1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LOUIS JOSEPH TENWINKLE, Case No. 21-cv-09081-JSW

8 Plaintiff,

ORDER GRANTING MOTION TO

9 v. DISMISS, WITH LEAVE TO AMEND,

AND SETTING CASE MANAGEMENT

10 RICHARDSONS BAY REGIONAL CONFERENCE AGENCY, et al., Re: Dkt. No. 17 11 Defendants.

12 13 Now before the Court for consideration is the motion to dismiss filed by Richardson’s Bay 14 Regional Agency (“RBRA”) and Harbormaster Curtis Havel (“Havel”) (collectively 15 “Defendants”).1 That motion has been pending since April 4, 2022, and the Court has granted 16 Plaintiff two extensions of time to respond to the motion. (See Dkt. Nos. 30, 33.) On July 12, 17 2022, Plaintiff filed a “preliminary response” (“Response”) to the motion, in which he asks the 18 Court for an additional 120 days to conduct discovery “so that he can adequately answer 19 defendants’ Rule 26(b) motion.” (Dkt. No. 34, Response at 1:24-25.) Defendants have filed their 20 reply, and the matter is ripe for disposition. 21 The Court concludes the motion can be resolved on the papers. See N.D. Civ. L.R. 7-1(b). 22 For the reasons that follow the Court DENIES Plaintiff’s request for discovery before resolving 23 the motion, GRANTS the motion, GRANTS Plaintiff leave to amend, and schedules an initial case 24 management conference. 25 // 26 1 Plaintiff also named the City of Sausalito and the Army Corps of Engineers (the “Corps”) 27 as Defendants. The Corps has not appeared and apparently did not accept service because Plaintiff 1 BACKGROUND 2 Plaintiff alleges that he is the owner of a Professional Vessel Recovery Vessel (the 3 “Vessel”) and alleges that, on November 22, 2019, Havel boarded the Vessel without a warrant. 4 According to Plaintiff, Havel designated the Vessel as “marine debris,” even though it did not 5 qualify as such.2 Plaintiff also alleges that Havel towed the Vessel to a debris dock; when the tide 6 subsided, the Vessel dropped to the concrete ramp and was seriously damaged. (See Compl. at 4- 7 5, 23-25; see also Dkt. No. 1-1 at 1 (narrative submitted as exhibit to Complaint).) Plaintiff 8 alleges that Havel’s actions did not conform with local ordinances and alleges that Defendants 9 have a custom and policy of violating those ordinances. (See, e.g., id. at 5-22.) 10 On November 23, 2021, based on these and other allegations that the Court shall address as 11 necessary, Plaintiff filed his complaint alleging Defendants violated his Fourth Amendment right 12 to be free from unreasonable seizures, engaged in an unconstitutional taking, and violated his right 13 to due process. The Court liberally construes Plaintiff’s Complaint to assert those claims pursuant 14 to 42 U.S.C. section 1983. Plaintiff also asserts state law claims for negligence and conversion. 15 ANALYSIS 16 A. Applicable Legal Standards. 17 Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). A 18 motion to dismiss is proper under Rule 12(b)(6) where the pleadings fail to state a claim upon 19 which relief can be granted. Because Plaintiff is proceeding pro se, the Court must construe his 20 pleadings liberally. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, the Court may 21 not “supply essential elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of 22 the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Even under the liberal pleading standard 23 of Rule 8(a)(2), a plaintiff must provide more than mere labels, conclusions, and formulaic 24 recitations of their claims’ requisite elements. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 25 (2007). 26 2 “‘Marine debris’ is a vessel or part of a vessel, including a derelict, wreck, hulk, or part of 27 any ship or other watercraft or dilapidated vessel, that is unseaworthy and not reasonably fit or 1 Pursuant to Twombly, a plaintiff must not merely allege conduct that is conceivable but 2 must instead allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. 3 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 4 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 5 Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). 6 In general, the Court’s “inquiry is limited to the allegations in the complaint, which are 7 accepted as true and construed in the light most favorable to the plaintiff.” Lazy Y Ranch LTD v. 8 Behrens, 546 F.3d 580, 588 (9th Cir. 2008). The Court normally does not consider material 9 outside the pleadings to resolve a motion to dismiss. There are two exceptions to this rule: the 10 doctrine of incorporation by reference and judicial notice under Federal Rule of Evidence 201. 11 Each mechanism permits district courts to consider materials outside a complaint, but for different 12 reasons. Khoja v. Orezigen Therapeutics, Inc., 899 F.3d 988, 1002-03 (9th Cir. 2018); see also 13 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). 14 Under Rule 201, a court may take judicial notice of an adjudicative fact if it is “not subject 15 to reasonable dispute.” Fed. R. Evid. 201(b). A fact is “not subject to reasonable dispute” if it is 16 “generally known,” or “can be accurately and readily determined from sources whose accuracy 17 cannot reasonably be questioned.” Id. Although a court may take judicial notice of matters of 18 public record and properly consider those matters when evaluating a motion to dismiss, a court 19 may not take judicial notice of disputed facts contained in such public records. Lee, 250 F.3d at 20 689 (quotations and citations omitted). 21 Incorporation by reference, on the other hand, is a judicially-created doctrine that treats 22 certain documents as though they are part of the complaint itself. Khoja, 899 F.3d at 1002. This 23 doctrine is a tool to prevent plaintiffs from highlighting only the portions of certain documents that 24 support their claims, while omitting portions of those documents that weaken their claims. Id. 25 (citations omitted). When a court incorporates a document by reference, it may assume all 26 contents of the document are true for the purposes of a motion to dismiss under 12(b)(6). Id. at 27 1003 (citing Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) (quotations omitted)). Thus, 1 If the allegations are insufficient to state a claim, a court should grant leave to amend, 2 unless amendment would be futile. See, e.g., Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th 3 Cir. 1990); Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 246-47 (9th 4 Cir. 1990). 5 B. The Court Grants, in Part, Defendants’ Request for Judicial Notice and Denies Plaintiff’s Request for Discovery. 6 7 Defendants ask the Court to take judicial notice of Plaintiff’s complaint. That is not 8 necessary because it is the relevant pleading in this case and already is part of the record. 9 Accordingly, the Court DENIES that request as moot. Defendants also ask the Court to take 10 judicial notice of: (1) a rejection of an administrative claim that Plaintiff submitted to the County 11 of Marin, which is not a defendant; and (2) RBRA’s rejection of the claim presented to Marin 12 County. The Court GRANTS Defendants’ request to take judicial notice of the existence of those 13 documents and the dates they were issued. The Court also concludes Plaintiff has not shown 14 discovery is required to resolve the issues raised by the motion. 15 C. The Court Dismisses Plaintiff’s Federal Claims, With Leave to Amend. 16 Defendants move to dismiss Plaintiff’s federal claims on the basis that they are barred by 17 the statute of limitations. Because Section 1983 does not specify a statute of limitations, federal 18 courts borrow the applicable state statute of limitations. In this case, the relevant statute is 19 California Code of Civil Procedure 335.1, which sets forth a two-year statute of limitations for 20 personal injury claims. See Action Apartment Ass’n, Inc. v. Santa Monica Rent Control Bd., 509 21 F.3d 1020, 1026 (9th Cir. 2007). Plaintiff alleges that the conduct gave rise to this suit took place 22 on November 22, 2019.3, Plaintiff filed the Complaint on November 23, 2021, one day after the 23 statute of limitations ran. Plaintiff has not alleged why the statute of limitations should be tolled; 24 i.e. what circumstances might excuse the failure to file a complaint within the statute of 25 limitations. Because the Court cannot say it would be futile, the Court grants him leave to amend 26 27 1 to plead facts showing that tolling is warranted.4 2 Defendants also move to dismiss the claims against Havel on the basis that Plaintiff does 3 not specify whether the claims are asserted against him in his official or individual capacity. An 4 official capacity claim “generally represent[s] only another way of pleading an action against an 5 entity of which an officer is an agent.” Hafer v. Melo, 502 U.S. 21, 25 (1991) (quoting Kentucky 6 v. Graham, 473 U.S. 159, 165 (1985)). Here, however, Plaintiff does seek prospective injunctive 7 relief, and a suit against state officials seeking prospective injunctive relief from unconstitutional 8 state action is not barred. See Kentucky v. Graham, 472 U.S. 159, 167 n.14 (1985) (citing Ex 9 parte Young, 209 U.S. 123, 159-60 (1908)); Wolfe v. Strankman, 392 F.3d 358, 364-65 (9th Cir. 10 2004) (stating that official capacity actions for prospective injunctive relief are not treated as 11 actions against the state). 12 To have standing to seek injunctive relief, however, Plaintiff must allege facts to show that 13 he “has suffered or is threatened with a ‘concrete and particularized’ legal harm, coupled with a 14 ‘sufficient likelihood that he will again be wronged in a similar way.’” Bates v. United Parcel 15 Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 16 555, 560 (1992) and City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)). The latter inquiry 17 turns on whether the plaintiff has a “real and immediate threat of repeated injury.” Id. The threat 18 of future injury cannot be “conjectural or hypothetical” but must be “certainly impending” to 19 constitute an injury in fact for injunctive relief purposes. Davidson v. Kimberly-Clark Corp., 889 20 F.3d 956, 967 (9th Cir. 2018). 21 Based on the allegations as they stand, the Court concludes Plaintiff fails to allege facts 22 showing he has standing to seek injunctive relief. That is, Plaintiff fails to include facts that show 23 he is likely to be wronged again in a similar way. If Plaintiff chooses to amend, he shall not plead 24 a separate “cause of action” for injunctive relief, which is a remedy, but must include facts that 25 show he would be entitled to that relief. 26 // 27 1 D. The Court Dismisses Plaintiff’s State Law Claims Against Defendants.5 2 The Government Claims Act provides that a party cannot file an action for money or 3 damages against a local public agency until a written claim has been filed with and rejected by the 4 defendant agency. See Cal. Gov’t Code §§ 905, 945.4, 950.2; DiCampli-Mintz v. County of Santa 5 Clara, 55 Cal. 4th 983, 989 (2012); City of San Jose v. Sup. Ct., 12 Cal. 3d 447, 454 (1974). A 6 timely claim presentation is not merely a procedural requirement, but a condition precedent to 7 maintaining an action against local public entities and “failure to file a claim is fatal to the cause of 8 action.” Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 627 (9th Cir. 1988); accord DiCampli- 9 Mintz, 55 Cal. 4th at 990. Claims for personal injury must be presented to a public entity within 10 six months after the accrual of the cause of action. Cal. Gov’t Code § 911.2(a). “[F]ailure to 11 timely present a claim to the public entity bars the claimant from filing a lawsuit against that 12 public entity.” J.J. v. Cty. of San Diego, 223 Cal. App. 4th 1214, 1219 (2014) (citation omitted). 13 “Suits against a public entity or public employees are governed by the specific statute of 14 limitations provided in the Government Code, not the statute of limitations that applies to private 15 defendants.” Moore v. Twomey, 120 Cal. App. 4th 910, 913-14 (2004) (citing Martell v. Antelope 16 Valley Hosp. Med. Center, 67 Cal. App. 4th 978, 981 (1998).) Government Code section 945.6 17 requires that “any suit brought against a public entity” must be commenced no more than six 18 months after the public entity rejects the claim. Cal. Gov. Code § 945.6(a)(1). 19 The notices of rejection that Defendants submit are dated July 6, 2020 and July 7, 2020, 20 respectively, but Plaintiff did not file suit until November 23, 2021, well after the six-month 21 deadline provided by Government Code section 945.6(a)(1) expired. Plaintiff has not addressed 22 this argument in his Response, nor does he explain what discovery would be necessary to address 23 this argument. Plaintiff also fails to plead any facts that suggest that the Court should toll the 24 provisions of Section 945.6. Accordingly, the Court GRANTS Defendants’ motion to dismiss on 25 this basis, but it will grant Plaintiff leave to amend. In light of this ruling, the Court does not reach 26 Defendants’ alternative arguments in support of dismissal. If Plaintiff amends these claims, 27 ] Defendants may renew those arguments in a motion to dismiss. 2 CONCLUSION 3 For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss the claims 4 || Plaintiff asserts against them. If Plaintiff chooses to amend, he shall file an amended complaint by 5 || no later than September 2, 2022. The Court will not grant any further extensions, and if Plaintiff 6 || fails to file an amended complaint against RBRA and Havel by that date, the Court will dismiss 7 || the claims against them for failure to prosecute. If Plaintiff does amend, Defendants shall answer 8 or otherwise respond by September 23, 2022. 9 Finally, the Court schedules an initial case management conference on October 28, 2022 at 10 11:00 a.m. The parties shall file case management conference statements by no later than October 11 21, 2022. 12 The Court once again advises Plaintiff that the Court’s website contains helpful E 13 information about how to proceed without a lawyer (https://www.cand.uscourts.gov/pro-se- 14 || litigants/). In addition, Plaintiff may wish to contact the Volunteer Legal Help Center by emailing 3 15 fedpro@sfbar.org or by calling the appointment line at 415-782-8982. Information about 16 || appointment scheduling is also available on the Court’s website: i 17 || https://www.cand.uscourts.gov/about/court-programs/legal-help-desks/. Z 18 The attorney at the Legal Help Center can provide information, advice, and basic legal help 19 || but cannot represent litigants as their lawyer. 20 IT ISSO ORDERED. 21 || Dated: August 5, 2022 / / / nt 22 \ M5 53 JEFPREY WHITE } United Staffs DistricfJudge 24 25 26 27 28