background of this litigation, and the parties’ arguments as set forth in the briefing on the motion 25 to dismiss.

26 2 Plaintiffs also purport to name the Binford Community as a plaintiff. Id. at 2. This is improper, as Plaintiffs, who are not lawyers, can only represent themselves. See C.E. Pope Equity Trust v. 27 U.S., 818 F.2d 696, 697 (9th Cir. 1987) (“Although a non-attorney may appear in propria persona 1 Derning additionally asserts a claim for violation of Title II of the Americans with Disabilities 2 Act, 42 U.S.C. §§ 12131, et seq. Because the gravamen of Plaintiffs’ claims is the seizure and 3 destruction of their property, the Court addresses the claims under the Fourth, Fifth, and 4 Fourteenth Amendments first. 5 Plaintiffs allege that their belongings were seized and destroyed without just 6 compensation, legally mandated storage, or a meaningful opportunity to retrieve their possessions 7 in violation of the Fourth, Fifth, and Fourteenth Amendments. “Because homeless persons’ 8 unabandoned possessions are ‘property’ within the meaning of the Fourteenth Amendment, the 9 C[ounty] must comport with the requirements of the Fourteenth Amendment’s due process clause 10 if it wishes to take and destroy them.” See Lavan v. City of Los Angeles, 693 F.3d 1022, 1032 (9th 11 Cir. 2012) (citation omitted). In addition, “[t]he Fourth Amendment protects Plaintiffs and other 12 homeless individuals’ retreats . . . .” Cobine v. City of Eureka, 250 F. Supp. 3d 423, 434 (N.D. 13 Cal. 2017). Under the Fourth Amendment, the inquiry is whether the County acted reasonably in 14 seizing Plaintiffs’ possessions. Id. (internal quotations and citation omitted). “A seizure 15 conducted without a warrant may still be reasonable if the official believes the property is 16 abandoned . . . , believes the property poses an immediate threat to public health or safety . . . , or 17 holds the property for its return and notifies the property owner . . . .” Prado v. City of Berkeley, 18 No. 23-CV-04537-EMC, 2024 WL 3697037, at *12 (N.D. Cal. Aug. 6, 2024). But “[a]bsent these 19 preconditions, a seizure is unreasonable.” Id. 20 Here, Plaintiffs plausibly allege that Defendants took unabandoned, non-hazardous 21 property from their shelters, such as drinking water and other necessities, without providing 22 legally mandated storage or a meaningful opportunity to retrieve the items. Plaintiffs allege that 23 they “had their valuables taken into ‘storage’ . . . only to find out all their belongings had been 24 destroyed.” See Compl. at 2, 6. For Plaintiff Derning, these items included, among others, a bike 25 trailer he uses to “fetch water and food.” See Derning Decl. ¶ 6.3 For Plaintiff Silveria, these 26 3 Each plaintiff has attached a declaration in support of their verified complaint and application for 27 a temporary restraining order and preliminary injunction, all which were filed as a single 1 items included, among others, fencing, an awning, and a little gate. Silveria Decl. ¶ 6. For 2 Plaintiff Limeta, these items included, among others, potable water, a fridge, and a burner for 3 cooking. Limeta Decl. ¶ 6, 9. The Court finds these allegations sufficient to state a plausible 4 claim for relief under the Fourth and Fourteenth Amendments. In light of Defendants’ statement 5 that if “the Court determine[s] that Plaintiffs have stated a plausible claim at this stage in the 6 litigation, Defendants concede that there is no legal authority that would allow them to dispose of 7 non-hazardous personal property within 90-days[,]” see ECF 29 (“Supp. Br.”) at 3, their motion to 8 dismiss is DENIED as to Plaintiffs’ claims that Defendants seized and destroyed property in 9 violation of the Fourth and Fourteenth Amendments.4 10 Defendants’ motion to dismiss is, however, GRANTED with respect to Plaintiffs’ claim 11 under the Fifth Amendment. To the extent Plaintiffs challenge the lack of notice in conjunction 12 with the failure to provide just compensation under the Fifth Amendment, the takings clause only 13 “requires compensation in the event of otherwise proper interference amounting to a taking.” 14 Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 537 (2005) (emphasis in original) (internal quotation 15 marks and citation omitted); see also Cedar Point Nursery v. Hassid, 594 U.S. 139, 147 (2021) 16 (explaining that “[w]hen the government physically acquires private property for a public use, the 17 Takings Clause imposes a clear and categorical obligation to provide the owner with just 18 compensation.”). Plaintiffs allege no such interference here. Rather, they allege that Defendants 19 acted unlawfully when they seized and destroyed their property as part of a clean-up of the 20 Binford Road encampment. This is not actionable under the Fifth Amendment. See Cooley v. 21

22 4 Plaintiffs, however, have failed to allege a plausible Monell claim against the County. See Vinson v. Thomas, 288 F.3d 1145, 1155 (9th Cir. 2002) (“Section 1983 does not confer rights, but 23 instead allows individuals to enforce rights contained in the United States Constitution and defined by federal law.”). Threadbare assertions of a policy, pattern, or practice, like the ones in 24 Plaintiffs’ complaint, are insufficient to state a plausible Monell claim. See AE ex rel. Hernandez 25 v. Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012) (“Section 1983 suits against local governments alleging constitutional rights violations by government officials cannot rely solely on 26 respondeat superior liability. Instead, plaintiffs must establish that the local government had a deliberate policy, custom, or practice that was the moving force behind the constitutional violation 27 [they] suffered.”) (internal quotations and citations omitted; modification in original). 1 City of Los Angeles, No. 218CV09053CASPLAX, 2019 WL 1936437, at *5 (C.D. Cal. May 1, 2 2019) (dismissing Fifth Amendment takings claim where the unhoused plaintiffs alleged that the 3 defendant’s seizure of their property was unlawful rather than a proper interference requiring just 4 compensation and where there were no allegations that the alleged seizure that occurred during an 5 “ ‘area cleaning’ ” was made pursuant to powers of eminent domain). For these reasons, 6 Defendants’ motion to dismiss is GRANTED WITH LEAVE TO AMEND as to Plaintiffs’ 7 claims under the Fifth Amendment. 8 Defendants’ motion is also GRANTED as to Plaintiffs’ substantive due process claim 9 under the Fourteenth Amendment. In their opposition, Plaintiffs state that they “submitted a 10 Fourteenth Amendment Claim regarding the death of two dogs that occurred after Sheriffs took 11 away dog fences . . . .” ECF 23 (“Opp.”) at 7. Plaintiffs allege that Defendants deprived them of 12 the ability to have enclosures and shade structures for their pets along Binford Road. Compl. at 8. 13 According to Plaintiffs, it was foreseeable that without an enclosure, a dog could be hit by a car, 14 and that because Defendants removed the enclosures Plaintiffs had set-up for their pets, their dogs 15 were hit by cars and died. Id. Additionally, Plaintiffs Silveria and Limeta still own dogs, and 16 those pets are likely to get hit by cars or suffer unnecessarily unless they have some small, 17 enclosed area with shade, water, and food. Id. at 9. 18 These allegations do not state plausible claim for relief for three reasons. First, the loss of 19 a pet under the circumstances alleged here is not legally cognizable under the Fourteenth 20 Amendment. See Maglaya v. Kumiga, No. 14-CV-3619, 2015 WL 4624884, at *6 (N.D. Ill. Aug. 21 3, 2015) (dismissing alleged deprivation of property – the killing of the plaintiff’s dog – as non- 22 cognizable under the Fourteenth Amendment). 23 Second, even if the loss of a pet were actionable under the Fourteenth Amendment, 24 Plaintiffs have not sufficiently pleaded the requisite action by Defendants. The lack of enclosures 25 or shade structures that form the basis for Plaintiffs’ claims, see Compl. at 8, are circumstances 26 Plaintiffs would have faced notwithstanding any action by Defendants. Thus, the removal of 27 Plaintiffs’ pet enclosures did not “plac[e] Plaintiffs in an inherently more dangerous situation than 1 process claim where generalized dangers of living on the street preexisted plaintiffs’ relocation to 2 encampment from which plaintiffs faced forced eviction by the city). 3 Third, even if Plaintiffs had adequately pleaded that Defendants engaged in conduct that 4 placed them in danger, the allegations in the complaint fail to plausibly allege that Defendants 5 undertook any action with deliberate indifference. As Plaintiffs allege in their complaint, the 6 County has designated Binford Road “as a permitted place [where] people experiencing 7 homelessness can reside.” Compl. at 3. The County has personnel and contractors “working on 8 Binford Road [to] provid[e] housing services, trash removal, and bathroom services[,]” and the 9 County has received millions of dollars in state funding “to get everyone on Binford Road into 10 housing by August 2026.” Id. The County offers those living along Binford Road “case 11 management,” and despite the clean-ups that are the subject of some of Plaintiffs’ claims, they 12 acknowledge that “the County of Marin is doing some good things on Binford [Road].” Id. at 1. 13 These allegations fall short of plausibly pleading the deliberate indifference required for a 14 Fourteenth Amendment claim, i.e., that Defendants recognized an “unreasonable risk and actually 15 intend[ed] to expose the plaintiff to such risks without regard to the consequences to the plaintiff.” 16 See Patel v. Kent Sch. Dist., 648 F.3d 965, 974 (9th Cir. 2011) (internal quotations and citation 17 omitted). For these reasons, Plaintiffs’ Fourteenth Amendment claim is DISMISSED WITH 18 LEAVE TO AMEND. 19 Plaintiff Derning’s claim under Title II of the ADA is also subject to dismissal. Derning 20 suffers from a chronic injury to his hand, post traumatic stress disorder, and anxiety. Compl. ¶ 4. 21 To manage these disabilities, he engages in occupational therapy by working on bicycles and 22 performing other tasks that improve the dexterity in his hand and help with his mental well-being. 23 Id. Derning requested an accommodation from Deputy Thompson, seeking extra space to do 24 occupational therapy so that he can manage his disabilities, and Thompson refused, warning that 25 the County could “come at anytime and take his belongings.” Id. ¶¶ 5-7. 26 Liberally construed, these allegations fail to establish a viable ADA claim. Derning must 27 allege that “1) he is a ‘qualified individual with a disability’; (2) he was either excluded from 1 otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or 2 discrimination was by reason of his disability.” Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1135 3 (9th Cir. 2001). The ADA requires “only ‘reasonable modifications . . . .’ ” Where Do We Go 4 Berkeley v. California Dep’t of Transportation, 32 F.4th 852, 862 (9th Cir. 2022). Assuming, 5 without deciding, that Derning has satisfied the threshold elements of his ADA claim, it 6 nonetheless fails as a matter of law. Plaintiffs describe Binford Road as “a narrow median” where 7 “cars go very fast[,]” and Plaintiffs “are parked literally next to the road.” See Compl. at 2; 8 Silveria Decl. ¶ 8; Limeta Decl. at ¶ 11. Based on these allegations, requesting an additional 9 amount of space while Derning remains on Binford Road indefinitely is unreasonable as a matter 10 of law. See Where Do We Go Berkeley, 32 F.4th at 855 (vacating district court’s preliminary 11 injunction order because “there [wa]s no serious question that the ADA” required Caltrans to 12 delay its plan to clear a high-risk encampment along the freeway by six months to grant plaintiff 13 an accommodation of additional time to relocate and find housing). For this reason, the ADA 14 claim is DISMISSED WITHOUT LEAVE TO AMEND. 15 Plaintiffs may file an amended complaint curing the deficiencies discussed above by no 16 later than April 14, 2025. They may not add new claims or parties without a stipulation from 17 Defendants or leave of Court. If an amended complaint is not filed by April 14, 2025, the Court 18 will consider the original complaint operative, and Plaintiffs will be deemed as having elected to 19 stand on the complaint. 20 The Court is setting an extended deadline for the filing of the amended complaint so that 21 Plaintiffs may contact the Federal Pro Bono Project’s Help Desk – a free service for pro se 22 litigants – by calling (415) 782-8982 or emailing fedpro@sfbar.org to make an appointment to 23 determine whether Plaintiffs qualify for possible appointment of pro bono counsel. More 24 information about the program is available online at the Court’s website 25 . 26 /// 27 /// 1 Should the parties wish to explore alternative dispute resolution before the deadline for 2 || Plaintiffs to file their amended complaint, they may file a stipulation and proposed order selecting 3 an ADR process. 4 IT IS SO ORDERED. 5 Dated: February 13, 2025 “ 6 col

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