1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HEATHER BACON, an individual; Case No.: 22-cv-1278-GPC-WVG DANYELL NO, an individual; PHOEBE 12 LOWE, an individual; ANTHONY ORDER DISMISSING COMPLAINT 13 CORNELIUS BROWN, an individual; WITH LEAVE TO AMEND SABRINA WHITE, an individual; GARY 14 RIVERA, an individual; ISAAC SMITH, [ECF No. 1] 15 an individual; KANDI HILDEBRAND, an individual; MARK BOBIAN, an 16 individual; MARSHALL GLOVER, an 17 individual; JUAN JOSE REYES, an individual; ARTURO REYNOSA, an 18 individual, 19 Plaintiffs, 20 v. 21 THE CITY OF CHULA VISTA; THE 22 CHULA VISTA POLICE DEPARTMENT; THE ALPHA 23 PROJECT, 24 Defendants. 25

26 27 1 On August 29, 2022, an individual by the name of Mandy Lien filed a Complaint 2 alleging a violation of

and seeking a temporary restraining order and 3 preliminary injunction to prevent the closure of Harborside Park in Chula Vista. ECF No. 4 1. With the Complaint, Mandy submitted twelve declarations of the Plaintiffs named 5 above. ECF No. 1 at 19-67. Twelve IFP motions were also submitted. ECF No. 2. 6 Due to a number of deficiencies, the Court hereby DISMISSES the Complaint 7 with LEAVE TO AMEND. The Court recognizes the urgency of this matter. The Park in 8 issue, Harborside Park, will close Wednesday, August 31, 2022. ECF No. 1. The Court 9 invites an Amended Complaint and a Motion for a Temporary Restraining Order to be 10 filed as soon as end of business day Tuesday, August 30, 2022. Alternatively, the Court 11 grants forty-five (45) days from the date this Order is filed for a First Amended 12 Complaint to be filed that cures the deficiencies discussed below. 13 DISCUSSION 14 I. Deficiencies 15 First, it does not appear that Mandy Lien is an attorney licensed by the California 16 bar. As such, Mandy Lien is unable to file this Complaint and represent the twelve named 17 Plaintiffs in this matter. Cal. Rules of Prof’l Conduct R. 5.5 (unauthorized practice of 18 law). An individual is allowed to proceed pro se, i.e., without an attorney. Local Rule 19 83.11(a). A pro se individual must appear “personally for such purpose and may not 20 delegate that duty to any other person.” S.D. Civ. Local Rule 83.11(a). 21 Thus, any Amended Complaint should either be filed by a licensed attorney on 22 behalf of the twelve named individuals, or each individual Plaintiff named here should 23 file their own action pro se. However, the Court informs the parties that only one 24 individual need file an action for the Court to be able to move forward and determine if 25 the requested relief is legally justified. The Court does not need twelve individual 26 27 1 Complaints to issue a temporary restraining order or a preliminary injunction, if the Court 2 determines such relief is appropriate. 3 Second, a proper Complaint has not been filed. According to the Federal Rules of 4 Civil Procedure, a Complaint must contain a “short and plain statement of the grounds for 5 the court’s jurisdiction”; “a short and plaint statement of the claim showing that the 6 pleader is entitled to relief”; and “a demand for the relief sought.” Fed. R. Civ. P. 8(a). 7 The Court provides a form in which Section II requests a “statement of the claim” and 8 Section III requires a statement of “relief you request.” It appears Plaintiffs have 9 submitted this form as ECF No. 1; however, they failed to complete Sections II and III. 10 As such, the Court is not presented with a proper Complaint with which to proceed. A 11 Plaintiff, proceeding pro se or with an attorney, should submit this Form, including a 12 statement of the claim and relief sought, before the Court can move forward and 13 determine if the requested relief should be granted. 14 II. Legal Basis 15 As it is currently filed, ECF No. 1 appears to be a Motion for a Temporary 16 Restraining Order. ECF No. 1 includes legal rules and legal analysis in support of 17 issuance of such an Order. Two claims are advanced: (1) the closure of Harborside Park 18 violates the doctrine of Martin v. Boise; and (2) the closure of Harborside Park is a 19 violation of substantive due process because this is a situation of “state-created danger.” 20 A. Martin v. Boise 21 Any potential Plaintiff should be aware that to establish a valid claim under Martin 22 v. City of Boise,

(9th Cir. 2019), Plaintiffs must show that a City has 23 effectively criminalized sleeping outside anywhere in the City. See Martin,

617. Martin affirmatively states that “an ordinance prohibiting sitting, lying, or sleeping 25 outside at particular times or in particular locations might well be constitutionally 26 permissible.”

at 617 n.8. Cities are allowed to criminalize sleeping in certain and 27 1 specific areas. See Sausalito/Marin Cnty. Chapter of California Homeless Union v. City 2 of Sausalito, No. 21-cv-1143-EMC,

, at *2 (N.D. Cal. Dec. 13, 2021) 3 (“Martin prohibits a ban on all camping, not the proper designation of permissible 4 areas.”). 5 Plaintiff will need to show in their Amended Complaint that Defendants have 6 criminalized sleeping in all public places, not just Harborside Park. See Gomes v. Cnty. 7 Of Kauai,

, 1109 (D. Haw. 2020) (dismissing Complaint because 8 Plaintiffs did not show that they could not sleep in other public places within the County 9 of Kauai). A court is permitted to look at all city ordinances collectively to determine if 10 sleeping outside is effectively prohibited. For example, ordinances prohibiting camping 11 overnight; ordinances prohibiting tenting in residential areas broadly defined; and 12 ordinances prohibiting obstruction of “free movement of any pedestrian” (i.e., obstruction 13 of sidewalks) can in effect criminalize homelessness, which is not permissible under 14 Martin. See Wills v. City of Monterey, No. 21-cv-1998-EMC,

, at *8 15 (N.D. Cal. Aug. 1, 2022). In sum, an Amended Complaint should include any other 16 ordinances that, when looked at in aggregate, effectively prohibit sleeping outside or 17 effectively criminalize homelessness. 18 B. State-created danger 19 ECF No. 1 also appears to raise a state-created danger claim. A valid state-created 20 danger claim requires a Plaintiff to show: (1) the officers’ affirmative actions created or 21 exposed Plaintiff to an actual, particularized danger that they would not otherwise have 22 faced; (2) the injury suffered was foreseeable; and (3) the officers were deliberately 23 indifferent to the known danger. See Martinez v. City of Clovis,

, 1271 (9th 24 Cir. 2019) (citing Hernandez v. City of San Jose,

(9th Cir. 2018)). 25 As to the first prong, the question is whether “‘state action creates or exposes an 26 individual to a danger which he or she would not have otherwise faced.’” Martinez, 943 27 1 F.3d at 1272-73 (quoting Kennedy v. City of Ridgefield,

(9th Cir. 2 2006)). It is not enough to leave someone in the “same position,” an affirmative act must 3 “make the situation worse.” Martinez, 942 F.3d at 1272. Plaintiff should plead facts that 4 show the closure of Harborside Park will expose Plaintiff to dangers they would not have 5 faced but for the Park’s closure. 6 As to the second prong, Plaintiffs must show that the “ultimate injury” was 7 “foreseeable.” Id. at 1273 (quoting Hernandez,

)). A “‘state actor is 8 liable for creating the foreseeable danger of injury given the particular circumstances.’” 9 Kennedy,

n.5. Although, the exact injury does not have to be 10 foreseeable, Martinez, 942 F.3d at 1273, Plaintiff must plead facts showing 11 foreseeability. 12 As to the third prong, Plaintiffs must show that the state actor acted “with 13 deliberate indifference [to a] known or obvious danger.” Hernandez,

. 14 This is a high standard and requires proof that a city actor “disregarded an obvious 15 consequence of his action.” Patel v. Kent Sch. Dist.,

(9th Cir. 2011). 16 This requires a “culpable mental state.”

Plaintiff should not simply state that 17 Defendants acted with this state of mind, as that is a legal conclusion the Court is not 18 required to accept as true. Bell Atl. Corp. v. Twombly,

(2007). Plaintiff 19 must plead facts that allow the Court to draw a reasonable inference that the Defendants 20 acted with “deliberate indifference.” 21 CONCLUSION 22 For the reasons stated above, the Court DISMISSES the Complaint, and 23 GRANTS LEAVE TO AMEND. Due to the urgency of the matter, the Court invites a 24 First Amended Complaint and Motion for a Temporary Restraining Order to be filed as 25 soon as August 30, 2022. Alternatively, Plaintiff has forty-five (45) days from the date 26 27 1 || this Order is filed to file a First Amended Complaint which cures the deficiencies noted 2 || above. 3 Plaintiff’s First Amended Complaint must be clearly entitled “First Amended 4 || Complaint,” include Civil Case No. 3:22-cv-1278-GPC-WVG in its caption, and must be 5 complete by itself without any reference to any other versions of the Complaint. Any 6 claims not re-alleged in the First Amendment Complaint will be considered waived. “An 7 ||amended pleading supersedes the original.” Hal Roach Studios, Inc. v. Richard Feiner & 8 Inc.,

(9th Cir. 1989). 9 IT IS SO ORDERED. 10 Dated: August 30, 2022 I] Hon. athe Cae 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22-cv-1278-GPC-WVG