Cuagliotti v. Mesa, City of

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Carl Cuagliotti,
Plaintiff,
v.
City of Mesa, et al.,
Defendant.
No. CV-24-02970-PHX-DWL
ORDER
The City of Mesa (“the City”) has enacted municipal ordinances that prohibit
camping in City parks and on City property.1 In his Second Amended Complaint (“SAC”),
pro se Plaintiff asserted an array of constitutional challenges to the Challenged Ordinances,
arguing that they violate his Fourteenth Amendment substantive due process rights, his
Fourteenth Amendment procedural due process rights, and his Fourth Amendment right to
be free from unlawful seizure and that they are also unconstitutionally vague. (Doc. 15.)
On March 9, 2026, the Court issued an order granting the City’s motion to dismiss
all claims in the SAC (“the Order Dismissing the SAC”). (Doc. 34.) Additionally, “[i]n
light of Plaintiff’s pro se status,” the Court “construe[d] the SAC liberally” and separately
addressed whether it stated a claim under the Equal Protection Clause, concluding that “to
the extent the SAC attempts to assert [such a claim], that claim is dismissed.” (Id. at 42-
44.) Finally, although Plaintiff did not request it, the Court also granted limited leave to
1 Those ordinances are MCC § 6-10-4(V), MCC § 6-10-2, and MCC § 6-1-23 and
will be referred to herein as the “Challenged Ordinances.” (Doc. 34 at 4-7.)
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amend—Plaintiff was authorized (1) “to plead additional facts to support that he was
‘seized’ under the Fourth Amendment” and (2) “to amend his complaint to allege additional
facts intended to support an Equal Protection claim under a selective enforcement theory.”
(Id. at 45.)
On March 18, 2026, Plaintiff filed the Third Amended Complaint (“TAC”). (Doc.
35.) The City has, in turn, again moved to dismiss. (Doc. 37.) Plaintiff has separately
filed a motion for leave to file a surreply (Doc. 40) and to stay the enforcement of a citation
that was issued against him for violating one of the Challenged Ordinances (Doc. 43). The
three pending motions are now fully briefed (Docs. 38, 39, 46, 47) and neither side
requested oral argument. For the reasons that follow, the City’s motion to dismiss is
granted and Plaintiff’s motions are denied.
BACKGROUND
I. Relevant Factual Background
The parties are familiar with the relevant facts of this case, which are outlined in the
Order Dismissing the SAC. (Doc. 34.) The following new allegations were either added,
reworded, or altered in the TAC:2
A. November 2024 Encounter
During the November 2024 encounter, “Plaintiff asked the rangers why he was
being singled out while other individuals in the park—who were also present with
backpacks and belongings—were not being questioned or ordered to leave. The rangers
responded that the others were ‘recreating,’ implicitly acknowledging that Plaintiff was
being targeted not for his conduct, but for his status as an unhoused individual. The
rangers’ distinction between ‘recreating’ (housed persons) and ‘unauthorized presence’
(Plaintiff) had no basis in the ordinance, which prohibits camping for all persons equally.”
(Doc. 35 ¶ 40.) The TAC alleges that “[t]his arbitrary distinction based solely on perceived
housing status violates the Equal Protection clause.” (Id.) The TAC also alleges that “[t]he
rangers then explicitly revealed their discriminatory intent by stating: ‘When one homeless
2 See, e.g., Doc. 35-1 (redline showing changes from SAC to TAC).
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person is present, they all start congregating’—a statement evidencing stereotyping and
animus toward unhoused individuals as a group” and which “demonstrates that the rangers
subjected Plaintiff to heightened scrutiny and enforcement based not on individualized
suspicion of wrongdoing, but on group-based stereotyping prohibited by the Equal
Protection Clause.” (Id. ¶ 41.)
The TAC also adds several facts and arguments related to the rangers allegedly
accusing Plaintiff of being a “repeat offender” and further alleges that “[t]his accusation
was false—Plaintiff had not been previously warned, cited, or approached by rangers in
any other park.” (Id. ¶¶ 42-43.) “After Plaintiff demonstrated that he was not a repeat
offender and had committed no violation, the first ranger explicitly threatened that if
Plaintiff did not comply, he would be banished from the park and cited under MCC [§] 6-
10-4(V) for the number of bags he had,” and “[t]his threat was issued despite Plaintiff not
meeting the objective criteria for a citation (he was not camping, was alert and studying,
and had not been previously warned or cited).” (Id. ¶ 44.)
“Faced with the imminent threat of (1) banishment from the park, (2) criminal
citation under MCC [§] 6-10-4(V), and (3) the rangers’ clear demonstration that they would
fabricate justifications for enforcement, Plaintiff had no real choice but to comply.” (Id.
¶ 45.) The TAC alleges that “Plaintiff’s ‘consent’ to leave was not voluntary; it was
coerced through threats of criminal sanction and banishment obtained through pre-textual
investigation and false accusation” and that “Plaintiff was deterred from exercising his
right to remain in a public forum based on threats of prosecution that the rangers
manufactured through discriminatory stereotyping and false allegations.” (Id.)
B. October 2025 Encounter
The TAC adds allegations regarding a new encounter that occurred in October 2025.
The TAC alleges that “[t]he pattern of selective enforcement, discriminatory targeting, and
coercive banishment of Plaintiff based on his unhoused status has continued throughout
the pendency of this litigation.” (Id. ¶ 55.) Specifically, “[o]n or about October 27, 2025,
Plaintiff was present at a public park in Mesa, Arizona, lawfully organizing his personal
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belongings and studying reference materials when a City of Mesa police officer approached
him, questioned his presence, and stated: ‘this is not a place for all your stuff’ and ‘you
should go to the library.’” (Id. ¶ 56.) “When Plaintiff inquired if there was an ordinance
that was against having his stuff, the officer offered no legitimate basis related to any
observed violation of law.” (Id. ¶ 57.) “Plaintiff then stated, ‘go ahead, give me a ticket’—
explicitly inviting lawful enforcement if any violation actually existed.” (Id.) “The officer
refused to issue a citation.” (Id.) “Instead, the officer stated that Plaintiff had to leave the
park ‘simply because she said to,’” and the TAC alleges that this was a “naked exercise of
arbitrary authority targeted at Plaintiff because of his unhoused status.” (Id.) The TAC
alleges that “[t]he only basis for the officer’s demand was Plaintiff’s appearance as an
unhoused person organizing personal belongings in a public space—conduct that, as
alleged above, housed individuals engage in daily without interference.” (Id. ¶ 58.)
Specifically, the TAC alleges that “[a]t the same time and location, the same officer
intentionally ignored other park patrons who appeared housed but who were also present
with backpacks and personal belongings” and thus “the officer engaged in selective
enforcement by only targeting individuals who appeared unhoused while permitting
similarly situated housed individuals to remain undisturbed.” (Id. ¶ 59.)
The TAC also alleges that “[t]he officer’s directive that Plaintiff ‘should go to the
library’ constitutes constructive banishment.” (Id. ¶ 60.) And the TAC alleges that the
“[t]he library is not a substitute for public park access.” (Id.) The TAC alleges that this
incident “proves that Plaintiff faces a credible threat of future pretextual enforcement based
solely on his unhoused status.” (Id. ¶ 61.) The TAC further alleges that, during this
encounter, “Plaintiff lawfully declined to be banished from the park absent a lawful basis”
and that “the officer threatened him with continued surveillance, stating: ‘We’ll be
watching you then.’” (Id. ¶ 102.)
C. Fourth Amendment Seizure
The TAC alleges that the City enforces the Challenged Ordinances “in a manner
that restrains Plaintiff’s liberty and freedom of movement through an ongoing show of
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governmental authority backed by criminal penalties.” (Id. ¶ 65.) “Under the City’s
enforcement regime,” Plaintiff alleges that he “is repeatedly confronted by park rangers
and other officials and presented with the following coercive trilemma: a. Submit to
placement in City-approved shelter, mental health, or rehabilitation programs that not only
impose restrictive conditions—including curfews, supervision, and limitations on
movement—but also expose individuals to documented risks of violence, unsafe
conditions, and lack of adequate services; b. Receive criminal citations and face
prosecution, fines, and potential arrest for engaging in life-sustaining conduct in public; or
c. Leave or be expelled from public spaces within the City, effectively facing constructive
banishment.” (Id. ¶ 66.) “Faced with these options and the credible threat of citation or
arrest, Plaintiff has repeatedly altered his conduct and complied with directives issued by
City officials, including leaving public spaces and modifying his behavior to avoid criminal
punishment.” (Id. ¶ 67.) “The City’s enforcement regime therefore restrains Plaintiff’s
liberty through a continuous show of governmental authority.” (Id. ¶ 68.) “The City’s
enforcement of the Challenged Ordinances functions as a system of constructive custody.
Plaintiff’s freedom of movement is conditioned on submission to restrictive government-
approved programs or compliance with directives backed by criminal penalties.” (Id. ¶ 69.)
The TAC proceeds to allege, at length, why these government-approved services are not a
suitable alternative to remaining in City parks. (Id. ¶¶ 69-74.)
The TAC also alleges that “[u]nlike a brief or isolated police encounter, the
Challenged Ordinances city-wide regulatory regime . . . criminalizes Plaintiff’s presence
in public spaces when he engages in basic life-sustaining conduct such as resting or
possessing personal belongings.” (Id. ¶ 76.) “Under this regime, Plaintiff cannot simply
avoid police encounters by moving elsewhere within the City, because the same criminal
prohibitions apply to virtually all public spaces,” and “a reasonable person in Plaintiff’s
position would not feel free to disregard the commands of City officials or continue
ordinary activities in public space.” (Id. ¶ 77.) “The City’s repeated orders to leave public
areas under threat of citation are therefore not isolated dispersal commands but part of an
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ongoing enforcement system that restrains Plaintiff’s liberty and movement across the City.
This restraint operates through a continuous show of authority backed by criminal penalties
and credible threats of enforcement. This is not a consensual encounter, as an officer’s
conduct communicates that compliance is not optional but required.” (Id. ¶ 78.) “The
City’s enforcement scheme effectively directs Plaintiff’s movement and behavior by
making lawful, life-sustaining activities impossible in public spaces and by coercing
submission to restrictive and dangerous government programs,” “[c]onstructive
banishment from public spaces further restrains Plaintiff’s liberty,” and “[b]y expelling
Plaintiff from public areas under threat of criminal prosecution and preventing him from
returning, the City interferes with Plaintiff’s ability to remain in places where he is
otherwise lawfully present.” (Id. ¶¶ 79-80.) The TAC argues that “[b]y enforcing the
Challenged Ordinances through a coercive system that restricts Plaintiff’s freedom of
movement and compels submission to dangerous, government-controlled living
arrangements under threat of criminal punishment, the City has subjected Plaintiff to an
ongoing and unreasonable seizure of his person.” (Id. ¶ 84.)
D. Equal Protection
The TAC alleges that the City, “acting under color of state law, [has] enforced and
continue[s] to enforce the City’s ordinances, policies, and customs in a manner that
intentionally and irrationally discriminates against Plaintiff based on his unhoused status,
thereby violating his right to equal protection of the laws.” (Id. ¶ 88.) The TAC then
purports to set forth the legal standard for a “class of one” Equal Protection claim. (Id.
¶ 89.)
The TAC alleges that the City has “engaged in a persistent and ongoing pattern of
conduct that selectively and arbitrarily targets Plaintiff for harassment, citation, and
exclusion from public spaces, while intentionally ignoring housed individuals who are
similarly situated and engaged in identical, lawful conduct.” (Id. ¶ 90.) “This pattern
includes, but is not limited to: a. In November 2024, a City ranger ordered Plaintiff to leave
a public park for allegedly ‘camping’ while he was awake, alert, and studying with his
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belongings. The ranger ignored similarly situated housed students and other park patrons
who also possessed backpacks and personal items. b. On January 23, 2025, a City ranger
harassed Plaintiff and ordered him to maintain an ‘erect posture,’ effectively criminalizing
the act of closing one’s eyes or appearing to rest, a standard not applied to any housed
person in a City park. c. Following the January 23, 2025 citation, [the City] unlawfully
banished Plaintiff a public park in the City . . . for one month, a punitive and arbitrary
exclusion not imposed on housed individuals cited for minor municipal infractions.” (Id.
¶ 91.)
The TAC next alleges that “the City has actual and constructive knowledge that its
park rangers have engaged in a pattern and practice of targeting unhoused individuals for
harassment and selective enforcement” based on evidence of an alleged “Goon Squad”
formed by several City rangers who allegedly targeted homeless individuals and people of
color. (Id. ¶¶ 92-97.)
The TAC alleges that “Plaintiff was and is similarly situated to countless individuals
in Mesa who use public parks while possessing personal belongings. These individuals
include students, tourists, picnickers, and families. The only material difference between
Plaintiff and these comparators is that Plaintiff is unhoused.” (Id. ¶ 105.) The TAC alleges
that the City “intentionally and systematically treated Plaintiff differently from those
similarly situated individuals” because both Plaintiff, who is “unhoused,” and the “housed
comparators” were present with backpacks/belongings, organizing/resting in public, and
not “camping” or erecting a structure. (Id. ¶ 106.) The TAC alleges that “[t]here is no
rational basis for [the City’s] differential treatment of Plaintiff. No legitimate government
interest is advanced by a policy that allows a housed student to study with a backpack in a
park but subjects an unhoused person engaged in the exact same activity to harassment and
banishment. The City’s interest in public health and safety is not rationally served by
targeting individuals based on their housing status rather than their conduct. The targeting
of Plaintiff is based on irrational animus and stereotypes against unhoused people, viewing
their presence as inherently undesirable . . . .” (Id. ¶¶ 108-09.)
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II. Procedural History
On October 29, 2024, Plaintiff initiated this action. (Doc. 1.)
On November 13, 2024, Plaintiff filed the First Amended Complaint. (Doc. 5.)
On April 17, 2025, Plaintiff filed the SAC. (Doc. 15.)
On March 9, 2026, the Court issued the Order Dismissing the SAC, which granted
Plaintiff limited leave to amend to “to plead additional facts to support that he was ‘seized’
under the Fourth Amendment” and “to allege additional facts intended to support an Equal
Protection claim under a selective enforcement theory.” (Doc. 34 at 45.)
On March 18, 2026, Plaintiff filed the TAC. (Doc. 35.)
On April 1, 2026, the City moved to dismiss the TAC. (Doc. 37.) That motion is
now fully briefed. (Docs. 38, 39.)
On April 30, 2026, Plaintiff filed a motion for leave to file a surreply to the pending
motion to dismiss and lodged his proposed surreply. (Docs. 40, 41.)
On May 11, 2026, Plaintiff filed a notice of supplemental fact. (Doc. 42.) That
same day, Plaintiff filed a motion to stay enforcement of a citation issued against him under
the Challenged Ordinances. (Doc. 43.) On May 19, 2026, Plaintiff filed a motion to
expedite his motion to stay (Doc. 44), which the Court denied (Doc. 45). The motion to
stay is now fully briefed. (Docs. 46, 47.)
On June 8, 2026, Plaintiff filed a notice of supplemental fact. (Doc. 48.)
On June 10, 2026, Plaintiff filed a notice of supplemental fact. (Doc. 49.)
On June 19, 2026, Plaintiff filed a notice of supplemental fact. (Doc. 50.)
DISCUSSION
I. Plaintiff’s Motion To Stay Enforcement
Plaintiff “moves this Court for an order staying enforcement of the citation issued
against him [on May 29, 2026] under [MCC] § 6-10-4(V), pending resolution of this
action.” (Doc. 43 at 1.) However, after the motion became fully briefed (Docs. 46, 47),
Plaintiff filed a “Notice of Dismissal,” notifying the Court that he “appeared before the
Mesa Municipal Court regarding the citation that is the subject of [his] pending Motion to
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Stay,” that “the prosecutor informed the court that dismissal of the citation was being
recommended,” and that “[t]he Mesa Municipal Court thereafter dismissed the citation”
(Doc. 49 at 2). Because the citation that is the subject of Plaintiff’s motion to stay
enforcement has been dismissed, Plaintiff’s motion to stay is denied as moot.
II. Plaintiff’s Motion For Leave To File A Surreply
“Sur-replies are highly disfavored and permitted only in extraordinary
circumstances.” Fitzhugh v. Miller, 2020 WL 1640495, *9 (D. Ariz. 2020) (cleaned up).
“Although the Court may in its discretion allow the filing of a surreply, this discretion
should be exercised in favor of allowing a surreply only where a valid reason for such
additional briefing exists, such as where the movant raises new arguments in its reply
brief.” Id. (citation omitted).
Plaintiff “moves for leave to file a surreply in response to [the City’s] Reply in
support of its Motion to Dismiss” and contends that “[g]ood cause exists here for three
independent reasons.” (Doc. 40 at 1-2.) First, Plaintiff argues that the City’s reply “asserts
that Plaintiff ‘did not intend to raise the class of one theory’ and argues that the Court
should not consider such a claim,” but “[t]his reframing was not the basis of [the City’s]
opening Motion and shifts the focus of the Equal Protection analysis.” (Id. at 3.) Plaintiff
argues that “[a] surreply is necessary to clarify the scope of Plaintiff’s claim as pleaded in
the TAC and addressed in Plaintiff’s opposition.” (Id.) Plaintiff’s argument is without
merit. The City’s motion to dismiss argues that the TAC attempts to raise an Equal
Protection claim under a “class of one” theory, in addition to an Equal Protection claim
under a “selective enforcement” theory, and that the “class of one” claim (1) exceeds the
scope of the limited leave to amend granted to Plaintiff in the Order Dismissing the SAC
and (2) also fails on the merits. (Doc. 37 at 12-14.) In his response brief, Plaintiff clarifies
that the TAC asserts “a classic selective enforcement claim, not a pure ‘class-of-one’
theory” and asserts that the TAC’s Equal Protection “claim falls squarely in the [selective-
enforcement] category.” (Doc. 38 at 10.) In reply, the City does not raise any “new”
arguments about Plaintiff’s “class of one” theory—instead, the City responds to Plaintiff’s
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assertion that “he did not intend to raise the class of one theory” and therefore argues that
“the Court should not consider” such a theory. (Doc. 39 at 2.) As explained in the Order
Dismissing the SAC, the fact that the City “simply respond[ed] to arguments that Plaintiff
made in his response brief” is not grounds for Plaintiff to file a surreply. (Doc. 34 at 10.)
See also Sawicky v. AMC Networks Inc., 2018 WL 11292263, *1 (C.D. Cal. 2018), aff’d,
753 F. App’x 501 (9th Cir. 2019) (“Sawicky requests leave to file a sur-reply in support of
this motion based on AMC’s ‘misinterpreted arguments.’ All of AMC’s arguments on
reply are in direct response to Sawicky’s opposition. It appears Sawicky seeks a second
bite at the apple but does not show good cause to do so. Therefore, her request is denied.”).
Second, Plaintiff argues that the City’s “Reply also asserts that Plaintiff was
engaged in ‘criminalized conduct’ and therefore not similarly situated to other individuals,”
which is incorrect because “the TAC expressly alleges that Plaintiff was not camping, but
instead was awake and studying with his belongings,” and “[b]ecause [the City’s] argument
depends on a characterization that conflicts with the pleaded facts . . . a surreply is
necessary to address this issue and clarify the record.” (Doc. 40 at 3-4.) This argument is
without merit for two reasons. First, the City raised the same argument in its opening brief
(Doc. 37 at 8-9), so it is not a “new” argument raised for the first time in reply. Second, it
is the Court’s job to faithfully apply the Rule 12(b)(6) standard and construe all well-
pleaded factual allegations in Plaintiff’s favor. A surreply is not necessary for the Court to
apply the familiar Rule 12(b)(6) standard to a fully briefed motion.
Third, Plaintiff argues that the City’s reply fails to address the TAC’s “allegations
supporting discriminatory intent and a municipal policy or custom.” (Doc. 40 at 4.) But
Plaintiff does not cite, nor is the Court aware of, any authority that authorizes a surreply
because a reply purportedly fails to address arguments.
Accordingly, Plaintiff’s motion for leave to file a surreply is denied.
III. The City’s Motion To Dismiss The TAC
A. Legal Standard
Under Rule 12(b)(6), “to survive a motion to dismiss, a party must allege sufficient
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factual matter, accepted as true, to state a claim to relief that is plausible on its face.” In re
Fitness Holdings Int’l, Inc., 714 F.3d 1141, 1144 (9th Cir. 2013) (cleaned up). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “[A]ll well-pleaded allegations of
material fact in the complaint are accepted as true and are construed in the light most
favorable to the non-moving party.” Id. at 1144-45 (citation omitted). However, the Court
need not accept legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678-
80. Moreover, “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. at 678. The court also may dismiss due
to “a lack of a cognizable legal theory.” Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th
Cir. 2015) (citation omitted).
B. Fourth Amendment Seizure
1. The Parties’ Arguments
The City argues that “[t]he Fourth Amendment claim fails because Plaintiff failed
to add any new facts showing an unlawful ‘seizure.’” (Doc. 37 at 3.) The City emphasizes
that the Order Dismissing the SAC “noted that Plaintiff never alleged he was subjected to
physical force . . . and concluded that park rangers giving Plaintiff the options of accepting
services, receiving a citation, or being expelled from the park does not amount to a
‘seizure.’” (Id. at 4.) The City further emphasizes that the Order Dismissing the SAC
“added that the show-of-authority theory failed for other reasons, including that Plaintiff
often did not comply with the rangers’ orders, Plaintiff was never ‘restrained’ when he left
the park, and a citation is not a seizure.” (Id.) The City argues that Plaintiff has not pleaded
“additional facts showing an unlawful seizure” and that the TAC simply “repleads
[Plaintiff’s] first three interactions with park rangers without substantive change” and
without “alleg[ing] that []he was subject to physical force.” (Id. at 4-5.) The City also
argues that Plaintiff’s “general theory remains the same: the enforcement of the ordinances
functions as ‘an ongoing’ or ‘continuous show of governmental authority’ that effectively
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leads to ‘constructive banishment’ or ‘constructive custody,’” but “[t]he Court has already
rejected this theory of a seizure.” (Id. at 5.) Next, the City argues that the “only new
allegations in the [TAC] relate to an October 2025 interaction Plaintiff had with a police
officer, but those allegations similarly do not show a seizure” because “Plaintiff again does
not allege that he was physically detained” and “alleges only that the officer suggested he
leave the park and go to the library, but he does not allege that he submitted to an assertion
of authority in any way.” (Id.) Alternatively, the City argues that “this interaction is not
an enforcement of the City’s ordinances such that Plaintiff can rely on it to challenge their
constitutionality” because, according to the TAC’s allegations, Plaintiff “asked the officer
if he was in violation of an ordinance, but the officer did not provide him with one.” (Id.
at 5 n.1.)
In response, Plaintiff argues that the City’s “motion fails because it mischaracterizes
both the factual allegations in the TAC and the governing legal standards at the pleading
stage.” (Doc. 38 at 2.) Plaintiff argues that “[c]ontrary to [the City’s] assertion that no
new facts were added, the TAC alleges that officers: a. Issued direct commands requiring
Plaintiff to leave public property; b. Asserted authority without legal justification; and c.
Caused Plaintiff to comply with those commands under threat of enforcement” and that
“[t]hese allegations plausibly establish a seizure through a show of authority and
submission.” (Id.) Plaintiff argues that the City’s motion “improperly asks the Court to
disregard these allegations and instead draw inferences in [the City’s] favor, which is
impermissible on a Rule 12(b)(6) motion.” (Id.) Next, Plaintiff argues that “[w]here no
physical force is used, a seizure occurs when: a. The officer makes a show of authority,
and b. The individual submits to that authority.” (Id. at 5.) Plaintiff argues that “[p]hysical
detention is not required” and “[a] command backed by authority that compels compliance
is sufficient.” (Id.) Citing the new allegations regarding the October 2025 encounter,
Plaintiff argues that the TAC “alleges that officers issued commands requiring Plaintiff to
leave public property without legal justification,” “alleges that officers asserted authority
over him and required compliance,” and “further alleges that Plaintiff complied with these
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commands and altered his conduct in response to police authority.” (Id.) Plaintiff argues
that “[c]ompliance with an officer’s command to leave a public place constitutes
submission to authority.” (Id. at 6.) Next, Plaintiff argues that the City’s “emphasis on the
absence of ‘physical detention’ reflects a misstatement of clearly established law” because
“[t]he Fourth Amendment does not require physical force.” (Id.) Without citing any
caselaw, Plaintiff argues that “[c]ourts have repeatedly recognized that commands
restricting a person’s movement—such as ordering an individual to leave—can constitute
a seizure when compliance is compelled.” (Id.) Plaintiff also argues that whether he “in
fact submitted to authority is a factual question that cannot be resolved on a motion to
dismiss” and that the “TAC plausibly alleges that Plaintiff was subjected to repeated
assertions of authority and that he complied with those directives.” (Id.) Next, Plaintiff
argues that the TAC “includes additional factual detail regarding: a. The nature of the
officers’ commands; b. The absence of legal justification; and c. Plaintiff’s compliance
with those commands.” (Id. at 7.) Plaintiff thus argues that he “has plausibly alleged that:
a. Officers asserted authority over him; b. He was not free to disregard those commands;
and c. He complied with those commands.” (Id.)
In reply, the City reiterates that “Plaintiff’s Fourth Amendment claim fails because
he has not adequately alleged a ‘seizure’ within the meaning of the Fourth Amendment.”
(Doc. 39 at 1.) The City also reiterates that the TAC’s “amendments . . . do not cure the
deficiencies identified” in the Order Dismissing the SAC. (Id.) Next, the City responds to
Plaintiff’s argument “that his newly alleged facts are sufficient to salvage this claim,”
arguing that the TAC’s “new allegations are merely that a police officer suggested he leave
the park and go the library.” (Id.) Thus, the City argues “[t]he Court should dismiss the
claim again, this time with prejudice, as Plaintiff has demonstrated he cannot cure the
deficiencies identified by the Court.” (Id. at 2.)
2. Analysis
The TAC’s Fourth Amendment claim fails because there continues to be “no
plausible allegation that the Challenged Ordinances result in the sort of ‘seizure’
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contemplated by the Fourth Amendment.” (Doc. 34 at 21.) “The ‘seizure’ of a ‘person’
can take the form of physical force or a show of authority that in some way restrains the
liberty of the person.” Puente v. City of Phoenix, 123 F.4th 1035, 1051 (9th Cir. 2024)
(quoting Torres v. Madrid, 592 U.S. 306, 311 (2021)).
Once again, the TAC does not allege that Plaintiff was ever subjected to physical
force. Cf. California v. Hodari D., 499 U.S. 621, 625 (1991) (“The present case . . . does
not involve the application of any physical force; Hodari was untouched by Officer Pertoso
at the time he discarded the cocaine.”).
Nor do the allegations in the TAC support a Fourth Amendment seizure claim under
a show-of-authority theory. The TAC continues to rely on the same “seizure” theory as
the SAC—i.e., that Plaintiff’s encounters with park rangers present him with three options:
(1) accept shelter, mental health, and/or rehabilitation services; (2) receive a citation for
violating the Challenged Ordinances; or (3) face arrest or expulsion/banishment from
public space. (Compare Doc. 35 ¶ 28 with Doc. 15 ¶ 27.) The TAC adds allegations
reiterating this “trilemma” theory and then alleges, in conclusory fashion, that “[f]aced with
these options and the credible threat of citation or arrest, Plaintiff has repeatedly altered his
conduct and complied with directives issued by City officials, including leaving public
spaces and modifying his behavior to avoid criminal punishment.” (Doc. 35 ¶¶ 66-67.)
The TAC refers to this “trilemma” as “a system of constructive custody” and proceeds to
outline several ways in which shelter services are restrictive and dangerous. (Doc. 35
¶¶ 66, 69-74.) At bottom, the TAC’s theory of “constructive custody” premised on
Plaintiff being given three options—complying with an officer’s directives, facing a
citation, or getting arrested/leaving the park—is no different than the theory presented in
the SAC. As the Order Dismissing the SAC explained, “the presentation of such options
by a law enforcement officer does not amount to a seizure.” (Doc. 34 at 24.)
The Order Dismissing the SAC also explained why Plaintiff’s various encounters
with park rangers in October 2024, November 2024, and April 2025, as described in the
SAC, “fail[ed] to allege a seizure under a show-of authority theory for other reasons.” (Id.)
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As for the October 2024 encounter, the TAC adds no new allegations to support that this
encounter was a “seizure.” (Doc. 35 ¶ 35. See also Doc. 35-1 at 9 [redline].) Accordingly,
the October 2024 encounter does not constitute a “seizure” for the same reasons identified
in the Order Dismissing the SAC. (Doc. 34 at 24-25.)
As for November 2024 encounter, the TAC largely adds allegations intended to
support Plaintiff’s Equal Protection claim, not his Fourth Amendment claim. (Doc. 35
¶¶ 36-46. See also Doc. 35-1 at 10-12 [redline].) The TAC, although re-worded, continues
to allege that this encounter was a seizure because Plaintiff was “[f]aced with the imminent
threat of (1) banishment from the park, (2) criminal citation under MCC [§] 6-10-4(V), and
(3) the rangers’ clear demonstration that they would fabricate justifications for
enforcement,” so “Plaintiff had no real choice but to comply.” (Doc. 35 ¶ 45.) And the
TAC now alleges that “Plaintiff’s ‘consent’ to leave was not voluntary” because “it was
coerced through threats of criminal sanction and banishment.” (Id.) The November 2024
encounter does not constitute a “seizure” for the same reasons identified in the Order
Dismissing the SAC. (Doc. 34 at 25.)
As for the April 2025 encounter, the TAC adds no allegations to support that
Plaintiff was “seized” per the Fourth Amendment. (Doc. 35 ¶¶ 47-54. See also Doc. 35-1
at 12-14 [redline].) Thus, the April 2025 encounter also does not constitute a “seizure” for
the same reasons identified in the Order Dismissing the SAC. (Doc. 34 at 25.)
The TAC adds allegations regarding an additional encounter in October 2025. (Doc.
35 ¶¶ 55-62.) This encounter, too, is not a “seizure.” The TAC simply alleges that Plaintiff
was told by an officer that he should leave the park and go to the library. The TAC does
not allege that Plaintiff complied with this directive (to the extent it can even be considered
a “directive”), so it is not a “seizure.” Hodari, 499 U.S. at 629 (no seizure under show-of-
authority theory if the person does not comply).3 Moreover, as the Order Dismissing the
3 Plaintiff argues in his response brief that he “complied with these commands.”
(Doc. 38 at 5.) In support, Plaintiff cites paragraph 67 of the TAC. (Id.) But paragraph
67 does not refer specifically to the October 2025 incident and instead simply asserts, in
conclusory fashion, that “Plaintiff has repeatedly altered his conduct and complied with
directives issued by City officials, including leaving public spaces and modifying his
behavior” and that “[s]uch compliance constitutes submission to a show of authority within
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SAC explained, “when officers order persons to leave public areas, such police conduct,
without more, is not a seizure under the Fourth Amendment as long as the person is
otherwise free to go where he wishes.” (Doc. 34 at 23, cleaned up.) Plaintiff does not
allege that he was forced to go to the library, specifically, as opposed to anywhere else.
Accordingly, the October 2025 encounter was not a “seizure.”
C. Equal Protection
1. The Parties’ Argument
The City argues that “[i]t remains unclear whether Plaintiff is truly advancing the
selective enforcement theory” but, regardless, any such claim fails for several reasons.
(Doc. 37 at 5.) First, the City argues that “Plaintiff does not meaningfully define his class
or a similarly situated one.” (Id. at 6.) “[R]eading the [TAC] liberally,” the City argues
that Plaintiff “seems to imply that people ‘who appear unhoused’ are treated differently
than those ‘who appear housed,’” but “this of course is not a proper definition of a class,
as Plaintiff does not explain what it means to ‘appear’ housed or unhoused.” (Id.) The
City argues that “[i]f instead Plaintiff’s comparator class are those who are, in fact, housed
or unhoused, Plaintiff does not explain how he or City law enforcement could possibly
know the housing status of everyone at the park” and that “[f]ailure to define the relevant
classes alone requires dismissal of Plaintiff’s claims.” (Id. at 6-7.) Second, the City argues
that “[e]ven assuming Plaintiff can identify the relevant classes as those who ‘appear’
housed or unhoused,” Plaintiff has failed to allege discriminatory effect. (Id. at 7.) The
City argues that “[o]f the four interactions Plaintiff alleges, only two involve allegations
that can reasonably be read to make any sort of comparison between Plaintiff’s class and
another: the November 2024 interaction and the October 2025 interaction,” “[b]ut neither
interaction demonstrates discriminatory effect under a selective enforcement theory.” (Id.)
As for the November 2024 incident, the City argues that the TAC’s allegations “fail to
the meaning of the Fourth Amendment.” (Doc. 35 ¶ 67.) This is “a textbook example of
the sort of conclusory, fact-free assertion that Iqbal forbids.” Andrich v. Kostas, 2020 WL
377093, *5 (D. Ariz. 2020). Moreover, in paragraph 102 of the TAC, Plaintiff alleges that
he “lawfully declined to be banished from the park” during the October 2025 encounter.
(Doc. 35 ¶ 102.)
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show discriminatory effect” because “Plaintiff fails to draw an equivalent comparison
between his class and another—those ‘who were also present with backpacks and
belongings’ is not the control group in this analysis.” (Id.) Citing Garber v. Flores, 2009
WL 1649727 (C.D. Cal. 2009), the City argues that “[h]ere, too, there is no factual basis to
infer that the others ‘who were also present with backpacks and belongings’ did not appear
unhoused” and that “[t]he inference that Plaintiff asks the Court to draw—that the rangers
describing the others’ conduct as ‘recreating’ necessarily implies that the rangers targeted
Plaintiff for appearing unhoused—is unreasonable and too far of a logical leap.” (Id. at 8.)
Moreover, the City argues that “as the Garber court recognized, the comparison between
groups must be tied to the reason for enforcement,” the “rangers distinguished the others’
conduct by stating that they were ‘recreating,’” and thus “Plaintiff was not similarly
situated with the others if he was violating the ordinance and the others were ‘recreating.’”
(Id.) As for the October 2025 encounter, the City argues that “Plaintiff has not alleged that
during this interaction, an ordinance was enforced against him at all.” (Id. at 9.) And the
City argues that “[e]ven if [Plaintiff] could allege enforcement of an ordinance, this
interaction again shows only that the officer did not speak to others ‘with backpacks and
personal belongings,’” but Plaintiff was violating the camping ordinance whereas the
others were not, and so “the October interaction does not show discriminatory effect
either.” (Id.) The City next argues that, “[a]t most, Plaintiff has alleged that the officer’s
‘selective approach’ evidenced ‘discriminatory treatment by law enforcement towards
unhoused individuals.” (Id.) But the City argues that “such ‘general and conclusory
statements’ cannot sustain a claim under the selective enforcement theory.” (Id. at 10.)
Third, the City argues that “[e]ven if Plaintiff could show discriminatory effect,” he has
failed to allege discriminatory purpose. (Id.) The City argues that “the factual allegations
relating to the intent of the rangers and officers with whom Plaintiff interacted are limited
to the November 2024 interaction” and “[i]n none of the other interactions does Plaintiff
specifically allege discriminatory intent.” (Id.) The City also argues that “Plaintiff’s other
allegations of intent that relate to his interactions with law enforcement are equally
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insufficient” because “[i]n essence, Plaintiff pleads that because he experienced these
interactions with law enforcement and he appears unhoused, the interaction necessarily
demonstrates malicious intent toward the unhoused,” “[b]ut such an inference does not
logically follow, and conclusory allegations like this ‘will not do.’” (Id. at 11.) Next, the
City argues that Plaintiff’s allegations about a “so-called ‘Goon Squad’ whose purpose was
to target the homeless . . . do not suffice to show discriminatory purpose.” (Id.) The City
also argues that “these allegations do not support the showing of a ‘policy, plan, or a
pervasive pattern’ required to receive an injunction on a selective enforcement theory.”
(Id. at 11-12.) The City next argues that “[c]onspicuously absent from Plaintiff’s selective
enforcement allegations are any facts stating that others in his class were affected” and that
“[i]nstead, his allegations suggest that law enforcement has singled him out among patrons
of the park.” (Id. at 12.) The City argues that “it is clear” that Plaintiff “is, in fact, relying
on a class of one theory.” (Id.) The City argues that “the Court should dismiss this claim
because Plaintiff raises it in contravention of” the Order Dismissing the SAC, which
granted leave to amend solely to allege facts to support a “selective enforcement” theory.
(Id.) In the alternative, the City argues that the claim fails on the merits because “the
ordinances require law enforcement to exercise significant but adequately constrained
discretion” and thus, under Supreme Court and Ninth Circuit precedent, “these ordinances
by their nature involve discretionary decision-making based on a vast array of subjective,
individualized assessments,” such that “the class of one theory does not apply.” (Id. at 12-
14, cleaned up.)
In response, Plaintiff argues that “the TAC alleges that similarly situated
individuals—specifically housed individuals engaged in the same conduct—were not
subjected to enforcement, supporting both discriminatory effect and discriminatory intent”
and that “[a]t the pleading stage, these allegations are more than sufficient to state an Equal
Protection claim.” (Doc. 38 at 2-3.) Plaintiff argues that the City’s arguments fail “because
the TAC plausibly alleges selective enforcement, not merely a prohibited ‘class-of-one’
theory, and satisfies both required elements: discriminatory effect and discriminatory
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intent.” (Id. at 8.) As for discriminatory effect, Plaintiff argues that “[t]he TAC alleges
that Plaintiff was singled out for enforcement while similarly situated individuals—
specifically housed individuals engaging in the same conduct—were not subjected to
enforcement” and also “alleges that the officers targeted him for removal from public
spaces despite the presence of others engaged in identical conduct who were allowed to
remain.” (Id. at 9.) Plaintiff argues that “[t]hese allegations identify a comparator group
(housed individuals in public spaces) and assert differential treatment.” (Id.) As for
discriminatory intent, Plaintiff argues that “[t]he TAC alleges that Plaintiff was targeted
because of his status and circumstances, including his perceived homelessness and
presence in public spaces.” (Id.) Plaintiff also argues that “[d]iscriminatory intent may be
inferred from circumstantial evidence, including patterns of selective enforcement” and
that “[t]he TAC’s allegations—that Plaintiff was repeatedly singled out while others were
ignored—support a reasonable inference of discriminatory intent.” (Id. at 10.) Next,
Plaintiff argues that the City “mischaracterizes” his Equal Protection claim as one brought
under a “class of one” theory. (Id.) Specifically, Plaintiff argues that he “does not allege
that he was uniquely singled out for arbitrary reasons alone; rather, he alleges that he was
treated differently from a class of similarly situated individuals—namely, housed
individuals using public spaces” and that “[t]his is a classic selective enforcement claim,
not a pure ‘class-of-one’ theory.” (Id.) Plaintiff argues that “[c]ourts distinguish between:
a. Class-of-one claims based on arbitrary treatment; and b. Selective enforcement claims
based on differential treatment of identifiable groups” and that his “claim falls squarely in
the latter category.” (Id.) Next, Plaintiff argues that “discretionary enforcement decisions”
do not foreclose his Equal Protection claim and that the City’s “position would effectively
immunize all selective enforcement so long as it is labeled ‘discretionary,’ which is not the
law.” (Id. at 10-11.)4 Plaintiff also argues that the City’s motion “demands more detailed
4 Plaintiff appears to misunderstand the City’s argument about discretionary
enforcement decisions. The City argues that the enforcement of the Challenged Ordinances
is discretionary, and therefore, a “class of one” Equal Protection theory is inapplicable.
Plaintiff’s response brief clarifies that he is not bringing a “class of one” Equal Protection
claim and argues that discretionary enforcement does not bar his “selective enforcement”
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factual allegations than required under Rule 8” and that he “is not required to identify
specific comparators by name or provide statistical evidence at the pleading stage.” (Id. at
11.) Plaintiff argues that the allegations in the TAC are sufficient to state an Equal
Protection claim because he “has plausibly alleged that: a. He was treated differently than
similarly situated individuals; and b. The differential treatment was motivated by an
improper purpose.” (Id.)
In reply, the City argues that “Plaintiff now makes clear that he did not intend to
raise the class of one theory.” (Doc. 39 at 2.) Accordingly, the City argues that “the Court
should not consider Plaintiff’s claim under the class of one theory, nor should it allow
Plaintiff to bring a class of one claim for the reasons stated in the City’s Motion.” (Id.) As
for Plaintiff’s “selective enforcement” theory, the City argues that Plaintiff has failed to
allege discriminatory effect because he “has not alleged that the housed individuals were
engaged in the same criminalized conduct” and that “Plaintiff was not subject to
enforcement for merely having ‘backpacks and personal belongings.’” (Id.) “By alluding
to the comparator group as housed individuals present with backpacks and belongings,”
the City argues that “Plaintiff fails to ‘isolate the factor allegedly subject to impermissible
discrimination’” and that “[t]his is especially so because Plaintiff fails to allege that any
other unhoused individuals were subject to enforcement.” (Id. at 3.) Thus, the City argues
that “Plaintiff has failed to allege a similarly situated class against which the enforcement
actions could be compared, and in doing so, Plaintiff has failed to allege discriminatory
effect.” (Id.) Next, the City argues that “Plaintiff has also failed to allege discriminatory
purpose” because his “sole argument on this point is that discriminatory intent may be
inferred from patterns of selective enforcement and that he was repeatedly ‘singled out,’”
but he “cites no case that supports this argument.” (Id.) “Because Plaintiff has not
adequately alleged discriminatory effect or discriminatory purpose,” the City argues that
“he cannot prevail under the selective enforcement theory” and “[t]he Court should dismiss
[his] Fourteenth Amendment claim with prejudice.” (Id. at 4.)
claim.
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2. Analysis
a. Class Of One
Plaintiff may not proceed on a “class of one” Equal Protection theory for several
reasons. First, to the extent the TAC asserts an Equal Protection claim under a “class of
one” theory, it exceeds the limited scope of leave to amend granted in the Order Dismissing
the SAC. See, e.g., McDonough v. Bidwill, 2025 WL 2673966, *5 (D. Ariz. 2025) (“Courts
routinely dismiss or strike newly added claims where the addition of such claims exceeds
the scope of leave to amend that was previously authorized.”); Strifling v. Twitter Inc.,
2024 WL 54976, *1 (N.D. Cal. 2024) (“The amended complaint plainly exceeds the scope
of this Court’s dismissal order, which reads, ‘[plaintiffs] may file an amended complaint
within twenty-one days of this order solely to cure the deficiencies identified by this order.’
This language permits neither the addition of new parties nor the addition of new claims
but rather permits [plaintiffs] to amend their allegations in a manner sufficient to state the
pleaded claims.”) (citations omitted); Crane v. Yarborough, 2012 WL 1067965, *13 n.14
(C.D. Cal. 2012), report and recommendation adopted, 2012 WL 1067956 (C.D. Cal.
2012) (“[I]t would be appropriate to strike plaintiff’s First Amendment retaliation claim
because the addition of such claim which has been raised for the first time in the Second
Amended Complaint exceeds the scope of the leave to amend granted in the November 30
Order . . . .”); DeLeon v. Wells Fargo Bank, N.A., 2010 WL 4285006, *3 (N.D. Cal. 2010)
(“[W]here leave to amend is given to cure deficiencies in certain specified claims, courts
have agreed that new claims alleged for the first time in the amended pleading should be
dismissed or stricken.”); PB Farradyne, Inc. v. Peterson, 2006 WL 2578273, *3 (N.D. Cal.
2006) (striking new theory of liability alleged in the third amended complaint because it
was “outside the scope of the leave to amend granted” when the court dismissed the second
amended complaint).
The Order Dismissing the SAC held that “[a]lthough the SAC d[id] not assert a
standalone claim under the Equal Protection Clause,” “[i]n light of Plaintiff’s pro se
status,” “the Court [would] consider the SAC as a whole to determine whether it states such
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a claim.” (Doc. 34 at 42.) The Court observed that it appeared Plaintiff believed he had
stated an Equal Protection claim under a “selective enforcement” theory based on
“perceived housing status.” (Id. at 43.) The Court further observed, in a footnote, that
Plaintiff was “not pursuing” an Equal Protection claim under a “class of one” theory. (Id.
at 42 n.16.) This footnote was not an invitation for Plaintiff to attempt to assert a new
“class of one” Equal Protection claim in the TAC. Cf. McDonough, 2025 WL 2673966 at
*5 (“The Court did not . . . announce a ‘deficiency’ in the way the Family Plaintiffs pleaded
their claims or . . . suggest the viability of this cause of action . . . .”). Indeed, after
concluding that the SAC had failed to state an Equal Protection claim under a “selective
enforcement” theory, the Order Dismissing the SAC granted limited leave to amend “to
allege additional facts intended to support an Equal Protection claim under a selective
enforcement theory.” (Id. at 45, emphasis added.) The Order Dismissing the SAC
separately stated that “Plaintiff may . . . allege additional facts to support the assertion of
an Equal Protection claim consistent with this order.” (Id. at 45, emphasis added.) The
Order Dismissing the SAC did not permit Plaintiff to assert a new legal theory to support
his Equal Protection claim.
Second, at any rate, Plaintiff’s response to the motion to dismiss explicitly clarifies
that he is not pursuing an Equal Protection claim under a “class of one” theory and is
instead proceeding under a “selective enforcement” theory:
[The City] argues that Plaintiff improperly asserts a “class of one” claim.
This mischaracterizes the TAC. Plaintiff does not allege that he was uniquely
singled out for arbitrary reasons alone; rather, he alleges that he was treated
differently from a class of similarly situated individuals—namely, housed
individuals using public spaces. This is a classic selective enforcement
claim, not a pure “class-of-one” theory. Courts distinguish between: a.
Class-of-one claims based on arbitrary treatment; and b. Selective
enforcement claims based on differential treatment of identifiable groups.
Plaintiff’s claim falls squarely in the latter category.
(Doc. 38 at 10, cleaned up, emphases added.)5
5 Although Plaintiff’s request to file a surreply has been denied, the Court notes that
it has reviewed Plaintiff’s proposed surreply lodged at Doc. 41, which attempts to reverse
course from Plaintiff’s response brief and argue that the TAC does contain a “class of one”
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Third, even if Plaintiff had properly sought to amend the complaint to assert an
Equal Protection claim under a “class of one” theory, such amendment would be futile. In
Engquist v. Or. Dep’t of Agr., 553 U.S. 591 (2008), the Supreme Court explained that “an
equal protection claim can in some circumstances be sustained even if the plaintiff has not
alleged class-based discrimination, but instead claims that she has been irrationally singled
out as a so-called ‘class of one.’” Id. at 601. The Court further noted that such claims have
arisen in the context of “the government’s regulation of property” and “property
assessment and taxation schemes,” because “[w]e expect such legislative or regulatory
classifications to apply ‘without respect to persons,’ to borrow a phrase from the judicial
oath.” Id. at 602. In contrast, the Court explained that:
[t]here are some forms of state action, however, which by their nature involve
discretionary decisionmaking based on a vast array of subjective,
individualized assessments. In such cases the rule that people should be
“treated alike, under like circumstances and conditions” is not violated when
one person is treated differently from others, because treating like individuals
differently is an accepted consequence of the discretion granted. In such
situations, allowing a challenge based on the arbitrary singling out of a
particular person would undermine the very discretion that such state
officials are entrusted to exercise.
Suppose, for example, that a traffic officer is stationed on a busy highway
where people often drive above the speed limit, and there is no basis upon
which to distinguish them. If the officer gives only one of those people a
ticket, it may be good English to say that the officer has created a class of
people that did not get speeding tickets, and a “class of one” that did. But
assuming that it is in the nature of the particular government activity that not
all speeders can be stopped and ticketed, complaining that one has been
singled out for no reason does not invoke the fear of improper government
classification. Such a complaint, rather, challenges the legitimacy of the
underlying action itself—the decision to ticket speeders under such
circumstances. Of course, an allegation that speeding tickets are given out
on the basis of race or sex would state an equal protection claim, because
such discriminatory classifications implicate basic equal protection concerns.
But allowing an equal protection claim on the ground that a ticket was given
to one person and not others, even if for no discernible or articulable reason,
Equal Protection claim. (Doc. 41 at 2.) But a party cannot, via an improperly filed surreply,
take the opposite position from that taken in a properly filed response brief.
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would be incompatible with the discretion inherent in the challenged action.
It is no proper challenge to what in its nature is a subjective, individualized
decision that it was subjective and individualized.
Id. at 603-04. Similarly, in Towery v. Brewer, 672 F.3d 650 (9th Cir. 2012), the Ninth
Circuit held that “[t]he class-of-one doctrine does not apply to forms of state action that by
their nature involve discretionary decisionmaking based on a vast array of subjective,
individualized assessments,” and “[a]bsent any pattern of generally exercising the
discretion in a particular manner while treating one individual differently and
detrimentally, there is no basis for Equal Protection scrutiny under the class-of-one theory.”
Id. at 660-61 (cleaned up).
The Challenged Ordinances require discretionary decisions by those enforcing
them. Indeed, MCC § 6-10-4(V), which prohibits “camping” in public parks, incorporates
the definition of “camping” in MCC § 6-10-2. That “camping” definition supplies several
indicia of camping for officers enforcing the regulation to consider in their discretion and
also provides that “[a]n activity shall constitute camping when it reasonably appears, in
light of all the circumstances, the person, in conducting the activity, are in fact using the
area for the purposes of living accommodations.” MCC § 6-10-2 (emphasis added). The
definition of camping under MCC § 6-1-23, which prohibits “Urban Camping,” is nearly
identical. In other words, officers are given discretion—restrained by the camping
indicia—to determine whether a person’s activities constitute “camping” and to also
determine whether “it reasonably appears, in light of the all the circumstances” that the
person is “using the area for the purposes of living accommodations.”
What’s more, the TAC does not adequately allege “any pattern of” rangers
“generally exercising the discretion in a particular manner while treating [Plaintiff]
differently and detrimentally.” Towery, 672 F.3d at 660-61 (first emphasis added). At
most, the TAC alleges that during the November 2024 encounter, rangers accused Plaintiff
of violating MCC § 6-10-4(V) because he had more than two backpacks with him in the
park, and when “Plaintiff asked the rangers why he was being singled out while other
individuals in the park—who were also present with backpacks and belongings—were not
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being questioned or ordered to leave,” the “rangers responded that the others were
‘recreating.’” (Doc. 35 ¶¶ 37, 40.) As an initial matter, it’s unclear based on the allegations
in the TAC whether these other individuals had, as Plaintiff did, more than two backpacks
per person. The TAC only alleges that others in the park “who were also present with
backpacks and belongings” were not approached. (Id. ¶ 40.) If the other individuals did
not have more than two backpacks per person, they would not be similarly situated to
Plaintiff.
At any rate, this encounter suggests that the rangers treated Plaintiff differently
because he had more than two backpacks and was perceived as not “recreating,” whereas
others in the park were perceived as “recreating.” And even if the allegations in the
complaint are interpreted that Plaintiff, too, was “recreating,” this singular incident of an
officer declining to approach other parkgoers who were “recreating” with backpacks does
not support that the City has a “pattern” of “generally” not enforcing the Challenged
Ordinances against those who possess backpacks and are recreating.
As for the October 2025 encounter, the TAC alleges that an officer approached
Plaintiff and stated: “this is not a place for all your stuff” and “you should go to the library.”
(Doc. 35 ¶ 56.) But the TAC also alleges that when Plaintiff asked what ordinance he was
violating, the officer did not identify any law and did not (and in fact, refused to) issue
Plaintiff a citation. (Id. ¶ 57.) It’s unclear how this encounter could be construed as an
“enforcement” of the Challenged Ordinances. At most, it shows that an officer suggested
that Plaintiff “should” leave the park and go to the library. Thus, the allegation that the
same officer “ignored other park patrons . . . who were also present with backpacks and
personal belongings” is of no moment because the officer was not, according to the
allegations in the TAC, actually enforcing the Challenged Ordinances.6
6 The TAC also alleges, in conclusory fashion, that the City “ha[s] engaged in a
persistent and ongoing pattern of conduct that selectively and arbitrarily targets Plaintiff
for harassment, citation, and exclusion from public spaces, while intentionally ignoring
housed individuals who are similarly situated and engaged in identical, lawful conduct.”
(Doc. 35 ¶ 90.) But this type of conclusory allegation, standing alone, is insufficient for a
class-of-one claim. The TAC then alleges that this “pattern” includes the November 2024
incident (which, as described above, is insufficient, at least standing alone, to show such a
pattern) and a January 2025 incident—mentioned nowhere else in the TAC—in which a
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Garber is analogous and persuasive. There, “the gravamen of plaintiff’s claims
[was] that defendants ha[d] engaged in a ‘pattern and practice’ of discriminating against
the homeless and ‘aliens,’ by ‘harassing’ them, ‘ticketing, arresting, and prosecuting
them.’” 2009 WL 1649727 at *2. The court construed the allegations in the complaint “as
purporting to state a claim under the Equal Protection Clause of the Fourteenth
Amendment.” Id. at *10. The court held that “to the extent that plaintiff may be purporting
to base an equal protection claim on the discretionary acts of officers in arbitrarily singling
out plaintiff to ticket in situations where they failed to ticket other individuals, such
allegations cannot give rise to a federal constitutional claim.” Id. at *11. Citing Engquist,
the court held:
In situations where an officer must select which of many vehicles to ticket,
the allegation that one has been singled out for no reason does not give rise
to an equal protection claim because allowing a challenge based on the
arbitrary singling out of a particular person would undermine the very
discretion that such state officials are entrusted to exercise. Here, plaintiff’s
allegations that officers have repeatedly singled him out to ticket in situations
in which they could have cited other individuals is precisely the type of
conduct that cannot give rise to a claim under the Equal Protection Clause.
Id. at *12 (cleaned up). So too here, Plaintiff’s allegations that he was approached and/or
cited by officers and rangers when others in the park could have been, but were not, also
cited fails to support an Equal Protection claim under a “class of one” theory.
b. Selective Enforcement
Where, as here, “there is no suspect class at issue,” a plaintiff may rely on a
“selective enforcement” theory to state an Equal Protection claim. People of City of Los
Angeles Who Are Un-Housed v. Garcetti, 2023 WL 8166940, *11 (C.D. Cal. 2023). Under
ranger allegedly told Plaintiff to maintain an “erect posture,” “a standard” the TAC broadly
alleges is “not applied to any housed person in a City park.” (Id. ¶ 91.) Again, these types
of conclusory allegations are insufficient to show that the City has a pattern of exercising
its discretion in enforcing the Challenged Ordinances in one way but treated Plaintiff,
specifically, differently and detrimentally. Other parts of the TAC contain similar
conclusory allegations that “Plaintiff was and is similarly situated to countless other
individuals in Mesa who use public parks while possessing personal belongings” and that
the City “treated Plaintiff differently from these similarly situated individuals.” (Id. ¶ 105-
06.) But again, Iqbal requires more than these types of conclusory allegations.
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this theory, “if a plaintiff alleges that the law is selectively enforced against certain groups
of people and not others, then a plaintiff can show that the rational basis for enforcement
is a pretext for an impermissible motive.” Id. (cleaned up). “To show selective
enforcement, a plaintiff ‘must demonstrate that enforcement had a discriminatory effect
and the police were motivated by a discriminatory purpose.’” Bilodeau v. City of Medford,
2024 WL 1470516, *9 (D. Or. 2024), report and recommendation adopted, 2024 WL
1462328 (D. Or. 2024) (quoting Rosenbaum v. City & Cnty. of San Francisco, 484 F.3d
1142, 1152 (9th Cir. 2007)). “Further, plaintiffs seeking to enjoin enforcement must
demonstrate that the selective enforcement is part of a ‘policy, plan, or a pervasive
pattern.’” Id. (cleaned up).
In the Order Dismissing the SAC, the Court concluded that the SAC was deficient
because it “d[id] not adequately allege a discriminatory effect.” (Doc. 34 at 43.) As the
Order Dismissing the SAC explained: “The standard for proving discriminatory effect is a
demanding one. Yet, to state a claim, [a plaintiff] need only allege some facts, either
anecdotal or statistical, demonstrating that similarly situated defendants could have been
prosecuted, but were not.” (Id. at 43-44, quoting Lacey v. Maricopa Cnty., 693 F.3d 896,
920 (9th Cir. 2012) (en banc)). The Order Dismissing the SAC observed that, “at most,”
the SAC alleged that during the November 2024 encounter, “Plaintiff asked rangers who
approached him ‘why he was being singled out while others in the park were not
questioned’” but noted that “the SAC d[id] not allege that other non-homeless people in
the park were engaged in the same activities in the park as Plaintiff yet avoided
enforcement,” and “[t]he SAC therefore fail[ed] to allege sufficient facts to support a
selective enforcement claim.” (Doc. 34 at 43-44.) Although now a closer call, the TAC
continues to be deficient in this respect.
Only two of the specific encounters addressed in the TAC—the November 2024
encounter and the October 2025 encounter—come close to addressing how others have
been treated by the City under the Challenged Ordinances. As for the November 2024
encounter, the TAC, like the SAC, alleges that Plaintiff asked the rangers who approached
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him “why he was being singled out while other individuals in the park . . . were not being
questioned or ordered to leave.” (Doc. 35 ¶ 40.) The TAC adds that these other individuals
in the park were “housed” and “were also present with backpacks and belongings.” (Id.
¶¶ 40, 91.) But the TAC doesn’t actually allege that these other parkgoers engaged in the
same conduct as Plaintiff. The TAC alleges that, during this encounter, the “rangers told
plaintiff that having just one or two backpacks would be alright, but since he had more than
that, it constituted a violation of the ordinance.” (Id. ¶ 37.) Although the TAC alleges that
other park patrons had “backpacks and belongings” (id. ¶¶ 40, 91), it does not allege that
these other individuals had more than two backpacks per person, as Plaintiff did. Others
present in the park with “backpacks” or “personal belongings” are not similarly situated to
Plaintiff unless they had more than two backpacks per person—because that is the reason
that the rangers gave for approaching Plaintiff and for believing he was violating the
Challenged Ordinances. Cf. Garber, 2009 WL 1649727 at *10 (Equal Protection claim
based on homelessness failed where the plaintiff alleged that other vehicles left in the same
location as his were not ticketed “but plaintiff was cited for a missing headlight and a
missing license plate, not for parking his vehicle in the location where he was ticketed”).
As for the October 2025 encounter, it’s not clear that this was even an
“enforcement” of the Challenged Ordinances. “Enforcement may be shown through a
variety of actual or threatened arrests, searches and temporary seizures, citations, and other
coercive conduct by the police.” Lacey, 693 F.3d at 920. Cf. Farrell v. Dep’t of Safety &
Permits, 2026 WL 2024458, *6 (E.D. La. 2026) (no Equal Protection violation under
selective enforcement theory where there was “not an enforcement action” and no
“enforcement of an ordinance”). The TAC alleges that an officer approached Plaintiff and
simply told him “this is not a place for your stuff” and “you should go to the library.” (Doc.
35 ¶¶ 56-57.) But when asked by Plaintiff what ordinance he was violating, the officer did
not state that Plaintiff was violating any law or ordinance. (Id.) The officer also “refused
to issue a citation” and told Plaintiff he “had to leave the park ‘simply because she said
to.’” (Id.) Nothing about this encounter comes close to an actual or threatened arrest,
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search or seizure, citation, or coercive conduct by the officer. Thus, the fact that others
were not approached is of no moment.
Beyond these two specific encounters,7 the TAC contains only generalized and
conclusory allegations that the Challenged Ordinances are enforced against homeless
people but not against housed people. (See, e.g., Doc. 35 ¶ 88 [“[The City] . . . intentionally
and irrationally discriminates against Plaintiff based on his unhoused status, thereby
violating his right to equal protection of the laws.”]; id. ¶ 90 [“[The City] ha[s] engaged in
a persistent and ongoing pattern of conduct that selectively and arbitrarily targets Plaintiff
for harassment, citation, and exclusion from public spaces, while intentionally ignoring
housed individuals who are similarly situated and engaged in identical, lawful conduct.”];
id. ¶ 97 [“[T]he City[] [has a] de facto policy of targeting individuals who appear
unhoused.”]; id. ¶ 98 [“The pattern of selective enforcement against Plaintiff has continued
throughout this litigation, demonstrating that the City’s discriminatory practices are
systemic and present a credible threat of future harm.”]; id. ¶¶ 105-06 [“Plaintiff was and
is similarly situated to countless other individuals in Mesa who use public parks while
possessing personal belongings. These individuals include students, tourists, picknickers,
and families. The only material difference between Plaintiff and these comparators is that
Plaintiff is unhoused. [The City] intentionally and systematically treated Plaintiff
differently from those similarly situated individuals . . . .”].) These generalized and
conclusory allegations fail to satisfy the requirements of Iqbal. People of City of L.A. Who
Are Un-Housed, 2023 WL 8166940 at *12 (“Plaintiffs . . . further allege that ‘defendants
selectively enforced their subject ordinances against homeless people and not against non-
7 Paragraph 91 of the TAC makes fleeting reference to a January 2025 incident that
is not mentioned anywhere else in the TAC. (Doc. 35 ¶ 91.) The TAC alleges that during
this incident, “a City ranger harassed Plaintiff and ordered him to maintain an ‘erect
posture,’ effectively criminalizing the act of closing one’s eyes or appearing to rest, a
standard not applied to any housed person in a City park” and that after this encounter, the
City “unlawfully banished Plaintiff [from] a pubic park in the City . . . for one month, a
punitive and arbitrary exclusion not imposed on housed individuals cited for minor
municipal infractions.” (Id.) These allegations, however, are vague and conclusory, and
they fail to identify a comparator engaged in the same conduct as Plaintiff who was not
subjected to the same treatment.
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homeless people’ . . . . But beyond those general and conclusory statements, Plaintiffs fail
to allege an instance where a housed individual within a cleaning zone, or in obstruction
of a sidewalk or street, was not subject to the same ordinance or restrictions. Accordingly,
Plaintiffs fail to reach the level of specificity to survive the motion to dismiss stage.”).
Last, absent from the TAC are any allegations that other homeless individuals have
been targeted by the City’s enforcement of the Challenged Ordinances. This too supports
dismissal of Plaintiff’s Equal Protection claim under a “selective enforcement” theory.
See, e.g., Perry v. Colorado, 2023 WL 1967141, *14 (D. Colo. 2023), report and
recommendation adopted sub nom., Perry v. City of Fort Collins, 2023 WL 2583112 (D.
Colo. 2023), aff’d, 2024 WL 508597 (10th Cir. 2024) (“[Plaintiff] has not alleged any facts
which demonstrate that the City cited other homeless individuals with violations of its
camping ordinance because of their homelessness. Thus, the Court finds that Plaintiff fails
to allege an equal protection claim with respect to the camping ordinance.”).
D. Plaintiff’s Notices Of Supplemental Fact
Plaintiff has filed several “notices of supplemental fact” describing additional
encounters with officers while in City parks. (Docs. 42, 48, 50.) These “notices” are both
procedurally improper and fail, on the merits, to support Plaintiff’s claims.
1. Procedural Issues
It appears, at least based on another of Plaintiff’s filings in this case, that he believes
that because the incidents described in these notices “occurred after the original complaint
was filed,” he may raise them via “notices of supplemental fact” under Rule 15(d) of the
Federal Rules of Civil Procedure and that the Court must “accept” the “factual assertions”
within these notices “as true.” (Doc. 47 at 2-3.)
That is incorrect. Rule 15(d) provides:
On motion and reasonable notice, the court may, on just terms, permit a party
to serve a supplemental pleading setting out any transaction, occurrence, or
event that happened after the date of the pleading to be supplemented. The
court may permit supplementation even though the original pleading is
defective in stating a claim or defense. The court may order that the opposing
party plead to the supplemental pleading within a specified time.
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Id. (emphasis added). Plaintiff has not moved to serve a supplemental pleading—thus, his
“notices” are procedurally improper under Rule 15(d). Cf. Mai v. Safeco Ins. Co. of Am.,
2026 WL 2059088, *6 (N.D. Cal. 2026) (“[U]nlike Rule 15(a), Rule 15(d) expressly
requires a motion seeking leave to supplement, and Plaintiffs have not filed one.”).
2. Merits
Even if the procedural impropriety of these “notices” could be overlooked in light
of Plaintiff’s pro se status and the general rule that the supplementation of pleadings under
Rule 15(d) is “a tool of judicial economy and convenience” that is “favored,” Keith v.
Volpe, 858 F.2d 467, 473 (9th Cir. 1988), none of the factual allegations within them would
alter the dismissal analysis in this order.
a. May 11, 2026 Notice
Plaintiff’s May 11, 2026 notice alleges the following:
On or about May 9th, 2026, Plaintiff was present at a public park in the City
. . . . Plaintiff was lying down on a bench at a picnic table under a ramada.
Plaintiff had no bedding, tent, or camping equipment deployed. His
belongings remained secured on his bicycle and were not spread out.
[City] police officers approached Plaintiff and informed him that he was
violating the City’s anti-camping ordinance by “sleeping” in the park.
Plaintiff responded by informing the officers that, in this very litigation, [the
City] ha[s] expressly represented to this Court that “sleeping” alone does not
constitute a violation of the ordinance.
. . .
During this encounter, an officer demanded Plaintiff’s identification.
Plaintiff paused momentarily, as he was aware that he is not required to
provide identification absent lawful detention supported by reasonable
suspicion of criminal activity.
In response, the officer escalated the encounter, stating:
“You are now detained, you were sleeping at a public park . . . . . give me
your ID or you will be arrested.”
This detention was predicated solely on the alleged act of “sleeping” . . . .
(Doc. 42 at 1-2.)
Even accepting these factual allegations as true, they do not constitute a “seizure”
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under the Fourth Amendment. Telling Plaintiff that he was “detained” is not a show of
authority unless and until Plaintiff submits to that authority. See, e.g., United States v.
Jeffers, 2024 WL 5375814, *5 (E.D. Tex. 2024), report and recommendation adopted,
2025 WL 1239318 (E.D. Tex. 2025) (quoting Brendlin v. California, 551 U.S. 249, 254
(2007)) (“It was only after Jeffers, stepping off the elevator, told the officers that he was
staying with his ‘coworker, Frank Browning,’ that the officers told him to ‘stop,’ ‘come
here,’ ‘don’t run,’ and ‘you’re being detained.’ That was the first moment the officers
ordered Jeffers to do anything. Jeffers did not immediately comply but backed away from
the officers down the hall until they grabbed his arms. Because ‘there is no seizure without
actual submission,’ Jeffers was not seized for Fourth Amendment purposes until the
officers grabbed his arms, preventing him from continuing down the hall.”). Plaintiff’s
notice explicitly states that Plaintiff refused to comply with the officer’s direction to
provide identification, and it says nothing about whether, after he was told he was being
detained, he nevertheless attempted to leave and was restrained.8
Nor do these allegations, accepted as true, alter the Equal Protection dismissal
analysis. Plaintiff’s notice makes only generalized and conclusory statements that Plaintiff
was singled out, which are insufficient under Iqbal. (See, e.g., Doc. 42 at 3 [“Plaintiff
continues to be singled out for enforcement based on his status and appearance as an
unhoused individual. The enforcement described herein is consistent with Plaintiff’s
previously alleged pattern of selective enforcement.”]; id. [“This incident is not an isolated
occurrence but part of a continuing pattern.”].) Indeed, the notice says nothing about how
others who sleep in City parks have been treated.
b. June 8, 2026 Notice
Plaintiff’s June 8, 2026 Notice alleges the following:
On or about June 8, 2026, Plaintiff was present at a public park in the City
. . . . Plaintiff was lying down on the bench of a picnic table located under a
8 Plaintiff does not allege in this notice that he was cited for violating the Challenged
Ordinances; however, he does attach a copy of a citation issued against him for violating
MCC § 6-10-4(V). (Doc. 42-1.) But as explained in the Order Dismissing the SAC (Doc.
34 at 24-25), the issuance of a citation is not a “seizure” under the Fourth Amendment.
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ramada. Two Mesa park rangers approached Plaintiff. One ranger initiated
the contact by stating:
“Here’s the reason for the contact. You’re sleeping at the park, ok, [it’s]
considered camping. Ok?”
Plaintiff immediately responded, “It is not.” The ranger then dismissed
Plaintiff’s attempt to assert his rights, stating:
“We’re not even going to go back and forth. I just need you to sit up and
remain awake at the park, ok?”
No citation was issued.
(Doc. 48 at 2.)
This encounter does not constitute a seizure. Plaintiff does not allege that he
complied with the officer’s commands or that he was restrained in any way.
This encounter also does not alter the Equal Protection dismissal analysis. Again,
it says nothing about how the Challenged Ordinances have been applied to others sleeping
in City parks. At most, Plaintiff’s notice states, again in conclusory fashion, that “[t]his
incident demonstrates a continuing pattern of arbitrary enforcement” and that City officers
“are targeting individuals for the mere act of resting in a public park.” (Id. at 3.) This is
insufficient under Iqbal.
c. June 19, 2026 Notice
Plaintiff’s June 19, 2026 notice alleges the following:
On June 18, 2026, Plaintiff was present at a City of Mesa park occupying
approximately one-half of a picnic table. Plaintiff possessed personal
belongings, including backpacks and food.
Two [City] Park Rangers approached Plaintiff and initiated contact. One of
the rangers identified himself as Ranger Mitchell (last name unknown).
Plaintiff requested that the rangers not approach him absent lawful reason for
doing so. Plaintiff then allowed Ranger Mitchell an opportunity to explain
the basis for the contact.
Ranger Mitchell stated that Plaintiff was being contacted because Plaintiff
possessed more items in the park than were necessary for recreation and that
such conduct constituted camping.
Plaintiff informed Ranger Mitchell that Plaintiff disputed that interpretation
of the ordinance and explained that Plaintiff possessed written statements
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from the City and its attorneys indicating that possession of belongings alone
does not constitute camping.
Plaintiff asked Ranger Mitchell where the ordinance stated that possessing
more belongings than necessary for recreation constituted camping.
Ranger Mitchell responded that the ordinance definitions included camping
and maintained that possession of more belongings than necessary for
recreation constituted camping.
During the encounter, Ranger Mitchell further stated that even merely
possessing camping paraphernalia constituted camping.
Plaintiff informed Ranger Mitchell that [MCC] § 6-10-2 does not state that
possessing more belongings than necessary for recreation constitutes
camping.
. . .
Ranger Mitchell nevertheless maintained that Plaintiff was violating the
ordinance by “having more things than necessary to recreate” and that mere
possession of camping paraphernalia was a violation of the ordinance.
Plaintiff explained that the ordinance does not contain such language and that
the interpretation advanced by Ranger Mitchell appeared inconsistent with
positions advanced by [the City] in this litigation.
Ranger Mitchell responded that his interpretation reflected the manner in
which Mesa had instructed and trained rangers to interpret and enforce the
ordinance.
No citation was issued during the encounter.
(Doc. 50 at 2-4.)
This encounter does not represent a seizure. At most, the allegations show that
Plaintiff engaged in an argument with a City park ranger about what conduct the
Challenged Ordinances prohibit. Plaintiff does not allege that the ranger actually
commanded him to do anything, that he complied with any commands by the ranger, or
that he was restrained in any way.
This encounter also does not alter the Equal Protection analysis. It says nothing
about how others, other than Plaintiff, were treated.
IV. Leave To Amend
The City argues that Plaintiff’s claims should be dismissed with prejudice (Doc. 37
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at 1), and Plaintiff responds that he should be granted leave to amend because he has not
acted in bad faith, amendment would not be futile, and there has been no repeated failure
to cure deficiencies (Doc. 38 at 14-16).
The rule in the Ninth Circuit is that “[a] district court should not dismiss a pro se
complaint without leave to amend unless it is absolutely clear that the deficiencies of the
complaint could not be cured by amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th
Cir. 2012) (cleaned up). “[B]efore dismissing a pro se complaint the district court must
provide the litigant with notice of the deficiencies in his complaint in order to ensure that
the litigant uses the opportunity to amend effectively.” Ferdik v. Bonzelet, 963 F.2d 1258,
1261 (9th Cir. 1992), as amended (May 22, 1992).
In the Order Dismissing the SAC, the Court specifically instructed Plaintiff
regarding the deficiencies in the SAC and granted Plaintiff limited leave to amend “to plead
additional facts to support that he was ‘seized’ under the Fourth Amendment” and “to
allege additional facts intended to support an Equal Protection claim under a selective
enforcement theory.” (Doc. 34 at 45.) The Court further instructed that any “changes shall
be limited to attempting to the cure the deficiencies [with Plaintiff’s Fourth Amendment
claim] identified in this order” and “alleg[ing] additional facts to support the assertion of
an Equal Protection claim consistent with this order.” (Id.) Plaintiff has failed to cure
those deficiencies in the TAC, and the Court concludes that Plaintiff would not be able to
cure those same deficiencies if given yet another opportunity to do so. Ferdik, 963 F.2d at
1261 (affirming dismissal with prejudice where district court had instructed pro se plaintiff
regarding deficiencies in prior order dismissing claim with leave to amend); Ascon Props.,
Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (“The district court’s discretion
to deny leave to amend is particularly broad where plaintiff has previously amended the
complaint.”). Thus, the Court will dismiss the TAC without leave to amend.
…
…
…
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Accordingly,
IT IS ORDERED that:
1. The City’s motion to dismiss (Doc. 37) is granted.
2. Plaintiff’s motion for leave to file a surreply (Doc. 40) is denied.
3. Plaintiff’s motion to stay (Doc. 43) is denied as moot.
4. The Clerk shall enter judgment accordingly and terminate this action.
Dated this 6th day of August, 2026.
Case 2:24-cv-02970-DWL Document 51 Filed 08/06/26 Page 36 of 36