was not eligible to participate 15 in ADP. [Id.] 16 According to the FAC, after the ADP judge’s finding, the final step before Plaintiff 17 could be fully accepted into the ADP was the ADP Court’s approval of a stipulation of 18 facts and conclusions of law signed by Plaintiff and the State Bar. [Id. at ¶ 20.] The FAC 19 alleges that instead of cooperating with Plaintiff to reach a stipulation, Ramirez 20 commenced a “fraudulent scheme” to “maliciously harm and injure” Plaintiff, including: 21 (1) requiring the stipulation to contain false facts and unwarranted conclusions of law; (2) 22 changing the stipulation prior without Plaintiff’s knowledge; (3) manufacturing evidence; 23 and (4) initiating prosecution of three additional disciplinary matters without having 24 previously informed Plaintiff that the investigations into these matters had been pending. 25 [Id. at ¶ 23.] The FAC also alleges that Ramirez interfered in Plaintiff’s underlying 26 criminal matter by making false statements in ex parte communications with the district 27 attorney. [Id. at ¶ 24.] [28] 1 Plaintiff filed a complaint against Ramirez with the State Bar contending that her 2 “continued involvement in matters involving [Plaintiff] creates an appearance that she may 3 not exercise the discretionary functions of her office in an evenhanded manner.” [Id. at ¶ 4 25.] Notwithstanding Plaintiff’s complaint to the State Bar, Ramirez has not recused from 5 Plaintiff’s disciplinary proceedings, and Lawrence has not removed Ramirez and recused 6 the OCTC as a whole from Plaintiff’s State Bar disciplinary proceedings. [Id. at ¶ 25.] 7 Dal Cerro allegedly was responsible for reviewing Plaintiff’s ethics complaint 8 against Ramirez. [Id. at ¶ 29.] After a preliminary review, “he indicated that Ramirez’s 9 conduct is undeserving of discipline” and that Plaintiff’s complaint did “not contain even 10 a colorable violation.” [Id. at ¶ 30.] The FAC alleges Dal Cerro did not consult with 11 Plaintiff before reaching this conclusion and that his review was “little more than an 12 eloquently worded rubber-stamp.” [Id.] Holton then refused Plaintiff’s demand to appoint 13 an impartial special counsel to review his ethics complaint about Ramirez. [Id. at ¶ 33.] 14 Based on these allegations, the FAC purports to assert a total of six claims: (1) denial 15 of due process under 42 U.S.C. § 1983 ; (2) “class of one” equal protection under 42 U.S.C. 16 § 1983; (3) conspiracy to interfere with civil rights under 42 U.S.C. § 1985 ; (4) “neglect to 17 prevent” under 42 U.S.C. § 1986 ; (5) injunctive relief; and (6) declaratory relief. The first 18 claim is against Ramirez alone; the remaining claims are against all defendants. In the 19 prayer for relief, the FAC seeks declaratory judgment “concerning whether Defendants’ 20 conduct complies with the due process and equal protection clauses of the United States 21 and California Constitution,” recusal of Ramirez and Dal Cerro from Plaintiff’s 22 disciplinary proceedings and his ethics complaint against Ramirez; and damages. In the 23 body of the FAC, Plaintiff states that he “brings this injunctive relief action for an order 24 directing Lawrence to recuse the OCTC from further involvement in the State Bar Case 25 and appointing Special Counsel. [Id. at ¶ 26.] 26 Defendants move to dismiss the FAC under Rule 12(b)(1) for lack of subject matter 27 jurisdiction, under Rule 12(b)(3) for improper venue, and under Rule 12(b)(6) for failure 28 to state a claim. 1 III. Younger Abstention 2 Defendants argue that the Court must abstain from exercising jurisdiction over 3 Plaintiff’s complaint pursuant to Younger v. Harris, 401 U.S. 37 (1971). “Younger v. 4 Harris [] and its progeny espouse a strong federal policy against federal-court interference 5 with pending state judicial proceedings absent extraordinary circumstances.” Middlesex 6 Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431 , (1982). “Absent 7 ‘extraordinary circumstances’, abstention in favor of state judicial proceedings is required 8 if the state proceedings (1) are ongoing, (2) implicate important state interests, and (3) 9 provide the plaintiff an adequate opportunity to litigate federal claims.” Hirsh v. Justs. of 10 Supreme Ct. of State of Cal., 67 F.3d 708, 712 (9th Cir. 1995). “If these ‘threshold 11 elements’ are met, [the court must] then [(4)] consider whether the federal action would 12 have the practical effect of enjoining the state proceedings and whether an exception to 13 Younger applies.” ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754 , 14 759 (9th Cir. 2014) (citing Gilbertson v. Albright, 381 F.3d 965, 978 (9th Cir. 2004) (en 15 banc)). 16 “In addressing Younger abstention issues, district courts must exercise jurisdiction 17 except when specific legal standards are met, and may not exercise jurisdiction when those 18 standards are met; there is no discretion vested in the district courts to do otherwise.” 19 Vasquez v. Rackauckas, 734 F.3d 1025, 1035 (9th Cir. 2013) (citation omitted). Thus, 20 “[w]here Younger abstention is appropriate, a district court cannot refuse to abstain, retain 21 jurisdiction over the action, and render a decision on the merits after the state proceedings 22 have ended. To the contrary, Younger abstention requires dismissal of the federal action.” 23 Beltran v. State of Cal., 871 F.2d 777, 782 (9th Cir.1988) (emphasis in original). 24 A. Ongoing State Proceedings Implicating Important State Interests 25 Here, Plaintiff does not contest that his ongoing disciplinary proceedings satisfy the 26 first two requirements for Younger abstention. The Ninth Circuit has held that 27 “California’s attorney discipline proceedings are ‘judicial in character’ for purposes of 28 Younger abstention.” Canatella v. California, 404 F.3d 1106, 1110 (9th Cir. 2005). 1 Indeed, “the [California] Supreme Court retains inherent jurisdiction over attorney 2 disciplinary matters.” Hirsh, 67 F.3d at 712 . The Ninth Circuit has also “clearly stated 3 that ‘California's attorney disciplinary proceedings implicate important state interests.’” 4 Canatella, 404 F.3d at 1110 (quoting Hirsh, 67 F.3d at 712 ). 5 B. Adequate Opportunity to Litigate Federal Claims 6 Plaintiff disputes that the third requirement for Younger abstention is satisfied. It is 7 Plaintiff’s burden “to show ‘that state procedural law barred presentation of [his federal] 8 claims.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14 (1987) (quoting Moore v. Sims, 442 9 U.S. 415, 432 (1979)). Plaintiff cannot satisfy this burden here. The Ninth Circuit has 10 held that California’s attorney disciplinary proceedings provide attorneys who are subject 11 to discipline with an adequate opportunity to litigate federal constitutional claims. See 12 Canatella, 404 F.3d at 1111 (“Federal constitutional rights may be asserted in disciplinary 13 proceedings, and on judicial review of such proceedings.”) (internal citation omitted); see 14 also Dydzak v. California, No. CV08-7765VAP(AGR), 2009 WL 499745 , at *6 (C.D. Cal. 15 Feb. 26, 2009) (“Federal constitutional claims (including due process, bias, and 16 disqualification) may be raised in the State Bar Court and the California Supreme Court, 17 which satisfies the third prong of Younger abstention.”). 18 Plaintiff contends, without citation to any authority, that “raising constitutional 19 challenges effectively disqualifies Plaintiff from continued participation in the ADP since 20 such issue[s] may only be raised in the trial department.” [Doc. No. 12 at 10.] Even 21 assuming the truth of this assertion, it does not satisfy Plaintiff’s burden. That his 22 disciplinary proceeding has been referred to the ADP does not mean he is prohibited from 23 litigating his federal claims in the State Bar proceedings. The ADP is simply an avenue of 24 the State Bar’s disciplinary proceedings, and if Plaintiff does not comply with the 25 requirements for admission into the ADP, the ADP judge may return the attorney’s case 26 for processing as a standard disciplinary proceeding. See Rules of Proc. of California State 27 Bar § 5.380 et seq. To the extent Plaintiff feels he cannot adequately litigate his federal 28 claims through the ADP, he can simply opt out of the program and proceed through 1 standard disciplinary proceedings. Plaintiff’s desire to have his disciplinary proceeding 2 handled through the ADP does not change the fact that he has an adequate opportunity to 3 litigate his federal constitutional claims by seeking review of the State Bar Court’s 4 disciplinary recommendation from the California Supreme Court. The third requirement 5 for Younger abstention is therefore satisfied. 6 C. Practical Effect of Enjoining State Proceedings 7 Next, Plaintiff contends that he does not seek to enjoin his State Bar disciplinary 8 proceedings. In the FAC, however, Plaintiff states that he “brings this injunctive relief 9 action for an order directing Lawrence to recuse the OCTC from further involvement in 10 the State Bar Case and appointing Special Counsel.” [Doc. No. 8 at ¶ 26.] Requiring the 11 recusal of the entire department of the State Bar responsible for prosecuting disciplinary 12 cases in State Bar Court would have the practical effect of enjoining Plaintiff’s disciplinary 13 proceedings. Accordingly, this final requirement for Younger abstention is satisfied. 14 D. Exceptional Circumstances 15 “An exception to Younger abstention exists if there is a ‘showing of bad faith, 16 harassment, or some other extraordinary circumstance that would make abstention 17 inappropriate.’” Roshan v. Lawrence, No. 20-CV-04770-AGT, 2021 WL 151979 , at *4 18 (N.D. Cal. Jan. 18, 2021) (quoting San Jose Silicon Valley Chamber of Commerce Political 19 Action Comm. v. City of San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008)). Thus, even when 20 the four Younger factors are satisfied, a federal court may intervene when it “properly finds 21 that the state proceeding is motivated by a desire to harass or is conducted in bad faith, or 22 where the challenged statute is ‘flagrantly and patently violative of express constitutional 23 prohibitions in every clause, sentence and paragraph, and in whether manner and against 24 whomever an effort might be made to apply it.’” Huffman v. Pursue, Ltd., 420 U.S. 592 , 25 611 (1975). 26 Plaintiff fails to demonstrate any harassment, bad faith, or other extraordinary 27 circumstance making abstention inappropriate. As examples of the alleged conduct by 28 Defendants that purportedly warrants an exception, Plaintiff merely lists allegations 1 demonstrating his dissatisfaction with how Defendants have handled his disciplinary 2 proceedings, and concludes their conduct was in bad faith. [Doc. No. 12 at 11-12.] Bad 3 faith in this context, however “‘generally means that a prosecution has been brought 4 without a reasonable expectation of obtaining a valid conviction.’” Baffert v. California 5 Horse Racing Bd., 332 F.3d 613 , 621 (9th Cir. 2003) (quoting Kugler v. Helfant, 421 U.S. 6 117 , 126 n. 6 (1975)). None of Plaintiff’s conclusory allegations create a plausible 7 inference that the disciplinary proceedings against him were commenced or prosecuted in 8 bad faith. 9 Plaintiff also contends that he has demonstrated that “the State Bar is incapable of 10 fairly and fully adjudicating the issues raised by him.” [Doc. No. 12 at 13 (emphasis in 11 original)] The relevant question for Younger abstention, however, is not whether the State 12 Bar is capable, but whether the California Supreme Court, who, as explained above is the 13 actual decision maker in any State Bar disciplinary proceeding, is capable of addressing 14 his claims. See Hirsh, 67 F.3d at 713-14 (noting that “abstention is inappropriate in the 15 ‘extraordinary circumstance’ that the state tribunal is incompetent by reason of bias” and 16 that “the Bar Court functions as an administrative arm of the [California Supreme] Court, 17 which maintains final authority over discipline.”) (emphasis added). Plaintiff makes no 18 allegations and offers no evidence that overcomes the “presumption of honesty and 19 integrity” of the California Supreme Court. Id. at 714 . 20 Accordingly, because all of the requirements for Younger abstention are satisfied, 21 and no exceptional circumstances apply, the Court is obligated to abstain from exercising 22 jurisdiction over Plaintiff’s claims. If this were the only grounds for the instant motion, 23 the Court would dismiss Plaintiff’s claims seeking injunctive and declaratory relief related 24 to his disciplinary proceedings, and stay his claims seeking monetary damages. See 25 Gilbertson, 381 F.3d at 975 (“[A]n abstention-based stay order, rather than a dismissal, is 26 appropriate when damages are at issue.”). As discussed below, however, Plaintiff’s claims 27 are also subject to dismissal for other reasons. [28] 1 IV. Immunity From Liability for Monetary Damages 2 All of the defendants are immune from liability for monetary damages with respect 3 to any claims against them in their official capacities. “The Eleventh Amendment’s grant 4 of sovereign immunity bars monetary relief from state agencies such as California's Bar 5 Association and Bar Court . . . [and] extends to the individual defendants acting in their 6 official capacities.” Hirsh, 670 F.3d at 715. Plaintiff concedes this point, but he contends 7 that he is suing Defendants in the official capacities only with respect to his claims for 8 injunctive and declaratory relief, and in their individual capacities with respect to his claims 9 under 42 U.S.C. §§ 1983 , 1985, and 1986 for monetary relief. 10 Defendants also argue that Ramirez is entitled to quasi-judicial immunity for 11 Plaintiff’s claims against her in her individual capacity. “Bar Court judges and prosecutors 12 have quasi-judicial immunity from monetary damages.” Id; see also Dowd v. California 13 State Bar, No. 1:14-CV-00117-AWI-SK, 2014 WL 2858798 , at *3 (E.D. Cal. June 23, 14 2014) (“Administrative courts and prosecutors enjoy quasi-judicial immunity from 15 monetary damage suits so long as they perform functions similar to judges and prosecutors 16 in a court-like setting.”) (citing Butz v. Economous, 438 U.S. 478 (1978)). 17 Plaintiff argues that Ramirez is not entitled to quasi-judicial immunity because her 18 alleged wrongdoing occurred in the ADP as opposed to a standard disciplinary proceeding 19 and therefore she was not functioning similar to a prosecutor in a court-like setting. The 20 Court is not persuaded. The ADP is a component of the State Bar Court and an alternative 21 form of resolution or settlement of a disciplinary proceeding. Even Plaintiff’s conclusory 22 characterizations of the conduct in question demonstrates that it is the conduct of a 23 prosecutor in a “court-like setting.”1 All of Plaintiff’s individual capacity allegations as to [25] 1 Plaintiff argues that Ramirez harmed him “when she (a) asserted positions for the purpose of harassing 26 and maliciously injuring him (b) presented claims or defenses that were unwarranted under existing law without a good faith argument for an extension, modification, or reversal of the existing law, (c) knowingly 27 made false statements of fact or law to a judge in an unrelated matter and failed to correct them (d) and knowingly falsified evidence.” [Doc. No. 12 at 18,] Putting aside that these are conclusions and not [28] 1 Ramirez involve conduct performed as a state prosecutor after Plaintiff’s disciplinary 2 proceedings were initiated and not, as Plaintiff argues, as an investigator beforehand. 3 Accordingly, Ramirez is entitled to quasi-judicial immunity to Plaintiff’s claims against 4 her in an individual capacity. 5 V. Failure to State a Claim 6 The motion does not argue that any of the other Defendants are entitled to quasi7 judicial immunity, and Defendants concede that Eleventh Amendment immunity does not 8 apply to claims against Defendants in their individual capacity. Accordingly, the 9 combination of (a) the application of Younger abstention to the claims for injunctive and 10 declaratory relief, (b) Eleventh Amendment immunity for claims against Defendants in 11 their official capacities, and (c) quasi-judicial immunity for Ramirez, does not allow for 12 dismissal of Plaintiff’s claims for monetary damages against the other three Defendants in 13 their individual capacities. Nevertheless, all of Plaintiff’s monetary damages claims are 14 also subject to dismissal for failure to state a claim under Rule 12(b)(6).2 [17] 18 is all conduct of a prosecutor serving as an advocate for the State Bar in a court proceeding. That it occurred while Plaintiff’s disciplinary proceeding was in the ADP does not eliminate Ramirez’s quasi19 judicial immunity for claims arising out of such conduct because it was all conduct of an advocate for the State Bar. “Prosecutors are absolutely immune for quasi-judicial activities taken within the scope of their [20] authority.” Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986). 21 2 The Court applies the familiar standards here. To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 22 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Thus, the Court “accept[s] factual allegations in the complaint as true and 23 construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). On the other hand, the Court is “not bound to [24] accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quoting 25 Twombly, 550 U.S. at 555 ). Nor is the Court “required to accept as true allegations that contradict exhibits attached to the Complaint or matters properly subject to judicial notice, or allegations that are merely 26 conclusory, unwarranted deductions of fact, or unreasonable inferences.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). “In sum, for a complaint to survive a motion to dismiss, the 27 non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) [28] 1 A. Denial of Due Process Under 42 U.S.C. § 1983 2 The FAC states that Plaintiff “has a property interest in his license to practice law 3 and enjoys a right to due process at all phases of State Bar proceedings against [him].” 4 [Doc. No. 8 at ¶ 37.] Plaintiff asserts this claim against Ramirez only, alleging that she 5 “abused the authority of her office and intentionally used one or more legal procedures in 6 order to achieve an improper purpose and deprive [Plaintiff] of due process, including, but 7 not limited to: unlawfully interfering in [Plaintiff’s] criminal matter, falsifying evidence, 8 and presenting meritless and frivolous positions in the ADP Court.” [Id.] In sum, Plaintiff 9 contends that he has not received procedural due process in his ongoing disciplinary 10 proceedings based on prosecutorial misconduct by Ramirez. Even assuming Ramirez is 11 not entitled to quasi-judicial immunity, the FAC does not state a claim against her for denial 12 of due process. 13 First, the FAC alleges no facts to support these conclusory statements of misconduct 14 by Ramirez. The Court is not required accept such conclusions as true on a motion to 15 dismiss. Daniels-Hall, 629 F.3d at 998 . This alone is grounds to dismiss this claim under 16 Rule 12(b)(6). 17 Second, even if Plaintiff alleged facts supporting these conclusions, such allegations 18 would not be enough for this claim to survive. “[T]he touchstone of due process analysis 19 in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability 20 of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). Plaintiff’s disciplinary 21 proceedings are still pending, meaning that he cannot state a claim for a due process 22 violation arising out of Ramirez’s conduct because no trial has occurred yet. Moreover, 23 the Ninth Circuit has held that “[t]he State of California provides attorneys subject to 24 discipline with more than constitutionally sufficient procedural due process.” Rosenthal v. 25 Justs. of the Supreme Ct. of California, 910 F.2d 561 , 565 (9th Cir. 1990). Thus, Plaintiff 26 has ample opportunity to address Ramirez’s alleged misconduct in his disciplinary 27 proceedings or on a petition for review by the California Supreme Court. Accordingly, [28] 1 even if Ramirez did not have quasi-judicial immunity, the FAC does not state a claim 2 against Ramirez for violation of due process. 3 B. “Class of One” Equal Protection under 42 U.S.C. § 1983 4 “To state a § 1983 claim for violation of the Equal Protection Clause a plaintiff must 5 show that the defendants acted with an intent or purpose to discriminate against the plaintiff 6 based upon membership in a protected class.” Thornton v. City of St. Helens, 425 F.3d 7 1158, 1166 (9th Cir. 2005) (internal quotation marks and citation omitted). “Although ‘[a] 8 successful equal protection claim may be brought by a “class of one,”’ the plaintiff still 9 bears the burden of proving that she ‘has been intentionally treated differently from others 10 similarly situated and that there is no rational basis for the difference in treatment.’” Id. at 11 1167 (quoting SeaRiver Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662 , 679 (9th Cir. 12 2002)). “[F]orms of state action, however, which by their nature involve discretionary 13 decisionmaking based on a vast array of subjective, individualized assessments,” do not 14 implicate “class of one” equal protection issues. Engquist v. Oregon Dep't of Agr., 553 15 U.S. 591 , 603 (2008). “It is no proper challenge to what in its nature is a subjective, 16 individualized decision that it was subjective and individualized.” Id. at 604 . Thus, “class17 of-one plaintiffs must show an extremely high degree of similarity between themselves and 18 the persons to whom they compare themselves.” Clubside, Inc. v. Valentin, 468 F.3d 144 , 19 159 (2d Cir. 2006). 20 Plaintiff asserts this equal protection claim against all four Defendants. As to 21 Ramirez, the claim appears to be premised on the same conclusory allegations that form 22 the basis of Plaintiff’s denial of due process claim. As to Lawrence, Dal Cerro, and Holton, 23 this claim appears to be premised on their handling of Plaintiff’s ethics complaint against 24 Ramirez. The FAC, however, lacks any allegations of whom Plaintiff is similarly situated 25 with, and how Defendants treated him differently from these similarly situated individuals. 26 Moreover, the conduct about which Plaintiff complains involves “subjective, 27 individualized assessments” of Plaintiff’s conduct underlying his disciplinary proceeding, 28 or of Ramirez conduct in that proceeding, that preclude the existence of a “class of one” 1 equal protection claim. Errico v. State Bar of Nevada, No. 216CV01159APGNJK, 2017 2 WL 4350974 , at *3 (D. Nev. Sept. 28, 2017) (dismissing “class of one” equal protection 3 claim by attorney related to state bar disciplinary proceedings, noting that “[a] court should 4 not extend the ‘class of one’ theory where ‘the need for federal judicial review under equal 5 protection “is especially thin,”’ or where doing so would either upset or transform long6 standing law or practices or ‘generate a flood of new cases.’”) (quoting Engquist v. Oregon 7 Dep’t. of Agriculture, 478 F.3d 985 , 994–96 (9th Cir. 2007)). Further, as Defendants point 8 out, the outcome of his ethics complaint against Ramirez does not implicate any of 9 Plaintiff’s rights and therefore cannot form the basis of a “class of one” equal protection 10 claim. Accordingly, the FAC fails to state a “class of one” equal protection claim. 11 C. Claims under 42 U.S.C. § 1985 and 1986 12 Plaintiff’s claim for conspiracy under section 1985 is premised on his claim that 13 Defendants violated his rights under the equal protection clause of the Fourteenth 14 Amendment. However, “[t]he absence of a section 1983 deprivation of rights precludes a 15 section 1985 conspiracy claim predicated on the same allegations.” Caldeira v. Cty. of 16 Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989). Accordingly, the FAC fails to state a claim 17 under section 1985. And because “[a] claim can be stated under section 1986 only if the 18 complaint contains a valid claim under section 1985,” Karim-Panahi v. Los Angeles Police 19 Dep’t, 839 F.2d 621, 626 (9th Cir. 1988), the FAC fails to state a claim under section 1986 20 as well. 21 VI. Improper Venue 22 Defendants also argue that the FAC should be dismissed for improper venue 23 pursuant to Rule 12(b)(3). “Once venue is challenged, the plaintiff bears the burden of 24 showing that venue is proper.” Synoptek, LLC v. Synaptek Corp., 326 F. Supp. 3d 976 , 986 25 (C.D. Cal. 2017) (citing Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491 , 26 496 (9th Cir. 1979)). 27 According to 28 U.S.C. § 1391 (b), a civil action may be brought in: [28] 1 (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; [2] (2) a judicial district in which a substantial part of the events or omissions [3] giving rise to the claim occurred, or a substantial part of property that is the 4 subject of the action is situated; or 5 (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject 6 to the court's personal jurisdiction with respect to such action. 7 The FAC alleges that venue is proper in this district “because the events or omissions 8 giving rise to each of these causes of action occurred in San Diego County, State of 9 California, within the Southern District.” 3 [Doc. No. 8 at ¶ 8.] The factual allegations in 10 the FAC, however, do not support this conclusion. All of Plaintiff’s claims arise out of 11 Defendants’ conduct in connection with his disciplinary proceedings before the State Bar 12 Court. The FAC does not allege that the State Bar Court was located in San Diego, or that 13 any of the Defendants were in San Diego when the alleged wrongdoing occurred, and 14 Plaintiff does not argue otherwise in his opposition. The only allegation in the FAC of any 15 conduct by Defendants that could ostensibly be construed as having occurred in San Diego 16 is the vague allegation that Ramirez communicated with the San Diego District Attorney 17 concerning Plaintiff’s criminal case. [Doc. No. 8 at ¶ 24.] This solitary allegation about 18 Ramirez does not support a finding that “a substantial part of the events or omissions giving 19 rise to” Plaintiff’s claims against Ramirez along with three other Defendants occurred in 20 this district. 21 In his opposition, Plaintiff argues that venue is proper here because his claims center 22 on Ramirez’s conduct in connection with the negotiation of a stipulation for the ADP judge. 23 [Doc. No. 12 at 2.] Plaintiff analogizes the stipulation to a contract and cites authority 24 concerning the determination of proper venue in contract disputes. This analogy is inapt 25 and unpersuasive. Ramirez was acting in her role as a State Bar prosecutor, and a [27] 3 The FAC alleges that each of the Defendants reside in districts other than this one, so the first category [28] | || stipulation of facts in a judicial context is not similar to a contract. Accordingly, the Court 2 || finds that Plaintiff has not satisfied his burden to demonstrate that venue is proper in this 3 |} district. 4 Pursuant to 28 U.S.C. § 1406 , “[t]he district court of a district in which is filed a case 5 laying venue in the wrong division or district shall dismiss, or if it be in the interest of 6 || justice, transfer such case to any district or division in which it could have been brought.” 7 || Thus, in addition to all of the other grounds set forth herein, the FAC is subject to dismissal 8 || for improper venue as well. 9 VII. Conclusion 10 As discussed above: (1) the Court must abstain from exercising jurisdiction over 11 Plaintiff's claims pursuant to Younger, which requires dismissal of claims for injunctive 12 declaratory relief and would (absent other grounds for dismissal) require staying any 13 ||monetary damages claims; (2) all Defendants are entitled to Eleventh Amendment 14 ||}immunity from any claims for monetary damages against them in their official capacities; 15 Ramirez is entitled to quasi-judicial immunity for claims from monetary damages in 16 || her individual capacity; (4) the FAC fails to state a claim under Rule 12(b)(6) for violations 17 || of Plaintiffs rights under 42 U.S.C. §§ 1983 , 1985, and 1986; and (5) Plaintiff has not 18 satisfied his burden to demonstrate that this district is the proper venue for this action. 19 || Accordingly, for all of these reasons, Defendants’ motion to dismiss is GRANTED. 20 || Because Plaintiff, having already amended once in response to a motion to dismiss, does 21 ||not identify any additional facts that he could allege that would overcome all of these 22 ||myriad deficiencies in the FAC, and because the Court finds that any amendment would 23 ||be futile, this case is DISMISSED WITH PREJUDICE. 24 It is SO ORDERED. 25 Dated: April 16, 2021 € [26] Hon. Cathy Ann Bencivengo 27 United States District Judge [28] te