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Wagda v. Town of Danville - Another CCSO Intimidation of a Witness and Litigant


Wagda v. Town of Danville

United States District Court, N.D. California
October 24, 2016
TOWN OF DANVILLE, et al., Defendants.

         Before the Court are two motions to dismiss plaintiff Donald Cloyce Wagda's ("Wagda") First Amended Complaint, the first said motion, filed April 12, 2016, by defendants Town of Danville ("Town"), County of Contra Costa ("County"), David O. Livingston ("Livingston"), Steve Simpkins ("Simpkins"), Mike Jimenez ("Jimenez"), Emily Neabeack ("Neabeack"), Tom Rossberg ("Rossberg"), and Steven Stapleton ("Stapleton") (collectively, "County defendants"), [1]and the second, filed May 9, 2016, by defendants Edmund G. Brown, Jr., and Kamala D. Harris (collectively, "State defendants"). Both motions are brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
         Having read and considered the papers filed in support of and in opposition to the motions, the Court rules as follows.
         BACKGROUND [2]
         A. The Parties
         Wagda is an attorney who, at all relevant times, has been a resident of Town, which, in turn, is located in County.
         Livingston is the County Sheriff and is sued solely in his official capacity. Simpkins is the Town Chief of Police and is sued solely in his official capacity. Jimenez is a police sergeant employed by Town and County and is sued in his individual capacity. Neabeack, Rossberg, and Stapleton are police officers employed by Town and County and are sued in their individual capacities.[3]
         Edmund G. Brown, Jr., is the Governor of the State of California ("Governor Brown"), and Kamala D. Harris is the Attorney General of the State of California ("Attorney General Harris"). Both said defendants are sued solely in their official capacities.
         B. The Events
         On August 16, 2014, in anticipation of the passage of Proposition 47 "("Prop 47"), Wagda formed a corporation to provide legal services to individuals expected to become eligible to reduce certain felony convictions to misdemeanors. (See id. ¶ 21.)
         On October 15, 2014, at the Town police station, [4] Wagda was arrested for driving under the influence ("DUI"), pursuant to § 23152(f) of the California Vehicle Code ("Vehicle Code"), [5] and for being under the influence of a controlled substance, pursuant to § 11550 of the California Health & Safety Code ("Health & Safety Code") (the "October arrest"). (See id. ¶ 23.) According to Wagda, Jimenez and Neabeack, prior to his arrest, interrogated him "extensive[ly], " notwithstanding repeated invocations of his right to remain silent and an invocation of his right to counsel. (See id. ¶¶ 24, 26-28.) Additionally, Wagda alleges, Jimenez "expressed extreme moral disapproval with [his] professional and other First Amendment activity in connection with Prop 47" (see id. ¶ 31; see also id. ¶¶ 33-36), "revealing a deep personal animus toward [him]" (see id. ¶ 34). Wagda further alleges that Jimenez and Neabeack, motivated by such animus, disclosed to the State Bar of California ("State Bar") police reports relating to his October arrest (see id. ¶ 37) and, rather than exercising their discretion to cite and release him at the police station, instead booked him into jail at the Martinez Detention Facility ("MDF") (see id. ¶ 38), where he was subjected to misconduct including threats of extended confinement (see id. ¶¶ 55-56), placement in solitary confinement (see id. ¶ 57), coercion in answering booking questions (see id. ¶ 60), denial of lunch (see id. ¶ 61), forced signing of a statement regarding jailhouse rules (see id. ¶ 62), and delayed release (see id. ¶ 63).
         Subsequently, on December 4, 2004, the Contra Costa County District Attorney's Office ("D.A.'s Office") charged Wagda with a drug-related DUI, pursuant to § 23152(e) of the Vehicle Code, and with being under the influence of a controlled substance, pursuant to § 11550(a) of the Health & Safety Code. (See id. ¶ 64.) On or before December 8, 2014, the D.A.'s Office provided Wagda with laboratory results showing his blood tested "negative for alcohol and positive for certain CNS [central nervous system] stimulants." (See id. ¶ 65.)
         Approximately two weeks later, on December 22, 2014, while driving in Danville, Wagda was again arrested, on this occasion for driving under the influence of drugs, pursuant to § 23152(e) (the "December arrest"). (See id. ¶ 83.) According to Wagda, Rossberg initially pulled him over for speeding (see id. ¶ 68) on a section of roadway that, under state law, constituted a speed trap (see id. ¶ 66) and, after learning of his prior DUI arrest, questioned him about such arrest, notwithstanding his renewed invocation of his right to remain silent and explanation that he had "an open court case" (see id. ¶¶ 69, 71; see also id. ¶¶ 72-73). Wagda further alleges that, after Stapleton arrived on the scene, Rossberg took Wagda's pulse without his consent while Stapleton questioned him about the October arrest "with the intent to drive up [his] heart rate" (see id. ¶ 80-81), and that Rossberg arrested him after he declined to perform field sobriety tests ("FSTs") (see Id. ¶ 83). Thereafter, Stapleton transported Wagda to the police station. (See id. ¶ 87.)
         Subsequently, Wagda alleges, Rossberg, rather than citing and releasing him at the police station, booked him into MDF because of his refusal to answer questions and consent to a blood draw (see id. ¶¶ 90, 92, 94), and, in support of a search warrant for his blood, executed a "false and misleading" affidavit (see id. 30:24) containing "material misrepresentations and omissions" (see id. ¶ 96) with respect to his speed, pulse rate measurements, and ability to make decisions and answer questions (see id. ¶¶ 97-103) (the "affidavit"). In addition, Wagda alleges, Rossberg used his statements about the October arrest, his refusal to answer questions about such arrest, and his refusal to consent to the blood draw and FSTs both in the affidavit (see id. ¶¶ 74, 106) and in a police report the D.A.'s Office "relied upon . . . in its decision to file charges in connection with the December [a]rrest" (see id. ¶¶ 75, 106). Wagda further alleges that Rossberg and Jimenez, both motivated by retaliation, made disclosures to the State Bar regarding both the October and December arrests (see id. ¶ 107) and that Rossberg also "initiated" two Department of Motor Vehicles ("DMV") proceedings against him (see id. ¶ 108), namely, an "APS proceeding" (see id. ¶ 109) and a "Priority Re-Examination" (see Id. ¶¶ 110-112).
         On March 12, 2015, the D.A.'s Office charged Wagda with a drug-related DUI, pursuant to § 23152(e), and being under the influence of a controlled substance, pursuant to § 11550(a). (See id. ¶ 119.) That same day, the D.A.'s Office also provided Wagda with laboratory results showing his blood tested "negative for alcohol and positive for CNS stimulant." (See id.)
         On October 8, 2015, pursuant to a "global plea agreement, " Wagda, in connection with the October arrest, pleaded "no contest" to one count of reckless driving involving alcohol, pursuant to § 23103 of the Vehicle Code, [6] at which time all pending charges stemming from both arrests were dismissed. (See id. ¶ 120.)
         Subsequently, on October 25, 2015, while Wagda was driving to a supermarket, "an SUV marked Contra Costa County Sheriff" followed him; waited in the parking lot while he went inside; and, when he returned to his car, "pulled around and confronted [him], " at which time the "officer" inside "stared [him] down." (See id. ¶ 122.)
         C. Wagda's Claims
         Based on the above allegations, Wagda asserts in the FAC seventeen claims: (1) a federal claim under 42 U.S.C. § 1983 for violation of his First Amendment rights in connection with the October arrest ("First Claim") (id. ¶¶ 124-127); (2) a federal claim under § 1983 for violation of his Fourteenth Amendment rights in connection with the October arrest ("Second Claim") (id. ¶¶ 128-132); (3) a federal claim under § 1983 for violation of his Fourth Amendment rights in connection with the October arrest ("Third Claim") (id. ¶¶ 133-137); (4) a federal claim under § 1983 for violation of his First Amendment rights in connection with the December arrest ("Fourth Claim") (id. ¶¶ 138- 141); (5) a federal claim under § 1983 for violation of his Fourth Amendment rights in connection with the December arrest ("Fifth Claim") (id. ¶¶ 142-146); (6) a federal claim under § 1983 for violation of his Fifth Amendment rights in connection with both the October and December arrests/prosecutions ("Sixth Claim") (id. ¶¶ 147-150); (7) a federal claim under § 1983 for violation of his Sixth Amendment rights in connection with the October arrest/prosecution ("Seventh Claim") (id. ¶¶ 151-154); (8) a federal claim under § 1983 for violation of his Fourteenth Amendment rights in connection with the December arrest ("Eighth Claim") (id. ¶¶ 155-158); (9) a federal claim under § 1983 for violation of the Doctrine of Unconstitutional Conditions ("Ninth Claim") (id. ¶¶ 159-162); (10) a federal claim under § 1983 for violation of "civil rights" based on municipal policies, customs, and/or practices ("Tenth Claim") (id. ¶¶ 163-166); (11) a state claim for false arrest ("Eleventh Claim") (id. ¶¶ 167-170); (12) a state claim for false imprisonment ("Twelfth Claim") (id. ¶¶ 171-174); (13) a state claim for invasion of privacy ("Thirteenth Claim") (id. ¶¶ 175-182); (14) a state claim for negligence ("Fourteenth Claim") (id. ¶¶ 183-187); (15) a state claim for violation of civil rights under California Civil Code §52.1(b) based on searches and seizures in connection with the October and December arrests ("Fifteenth Claim") (id. ¶¶ 188-193); (16) a state claim for violation of civil rights under California Civil Code §52.1(b) based on a municipal pattern, practice, or policy ("Sixteenth Claim") (id. ¶¶ 194-198); and (17) a federal claim under 28 U.S.C. § 2201 for declaratory and injunctive relief based on enforcement of § 11550 of the Health & Safety Code and a "continuing pattern" of depriving "citizens of Town and County" of their constitutional rights (see FAC ¶ 200) ("Seventeenth Claim") (id. ¶¶ 199-203).         By their motion to dismiss, County defendants seek an order dismissing as to each of them "the majority of claims asserted." (SeeCounty Reply at 1.) By their motion to dismiss, State defendants seek an order dismissing all claims asserted against them.
         Dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure “can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” See Balistreri v. Pacifica Police Dep't901 F.2d 696, 699 (9th Cir. 1990). Rule 8(a)(2), however, “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief.'” See Bell Atlantic Corp. v. Twombly550 U.S. 544, 555 (2007) (quoting Fed.R.Civ.P. 8(a)(2)). Consequently, “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations.” See id. Nonetheless, “a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” See id. (internal quotation, citation, and alteration omitted).
         In analyzing a motion to dismiss, a district court must accept as true all material factual allegations in the complaint, and construe them in the light most favorable to the nonmoving party. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).[7] “To survive a motion to dismiss, a complaint must contain sufficient factual material, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “Factual allegations must be enough to raise a right to relief above the speculative level[.]” Twombly, 550 U.S. at 555. Courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” See Iqbal, 556 U.S. at 678 (internal quotation and citation omitted).
         As discussed below, County defendants challenge Wagda's First through Eighth, Tenth, Thirteenth, and Seventeenth Claims.[8] State defendants challenge Wagda's Seventeenth Claim, the sole claim Wagda brings against them. The Court addresses each challenged claim in turn.[9]
         A. § 1983 Claims Arising Out of Wagda's October Arrest
         As noted, Wagda's First through Third Claims arise out of the October arrest. County defendants contend the various acts alleged in support thereof do not establish a § 1983 claim against either Jimenez or Neabeack.
         To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins487 U.S. 42, 48 (1988).
         "An officer's liability under section 1983 is predicated on his integral participation in the alleged violation."Blankenhorn v. City of Orange485 F.3d 463, 481 n.12 (9th Cir. 2007) (internal quotation and citation omitted). "Under Section 1983, supervisory officials are not liable for actions of subordinates on any theory of vicarious liability." Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989). Rather, "each Government official, his or her title notwithstanding, is only liable for his or her own misconduct." Iqbal, 556 U.S. at 677.
         1. First Claim: "Violation of First Amendment Rights-October Arrest- 42 U.S.C. § 1983"
         In his First Claim, Wagda alleges Jimenez and Neabeack violated his First Amendment rights by depriving him of his "right to freedom of speech including, without limitation, freedom of thought, freedom from compelled speech, freedom from compelled listening, freedom from a chilling effect on speech, the right to petition the government for a redress of grievances and the right to be free of police action motivated by retaliatory animus." (FAC ¶ 125.) Based on said allegation, Wagda brings eleven separate subclaims.
         a. Interrogating Wagda (FAC ¶ 125(a))
         In his FAC, Wagda alleges Jimenez and Neabeack unlawfully interrogated him, "including systematically interrupting and interfering with his speech asserting Fifth Amendment rights" (FAC ¶ 125(a)), which, Wagda alleges, has "a chilling effect upon [his] future speech asserting his Fifth Amendment rights during police detentions" (id. ¶ 29). In his opposition, however, Wagda states only that the above-referenced interrogation violated his "Fifth, Sixth, and Fourteenth Amendment Rights." (See Pl.'s Opp'n to County MTD at 6.) Wagda does not argue, let only cite any authority to support a finding, and the Court is aware of none, that the above-referenced conduct would constitute a violation of the First Amendment. Under the circumstances, it appears that Wagda is no longer relying on such conduct to support his First Amendment claim.
         b. Berating and shaming Wagda (FAC ¶ 125(b))
         Wagda alleges defendants "[b]erat[ed] and sham[ed]" him regarding his "professional and other First Amendment activity in connection with Prop 47 and other matters of public concern" and "prescribed] what shall be orthodox regarding such matters." (FAC ¶ 125(b).) In particular, Wagda asserts, Jimenez "expressed extreme moral disapproval" with such activities and "sharply condemned the content and viewpoints of [ ] Wagda's political speech." (See id ¶ 31; see also id ¶¶ 33-36.)
         Such "[b]erating" and "shaming" (see id ¶ 125(b)) is not, however, cognizable as a First Amendment violation. See, e.g.Nunez v. City of Los Angeles147 F.3d 867, 875 (9th Cir. 1998) (holding "harsh words" not sufficient to support First Amendment claim; explaining "[i]t would be the height of irony . . . if mere speech, in response to speech, could constitute a First Amendment violation"). Further, as to Neabeack, Wagda's claim fails for the additional reason that he does not allege any facts showing Neabeack's participation or involvement in such alleged misconduct. See Blankenhorn, 485 F.3d at 481 n.12.
         c. Booking Wagda into MDF (FAC ¶ 125(c))
         Wagda alleges Jimenez and Neabeack, in retaliation for his First Amendment activity, "book[ed] [him] into MDF instead of citing and releasing him at the police station." (FAC ¶ 125(c); see also id ¶ 38.) In their reply, County defendants, for purposes of the instant motion, concede such booking "can be a basis" for a § 1983 First Amendment claim. (See County Reply at 4:2-3.)
         d. Disclosing October arrest to State Bar (FAC ¶ 125(d))
         Wagda alleges Jimenez and Neabeack, in retaliation for his First Amendment activity, disclosed to the State Bar information regarding his October arrest. (See FAC ¶¶ 37, 125(d).) County defendants contend, inter alia, such reporting does not constitute a retaliatory action and that Wagda has not alleged any harm or chilling effect resulting from such disclosure.
         "To bring a First Amendment retaliation claim, the plaintiff must allege that (1) [he] engaged in constitutionally protected activity; (2) the defendant's actions would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) the protected activity was a substantial motivating factor in the defendant's conduct." Arizona Students' Ass'n v. Arizona Board of Regents824 F.3d 858, 867 (9th Cir. 2016) (internal quotation and citation omitted). The "chill" test is "generic and objective"; "[w]hether [plaintiff] himself was, or would have been, chilled is not the test." O'Brien v. Welty818 F.3d 920, 933 (9th Cir. 2016).
         Although, under certain circumstances, reporting a professional to an organization responsible for discipline may well be cognizable as a retaliatory action, the facts alleged here are insufficient to show the disclosure at issue would have the requisite chilling effect, given the lack of any allegations as to what consequences, if any, ordinarily would be expected to occur from such a report.[10]
         e. Events occurring at MDF (FAC ¶ 125(e)-(k))
         With respect to events occurring at MDF, Wagda alleges defendants threatened to withhold his release (see FAC ¶ 125(e)), threatened him with death (see id. ¶ 125(f)), placed him in solitary confinement (see id ¶ 125(g)), held him longer than necessary (see id ¶ 125(h)), coerced him into responding to booking questions (see id. ¶ 125(i)), coerced him into executing an acknowledgment and endorsement of jailhouse rules (see id. ¶ 125(j)), and denied him food (see id. ¶ 125(k)).
         The FAC contains no allegations indicating Jimenez or Neabeack had any involvement in the above-referenced events, all of which occurred at MDF. Rather, the FAC identifies various "Doe" defendants in connection with such events. (See FAC ¶¶ 51-63, 125(e)-(k).) Consequently, the FAC fails to state a claim against Jimenez and Neabeack with respect to such events. See Blankenhorn, 485 F.3d at 481 n.12.
         f. Conclusion
         With respect to Wagda's First Claim, for the reasons stated above, subparts (a), (b), and (d) are DISMISSED in their entirety, subparts (e)-(k) are DISMISSED with respect to defendants Jimenez and Neabeack, and, with the exception of subpart (b), Wagda is granted leave to amend.[11] See Fed.R.Civ.P. 15(a)(2) (permitting amendment of complaint with leave of court; providing leave should be afforded "when justice so requires"); Janicki Logging Co. v. Mateer42 F.3d 561, 566 (9th Cir. 2004) (noting Federal Rule of Civil Procedure 15(a)'s "direction that it is to be applied liberally in favor of amendments"). As to subpart (b), leave to amend is denied for the reason that, as a matter of law, berating and shaming are not cognizable as First Amendment violations and, thus, amendment of said subpart would be futile. See Janicki Logging Co., 42 F.3d at 566 (holding leave to amend need not be granted where amendment of complaint would "constitute[] an exercise in futility") (internal quotation and citation omitted).
         2. Second Claim: "Violation of Fourteenth Amendment Rights-October Arrest-42 U.S.C. § 1983"
         In his Second Claim, Wagda alleges Jimenez and Neabeack violated his Fourteenth Amendment rights by depriving him of the "right not to be deprived of personal liberty or property without due process of law, the right not to be punished without an adjudication of guilt, the right to be free of arbitrary, capricious, conscience-shocking and/or improperly motivated action of the government, and the right to equal protection under the laws." (FAC ¶ 129.) Based on said allegation, Wagda brings twelve separate subclaims.
         a. Interrogating Wagda (FAC ¶ 129(a))
         Wagda alleges Jimenez and Neabeack interrogated him in violation of his Fifth Amendment rights against self-incrimination (see id ¶ 129(a)) and that their interrogation techniques "shock the conscience and are arbitrary, capricious, and offensive to a civilized system of justice" (id ¶¶ 25, 28). In particular, he alleges that: (1) prior to his arrest, despite repeatedly invoking his right to remain silent, Jimenez and Neabeack "systematically interrupted, " "ignored, " and/or "further aggressively] questioned]" him (see id ¶ 24); and (2) after his arrest, despite reasserting his right to remain silent and invoking his right to counsel, Jimenez continued to question him (see id ¶¶ 26-28), "at least partially" in Neabeack's presence (see id ¶ 28), and Jimenez "misleadingly assured" him that they were "talking off the record" (see id).
         While claims for coercive interrogation can be brought under the Fourteenth Amendment as substantive due process claims, the standard for showing a substantive due process violation is "quite demanding." See Stoot v. City of Everett582 F.3d 910, 928 (9th Cir. 2009) (noting Supreme Court has "referred] to police torture or other abuse as actionable under the Fourteenth Amendment") (internal quotation and citation omitted). In particular, a substantive due process claim is "cognizable only if the alleged abuse of power shocks the conscience and violates the decencies of civilized conduct." Id (internal quotation and citation omitted). For "abusive executive action, " which includes police conduct, "only the most egregious official conduct can be said to be arbitrary in the constitutional sense." County of Sacramento v. Lewis523 U.S. 833, 846-47, 849 (1998) (defining "arbitrary" as "conscience shocking" and explaining that "conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level") (internal quotation and citation omitted).
         Wagda's allegations of persistent questioning, punctuated, when he invoked his rights, by unspecified "verbal interruption[s], " "audible gasp[s], " and an "audible sigh" (see FAC ¶ 24), and one assurance of being off the record do not meet the demanding standard for a substantive due process claim. Compare Stoot, 582 F.3d at 928 (holding improper promises of leniency and threats of heightened punishment did not rise to level of Fourteenth Amendment violation), with Martinez v. City of Oxnard337 F.3d 1091, 1092 (9th Cir. 2003) (holding allegations that officer "brutally and incessantly questioned" suspect with multiple gunshot wounds, interfered with medical treatment while suspect was screaming in pain, and continued questioning after suspect pleaded with him to stop sufficient to support due process claim), and Cooper v. Dupnik963 F.3d 1220, 1248-50 (9th Cir. 1992) (holding conduct shocked conscience where police coerced statements from suspect by "hours of mistreatment and . . . sophisticated psychological torture, " in plan to keep suspect from testifying in own defense at trial and to curtail his right to present insanity defense), overruled on other grounds by Chavez v. Martinez538 U.S. 760, 773 (2003).
         b. Berating and shaming Wagda (FAC ¶ 129(b))
         Wadga alleges his claim that defendants "berat[ed] and sham[ed]" him and "prescribed] what shall be orthodox" states a Fourteenth Amendment violation. (See FAC ¶ 129(b).) As with his First Amendment claim based thereon, see supra part A.1 .b., Wagda's Fourteenth Amendment claim fails because he has not shown such conduct constitutes a cognizable wrong under § 1983. See Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (noting "[v]erbal harassment or abuse . . . is not sufficient to state a constitutional deprivation" under § 1983) (internal quotation and citation omitted); see also Stoot, 582 F.3d at 928 (requiring, for substantive due process violation, conduct that "shocks the conscience") (internal quotation and citation omitted). Lastly, as discussed earlier, Wagda's claim fails as to Neabeack for the additional reason that he does not allege her participation or involvement in such conduct.
         c. Booking Wagda into MDF (FAC ¶ 129(c))
         In support of his Fourteenth Amendment claim, Wagda again relies on his allegations that Jimenez and Neabeack chose to book him into jail rather than cite and release him. (See FAC ¶¶ 38, 129(c); see also supra part A.1.c.) Such allegations, however, do not meet the standard for a substantive due process violation, particularly given Wagda's allegation that said defendants had the "statutory discretion" to book him. (See FAC ¶ 38; see also Stoot, 582 F.3d at 928.)
         d. Disclosing October arrest to State Bar (FAC ¶ 129(d))
         In support of his Fourteenth Amendment claim, Wagda also relies on his above-referenced allegations regarding the disclosure of his arrest to the State Bar. (See FAC ¶¶ 37, 129(d); see also supra part A.1 .d.) Such allegations do not meet the standard for a substantive due process violation. See Stoot, 582 F.3d at 928.
         e. Targeting enforcement of drug laws (FAC ¶ 129(e))
         Wagda alleges defendants "[selectively and pretextually targeted] enforcement of the drug laws" against him due to their "perception of him as an addict." (FAC ¶ 129(e).) In particular, he alleges Jimenez manifested such a perception by saying "[y]ou've got a drug problem" (see id ¶ 40) and made "comments suggesting that Town, County, and he engage in a custom, pattern and practice of targeting enforcement of facially neutral drug laws at people perceived to [be] addicted to controlled substances, as a pretext for punishing such people for property crimes they are assumed to be committing, but for which the police do not have probable cause or reasonable suspicion" (see id ¶ 41) (emphasis omitted). Wagda alleges such conduct deprived him of equal protection. (See id ¶ 42.)[12]
         To state an equal-protection claim under § 1983, a plaintiff must show the defendant "acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class." Lee v. City of Los Angeles250 F.3d 668, 686 (9th Cir. 2001) (internal quotation and citation omitted). Selective prosecution claims are judged "according to ordinary equal protection standards, " under which the plaintiff has the burden of showing the government's selective enforcement: (1) had a discriminatory effect; and (2) was motivated by a discriminatory purpose. Wayte v. United States, 470 U.S. 598, 608 (1985). The decision whether to prosecute may not be "deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification, including the exercise of protected statutory and constitutional rights." Id. (internal quotation and citation omitted).
         Here, the FAC does not allege membership in a protected class. Although the FAC asserts perceived drug addicts "may . . . represent a suspect class entitled to heightened scrutiny" (FAC ¶ 42), [13] the authority is to the contrary. See, e.g.Ball v. Massanari, 254 F.3d 817, 824 (9th Cir. 2001) (holding alcoholics are "not . . . a suspect, or a quasi-suspect class for purposes of equal protection analysis").
         In any event, Wagda has failed to show the requisite discriminatory motive. Nothing in the FAC supports Wagda's allegation that Jimenez, or any other defendant, targeted him for enforcement of drug laws because he was perceived as a drug addict, rather than for his Prop 47 activities. (See, e.g., FAC ¶¶ 37-38.) Indeed, Wagda is not even the type of drug user he alleges defendants are targeting, i.e., people who need to commit property crimes to support their addiction. (See id. ¶ 33 (alleging Jimenez's knowledge of Wagda's profession); ¶ 41 (quoting comments by Jimenez about going after "junkies on the street, " as opposed to "good people" or "high end" people, because "[i]t's the junkies on the street that are causing most of the problems") (emphasis omitted).)
         f. Events occurring at MDF (FAC ¶ 129(f)-(1))
         Wagda's allegations as to events occurring at MDF are similar to those set forth in his First Claim. (See FAC ¶ 129(f)-(1); see also ¶ 125(e)-(k).) As discussed above, the FAC fails to state a claim against Jimenez and Neabeack with respect to such events, because it does not allege any facts showing their participation or involvement therein. See Blankenhorn, 485 F.3d at 481 n.12.
         g. Conclusion
         With respect to Wagda's Second Claim, for the reasons stated above, subparts (a)-(e) are DISMISSED in their entirety, subparts (f)-(1) are DISMISSED with respect to defendants Jimenez and Neabeack, and, with the exception of subpart (b), Wagda is granted leave to amend.[14] As to subpart (b), leave to amend is denied for the reason that, as a matter of law, berating and shaming are not cognizable wrongs under § 1983 and, thus, amendment of said subpart would be futile. See Janicki Logging Co., 42 F.3d at 566.
         3. Third Claim: "Violation of Fourth Amendment Rights-October Arrest-42 U.S.C. § 1983"
         In his Third Claim, Wagda alleges Jimenez and Neabeack violated his Fourth Amendment rights by depriving him of his "right to be free of unreasonable searches and seizures, unlawful imprisonment and unreasonable force." (FAC ¶ 134.) Based on said allegation, Wagda brings four separate subclaims.
         a. Booking Wagda into MDF (FAC ¶ 134(a))
         In support of his Fourth Amendment claim, Wagda again relies on his retaliatory-booking allegations against Jimenez and Neabeack. (See id. ¶¶ 38, 134(a).) As noted above, County defendants, for purposes of the instant motion, have conceded said allegations state a claim under the First Amendment. As County defendants have not addressed the sufficiency of said allegations to support a claim under the Fourth Amendment, the Court does not further address such additional claim herein.
         b. Events occurring at MDF (FAC ¶ 134(b)-(d))
         In support of his Fourth Amendment claim, Wagda relies on allegations as to essentially the same events at MDF (see id. ¶ 134(b)-(d)) as those alleged in support of his First Claim (see id. ¶ 125(g)-(h)) and Second Claim (see id. ¶ 129 (h)-(i), (1)). As discussed above, the FAC fails to state any claim against Jimenez and Neabeack based on such events, in that there is no allegation supporting their participation or involvement therein. See Blankenhorn, 485 F.3d at 481 n.12.
         c. Conclusion
         With respect to Wagda's Third Claim, for the reasons stated above, defendants Jimenez and Neabeack are DISMISSED as to subparts (b)-(d), and Wagda is granted leave to amend said subparts.
         B. § 1983 Claims Arising Out of Wagda's December Arrest
         As noted, Wadga's Fourth through Eighth Claims arise out of the December arrest. County defendants contend all such claims should be dismissed, with the exception of the Fifth Claim, which "should be limited." (See County MTD at 11.)
         The Court first addresses County defendants' challenges to the inclusion of certain defendants in the above-referenced claims.
         1. Defendants Jimenez, Neabeack, and Stapleton
         At the outset, County defendants contend Wagda has failed to allege any facts showing Jimenez and Neabeack "participat[ed] . . . in any constitutional violations relating to the December . . . arrest" and thus should be dismissed from the "December arrest Section 1983 claims" in their entirety. (See County MTD at 11.) Similarly, County defendants contend Stapleton should be dismissed from the Fourth, Sixth, Seventh, and Eighth Claims.
         a. Jimenez
         As to the Fourth through Eighth Claims, with the exception of the subparts based on alleged retaliatory disclosure (see FAC ¶¶ 139(b), 143(f)), the FAC alleges only that Jimenez was the "immediate supervisor in connection with all events occurring in the geographical area of Town" (see id. ¶ 11) and that, "[i]n the course of [Wagda's] detention and arrest, " Rossberg "communicated with" him by radio (see id. ¶ 87). Such general allegations are insufficient to plead Jimenez's participation or involvement in any alleged wrongdoing. See Blankenhorn, 485 F.3d at 481 n.12; Hansen, 885 F.3d at 646 (holding supervisor may be held liable under § 1983 based on personal involvement in constitutional deprivation or "a sufficient causal connection" between supervisor's wrongful conduct and constitutional deprivation; further holding "vague allegation" that police chief was involved in "conspiracy to deprive [plaintiff] of her rights" was inadequate for supervisory liability).
         b. Neabeack
         With the exception of a single subpart based on Neabeack's alleged failure to communicate Wagda's October assertion of his right to counsel (see FAC ¶ 148(d); see also id. ¶ 27), the FAC alleges only that Rossberg "communicated with" Neabeack by radio and that said defendant was "present at the scene of the arrest at or about the time thereof." (See id. ¶ 87.) Such general allegations do not suffice to plead Neabeack's participation or involvement in any alleged wrongdoing other than the above-referenced failure to communicate. See Blankenhorn, 485 F.3d at 481 n.12.
         c. Stapleton
         With the exception of the subpart based on Stapleton's involvement in taking Wagda's pulse (see FAC ¶ 143(c)), the FAC's allegations as to Stapleton, namely, that Rossberg "communicated with" him by radio and that he was present at the scene of the arrest (see id. ¶ 87) are, as discussed above, too general to plead Stapleton's "integral participation" in any alleged violation. See Blankenhorn, 485 F.3d at 481 n.12 (internal quotation and citation omitted).


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