Cuviello v. City of Belmont

Background

Joseph Pat Cuviello sued the City of Belmont, city manager Afshin Oskoui, and Parks and Recreation director Brigitte Shearer. Cuviello represented himself. Through Friends of Waterdog Open Space, a volunteer group he cofounded with his wife, he removed invasive plants in Belmont’s Waterdog Open Space and other areas. After Cuviello and his wife criticized the city’s environmental policies and its handling of mountain biking, Shearer told him in November and December 2022 to stop removing invasive plants.

Cuviello alleged that the defendants ended his volunteer project in retaliation for his criticism of the city. He also alleged that the defendants denied him fair procedures, treated him differently from the Waterdog Trailkeepers volunteer group, and violated his federal and California free-speech rights. He asked the court for a preliminary injunction allowing him to resume removing invasive plants.

The defendants moved to dismiss the complaint for failure to state a legally sufficient claim, moved to strike allegations, and opposed the preliminary injunction.

Retaliation Claim

The court denied the motion to dismiss Cuviello’s First Amendment retaliation claim against Shearer. To plead retaliation, Cuviello had to allege protected activity, an adverse action that could deter an ordinary person from continuing that activity, and a substantial connection between the two. The court found that his allegations of persistent environmental advocacy, Shearer’s awareness of that advocacy, and the timing of the end of his volunteer program were enough at the pleading stage to plausibly show retaliation.

The court also denied Shearer’s qualified-immunity argument at this stage. Qualified immunity generally protects government officials from civil damages unless their conduct violated a constitutional right that was clearly established. Because the complaint plausibly alleged First Amendment retaliation, the court allowed the claim against Shearer to proceed.

The court dismissed the retaliation claim against Oskoui. The complaint alleged only that Oskoui did not respond when Cuviello emailed him about Shearer’s decision. That allegation did not show Oskoui’s personal involvement or a sufficient connection between his conduct and the alleged violation. The court also dismissed the retaliation claim against the City of Belmont because Cuviello did not allege facts showing that a city policy or custom caused the constitutional violation. A local government cannot be held responsible merely because one of its employees allegedly acted unlawfully.

Due Process

The court dismissed Cuviello’s due-process claims. It held that he had no protected property interest in continuing as a volunteer. The city’s general plan encouraged volunteer maintenance and invasive-species removal, but it did not establish objective standards creating an entitlement to volunteer.

The court also held that Cuviello did not plausibly allege a protected liberty interest in gaining useful knowledge through volunteering. He remained free to obtain useful experience through work or other volunteer opportunities, so ending this volunteer project did not implicate the liberty interest recognized under the due-process clause.

Equal Protection

The court dismissed the equal-protection claim, with leave to amend. Cuviello relied on the city’s continued treatment of the Waterdog Trailkeepers group while stopping his group’s work. But the court found that the groups were materially different because Cuviello’s group removed invasive plants and the complaint did not allege that the groups were similarly situated in all material respects.

Free Speech and Expressive Conduct

The court rejected Cuviello’s argument that his environmental volunteerism was protected symbolic speech under the First Amendment and the California Constitution. Protected symbolic speech requires conduct intended to communicate a particular message and a strong likelihood that observers would understand that message. The court held that removing invasive plants was conduct involving a matter of public concern, but was not plausibly alleged to communicate a particular message that passersby would understand. The court applied the same reasoning to the California constitutional claim.

Other Motions and Relief

The court denied the defendants’ motion to strike allegations about mountain bikers, the lack of acknowledgment of Cuviello’s efforts, and his history of removing invasive plants. The court held that those allegations might bear on the retaliation claim and were not clearly irrelevant or inflammatory.

The court did not dismiss Cuviello’s request for declaratory or injunctive relief at the pleading stage. It concluded that it could not yet determine whether money damages would be an adequate remedy and noted that the dispute appeared ongoing.

The court denied Cuviello’s motion for a preliminary injunction. Applying the required factors, the court found that he had not shown a likelihood of success or sufficiently serious questions on the merits, likely and immediate irreparable harm, or that the balance of equities and the public interest favored an injunction. The court noted that Shearer denied retaliation, said she had also paused the other volunteer group’s work, and described the suspension as temporary. The court also found that any delay in plant removal was difficult to characterize as irreparable harm.

Disposition

The court denied the preliminary-injunction motion. It denied the motion to dismiss the retaliation claim against Shearer and the request for declaratory and injunctive relief. It dismissed the other claims with leave to amend if Cuviello could correct their deficiencies. The court denied the motion to strike. Any amended complaint was due August 28, 2023, with a blackline comparison to the existing complaint.