Cuviello v. City of Belmont

1

JOSEPH PAT CUVIELLO, individually, Plaintiff, v. CITY OF BELMONT, et al., Defendants.

No. 23-cv-00029-LB

United States District Court, N.D. California, San Francisco Division

July 31, 2023

ORDER GRANTING MOTION TO DISMISS IN PART AND DENYING MOTION FOR PRELIMINARY INJUNCTION RE: ECF NOS. 22, 28 37

LAUREL BEELER UNITED STATES MAGISTRATE JUDGE

INTRODUCTION

The plaintiff, who is representing himself, sued the City of Belmont and city officials (the city manager and the head of the Parks and Recreation department) after they withdrew their approval of his volunteer program's work removing invasive plants from the city's open spaces. He claims that they did this to retaliate against him for his criticism of the city's environmental policies, in violation of the First Amendment to the U.S. Constitution and his free-speech rights under the California Constitution. He also claims that they ended his volunteer project without due process and violated his equal-protection rights because another volunteer group comprised of mountain bikers continued work on trails in the open spaces. He then moved for a preliminary injunction to allow him to continue removing the plants. The defendants moved to dismiss his complaint for failure to state a claim, moved to strike certain allegations in it, and opposed the preliminary injunction.

The court denies the motion to dismiss the retaliation claim against Brigitte Shearer (the head of the Parks and Recreation department): the plaintiff plausibly pleads a prima facie case of retaliation. He does not adequately plead a retaliation claim against the city or the city manager they are not vicariously liable for Ms. Shearer's conduct, and the complaint's allegations do not establish their independent liability. The plaintiff does not plausibly plead due-process claims because he has no property or liberty interest in being a volunteer. He did not plausibly plead an equal-protection claim because he did not allege sufficiently that the defendants treated him differently than other similarly situated persons. And he did not plausibly plead that his volunteerism is symbolic conduct entitled to protection under the First Amendment.

The court denies the defendants' motion to strike as immaterial allegations about mountain bikers, lack of acknowledgment of the plaintiff's efforts, and the invasive plants. These allegations at least possibly have a bearing on the claim here. The court denies the plaintiff's motion for a preliminary injunction because he has not satisfied the Winter factors.

STATEMENT

1. The Complaint's Allegations and Claims

The plaintiff and his wife are environmentalists and animal-rights advocates who work together as advocates and live in Belmont, California, near a preserve called the Waterdog Open Space.^[1] The plaintiff (in 2020) and his wife (in 2018) both ran unsuccessful campaigns for city council against current elected officials but were not elected.^[2] They cofounded a volunteer group called Friends of Waterdog Open Space to protect the ecological health of Belmont's open space. “Through Friends of Waterdog,” the plaintiff “began utilizing DEFENDANT City's General Plan open space action program by volunteering to remove invasive plant species, such as French broom,” in the Waterdog Open Space and areas outside of the space. He “would like to expand his volunteer efforts to include more public lands in the City of Belmont and beyond.”^[3]

From January 2021 to June 2021, Friends of Waterdog (primarily through the plaintiff's work) spent 160.5 hours removing invasive plant species (primarily French broom but also pampas grass). Belmont's Parks and Recreation department organized volunteers to move the piles of plants out of the open space, which involved 40 to 80 volunteer hours.^[4] The plaintiff and Friends of Waterdog spent more time in 2022 removing invasive plants: 242 hours from January through April 2022.^[5] In January 2022, the plaintiff asked defendant Brigitte Shearer, who is the director of the Parks and Recreation department, for permission to remove an evasive species called Echium Candicans. In October, he asked for an update about his request, and on November 21, 2022, Ms. Shearer told him not to remove any more plants. He asked for an explanation and was not given any. He asked whether the directive included French broom and pampas grass, and on December 6, Ms. Shearer said that he was not to remove any invasive plants from the Open Space.^[6]

The plaintiff alleges that the defendants did this in retaliation for his protected activities.^[7] The defendants are the City of Belmont, the city manager Afshin Oskoui, and Ms. Shearer.^[8] The complaint is thirty-seven pages long and lists many activities, interactions, and contexts for the suspension of his volunteer activities. This is a non-exhaustive summary.

The Waterdog Open Space is biologically rich and needs preservation. The city owns and manages the preserve, has a master plan for it, and does not enforce some aspects of it (such as mountain bikers riding on single-use trails).^[9] Since 2018, the plaintiff and his wife have been vocal critics of the city's practices, especially about unrestricted mountain biking in the Waterdog Open Space.^[10] They advocate on social media and at public government meetings for environmental protection and against unrestricted mountain biking.^[11] They have submitted Public Records Act requests about the city's and Ms. Shearer's management of the Open Space and their communications with his group.^[12] The plaintiff's wife sued the city because it withheld documents showing that the city intentionally kept environmentalists off the Parks, Recreation, and Open Space Master Plan committee. In the settlement, the city paid her attorney's fees of $56,000.^[13]

The plaintiff and other residents approached the city about enforcing the master plan and closing illegally built trails that mountain bikers used to connect trails.^[14] The mountain bikers have their own volunteer group called Waterdog Trailkeepers and want unrestricted access and trails. The city supports their vision, not the plaintiff's group's vision.^[15]

In 2019, the plaintiff and others successfully opposed the city's plan to build a bike pump track in Waterdog Open Space.^[16] In June 2020, he submitted a work proposal to Ms. Shearer through his volunteer group, asking to remove berms and jumps built by mountain bikers, close some unauthorized trails, and remove French broom. The city gave him approval to remove the plants, and the Parks and Recreation Department removed the jumps and closed the trails (but did not remove the berms).^[17] In October 2020, the plaintiff wrote a report, posted it online, and sent it to city officials: the report was about the environmental impact of mountain biking in Waterdog Open Space. He updated and resubmitted it in July 2022. No one followed up with him.^[18] In October 2020, through his volunteer group, he submitted a proposal to close four unauthorized trails and to revegetate the area, but Ms. Shearer approved only one closure that required only the installation of a “Not a Trail” sign.^[19] He commissioned an environmental analysis in May 2021 and gave it to the city. The city did its own analysis to counter his.^[20] He submitted another report in September 2021.^[21] Starting in 2022, he attended every Parks and Recreation Open Space meeting to follow the master-plan process. Ms. Shearer attended too. He was vocal about protecting the environment, critical of the city's analysis, and provided data to support his view. The Parks and Recreation Commission recommended its plan for approval to the city without serious review.^[22] The city council was expected to fast track the plan, but the plaintiff's wife hired an environmental law firm and threatened to sue the city if it approved the plan without conducting an environmental review. On July 22, 2022, the city council placed the plan on hold pending further environmental review.^[23]

The plaintiff and his wife monitor the Open Space entrances at night and report illegal bikers to the police, who say that they cannot act unless they catch bikers in the act.^[24]

In sum, the plaintiff alleges that the city suspended his volunteer program in 2022 as retaliation for his wife's and his public criticism of the city.^[25]

The complaint has the two claims: (1) a violation of the plaintiff's rights to free speech, equal protection of the laws, and due process, in violation of the First and Fourteenth Amendments to the U.S. Constitution and 42 U.S.C. § 1983, and (2) a violation of his free-speech rights under the California Constitution, Art. 1, § 2(a).^[26]

2. Additional Evidence for the Preliminary Injunction

The Waterdog Open Space is 260 acres and 10.5 miles of mapped and unmapped trails.^[27] The city uses volunteers to help with trail maintenance and invasive-plant removal.^[28] Two volunteer groups work there: the plaintiff's group and the Waterdog Trailkeepers.^[29]

In 2020, the plaintiff contacted Ms. Shearer with a proposal to remove non-native plant species, she agreed, and he began removing plants in the summer 2020.^[30] They “were in general agreement about the scope of his volunteer activities in the Waterdog Open Space.”^[31] They communicated occasionally by email or in person about when he intended to work, where, and the location of piles of vegetation to be removed by the city. Ms. Shearer gave him signage to post when he was volunteering to show others that the city authorized his activity. She also gave him a plant-removal tool and helped plan at least two volunteer groups with him.^[32]

In November 2022, she emailed him: “let's hold off with any plant removal at this time.” She told the...