1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 JOSEPH MIGUEL, Case No. 23-cv-06350-MMC

8 Plaintiff, ORDER DENYING PLAINTIFF'S MOTION FOR CONTINUANCE; 9 v. GRANTING UNION CITY'S MOTION FOR JUDGMENT ON PLEADINGS; 10 KATIE YUE, et al., AFFORDING PLAINTIFF LIMITED LEAVE TO AMEND; VACATING 11 Defendants. HEARING

12 13 Before the Court is the "Rule 12(c) Motion for Judgment on the Pleadings," filed 14 August 16, 2024, by defendants City of Union City and Union City Police Department's 15 (collectively, "Union City"). On September 7, 2024, plaintiff Joseph Miguel ("Miguel"), 16 who proceeds pro se, filed a "Motion for Continuance." Having read and considered the 17 above-referenced papers filed by the parties, the Court deems the matters suitable for 18 decision thereon, VACATES the hearing scheduled for September 27, 2024, and rules as 19 follows. 20 1. Miguel's motion for a continuance is hereby DENIED. According to plaintiff, he 21 cannot "properly respond" to Union City's motion until Union City "completes their 22 investigation into how evidence got corrupted." (See Pl.'s Mot. at 1.)1 Although Miguel's 23 motion does not clearly indicate why the results of any such investigation would have any 24 bearing on Union City's motion, an exhibit attached to Miguel's motion, namely, an email 25 1 Under the Local Rules of this District, any opposition to Union City's motion was 26 due no later than August 30, 2024. See Civil L.R. 7-3(a) (providing opposition to motion “must be filed and served not more than 14 days after the motion was filed”). The Court 27 thus construes Miguel's motion for a continuance as seeking a continuance of the 1 he sent to a deputy district attorney at a time when a criminal proceeding against him was 2 pending, states the "corrupted" evidence is a "radio call" and asserts a "working copy" 3 thereof might show that police officers who went to his home on one occasion "were 4 there longer than what the current evidence provided suggests." (See Pl.'s Mot. at 19.)2 5 Union City's motion, however, challenges only the sufficiency of the allegations in the 6 Amended Complaint ("AC"), which the Court assumes are true, not whether Miguel can 7 prove any allegation made therein. See Dworkin v. Hustler Magazine, Inc.,

(9th Cir. 1989) (holding Rule 12(c) motion is subject to "same standard" as 9 applicable to motion to dismiss brought under Rule 12(b)(6)); NL Indus., Inc. v. Kaplan, 10

(9th Cir. 1986) (holding, for purposes of determining whether 11 defendant is entitled to dismissal under Rule 12(b)(6) for failure to state claim, district 12 court "must accept as true all material allegations in the complaint and construe them in 13 the light most favorable to [the plaintiff]"). 14 2. Union City's motion for judgment on the pleadings is hereby GRANTED, as 15 follows: 16 a. The claim set forth in ¶ 23 of the AC, which claim is titled "

17 – Violation of 5th Amendment," and which is based on an allegation that two Union City 18 police officers engaged in a "physical taking" by improperly seizing property from Miguel's 19 home, is hereby DISMISSED. As set forth in the Court's order, filed July 22, 2024, by 20 which the Court dismissed said claim to the extent alleged against the two officers, a 21 Takings Clause claim requires a showing that the government took private property "for 22 public use," meaning the government "acted in pursuit of a valid public purpose," see 23 Lingle v. Chevron U.S.A. Inc.,

(2005), and, here, Miguel alleges the 24 seizure occurred during an illegal search and seizure, meaning the property was not 25 taken for a public use, see

(explaining Takings Clause is inapplicable where 26

27 2 In citing to said exhibit, the Court has used herein the page number affixed to the 1 "government action is found to be impermissible"); Mateos-Sandoval v. County of 2 Sonoma,

(N.D. Cal. 2013) (holding property seized in violation 3 of Fourth Amendment is not taken "for public use"). Where "there is no constitutional 4 violation, there can be no municipal liability." Villegas v. Gilroy Garlic Festival Ass'n, 541

, 957 (9th Cir. 2008) (finding plaintiff could not prevail against city on § 1983 6 claim, where city employee did not deprive plaintiff of alleged federal right). 7 b. The claim set forth in ¶ 24 of the AC, which claim is titled "Unconstitutional 8 policy, custom, or procedure (Monell and Bane)," and which is based on alleged 9 deprivations of plaintiff's First and Fourth Amendment rights, is hereby DISMISED. 10 (1) To the extent the claim is based on a violation of the First Amendment, 11 the claim fails, as the AC includes no facts to support a finding that Union City or any of 12 its employees deprived Miguel of a right under the First Amendment. 13 (2) To the extent the claim is based on a violation of the Fourth 14 Amendment, the claim fails. Although the AC includes facts to support a finding that the 15 above-referenced two police officers violated said Amendment by, on one occasion, 16 entering the curtilage of Miguel's home without a warrant or consent, and, on another 17 occasion, entering the home without a warrant or consent (see AC ¶¶ 16, 23.f), the AC 18 includes no facts to support the conclusory assertion that said allegedly unlawful behavior 19 occurred pursuant to a municipal policy, custom, or procedure, see AE ex rel. Hernandez 20 v. County of Tulare,

(9th Cir. 2012) (holding, at pleading state, plaintiff 21 asserting municipal liability claim must allege "plausible facts" to identify "policy or 22 custom"). 23 (3) To the extent the claim, by referencing "Bane," is brought under state 24 law, the claim fails for the reasons stated above, and for the additional reason that Miguel 25 does not allege he "presented" such claim to Union City "before commencing suit." See 26 Karim-Panahi v. Los Angeles Police Dep't,

, 627 (9th Cir. 1988) (affirming 27 dismissal of state law claim, where plaintiff "fail[ed] to allege compliance with California 1 c. The claim set forth in J 26 of the AC, which claim is titled "Intentional 2 Infliction of Emotional Distress," is subject to dismissal, as Miguel does not allege he 3 || "presented" such claim to Union City prior to filing the instant action. See id. 4 Lastly, if Miguel wishes to file a Second Amended Complaint for the limited 5 || purpose of amending any of his claims against Union City, he shall file such amended 6 || pleading no later than October 4, 2024. If Miguel elects to amend, however, he may not 7 || add any new defendants or new claims without first obtaining leave of court. See Fed. R. 8 || Civ. P. 15(a)(2). In the event Miguel elects not to amend, the above-titled action will 9 || proceed on the remaining claims in the AC, specifically, his claims against Katie Yue. 10 IT IS SO ORDERED. 11 12 || Dated: September 13, 2024 5 INE M. CHESNEY «13 United States District Judge

16

17 18 19 20 21 22 23 24 25 26 27 28