1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTIANE LEE NITSCHKE, Case No.: 23cv1206-LL-VET 12 Plaintiff,

ORDER GRANTING DEFENDANT’S

13 v. MOTION TO DISMISS

PLAINTIFF’S FIRST AMENDED

14 COUNTY OF SAN DIEGO,

COMPLAINT

15 Defendant. [ECF No. 13] 16 17 18 19 Before the Court is Defendant County of San Diego’s (“Defendant” or “County”) 20 Motion to Dismiss Plaintiff Christiane Lee Nitschke’s (“Plaintiff”) First Amended 21 Complaint. ECF No. 13. Defendant’s Motion has been fully briefed and the Court deems 22 it suitable for submission without oral argument. See S.D. Cal. CivLR 7.1(d)(1). For the 23 reasons stated below, the Court GRANTS Defendant’s Motion to Dismiss. 24 I. BACKGROUND 25 A. Factual Background 26 Plaintiff is a disabled individual who resides in the County of San Diego. ECF No. 27 1, First Amended Complaint (“FAC”) ¶¶ 3, 44. Plaintiff alleges that the County of San 28 Diego’s Health and Human Services Agency (“HHSA”) provides her with Mental Health 1 Services and In-Home Supportive Services (“IHSS”) which allow Plaintiff to live in the 2 community and to avoid premature or unnecessary institutionalization. Id. ¶ 50. 3 On October 14, 2021, Plaintiff applied online with the Housing Authority for the 4 County of San Diego (“HACSD”), or the County’s department of Housing and Community 5 Development Services (“HCDS”), for Section 8 tenant-based rental assistance through the 6 Housing Choice Voucher (“HCV”) program. Id. ¶ 73. Plaintiff received confirmation that 7 she had been placed on HACSD’s waiting list for an HCV. ECF No. 3-2, Ex. 18 at 497. 8 On December 9, 2021, Plaintiff mailed a “reasonable accommodation” request to HCSD 9 under Title II of the ADA, Section 504, the FHA, and applicable federal regulations. FAC 10 ¶ 83; ECF No. 3-2, Ex. 23 at 581. The request stated that Plaintiff wanted to “bypass” 11 HACSD’s HCV waiting list and “request[ed] immediate issuance of a tenant-based 12 Housing Choice Voucher as a reasonable accommodation so that [she] may have 13 meaningful access to HUD’s Section 8” HCV program. ECF No. 3-2, Ex. 23 at 582, 612– 14 14. 15 On January 26, 2022, Robin Ramirez, an HACSD Program Manager, sent Plaintiff 16 a decision letter informing Plaintiff that HACSD could not approve Plaintiff’s request. 17 FAC ¶¶ 91–92; ECF No. 3-2, Ex. 39 at 714. Specifically, the decision letter confirmed that 18 Plaintiff had “already been granted equal access to the program as shown by [her] success 19 at applying for the program and securing [her] placement on the waitlist” and further stated 20 that Plaintiff’s request to bypass other applicants could not be granted “based on HUD- 21 mandated waitlist rules.” FAC ¶ 92; ECF No. 3-2, Ex. 39 at 714. Ms. Ramirez further 22 suggested that Plaintiff “consider applying to one or more waiting lists for a project-based 23 voucher (PBV) development administered by HACSD” while waiting to be selected and 24 informed Plaintiff of other affordable housing resources and options. ECF No. 3-2, Ex. 39 25 at 714. 26 From February 2022 to February 2023, Plaintiff continued to correspond with 27 HACSD officials and employees with accommodation requests and complaints. FAC ¶¶ 28 108–143, 162–274. On February 15, 2023, Michael Vu, the County’s Assistant Chief 1 Administrative Officer, wrote Plaintiff on behalf of the County regarding Plaintiff’s 2 requests and complaints. Id. ¶ 275; ECF No. 3-8, Ex. 336 at 120. Mr. Vu noted that County 3 personnel had “been forthright in letting [Plaintiff] know of [her] waitlist status for housing 4 services” and had “attempted to provide [Plaintiff] with a path to receive services.” ECF 5 No. 3-8, Ex. 336 at 120. Further, Mr. Vu stated that “County staff will no longer engage 6 with [Plaintiff] on [her] alleged claims of violation when they have been found to be 7 unsubstantiated” and that his correspondence “conclude[d] the County’s review and 8 investigation on the matter.” Id.; FAC ¶ 276. 9 B. Procedural Background 10 On June 29, 2023, Plaintiff brought an action against Defendant and twenty-five 11 current and former County of San Diego officials and employees in their individual 12 capacities. ECF No. 1. On October 16, 2023, Plaintiff filed an amended complaint raising 13 twenty-six causes of action. ECF No. 3, First Amended Complaint (“FAC”). On November 14 3, 2023, Plaintiff voluntarily dismissed the individual defendants. ECF No. 11. 15 On December 7, 2023, Defendant filed a Motion to Dismiss Plaintiff’s First 16 Amended Complaint. ECF No. 13. Defendant’s Motion also included a request for judicial 17 notice.1 ECF No. 13-2. On December 11, 2023, Plaintiff filed an ex parte application to 18 19

20 21 1 Defendant requests the Court to take judicial notice of three documents: (1) HACSD’s Section 8 HCV Program Administrative Plan; (2) HACSD’s Annual Plan for the 2023- 22 2024 Fiscal Year; and (3) Plaintiff’s February 16, 2023 Claim against Defendant. See ECF 23 No. 13-2. Plaintiff states that these documents must be excluded. See ECF No. 14. Courts may take judicial notice of facts that “can be accurately and readily determined from 24 sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). This 25 includes “materials incorporated into the complaint or matters of public record.” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010); see also Anderson v. Holder, 26 673 F.3d 1089, 1094 n.1 (9th Cir. 2012) (“[A court] may take judicial notice of records and 27 reports of administrative bodies.”). Further, neither party disputes the authenticity of these documents or their accuracy nor are the facts contained in these documents in dispute. See 28 1 exclude matters outside the pleadings. ECF No. 14. On December 13, 2023, Defendant 2 filed an opposition to Plaintiff’s ex parte application. ECF No. 16. On December 28, 2023, 3 Plaintiff filed an Opposition (“Opposition” or “Oppo.”) to the Motion to Dismiss.3 ECF 4 No. 19. On January 4, 2024, Defendant filed a Reply (“Reply”) in support of its Motion to 5 Dismiss. ECF No. 22. 6 II. LEGAL STANDARD 7 Federal Rule of Civil Procedure 8(a) requires that a complaint include “a short and 8 plain statement of the claim showing that the pleader is entitled to relief.” Bell Atl. Corp. 9 v. Twombly, 550 U.S. 544, 555 (2007). A complaint must plead sufficient factual 10 allegations to “state a claim to relief that is plausible on its face.” Id. at 570. A claim is 11 facially plausible when the facts pleaded “allow[] the court to draw the reasonable 12 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 13

14 15 2 “The opportunities for legitimate ex parte applications are extremely limited.’” Horne v. Wells Fargo Bank, N.A., 969 F. Supp. 2d 1203, 1205 (C.D. Cal. 2013) (internal quotation 16 marks and emphasis omitted). To be proper, an ex parte application must demonstrate good 17 cause to allow the moving party “to go to the head of the line in front of all other litigants and receive special treatment.” Mission Power Eng'g Co. v. Cont'l Cas. Co., 883 F. Supp. 18 488, 492 (C.D. Cal. 1995). Additionally, Local Rule 83.3(g) and Judge Lopez’s Civil 19 Chambers Rules requires a party, before filing an ex parte application, to make a good faith effort to resolve differences with opposing counsel. See S.D. Cal. CivLR Rule 83.3(g); 20 Judge Linda Lopez’s Civil Chambers Rule 5. Here, Plaintiff’s ex parte application fails to 21 demonstrate good cause and fails to show that the use of an ex parte procedure is justified. Plaintiff also failed to make good faith meet and confer efforts to resolve the differences 22 with opposing counsel. See generally ECF Nos. 14, 16. As such, Plaintiff’s ex parte 23 application is DENIED.

24 3 Initially, Plaintiff filed a request for entry of default against Defendant with her 25 Opposition. ECF No. 20. However, shortly after filing the request, Plaintiff filed a notice clarifying that “Plaintiff did not intend to ask that the Clerk enter a default immediately” 26 but instead “intended to request that the Court consider Plaintiff’s Opposition . . . and 27 should the Court find that Defendant . . . ‘waived’ its Motion to Dismiss, then the Court would order an entry of default.” ECF No. 21 at 1–2. Because Defendant timely responded 28 1 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). A court may accept all factual 2 allegations as true, but it need not accept legal conclusions as true. Id.; Twombly, 550 U.S. 3 at 555. “[A] pleading that [is] needlessly long, or . . . highly repetitious, or confused, or 4 consist[s] of incomprehensible rambling” violates Rule 8(a). See Cafasso, U.S. ex rel. v. 5 General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1059 (9th Cir. 2011); see also Davis 6 v. Unruh, 677 F. App’x 456, 456–57 (9th Cir. 2017) (affirming dismissal of an amended 7 complaint that consisted of 159 pages and contained 172 pages of exhibits). 8 Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a 9 complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 10 12(b)(6). A court may grant a Rule 12(b)(6) dismissal when the plaintiff fails to present a 11 cognizable legal theory or allege sufficient facts to support a cognizable legal theory. 12 Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) 13 (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). While a complaint “does 14 not require ‘detailed factual allegations,’” to avoid a Rule 12(b)(6) motion to dismiss, it 15 does require “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” 16 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). For purposes of ruling on a 17 Rule 12(b)(6) motion, the court “accept[s] factual allegations in the complaint as true and 18 construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. 19 St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 20 The court has an obligation where the plaintiff “is pro se, particularly in civil rights 21 cases, to construe the pleadings liberally and to afford the [plaintiff] the benefit of any 22 doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 n.7 (9th Cir. 2010) (quoting Bretz v. Kelman, 23 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)) (emphasis omitted). The court, however, “may 24 not supply essential elements of the claim that were not initially pled.” Ivey v. Bd. of 25 Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 26 / / / 27 / / / 28 / / / 1 III. DISCUSSION 2 Defendant moves to dismiss all twenty-six causes of action in Plaintiff’s Complaint 3 under Rule 8 and Rule 12(b)(6). See ECF No. 13-1, Motion to Dismiss (“Motion” or 4 “Mot.”). The Court addresses each of Defendant’s arguments in turn. 5 A. Rule 8(a) 6 First, Defendant states that Plaintiff’s FAC should be dismissed for violating Rule 7 8(a). Mot. at 20–23. Defendant argues that the FAC is a shotgun pleading with twenty-six 8 vague and conclusory causes of action. Id. at 23. 9 Here, the FAC fails to comply with Rule 8(a)’s “short and plain statement” 10 requirement, and the Court is unable to determine whether Plaintiff has sufficiently stated 11 a claim showing that Plaintiff is entitled to relief. See Fed. R. Civ. P. 8(a)(2). Plaintiff’s 12 amended complaint is 120 pages long and includes 573 paragraphs of allegations. See 13 generally FAC. Plaintiff also includes over 2,700 pages of exhibits. See ECF No. 3-1, 3-2, 14 3-3, 3-4, 3-5, 3-6, 3-7, 3-8, 3-9, 3-10, 3-11, 3-12. Further, Plaintiff “incorporates . . . by [] 15 reference” the allegations found in the 428 preceding paragraphs without regard to the 16 relevancy of the earlier allegations or how they relate to each claim. See, e.g., FAC ¶¶ 429, 17 436, 442, 447. Consequently, it is difficult to determine which allegations support which 18 of the twenty-six causes of action and the FAC fails to give fair notice to Defendant of the 19 claims against it. As such, Plaintiff’s FAC fails to comply with Rule 8(a). 20 In addition, Plaintiff’s FAC is a “shotgun pleading.” See Weiland v. Palm Beach 21 Cnty. Sheriff’s Off., 792 F.3d 1313, 1320–23 (11th Cir. 2015). The term “shotgun pleading” 22 refers to pleading practices that violate Rule 8(a)(2)’s “short and plain statement” 23 requirement.” Id. at 1320. Many courts, including this one, have sharply criticized shotgun 24 pleading. See Mason v. Cnty. of Orange, 251 F.R.D. 562, 563 (C.D. Cal. 2008); George v. 25 Grossmont Cuyamaca Cmty. Coll. Dist. Bd. of Governors, 2022 WL 17330467, at *15–18 26 (S.D. Cal. Nov. 29, 2022). A shotgun pleading “replete with conclusory, vague, and 27 immaterial facts” prevents courts from determining the plausibility of its allegations and 28 from further analyzing the arguments. Weiland, 792 F.3d at 1322; see Cafasso, 637 F.3d 1 at 1059 (“Our district courts are busy enough without having to penetrate a tome 2 approaching the magnitude of War and Peace to discern a plaintiff's claims and 3 allegations.”); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not 4 like pigs, hunting for truffles buried in briefs.”). “Experience teaches that, unless cases are 5 pled clearly and precisely, issues are not joined, discovery is not controlled, the trial court’s 6 docket becomes unmanageable, the litigants suffer, and society loses confidence in the 7 court’s ability to administer justice.” Mason, 251 F.R.D. at 563–64 (quoting Anderson v. 8 Dist. Bd. of Trustees of Cent. Fla. Cmty. Coll., 77 F.3d 364, 367 (11th Cir. 1996)). 9 The Eleventh Circuit has “identified four rough types or categories of shotgun 10 pleadings.” Weiland, 792 F.3d at 1321. Here, there are three categories are at issue: (1) a 11 complaint “containing multiple counts where each count adopts the allegations of all 12 preceding counts, causing each successive count to carry all that came before and the last 13 count to be a combination of the entire complaint”; (2) a complaint “replete with 14 conclusory, vague, and immaterial facts not obviously connected to any particular cause of 15 action”; and (3) a complaint “asserting multiple claims against multiple defendants without 16 specifying which of the defendants are responsible for which acts or omissions, or which 17 of the defendants the claim is brought against.” Id. at 1321–23. 18 First, each of Plaintiff’s causes of action begin with the phrase: “Plaintiff realleges 19 all prior paragraphs of this complaint and incorporates the same herein by this reference.” 20 See FAC at 95–116. Second, the FAC contains over a hundred pages of allegations 21 regarding Plaintiff’s accommodation requests and complaints, but Plaintiff makes no effort 22 to connect any of these allegations with any of her separately enumerated claims. Further, 23 as stated above, the FAC consists of over 2,700 pages of exhibits, which includes 24 documents that are “not obviously connected to any particular cause of action.” Weiland, 25 792 F.3d at 1322. Lastly, Claims 1 through 19 are asserted against all defendants with no 26 27 28 1 indication as to which defendant was responsible for which acts or omissions. See FAC at 2 95–107; Weiland, 792 F.3d at 1323. This type of pleading complicates the Court's efforts 3 to understand which factual allegations support which claims and against which defendant. 4 Accordingly, dismissal of the FAC in its entirety is warranted under Rule 8(a). 5 Lastly, because the Court determines the FAC does not provide “a short and plain 6 statement of the claim showing that [Plaintiff] is entitled to relief,” the Court does not reach 7 Defendant's remaining arguments. See Fed. R. Civ. P. 8(a). 8 B. Leave to Amend 9 If a court dismisses certain claims, it “should grant leave to amend even if no request 10 to amend the pleading was made, unless it determines that the pleading could not possibly 11 be cured by allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) 12 (citations omitted). “Courts are free to grant a party leave to amend whenever 'justice so 13 requires,' and requests for leave should be granted with 'extreme liberality.’” Moss v. U.S. 14 Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009) (citation omitted) (quoting Fed. R. Civ. P. 15 15(a)(2)). Leave to amend generally should only be denied if allowing amendment would 16 unduly prejudice the opposing party, cause undue delay, or be futile, or if the moving party 17 has acted in bad faith. Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522, 532 (9th Cir. 18 2008). “This policy is applied even more liberally to pro se litigants.” Eldridge v. Block, 19 832 F.2d 1132, 1135 (9th Cir. 1987). “A pro se litigant must be given leave to amend his 20 or her complaint, and some notice of its deficiencies, unless it is absolutely clear that the 21 deficiencies of the complaint could not be cured by amendment.” Cato v. United States, 70 22 F.3d 1103, 1106 (9th Cir. 1995). 23 Pursuant to Rule 15(a) and Plaintiff’s pro se status, Plaintiff must be given leave to 24 amend her complaint because amendment would not be futile, unduly prejudice the parties, 25 or cause undue delay, and Plaintiff has not acted in bad faith. See Fed. R. Civ. P. 15(a); 26

27 4 After voluntarily dismissing the individual defendants, Plaintiff did not amend the 28 1 || Leadsinger, 512 F.3d at 532; Cato, 70 F.3d at 1106. Accordingly, the Court grants Plaintiff 2 || leave to amend to file an amended complaint. 3 If Plaintiff chooses to file an amended complaint, the amended complaint must 4 ||comply with all applicable rules, including but not limited to Federal Rule of Civil 5 || Procedure 8. See Fed. R. Civ. P. 8 (the complaint must contain “a short and plain statement 6 the claim showing that the pleader is entitled to relief’ and “[e]ach allegation must be 7 ||simple, concise, and direct.”). The amended complaint must present facts sufficient to 8 || plausibly allege each cause of action and clearly indicate which facts serve as the basis of 9 || those causes of action. See Ashcroft, 556 U.S. at 678 (“A pleading that offers ‘labels and 10 ||conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’’’). 11 Additionally, the amended complaint must be complete by itself without reference 12 ||to his original pleading. Any claim not re-alleged in the amended complaint will be 13 || considered waived. See S.D. Cal. CivLR 15.1; Lacey v. Maricopa Cnty., 693 F.3d 896, 928 14 || (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged 15 an amended pleading may be “considered waived if not repled.”); Hal Roach Studios, 16 ||Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 17 || pleading supersedes the original.’’). 18 ||IV. CONCLUSION 19 For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss with 20 leave to amend. Plaintiff shall file any amended complaint within thirty (30) days of the 21 ||issuance of this Order. If Plaintiff fails to file an amended complaint within the time 22 || provided, the Court may enter a final order dismissing this civil action. 23 IT IS SO ORDERED. 24 || Dated: June 21, 2024 NO 25 QF | 26 Honorable Linda Lopez 37 United States District Judge 28