NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RHAWN JOSEPH, 

Plaintiff-Appellant, 

 v. 

CITY OF SAN JOSE, a Municipal 

corporation; et al., 

Defendants-Appellees, 

and 

RICHARD DOYLE; et al., 

Defendants.

No. 20-17458 

D.C. No. 3:20-cv-03782-WHO 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

William Horsley Orrick, District Judge, Presiding

Submitted October 10, 2023**

Before: HAWKINS, S.R. THOMAS, and McKEOWN, Circuit Judges. 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

OCT 12 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 20-17458 

Rhawn Joseph appeals pro se the dismissal of his action alleging federal and 

state law claims arising from the enforcement efforts of the City of San Jose (“City”)

requiring Joseph to strip the lower part of eight cypress trees in the park strip area 

adjacent to his property. We have jurisdiction under 28 U.S.C. § 1291. We review 

de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Hebbe v. Pliler, 

627 F.3d 338, 341 (9th Cir. 2010). We affirm in part, vacate in part, and remand.

The following claims were properly dismissed for failure to allege facts 

sufficient to state a plausible claim: Fourth Amendment illegal search claim. See 

California v. Ciraolo, 476 U.S. 207, 211 (1986) (reasonable expectation of privacy 

standard). Fourth Amendment seizure claim. See Soldal v. Cook Cty., 506 U.S. 56, 

61 (1992) (unreasonable seizure standard). Fifth Amendment due process claim. 

See Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008) (Fifth Amendment due 

process clause applies only to federal government). Eighth Amendment excessive 

fines and cruel and unusual punishment claims. See Ingraham v. Wright, 430 U.S. 

651, 667–68 (1977) (Eighth Amendment inapplicable outside of criminal process). 

Fourteenth Amendment discrimination claims. See Village of Willowbrook v. Olech, 

528 U.S. 562, 564–65 (2000) (per curiam) (elements of “class of one” equal 

protection claim). Monell1claims for bribery and failure to train. See City of Canton 

v. Harris, 489 U.S. 378, 390–91 (1989) (requirements for alleging a failure-to-train 

1

 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). 
3 20-17458 

claim); see also Horton v. City of Santa Maria, 915 F.3d 592, 602–03 (9th Cir. 2019) 

(requirements for alleging a Monell claim). 

However, Joseph alleged in his operative complaint that the City forced him

to strip eight of his cypress trees from their base up to five feet, which he alleges 

affected their aesthetic value and endangered their health, and that the City did so 

without providing Joseph with a code violation or a hearing. These allegations are 

sufficient to state a Fourteenth Amendment due process claim. See U.S. CONST,

amend. XIV, § 1; see also Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 

306, 313 (1950).

Joseph also alleges that, during the course of demanding that the trees be 

stripped, a City employee warned Joseph that “[he] and his friends have guns.” The 

City employee’s threat is sufficient to state a claim under California’s Bane Act. See 

Reese v. County of Sacramento, 888 F.3d 1030, 1040 (9th Cir. 2018) (“The Bane 

Act civilly protects individuals from conduct aimed at interfering with rights that are 

secured by federal or state law, where the interference is carried out by threats, 

intimidation or coercion.” (citation and quotation marks omitted)). Joseph further

alleges that the same City employee who threatened him made reference to Joseph’s 

“weird religious beliefs about trees.” This reference to Joseph’s religious beliefs is 

sufficient to plead a claim under California’s Ralph Act. Austin B. v. Escondido 

Union Sch. Dist., 57 Cal. Rptr. 3d 454, 470 (Cal. Ct. App. 2007).
4 20-17458 

We vacate the district court’s ruling with respect to Joseph’s Fourteenth 

Amendment due process, Bane Act, and Ralph Act claims and remand for the district 

court to consider whether declaratory and injunctive relief is warranted. We also 

vacate the district court’s judgment on Joseph’s constitutional Monell claims 

because the district court dismissed them due to its determination that Joseph had 

failed to state a claim for any constitutional violation. Because we find that Joseph 

sufficiently alleged a Fourteenth Amendment due process claim, that reasoning is 

no longer accurate.

Finally, Joseph adequately complied with Federal Rule of Civil Procedure 8 

because in the operative first amended complaint, his allegations adequately describe

who is being sued, for what relief, and on what theories. See McHenry v. Renne, 84 

F.3d 1172, 1178 (9th Cir. 1996). 

In sum, we affirm the dismissal of the following claims: Fourth Amendment 

illegal search, Fourth Amendment seizure, Fifth Amendment due process, Eighth 

Amendment excessive fines and cruel and unusual punishment, Fourteenth 

Amendment equal protection (discrimination and class-of-one), and Monell liability 

for bribery and failure to train. We vacate the judgment on the following claims: 

Fourteenth Amendment due process, Monell constitutional claim liability, Bane and 

Ralph Act liability, and the requests for declaratory and injunctive relief.
5 20-17458 

AFFIRMED in part, VACATED in part, and REMANDED. The parties

shall each bear their own costs on appeal.