ORDER GRANTING THE DEFENDANT'S MOTION TO DISMISS
Re: ECF No. 10
LAUREL BEELER, Magistrate Judge.
This civil rights case involves the placement and removal of protest signs on private property.
Mr. Parker lives in the City of Pittsburg in Contra Costa County, California.
In April 2016, Mr. Parker hung two signs on his property.
In the following months, Mr. Parker displayed signs in his front yard, and protested at the courthouse, police station, downtown area, and Pittsburg High School.
In mid-August, Mr. Parker received a citation for "unpermitted sign."
One month later, "unknown individuals" removed the "BORN A SLAVE MY MASTER IS A JEW" sign.
On March 23, 2017, Mr. Parker sued the city and its police department for violations of his rights to free speech and protection from unreasonable seizure of property.
Under Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed for "failure to state a claim upon which relief can be granted." A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief" to give the defendant "fair notice" of what the claims are and the grounds upon which they rest. See Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint does not need detailed factual allegations, but "a plaintiff's obligation to provide the `grounds' of his `entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a claim for relief above the speculative level . . . ." Twombly, 550 U.S. at 555 (internal citations omitted).
To survive a motion to dismiss, a complaint must contain sufficient factual allegations, accepted as true, "`to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility and plausibility of `entitlement to relief.''" Id. (quoting Twombly, 550 U.S. at 557).
If a court dismisses a complaint, it should give leave to amend unless the "the pleading could not possibly be cured by the allegation of other facts." Cook, Perkiss and Liehe, Inc. v. Northern California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990).
1. First Amendment Claim
Mr. Parker asserts a "violation of civil rights" and later says that the defendants "violated his right to free speech."
The court is not convinced that the complaint is so devoid of improper-purpose allegations. Contrary to the city's assertions, Mr. Parker does allege facts supporting the conclusion that it removed his signs for an improper purpose. He alleges that: (1) he was protesting at the time of the incident, (2) police officers asked him to cover the word "NIGGER," (3) he received a citation two days after uncovering it, (4) a municipal employee told him that he would never receive a permit for his signs, (5) police officers told him to take down the signs, and (6) when he continued to display the signs, they were removed by police officers and "unknown persons." These allegations may support a theory of retaliation or censorship. See Ariz. Students Ass'n v. Ariz. Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016); R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (noting that content-based limits on expression are "presumptively invalid"). The Supreme Court has emphasized that residential signs are a significant and affordable means of disseminating protected speech. See City of Ladue v. Gilleo, 512 U.S. 43, 54 (1994) (holding residential-sign ordinance unconstitutional).
The problem, however, is that Mr. Parker inadequately identifies the legal theory supporting his claim. It is unclear, for example, if he is challenging (1) the city's request to cover the word "NIGGER," (2) the citations, (3) the refusal to issue permits, (4) the removal of his signs, or (5) the municipal permit requirement, generally — and if so, for its unequal or improper application, any content-based impacts, or its financial burden. This is important because the complaint must give adequate notice of the claim for the defendant to have a chance to respond. Twombly, 550 U.S. at 555.
In his opposition, Mr. Parker appears to clarify his theory, and adds supporting factual allegations. For example, he says: (1) his signs should have been exempt under PMC 19.12.040(N), which exempts noncommercial signs; (2) Rojas informed him that a permit would cost $900, an "exorbitant amount"; and (3) Chief Brian Addington and Captain Ron Raman "clearly stated" that the court order was granted to remove his signs because "some of the language and/or the message it contained was offensive."
But he cannot raise these new theories and facts in his opposition. See Nat'l Union of Healthcare Workers v. Kaiser Foundation Health Plan, Inc., No. 10-CV-03686-WHA, 2013 WL 1616103, at *5 (N.D. Cal. Apr. 15, 2013) ("[T]he opposition is not the proper arena in which to raise a critical new legal theory. [The plaintiff] should have addressed this proposition in the complaint. . . ."); Patino v. Franklin Credit Mgmt. Corp., No. 16-CV-02695-LB, 2016 WL 4549001, at *7 (N.D. Cal. Aug. 29, 2016) ("The court . . . cannot consider material outside of the complaint."). He must include these in the complaint.
The court therefore dismisses Mr. Parker's First Amendment claim but grants him leave to amend, so that he can add these — and any additional — legal theories and factual allegations.
2. Fourth/Fourteenth Amendment Claim
Mr. Parker's second claim reads: "Violation of Civil Rights (4th and 14th Amendments/42 U.S.C. § 1983)."
In any event, Mr. Parker does not allege facts to support a plausible claim. He alleges that the police officers took his signs pursuant to a court order, which he attaches to his complaint.
Mr. Parker also alleges that the police harmed his property in the process of removing his signs.
The city also requests dismissal of a due process claim.
Mr. Parker's complaint fails to state a claim for a violation of the Fourth Amendment. The court dismisses the Fourth Amendment claim without prejudice.
The complaint alleges civil rights claims against the city and the Pittsburg Police Department.
Liability against a government entity starts from the premise that there is no respondeat superior liability under § 1983; i.e., no entity is liable simply because it employs a person who has violated a plaintiff's rights. See, e.g., Monell, 436 U.S. at 691; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Local governments can be sued directly under § 1983 only if the public entity maintains a policy or custom that results in a violation of the plaintiff's constitutional rights. Monell, 436 U.S. at 690-91. To impose Monell entity liability under § 1983 for a violation of constitutional rights, a plaintiff must show that: (1) the plaintiff possessed a constitutional right of which he or she was deprived; (2) the municipality had a policy; (3) this policy amounts to deliberate indifference to the plaintiff's constitutional rights; and (4) the policy is the moving force behind the constitutional violation. See Plumeau v. School Dist. # 40 County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997). The Ninth Circuit has explained how a policy may be proved:
Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (quoting Ulrich v. City and Cnty. of San Francisco, 308 F.3d 968, 984-85 (9th Cir. 2002)). The practice or custom must consist of more than "random acts or isolated events" and instead, must be the result of a "permanent and well-settled practice." Thompson v. City of Los Angeles, 885 F.2d 1439, 1443-44 (9th Cir. 1988) overruled on other grounds by Bull v. City and Cnty. of San Francisco, 595 F.3d 964 (9th Cir. 2010); see City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). Thus, "a single incident of unconstitutional activity is not sufficient to impose liability under Monell unless" there is proof that the incident "was caused by an existing, unconstitutional municipal policy . . . ." City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985).
Here, as noted above, Mr. Parker's legal theories are unclear. The court points out, however, that whatever theory he intends — e.g. retaliation based on prior litigation, the removal of his signs for content, or the permit requirement for signs — he has not adequately pled a custom or policy to claim liability against the city. In any future amended complaint alleging Monell liability, Mr. Parker must present factual allegations that establish the existence of a policy or custom.
Mr. Parker's complaint fails to state a Monell claim. The court dismisses his claims against the city without prejudice.
Mr. Parker's complaint fails to state any claims, and the court dismisses the complaint without prejudice and with leave to amend. He must file any amended complaint within 28 days from the date of this order.