NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 12 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RHAWN JOSEPH, No. 20-17458

Plaintiff-Appellant, D.C. No. 3:20-cv-03782-WHO

v.

MEMORANDUM*

CITY OF SAN JOSE, a Municipal corporation; et al.,

Defendants-Appellees,

and

RICHARD DOYLE; et al.,

Defendants.

Appeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding

Submitted October 10, 2023**

Before: HAWKINS, S.R. THOMAS, and McKEOWN, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Rhawn Joseph appeals pro se the dismissal of his action alleging federal and

state law claims arising from the enforcement efforts of the City of San Jose (“City”)

requiring Joseph to strip the lower part of eight cypress trees in the park strip area

adjacent to his property. We have jurisdiction under 28 U.S.C. § 1291. We review

de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Hebbe v. Pliler,

627 F.3d 338, 341 (9th Cir. 2010). We affirm in part, vacate in part, and remand.

The following claims were properly dismissed for failure to allege facts

sufficient to state a plausible claim: Fourth Amendment illegal search claim. See

California v. Ciraolo, 476 U.S. 207, 211 (1986) (reasonable expectation of privacy

standard). Fourth Amendment seizure claim. See Soldal v. Cook Cty., 506 U.S. 56,

61 (1992) (unreasonable seizure standard). Fifth Amendment due process claim.

See Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008) (Fifth Amendment due

process clause applies only to federal government). Eighth Amendment excessive

fines and cruel and unusual punishment claims. See Ingraham v. Wright, 430 U.S.

651, 667–68 (1977) (Eighth Amendment inapplicable outside of criminal process).

Fourteenth Amendment discrimination claims. See Village of Willowbrook v. Olech,

528 U.S. 562, 564–65 (2000) (per curiam) (elements of “class of one” equal

protection claim). Monell1 claims for bribery and failure to train. See City of Canton

v. Harris, 489 U.S. 378, 390–91 (1989) (requirements for alleging a failure-to-train 2 20-17458 claim); see also Horton v. City of Santa Maria, 915 F.3d 592, 602–03 (9th Cir. 2019)

(requirements for alleging a Monell claim).

However, Joseph alleged in his operative complaint that the City forced him

to strip eight of his cypress trees from their base up to five feet, which he alleges

affected their aesthetic value and endangered their health, and that the City did so

without providing Joseph with a code violation or a hearing. These allegations are

sufficient to state a Fourteenth Amendment due process claim. See U.S. CONST,

amend. XIV, § 1; see also Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S.

306, 313 (1950).

Joseph also alleges that, during the course of demanding that the trees be

stripped, a City employee warned Joseph that “[he] and his friends have guns.” The

City employee’s threat is sufficient to state a claim under California’s Bane Act. See

Reese v. County of Sacramento, 888 F.3d 1030, 1040 (9th Cir. 2018) (“The Bane

Act civilly protects individuals from conduct aimed at interfering with rights that are

secured by federal or state law, where the interference is carried out by threats,

intimidation or coercion.” (citation and quotation marks omitted)). Joseph further

alleges that the same City employee who threatened him made reference to Joseph’s

“weird religious beliefs about trees.” This reference to Joseph’s religious beliefs is

sufficient to plead a claim under California’s Ralph Act. Austin B. v. Escondido

Union Sch. Dist., 57 Cal. Rptr. 3d 454, 470 (Cal. Ct. App. 2007).

3 20-17458 We vacate the district court’s ruling with respect to Joseph’s Fourteenth

Amendment due process, Bane Act, and Ralph Act claims and remand for the district

court to consider whether declaratory and injunctive relief is warranted. We also

vacate the district court’s judgment on Joseph’s constitutional Monell claims

because the district court dismissed them due to its determination that Joseph had

failed to state a claim for any constitutional violation. Because we find that Joseph

sufficiently alleged a Fourteenth Amendment due process claim, that reasoning is

no longer accurate.

Finally, Joseph adequately complied with Federal Rule of Civil Procedure 8

because in the operative first amended complaint, his allegations adequately describe

who is being sued, for what relief, and on what theories. See McHenry v. Renne, 84

F.3d 1172, 1178 (9th Cir. 1996).

In sum, we affirm the dismissal of the following claims: Fourth Amendment

illegal search, Fourth Amendment seizure, Fifth Amendment due process, Eighth

Amendment excessive fines and cruel and unusual punishment, Fourteenth

Amendment equal protection (discrimination and class-of-one), and Monell liability

for bribery and failure to train. We vacate the judgment on the following claims:

Fourteenth Amendment due process, Monell constitutional claim liability, Bane and

Ralph Act liability, and the requests for declaratory and injunctive relief.

4 20-17458 AFFIRMED in part, VACATED in part, and REMANDED. The parties

shall each bear their own costs on appeal.

5 20-17458