EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff is a federal inmate proceeding without counsel in this action brought under 42 U.S.C. § 1983. Following screening, the filing of an amended complaint, and a substitution, claims against four defendants remain in the action: Morazzini, McKinney, Zuniga, and McCauley. ECF No. 34. Morazzini, McKinney, and McCauley move to dismiss the claims against them. ECF Nos. 51, 52. For the reasons that follow, Morazzini's motion should be granted. The motion filed by McKinney and McCauley should be granted in part and denied in part.
Plaintiff had a license to practice as a landscape architect in California. ECF No. 30 at 14. During the process of renewing the license, he informed the California Architects Board's Landscape Architecture Technical Committee ("the Board" or "the LATC") that he had recently pleaded guilty to a federal felony charge of distribution of images of children engaged in sexually explicit conduct. Id. at 30. This notification was required by California law. Id. Following the Board's filing of an accusation against plaintiff and a subsequent administrative hearing, the Board found that the conviction called for the revocation of plaintiff's license pursuant to California Business and Professions Code § 490(a) and California Code of Regulations, Title 16, § 2655.
Plaintiff believes that his license should not have been revoked because he disagrees with the Board's decision that his crime had a sufficient nexus with his profession to justify revocation. Id. at 13. He challenges that decision, and a number of other aspects of the administrative proceeding, as violative of due process. He also challenges the statutes on which the decision rested. Plaintiff's unnecessarily long and convoluted amended complaint (over 50 pages, exclusive of exhibits), alleges eleven "counts"; i.e., claims for relief. These claims fall into two categories: (1) claims that plaintiff's procedural due process rights were violated in various ways during the administrative process that ended in revocation of his license and (2) claims that the statutes through which his license was revoked are unconstitutionally void, overbroad, or vague as applied to him.
Plaintiff claims that the following actions deprived him of his procedural due process rights:
Plaintiff challenges the following statutes as applied to him:
Plaintiff seeks a number of declaratory orders and injunctions, as well as money damages.
In a detailed order screening plaintiff's original complaint, the court made several rulings that remain relevant. First, the court found that plaintiff's claims were barred by the Eleventh Amendment, because plaintiff sought retrospective relief against state officials in their official capacities (e.g., a declaration that defendants' past conduct was unconstitutional). ECF No. 17 at 13-14, adopted by ECF No. 23.
Second, the court found that plaintiff's allegations did not show a denial of the process required by the U.S. Constitution, because his complaint and its attachments showed that he had ample notice of the hearing and an opportunity to defend himself, plaintiff had not alleged sufficiently that the incomplete accusation failed to provide adequate notice of the charges against him, the Constitution does not require that state officials provide notice of state-law remedies (here, the time period for seeking state court review), and the allegations did not show how any mailing irregularities deprived plaintiff of a meaningful opportunity to respond to the accusation. Id. at 19-21.
Lastly, the court rejected plaintiff's as-applied vagueness challenges to § 490(a), § 2655, and § 2656(b). Id. at 28-33. The court analyzed the statutes and found that plaintiff had not sufficiently alleged that they were unconstitutionally vague or overbroad as applied to him. Id.
As plaintiff's initial complaint did not challenge the imposition of renewal fees or costs on plaintiff, the screening order did not address plaintiff's claims regarding such.
On July 31, 2019, the court noted the substitution of Laura Zuniga for McCauley as to all claims against McCauley in his official capacity. ECF No. 70.
Defendants seek dismissal of plaintiff's complaint under Federal Rule of Civil Procedure 12(b)(6).
For purposes of dismissal under Rule 12(b)(6), the court generally considers only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice, and construes all well-pleaded material factual allegations in the light most favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).
Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal theory, or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d at 956. Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984).
Pro se pleadings are held to a less-stringent standard than those drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). However, the Court need not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. See Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (citing Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)).
Plaintiff alleges that Morazzini denied him due process when he failed to investigate possible mail tampering at OAH after plaintiff sent him a letter on the subject. ECF No. 30 at 40-42. According to plaintiff, he sent a certified letter to Morazzini on May 5, 2016. Id. at 40. In the letter, which is attached as Exhibit I to the amended complaint, plaintiff wrote of a "most recent incident of returned mail," which he described only as a letter to the ALJ who had heard his case. Id. at 105. Plaintiff asked Morazzini to investigate possible mail obstruction. Id.
Plaintiff claims that his mail to OAH began being returned to him in February 2016. Id. at 29-30. Among the documents returned to him was his motion for reconsideration of the ALJ's denial of his motion to dismiss the accusation (in which he had argued that dismissal was warranted because the accusation had not been properly served on him). Id. at 30. Plaintiff believes that this denied him due process because the ALJ and/or Board did not consider the motion for reconsideration in rendering the ultimate decision to revoke his license. Id.
In screening plaintiff's initial complaint, the court stated:
ECF No. 17 at 21. Plaintiff relies heavily on the court's second screening order, issued regarding his amended complaint, in which the court found that "[f]or the limited purposes of § 1915A screening and liberally construed, the amended complaint states a potentially cognizable due process claim against defendant[] . . . Morazzini." ECF No. 34 at 2. Plaintiff believes that this statement precludes Morazzini from arguing that plaintiff has failed to state a claim against him. ECF No. 63 at 6-7. Plaintiff is mistaken.
The court's second screening order stopped short of finding plaintiff's claims cognizable. Instead, the court deliberately characterized that the claims as "potentially" cognizable, and only for purposes of screening. In contrast to the first screening order, it did not perform a rigorous review of the 50-plus page amended complaint, which, in the court's words, was "complicated, redundant, and overly detailed." ECF No. 34 at 1. A screening order is often a cursory review of the complaint construed in favor of allowing the action to proceed. Beamon v. Pollard, No. 15-CV-560, 2016 U.S. Dist. LEXIS 60505, at *2-3 (E.D. Wis. May 6, 2016) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). It issues without the benefit of a defendant's response, and once a defendant presents his arguments, the court must review them. See id. Otherwise, § 1915A would render Rule 12(b)(6) obsolete in prisoner actions and would deprive defendants of an opportunity to present their arguments on the sufficiency of the complaint. The screening order did not preclude defendants from presenting Rule 12(b)(6) motions.
Morazzini argues in his motion that plaintiff has not alleged an injury caused by Morazzini. ECF No. 51 at 10-13. Morazzini provides two frames for this argument: Article III standing and proximate causation. Id. The court need not address many facets of these arguments because one very simple argument presented by Morazzini justifies dismissal of the claim against him — OAH was not the proper place to send the motion for reconsideration. Under California law, the motion should have been addressed to the agency, who could then opt to refer it to an ALJ. Cal. Gov't Code § 11521. Thus, even if the agency did not consider the motion for reconsideration and this failure deprived plaintiff of due process (which the court does not decide), this deprivation was not traceable to Morazzini's decision not to respond to plaintiff's letter. Scalia v. Cty. of Kern, 308 F.Supp.3d 1064, 1072 (E.D. Cal. 2018) ("Section 1983 requires that there be an actual connection or link between the actions of Defendants and the constitutional deprivations alleged to have been suffered by Plaintiff.").
Moreover, just as in the initial complaint, plaintiff's allegations make clear that he was able to raise the issue of defective service with the ALJ, who considered and rejected his arguments. ECF No. 30 at 37-38. As the court stated in its initial screening order, the allegations do not plausibly suggest that any mail irregularities at OAH deprived him of a meaningful hearing on the service issue. Accordingly, the claims against Morazzini must be dismissed. Because plaintiff has had two opportunities to state a viable claim against Morazzini, and because it appears that no amendment could save the claim, the dismissal should be without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (dismissal without leave to amend is appropriate where the pleading could not possibly be cured by the allegation of other facts).
McCauley argues that all claims brought against him in his official capacity must be dismissed because he is no longer the executive officer of the LATC. ECF No. 52 at 10. However, these claims are not extinguished simply because McCauley has left office. Instead, they continue by operation of Federal Rule of Civil Procedure 25(d) against McCauley's successor in office, Zuniga, who has been substituted into the action as to those claims. ECF No. 70. Accordingly, the official capacity claims may not be dismissed by reason of McCauley's departure but will continue against defendant Zuniga. As defendants have presented no further arguments for dismissal of these claims, the motion to dismiss plaintiff's official capacity claims against the executive officer of the LATC (now Zuniga) must be denied.
Defendant McKinney urges the court to dismiss the claims against him contained in Count 6 of the complaint. There, plaintiff alleges that the Board's imposition of an order to pay costs of enforcement against him violated his due process rights for various reasons. The court agrees with McKinney that the complaint does not contain facts showing his involvement in the decision to impose costs, and thus, to the extent plaintiff alleges a claim against McKinney based on that decision, such claim must be dismissed. James v. Rowlands, 606 F.3d 646, 653 n.3 (9th Cir. 2010) ("Of course, § 1983 imposes liability on a defendant only if he or she personally participated in or directed a violation."). The dismissal should be without prejudice to allow plaintiff an opportunity to include facts showing McKinney's involvement in an amended complaint, if such facts exist.
Plaintiff also alleges in Count 6 that McKinney deprived him of due process when he failed to provide him notice of the time to file an administrative writ in state court under California Government Code § 11523 and California Code of Civil Procedure § 1094.5. The court reviewed and rejected this claim when plaintiff raised it in his initial complaint, because "procedural due process does not require notice of state-law remedies." ECF No. 17 at 22. The court noted that, although the claim appeared to be futile, it would give plaintiff an opportunity to try to cure the claim. Plaintiff's amended complaint does not provide any new facts which, if credited, would show that McKinney deprived plaintiff of the process required by the U.S. Constitution by failing to provide notice of the time period for seeking state court review. Because plaintiff has had an opportunity to save the claim and it appears he cannot do so, this claim should be dismissed without leave to amend.
Plaintiff reiterates in Count 7 that McCauley and McKinney deprived him of due process when McKinney did not provide him notice of the § 11523 timeframe. This claim fails for the same reason as the claim against McKinney in Count 6, and must be dismissed without leave to amend.
Plaintiff presents other allegations in Count 6 regarding McKinney's rejection of his petition for reconsideration as untimely, and McCauley's alleged failure to correct that "mistake." ECF No. 30 at 25-27. Defendants do not address these allegations in their motion to dismiss, and thus the court has no cause to dismiss them at this time.
McKinney and McCauley seek dismissal of plaintiff's claim that they deprived him of due process by imposing on him a $400 license renewal fee, plus a $200 late charge, without providing him with a hearing regarding his ability to pay the fee. According to defendants, they were not obligated to provide a hearing on plaintiff's ability to pay, although they provide no legal citations or reasoning supporting this position. ECF No. 52 at 12. However, the allegations of the complaint and the documents attached thereto show that plaintiff did not actually pay any fees at all, and that his license was revoked due to his child pornography conviction, not a failure to pay fees. The complaint lacks facts showing that plaintiff was deprived of a constitutionally protected interest when McKinney informed plaintiff that he would have to pay the fees, because the intervening revocation of plaintiff's license obviated any requirement that he pay the fees. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (explaining that the Due Process Clause requires certain procedures before an individual is deprived of life, liberty, or property). Thus, plaintiff's claims regarding the license and late fees should be dismissed with leave to amend to allow plaintiff an opportunity to present facts showing that he was deprived of a protected interest by McKinney's letter (or otherwise) regarding the license and late fees.
McKinney seeks dismissal of plaintiff's claim against him that he was not provided with adequate notice and a timely hearing on the revocation of his license. According to McKinney, the amended complaint lacks facts showing his involvement in serving the notice of the accusation or setting the hearing. The court agrees. While plaintiff provides facts on this matter in his opposition brief, the facts do not appear in the amended complaint. This claim should be dismissed with leave to amend to allow plaintiff an opportunity to state facts showing McKinney's involvement in the service of notice or the timing of the hearing.
McCauley also seeks dismissal of plaintiff's claim against him in his individual capacity that he deprived plaintiff of adequate notice and a timely hearing. McCauley argues that plaintiff is bound by the ALJ's determination that notice was proper and that the claim is otherwise barred because plaintiff could have raised it in his state writ proceeding. Perhaps so, but McCauley has provided the court with no argument or authority supporting these assertions, and the court declines to perform this work on his behalf. Nevertheless, as with McKinney, the amended complaint lacks facts showing McCauley's personal involvement in or responsibility for serving the accusation or setting the hearing. Accordingly, the claim should be dismissed with leave to amend.
The court notes for the sake of clarity that defendants' motions to dismiss do not address many claims and that these claims await further adjudication.
For the foregoing reasons, it is hereby RECOMMENDED that:
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Cal. Bus. & Prof. Code § 490(a).
Cal. Code Regs. tit. 16, § 2655.
As used in this chapter:
