Full opinion text
MEMORANDUM DECISION AND ORDER RE MOTIONS TO DISMISS (DOCS. 38, 45) LAWRENCE J. O’NEILL, District Judge. I. INTRODUCTION Luis Sanchez, a homeless resident of the City of Fresno, alleges that his personal property, including property necessary for his survival, essential to his health, and of personal and emotional value, was seized and immediately destroyed as part of the City of Fresno’s efforts to clean up homeless encampments in Downtown Fresno in late 2011 and early 2012. This case is but one of more than thirty similar cases filed by homeless individuals arising out of these cleanup activities, all of which have been consolidated for pretrial purposes, with the above-captioned matter serving as the lead case. See Doc. 27. Before the Court for decision are separate, but partially overlapping, motions to dismiss Sanchez’s first amended complaint (“FAC”) pursuant to Fed.R.Civ.P. 12(b)(6), filed by (1) the City of Fresno (the “City”), Doc. 38-1, and (2) individual City employee Defendants Ashley Swearengin, Mark Scott, Bruce Rudd, Greg Barfield, Jerry Dyer, Phillip Weathers, and Malcolm Dougherty (collectively, “Individual Defendants”), Doc. 45. In the alternative, Defendants move for a more definite statement pursuant to Fed. R. Civ. P 12(e) and to strike certain allegations from the complaint pursuant to Fed.R.Civ.P. 12(f). The motions address allegations that are contained in all consolidated complaints, and the Parties have stipulated that any ruling will be applicable to al related cases. Doc. 26 at 2. Plaintiff filed a consolidated opposition. Doc. 40. Defendants filed a consolidated reply. Doc. 43. The matter was originally set for hearing on December 6, 2012, but given the voluminous materials submitted to the Court, the hearing was vacated. Doc. 44. After reviewing the submissions of the parties in light of the entire record, the Court does not believe oral argument is necessary to aid resolution of the disputes, and hereby rules on the papers pursuant to Local Rule 230(g). II. BACKGROUND. A. The Kincaid Case. This case cannot be understood in a vacuum, as the City of Fresno and its homeless population have a history of conflict and litigation. In October 2006, a group of homeless individuals residing in the City of Fresno filed a class action complaint against the City and various other defendants, challenging cleanup operations conducted over the course of more than a year in which defendants implemented a policy of seizing and immediately destroying personal property belonging to homeless individuals. See Kincaid v. City of Fresno, 244 F.R.D. 597, 598 (E.D.Cal. 2007). In late October 2006, the district court found plaintiffs were likely to succeed on their claims that defendants’ conduct violated the Fourth, Fifth and Fourteenth Amendments of the United States Constitution, as well as Article 1, Section 13 (unlawful searches and seizures) and Article 1, Section 7(A) (due process) of the California Constitution. Kincaid, 1:06-cv01445 OWN SMS, Doc. 34 at 13-14. A preliminary injunction was entered, barring Defendants from “immediately destroying the property of homeless persons during protective sweeps, activities to remove homeless persons from temporary shelter sites, or other activities to seize the personal property of homeless persons, without providing constitutionally adequate notice and meaningful opportunity to be heard concerning the seizure and destruction of such personal property.” Id. at 14. On August 14, 2007, plaintiffs’ motion for class certification was granted, permitting the case to proceed on behalf of a class of “[a]ll persons in the City of Fresno who were or are homeless, without residence, after October 17, 2003, and whose personal belongings have been unlawfully taken and destroyed in a sweep, raid or cleanup by any of the Defendants.” Kincaid, Doc. 147. The case proceeded through several rounds of dispositive motions toward trial, which was set for early June 2008. On the eve of trial, the parties reached a settlement, which was eventually approved by the district court. Kincaid, Docs. 321 & 323. The City agreed to pay $1,400,000 to the class, to be allocated by a well-known local homeless advocate in the form of small cash allowances to be paid directly to class members and additional living allowances to be paid to third parties to cover housing expenses. Kincaid, Doc. 321-2 at 3.1.1 (City Settlement), Doc. 321-4 (Settlement Plan). The City also agreed to pay $850,000 in attorney’s fees and costs to class counsel. Kincaid, Doc. 321-2 at 3.1.1. In addition, the City agreed as follows: The City of Fresno Defendant and all agents and employees of the City of Fresno will, for a period of not less than 5 years from the day this settlement is approved by the Court, comply with the provisions of Fresno Administrative Order No. 6-23[]. Before making any change in Administrative order 6-23 during this 5 year period, the City of Fresno Defendants will meet and confer with counsel for Plaintiffs and the Plaintiff class with respect to any such change and, following that meet and confer, seek leave of Court, and absent exigent circumstances, give Plaintiffs’ counsel no less [sic] than 30 days notice of its intention to seek such leave and of the terms of the change. If exigent circumstances arise, the City of Fresno Defendants will give as much notice as reasonably possible of any proposed change and attempt in good faith to resolve any issue giving rise to such circumstances. The Court shall retain jurisdiction of this matter to resolve any dispute that may arise with respect to compliance with or changes to Administrative Order 6-23. Id. at 3.1.2. Fresno Administrative Order (“AO”) 6-23, which is discussed in greater detail below, sets forth detailed procedures relating to the clean up of materials in and around areas in which individuals have erected temporary shelters. See Kincaid, Doc. 321-5 (AO 6-23). Absent any immediate threats to health or safety, specific forms of notice must be required prior to any clean up. In addition, “materials of apparent value which appear to be the property of any individual” may not be destroyed. Id. at I. A(3). AO 6-23 acknowledges that “the fact that property is unattended does not necessarily mean that it has been discarded,” and directs that “[rjeasonable doubt about whether property is ‘trash or debris’ or valuable property should be resolved in favor of the conclusion that the property is valuable and should not be discarded.” Id. at I.A(4). B. The Present Allegations. Beginning in or about September 2011, Defendants set in motion a plan to eradicate a number of small shelters used by homeless individuals in an area in the City of Fresno known generally as “south of Ventura Street.” FAC ¶ 20. It is alleged that Defendants knew these shelters were being used by Plaintiff and the Plaintiffs in related actions as “homes to provide not only protection from the elements but also contained personal property of great personal value and significance to both their physical and emotional health, including personal property such as medications, photographs, and important personal effects from family and loved ones....” FAC ¶ 9. Plaintiff further alleges that Defendants knew that Plaintiff and others in Plaintiff’s position had no alternative shelter or means of protection from the elements nor any other means of keeping their personal property safe, and that no safe shelter was available to Plaintiff or to large numbers of other homeless residents, including many Plaintiffs whose cases have been consolidated with this one. Id. Nonetheless, Defendants planned, directed, and implemented the demolition of these shelters and their contents, even though Defendants were advised that the demolition involved the destruction of valuable personal property and the demolition of entire tents and shelters. See id. It is alleged that Defendants engaged in this conduct “[d]espite the extreme weather conditions” prevailing at the time, and “know or should reasonably know that their conduct threatened plaintiffs continued survival.” FAC ¶22. According to the FAC, Defendants failed to provide adequate notice of their intent to seize and destroy Plaintiffs property, nor any means of retrieving seized property. FAC ¶ 21. Plaintiff concedes that at the time his property was destroyed, he “had left his shelter temporarily for a brief time,” but “had in no way either abandoned his shelter or the contents of his shelter.” Id. When Plaintiff returned to the area, he witnessed Defendants demolishing other property in the area. Id. III. DISCUSSION A. Motions to Dismiss. 1. Standard of Decision. A motion to dismiss pursuant to Fed R. Civ. P. 12(b)(6) is a challenge to the sufficiency of the allegations set forth in the complaint. A 12(b)(6) dismissal is proper where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990). In considering a motion to dismiss for failure to state a claim, the court generally accepts as true the allegations in the complaint, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader’s favor. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir.2008). To survive a 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement to relief ” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007) (internal citations omitted). Thus, “bare assertions ... amounting] to nothing more than a ‘formulaic recitation of the elements’... are not entitled to be assumed true.” Iqbal, 556 U.S. at 681, 129 S.Ct. 1937. A court should “dismiss any claim that, even when construed in the light most favorable to plaintiff, fails to plead sufficiently all required elements of a cause of action.” Student Loan Marketing Ass’n v. Hanes, 181 F.R.D. 629, 634 (S.D.Cal.1998). In practice, “a complaint ... must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.” Twombly, 550 U.S. at 562, 127 S.Ct. 1955. To the extent that the pleadings can be cured by the allegation of additional facts, the plaintiff should be afforded leave to amend. Cook, Perkiss and Liehe, Inc. v. Northern California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir.1990) (citations omitted). 2. Threshold Issue: Relationship of this Case to Kincaid. Among other things, Plaintiff asserts that he has a contractual right to enforce the benefits and protections of the Kincaid Settlement Agreement and the corresponding court Order approving it. The City correctly notes that in the approval Order, the district court retained jurisdiction to hear any disputes over implementation of the Settlement Agreement, including any disputes over the City’s compliance with AO 6-23. However, nothing in the Settlement Agreement or the Order approving it requires any such issues to be raised within the now-closed Kincaid case, and nothing precludes or waives Plaintiffs right to file a separate lawsuit challenging the City’s post-settlement conduct. Defendants point to no such language and in fact do not seek dismissal on this ground. The matter seems to be raised for no particular procedural reason at this point in the litigation, as there is no dispute that this Court has jurisdiction to hear most (if not all) of the claims raised in the present Complaint. The Court will therefore ignore this extraneous reference. 3. Federal (42 U.S.C. § 1983) Claims. a. City’s Motion to Dismiss. (1) Municipal Liability Under Monell. Defendants move to dismiss the federal civil rights claims against the City, arguing that Plaintiff has failed to satisfy the requirements of Monell v. Department of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which provides that a municipality cannot be liable under § 1983 on a respondeat superior theory (i.e., simply because it employs someone who deprives another of constitutional rights). Rather, liability only attaches where the municipality itself causes the constitutional violation through a “policy or custom, whether made by its lawmakers or those whose edicts or acts may fairly be said to represent official policy.” Id. at 694, 98 S.Ct. 2018. Therefore, municipal liability in a § 1983 case may be premised upon: (1) an official policy; (2) a “longstanding practice or custom which constitutes the standard operating procedure of the local government entity;” (3) the act of an “official whose acts fairly represent official policy such that the challenged action constituted official policy”; or (4) where “an official with final policy-making authority delegated that authority to, or ratified the decision of, a subordinate.” Price v. Sery, 513 F.3d 962, 966 (9th Cir.2008). (a) Official Policy. As part of the Kincaid settlement, the City developed AO 6-23 as a formal policy regarding the cleanup of shelters erected by homeless individuals and any belongings found in and around such shelters. AO 6-23 details how the City will provide notice regarding planned cleanup of such structures and belongings, and defines “trash and debris” to include “property that appears to have been discarded by its owner.” AO 6-23 at I. A(4). While the AO does not prohibit the City from disposing of such “trash and debris,” it specifically prohibits the destruction of “any materials of apparent value which appear to be the personal property of any individual.” AO 6-23 at I.A(3). The AO also specifies that “the fact that property is unattended does not necessarily mean that it has been discarded” and that “reasonable doubt about whether property is ‘trash or debris’ or valuable property should be resolved in favor of the conclusion that the property is valuable and has not been discarded.” AO 6-23 at I.A(4). The FAC alleges that individual agents of the City acted in contravention of AO 6-23. This is indisputably insufficient to trigger municipal liability under Monell and Plaintiff offers no other basis upon which this form of liability could exist. Accordingly, City Defendants’ motion to dismiss is GRANTED WITHOUT LEAVE TO AMEND as to any Monell claim based on an official policy. (b) Longstanding Practice or Custom. Defendant argues that the FAC fails to allege sufficiently Monell liability based upon a longstanding practice or custom, because the complaint concerns only one episode of purportedly unconstitutional conduct: the cleanup that resulted in the demolition of Plaintiffs shelter in November 2011. “A single constitutional deprivation ordinarily is insufficient to establish a longstanding practice or custom.” Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir.1999). Municipal liability is only appropriate where a plaintiff has shown that a constitutional deprivation was directly caused by a municipal policy. Oviatt v. Pearce, 954 F.2d 1470, 1477-78 (9th Cir. 1992). Such a policy must result from a deliberate choice made by a policy-making official, id., and may be inferred from widespread practices or “evidence of repeated constitutional violations for which the errant municipal officers were not discharged or reprimanded,” Gillette v. Delmore, 979 F.2d 1342, 1349 (9th Cir.1992). “A plaintiff cannot prove the existence of a municipal policy or custom based solely on the occurrence of a single incident or unconstitutional action by a non-policymaking employee.” Davis v. City of Ellensburg, 869 F.2d 1230,1233 (9th Cir.1989). Nadell v. Las Vegas Metro. Police Dept., 268 F.3d 924, 929 (9th Cir.2001), abrogated on other grounds as recognized in Beck v. City of Upland, 527 F.3d 853, 862 n. 8 (9th Cir.2008). A longstanding practice or custom is one that is so “persistent and widespread” that it constitutes a “permanent and well settled” governmental policy. Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.1996). “Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.” Id. (emphasis added). The line between “isolated or sporadic incidents” and “persistent and widespread conduct” is not clearly delineated, although where more than a few incidents are alleged, the determination appears to require a fully-developed factual record. Compare Davis v. City of Ellensburg, 869 F.2d 1230, 1233-34 (9th Cir.1989) (single incident of excessive force inadequate to establish liability); Meehan v. County of Los Angeles, 856 F.2d 102, 107 (9th Cir.1988) (two incidents insufficient) with Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir.2005) (triable issue of fact existed as to whether Seattle had an unconstitutional policy or custom of suppressing certain political speech based on the testimony of several individuals that their entry to a particular area was permitted by police only after they removed offending buttons and stickers, coupled with the testimony of the officer in charge that the City would not permit “demonstrations” in the area); see also Jarbo v. County of Orange, 2010 WL 3584440, *9-13 (C.D.Cal. Aug. 30, 2010) (reviewing circumstances in which Monell custom/practice claims were permitted past summary judgment). Here, the FAC alleges generally that the demolition of Plaintiffs shelter was “part of a demolition of all homeless encampments in the areas of Santa Fe, H Street, G Street, F Street, E Street, San Benito Street, Santa Clara Street, Ventura Street, Golden State, and surrounding areas.” FAC ¶ 21. Standing on its own, this suggests the existence of a custom or practice, but lacks the specificity required to determine whether the complaint plausibly alleges a “persistent and widespread” course of conduct. The Court takes judicial notice of the fact that this cleanup operation resulted in multiple individual lawsuits, which have been consolidated for pretrial purposes with the above-captioned matter. The original complaints filed in these cases allege cleanups occurred on multiple days, from as early as late October 2011 through mid-December 2011. However, the Court is not aware of any caselaw that permits consideration of the content of related/eonsolidated complaints to satisfy the applicable pleading requirements. Plaintiff must provide sufficient detail in his own complaint to satisfy the requirements of Monell and Twombly/Iqbal. Accordingly, City Defendants’ motion to dismiss is GRANTED WITH LEAVE TO AMEND as to any Monell claim based on a longstanding practice or custom. (c) Official Policymaker. Monell liability may also attach where “the individual who committed the constitutional tort was an official with final policy-making authority and [] the challenged action itself thus constituted an act of official governmental policy....” Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir.1992). “Whether a particular official has final policy-making authority is a question of state law.” Id. The FAC alleges that high-ranking policymakers within City government, including the Mayor, the City Manager, the Assistant City Manager, the Chief of Police, and the Homeless Prevention and Policy Manager personally approved of and or directed others to implement a policy very different from that set forth in AO 6-23, one that called for “the demolition of shelters and personal property of great importance to plaintiff and others like him with knowledge of the devastating personal damage caused by these actions.” FAC ¶ 9; see also FAC ¶¶ 10-13. For purposes of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), these allegations must be assumed true. Defendants argue that none of the named individual City officials possesses the authority to set City policy regarding the cleanup of homeless encampments because of the nature of the Settlement Agreement in Kincaid, which gave rise to the passage of AO 6-23. As part of the Settlement Agreement, executed by the City of Fresno, its then Mayor Alan Autry, and several other City Officials, the City agreed that for a period of five years following court approval of the Settlement, the City, as well as all of its agents and employees, must comply with the provisions of AO 6-23 and must not modify AO 6-23 without leave of Court. Settlement Agreement at 3.1.2. The Kincaid court approved the Settlement on July 25, 2008. There seems to be little doubt that the City would be in breach of the Settlement Agreement and the court Order approving it if the City or any of its agents or officers adopted a formal policy contrary to AO 6-23 within the five-year window, which will not expire until July 25, 2013. However, does this necessarily mean that the Mayor lacks authority to do so? Under Section 400 of the Fresno City Charter, the “executive power of the City is vested in the office of the Mayor,” who “shall be the Chief Executive Officer of the City ...” and “shall be responsible ... for the proper and efficient administration of all affairs of the City.” Charter of the City of Fresno, Art. IV, § 400. Further, the City Manager “shall exercise control over all departments, offices and agencies under his or her jurisdiction.” Id. at Art. VII, § 705. The key question in determining whether a person is “a final policymaker” is whether “he or she [is] in a position of authority such that a final decision by that person may appropriately be attributed to the Municipality.” Lytle v. Carl, 382 F.3d 978, 983 (9th Cir.2004). “Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Whether the May- or and/or the City Manager had power to set policy unilaterally on the subject of homeless encampment cleanup would be easier to resolve if the requirement of Court approval prior to modification of AO 6-23 had been embodied in AO 6-23 itself or in any other City Ordinance or Order. As it stands, it is debatable whether the court Order approving the Settlement actually modifies the Mayor’s otherwise obvious power to set policy regarding garbage collection and City cleanup activities, or whether the Mayor may still exercise that power despite the fact that doing so may violate a federal court Order. The Court is unable to conclude at this stage of the litigation that the Mayor and/or other Individual Defendants were not final policymakers. Further factual development appears necessary to resolve this matter. Accordingly, Defendants motion to dismiss any Monell claim based upon the act of a final policymaker is DENIED. (2) Fifth Amendment Due Process Claim. The caption of the Second Claim for Relief alleges “denial of [the] Constitutional Right to Life, Liberty and Due Process of Law [based upon] the Fifth Amendment and 42 U.S.C. § 1983.” FAC at 21. It is well established that Plaintiff cannot advance a Fifth Amendment due process claim against a local government entity or its employees, because the due process and equal protection components of the Fifth Amendment apply only to the federal government. Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir.2001) (dismissing Fifth Amendment due process and equal protection claims brought against the City of Los Angeles because defendants were not federal actors); see also Low v. City of Sacramento, 2010 WL 3714993 (E.D.Cal. Sept. 17, 2010). Plaintiff does not dispute the essence of these holdings but nevertheless insists that he has stated a Fifth Amendment due process claim. The only authority cited by Plaintiff that even arguably supports this contention is the following quote from justice Stevens’ concurrence in Chavez v. Martinez, 538 U.S. 760, 788, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003): By its terms, the Fifth Amendment itself has no application to the States. It is, however, one source of the protections against state actions that deprive individuals of rights “implicit in the concept of ordered liberty” that the Fourteenth Amendment guarantees. Indeed, as I pointed out in my dissent in Oregon v. Elstad, 470 U.S. 298, 371, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), it is the most specific provision in the Bill of Rights “that protects all citizens from the kind of custodial interrogation that was once employed by the Star Chamber, by ‘the Germans of the 1930’s and early 1940’s,’ and by some of our own police departments only a few decades ago.” Whenever it occurs, as it did here, official interrogation of that character is a classic example of a violation of a constitutional right “implicit in the concept of ordered liberty.” (Footnotes omitted.) Plaintiff fails to acknowledge that Chavez concerned the self-incrimination clause of the Fifth Amendment, which has undeniably been made applicable to the States in full through incorporation by the Due Process Clause of the Fourteenth Amendment. See id. at 790,123 S.Ct. 1994. With this in mind, the Court is unconvinced that this non-binding concurrence should open the door to a Fifth Amendment due process claim against a local government entity in this case. Defendants’ motion to dismiss any claim based upon the Fifth Amendment due process clause is GRANTED WITHOUT LEAVE TO AMEND, as amendment could not possibly cure the defect described above. (3) Fourteenth Amendment Due Process. Although the caption of the Second Claim for Relief invokes only the Fifth Amendment, the text of that claim alleges that Defendants’ policies, practices, and conduct violate plaintiffs right to life, liberty and due process of law under the Fifth and Fourteenth Amendments.” FAC ¶ 36. The Fourteenth Amendment bars “any State [from] depriving] any person of life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV, § 1. The Due Process Clause of the Fourteenth Amendment encompasses two types of protections: substantive rights (substantive due process) and procedural fairness (procedural due process). See Zinermon v. Burch, 494 U.S. 113, 125-28, 110 S.Ct. 975,108 L.Ed.2d 100 (1990). (a) Substantive Due Process. Under substantive due process jurisprudence, the Fourteenth Amendment “guarantees more than fair process, and the ‘liberty’ it protects includes more than the absence of physical restraint.” Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). In this conception, due process encompasses certain “fundamental” rights. Reno v. Flores, 507 U.S. 292, 301-302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). Substantive due process also “forbids the government from depriving a person of life, liberty, or property in such a way that shocks the conscience or interferes with the rights implicit in the concept of ordered liberty.” Corales v. Bennett, 567 F.3d 554, 568 (9th Cir.2009) (internal citations and quotations omitted). The substantive component of the Due Process Clause is violated by executive action only when it “can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.” Collins v. City of Harker Heights, 503 U.S. 115, 128, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). Defendants move to dismiss any substantive due process claims in the FAC on the ground that the facts alleged in support of the claim are more appropriately evaluated under the construct of the Fourth Amendment. Doc. 38-1 at 10. Where government behavior is governed by a specific constitutional amendment, claims under section 1983 alleging unlawful government action must be evaluated under that specific constitutional provision, rather than under the rubric of “substantive due process.” Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); see also Picray v. Sealock, 138 F.3d 767, 770 (9th Cir.1998) (refusing to acknowledge a Fourteenth Amendment liberty interest in entering a polling place wearing political buttons, instead evaluating arrest for such conduct under the Fourth Amendment). Defendants maintain that Plaintiff has failed to explain how the alleged violation of his due process rights is any different from the alleged violation of his Fourth Amendment rights. Doc. 38-1 at 10. The key inquiry is whether the more particular Amendment (in this case the Fourth) “provides an explicit textual source of constitutional protection against a particular sort of government behavior.” Albright, 510 U.S. at 273, 114 S.Ct. 807 (internal citations and quotations omitted). Here, some of the government conduct alleged in the FAC arguably falls within the purview of the Fourth Amendment’s prohibition against unreasonable searches and seizures. See Lavan v. City of Los Angeles, 693 F.3d 1022, 1027-30 (9th Cir. 2012) (holding that the City’s immediate destruction of homeless individuals’ personal property constituted an unreasonable seizure under the Fourth Amendment). It is therefore appropriate to evaluate that same conduct (the alleged seizure) under the Fourth Amendment, rather than the Fourteenth Amendment. However, the allegations in the FAC do not stop at the seizure itself. Plaintiff alleges that Defendants violated his “fundamental right to life, liberty and property by creating a policy and plan for the homeless plaintiffs that physically threatened their ability to live.”. For example, the FAC alleges: 22. Despite the extreme weather conditions, and despite the fact that they have destroyed plaintiffs shelter and property essential to protection from the elements, defendants continue this custom, practice and policy. Defendants know or should reasonably know that their conduct threatened plaintiffs continued survival, but nonetheless continued their conduct in a manner that has created substantial risk to his ability to continue to survive and is shocking to the conscience ... 24.... Defendants timed the demolitions and destruction of property to occur at the onset of the winter months that would bring cold and freezing temperatures, rain, and other difficult physical conditions. Defendants knew or should reasonably have known that their conduct would have a substantial harmful effect on homeless residents because they engaged in this conduct at a time when those residents were particularly vulnerable and when that conduct would cause substantial physical and emotional damage to plaintiff and create a substantial and ongoing threat to plaintiffs right to life and liberty. As a further direct and proximate result of defendants’ conduct, plaintiff has been left without any shelter or adequate clothing or other protection from the elements, and has suffered adverse physical and mental health effects as a result of that conduct. Plaintiffs right to liberty and life is substantially threatened and jeopardized by defendants’ conduct. FAC ¶ 22. “The protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity.” Albright, 510 U.S. at 272, 114 S.Ct. 807. The Fourteenth Amendment’s due process clause “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Glucksberg, 521 U.S. at 720, 117 S.Ct. 2258 (1997). Courts are instructed to resist the temptation to augment the substantive reach of the Fourteenth Amendment, “particularly if it requires redefining the category of rights deemed to be fundamental.” Bowers v. Hardwick, 478 U.S. 186, 195 (1986), overruled on other grounds, Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). There is no fundamental right to housing, Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972), but this case does not merely address Plaintiffs lack of access to shelter. The FAC’s allegations arguably trigger application of a series of cases that provide for liability under substantive due process where a state or local official acts to place an individual in a situation of known danger with deliberate indifference to their personal, physical safety. This doctrine is spelled out in detail in Kennedy v. City of Ridgefield, 439 F.3d 1055 (9th Cir.2006). The plaintiff in Kennedy contacted Ridgefield police to report that a thirteen year-old neighbor had molested her nine year-old daughter. At the time of the report, the plaintiff warned officers that the neighbor had violent tendencies. Id. at 1057. The police assured plaintiff that she would be given notice prior to any police contact with the neighbor’s family about the allegations. Id. at 1058. However, in contravention of this promise, the neighbor was informed of the allegations shortly before officers warned plaintiff. Id. Later that night, the neighbor broke into plaintiffs home, shot plaintiff, and fatally shot plaintiffs husband. Id. Plaintiff alleged that the involved officer violated her Fourteenth Amendment right to substantive due process by placing her in a known danger with deliberate indifference to her personal physical safety. The Ninth Circuit reviewed the applicable standard: It is well established that the Constitution protects a citizen’s liberty interest in her own bodily security. See, e.g., Ingraham v. Wright, 430 U.S. 651, 673-74, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977); Wood v. Ostrander, 879 F.2d 583, 589 (9th Cir.1989). It is also well established that, although the state’s failure to protect an individual against private violence does not generally violate the guarantee of due process, it can where the state action “affirmatively placets] the plaintiff in a position of danger,” that is, where state action creates or exposes an individual to a danger which he or she would not have otherwise faced. DeShaney v. Winnebago County Dep’t of Soc. Serv., 489 U.S. 189, 197, 201, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989); Wood, 879 F.2d at 589-90. This circuit first recognized such “danger creation” Lability in Wood v. Ostrander, 879 F.2d 583 (9th Cir.1989). In Wood, a state trooper determined that the driver of an automobile was intoxicated, arrested the driver and impounded the car. The officer’s actions allegedly left Wood, a female passenger, stranded late at night in a known high-crime area. Subsequently, Wood accepted a ride from a passing car and was raped. This court held that Wood could claim § 1983 liability, since a jury presented with the above facts could find “that [the trooper] acted with deliberate indifference to Wood’s interest in personal security under the fourteenth amendment.” Id. at 588. Since Wood, this circuit has held state officials liable, in a variety of circumstances, for their roles in creating or exposing individuals to danger they otherwise would not have faced. See L.W. v. Grubbs, 974 F.2d 119 (9th Cir.1992) (“Grubbs ”) (holding state employees could be liable for the rape of a registered nurse assigned to work alone in the medical clinic of a medium-security custodial institution with a known, violent sex-offender); Penilla, v. City of Huntington Park, 115 F.3d 707 (9th Cir. 1997) (holding as viable a state-created danger claim against police officers who, after finding a man in grave need of medical care, cancelled a request for paramedics and locked him inside his house); Munger v. City of Glasgow, 227 F.3d 1082 (9th Cir.2000) (holding police officers could be held liable for the hypothermia death of a visibly drunk patron after ejecting him from a bar on a bitterly cold night). These cases clearly establish that state actors may be held liable “where they affirmatively place an individual in danger,” Munger, 227 F.3d at 1086, by acting with “deliberate indifference to [a] known or obvious danger in subjecting the plaintiff to it,” L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir.1996) (“Grubbs II”). Ridgefield, 439 F.3d at 1061-62 (footnotes omitted). Kennedy delineated a two-part test, requiring: (1) official (state) action that affirmatively placed an individual in danger; and (2) deliberate indifference to that danger. “In examining whether an officer affirmatively places an individual in danger, [a court does] not look solely to the agency of the individual, nor [should it rest its] opinion on what options may or may not have been available to the individual. Instead, [the court must] examine whether the officer left the person in a situation that was more dangerous than the one in which they found him.” Id. at 1062 (internal citations and quotations omitted). Evaluating the officer’s motion for summary judgment, the Ninth Circuit in Kennedy found that by informing the neighbor of the allegations without first warning plaintiff, the officer involved “affirmatively created an actual, particularized danger [plaintiff] would not otherwise have faced.” Id. at 1063. As to the second prong, a court “must decide the related issues of whether the danger to which” the defendant exposed plaintiff “was known or obvious, and whether [defendant] acted with deliberate indifference to it.” Id. at 1064. “[Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his actions.” Bryan County v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). Because plaintiff warned the officer repeatedly about the neighbor’s violent tendencies and specifically requested notice, his decision to proceed without such notice was sufficient evidence of deliberate indifference for purposes of summary judgment. Kennedy, 439 F.3d at 1064-65. Here, the FAC contains enough facts to support plausibly a substantive due process claim based upon the “danger creation” doctrine. It is alleged that Defendants timed the demolitions of “plaintiffs shelter and property essential to protection from the elements” to occur at “the onset of the winter months that would bring cold and freezing temperatures, rain, and other difficult physical conditions.” FAC ¶¶ 22, 24. It is further alleged that “Defendants kn[ew] or should reasonably [have known] that their conduct threatened plaintiffs continued survival, but nonetheless continued their conduct in a manner that has created substantial risk to his ability to continue to survive and is shocking to the conscience ...” FAC ¶ 22. Accordingly, Defendants’ motion to dismiss Plaintiffs substantive due process claim is DENIED. (b) Procedural Due Process A “procedural due process claim hinges on proof of two elements: (1) a protectible liberty or property interest; and (2) a denial of adequate procedural protections.” Thornton v. City of St. Helens, 425 F.3d 1158, 1164 (9th Cir.2005). If there has ever been any doubt in this Circuit that a homeless person’s unabandoned possessions are “property” within the meaning of the Fourteenth Amendment, that doubt was put to rest by the Ninth Circuit’s September 2012 Decision in Lavan v. City of Los Angeles, 693 F.3d 1022, 1032 (9th Cir.2012). That case concerned the City of Los Angeles’ practice of seizing and immediately destroying the personal possessions of homeless individuals temporary left on public sidewalks in the “Skid Row” district of Los Angeles. In affirming the issuance of an injunction prohibiting the City’s practice, the Ninth Circuit acknowledged that both the Fourth and Fourteenth Amendments (procedural due process) protect “homeless persons from government seizure and summary destruction of their unabandoned, but momentarily unattended, personal property.” Id. at 1024. The FAC alleges that Defendants “provided no adequate notice of their intent to seize and destroy plaintiffs property nor any means of retrieving property that was seized.” FAC ¶ 21. The motion to dismiss does not directly address the potential for a procedural due process claim. To the extent Defendants have moved to dismiss any Fourteenth Amendment Due Process claim raised in the FAC, that motion is DENIED. (4) Takings Claims. The Third Claim for Relief alleges that the City took Plaintiffs property without just compensation in violation of the “Fifth and Fourteenth Amendments of the United States Constitution, 42 U.S.C. § 1983, and Article 1, § 19 of the California Constitution.” FAC ¶ 39. The Fifth Amendment to the U.S. Constitution precludes the taking of private property for public use without just compensation. Article 1, § 19 of the California Constitution provides similar protections. (a) Ripeness of Federal Takings Claim. Here, the City moves to dismiss the federal takings claim on ripeness grounds based upon Plaintiffs failure to exhaust available remedies in state court. Doc. 38-1 at 10. Ripeness is a threshold jurisdictional issue. “Article III of the Constitution limits the jurisdiction of federal courts to consideration of actual cases and controversies, and federal courts are not permitted to render advisory opinions.” W. Linn Corporate Park L.L.C. v. City of W. Linn, 534 F.3d 1091, 1099 (9th Cir.2008) (internal citations omitted). “Ripeness is more than a mere procedural question; it is determinative of jurisdiction. If a claim is unripe, federal courts lack subject matter jurisdiction and the complaint must be dismissed.” Id. In Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the Supreme Court held that a land owner’s Fifth Amendment takings claim against a local government’s regulatory taking is not ripe until the landowner has availed himself of all the administrative remedies through which the government might reach a final decision regarding the regulations that effect the taking, and any state judicial remedies for determining or awarding just compensation. Id. at 186, 105 S.Ct. 3108. The first condition, which has come to be known as “prong-one ripeness,” requires a claimant to utilize available administrative mechanisms, such as seeking variances from overly-restrictive or confiscatory zoning ordinances, so that a federal court can assess the scope of the regulatory taking. Id. at 190-91, 105 S.Ct. 3108. The second condition (“prong-two ripeness”) is based on the principle that “[t]he Fifth Amendment does not proscribe the taking of property; it proscribes taking -without just compensation.” Id. at 194, 105 S.Ct. 3108. Consequently, “if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the [federal] Just Compensation Clause until it has used the procedure and been denied just compensation.” Id. at 195, 105 S.Ct. 3108. W. Linn, 534 F.3d at 1100. Williamson arose in the context of an alleged regulatory taking, but the Ninth Circuit applies a modified Williamson analysis in cases of physical takings. Id. Applying this modified analysis in the context of California law, the “prong-one ripeness” requirement disappears, as such considerations are “automatically satisfied at the time of the physical taking,” because “where there has been a physical invasion, the taking occurs at once, and nothing the [government entity] can do or say after that point will change that fact.” Daniel v. County of Santa Barbara, 288 F.3d 375, 382 (9th Cir.2002) (internal quotations and citations omitted). The only pertinent inquiry is prong two. So, “as in a regulatory takings case, the property owner must have sought compensation for the alleged taking through available state procedures.” Id. Here, it is undisputed that Plaintiff has not availed himself of any state procedures regarding compensation for his property. This requires the dismissal of Plaintiffs federal takings claim. (b) State Takings Claim/Supplemental Jurisdiction. Plaintiff does not argue against the above conclusion. Instead, he points to Picard v. Bay Area Reg’l Transit Dist., 823 F.Supp. 1519, 1526 (N.D.Cal.1993), where the district court exercised supplemental jurisdiction over a state law takings claim, despite concluding that the federal takings claim was unripe. Defendants maintain that this argument is a “fallacy” because no inverse condemnation claim has been included in the FAC. Defendants are correct that the caption for the FAC’s Third Claim for Relief omits any mention of the California Constitution. FAC at 21. However, the body of the claim, which consists of only four paragraphs, does allege that Defendants’ conduct violated Article 1, § 19 of the California Constitution. This is an invocation of the California Constitutional protection against the taking of private property for public use without just compensation. However, this invocation does not get Plaintiff very far, as the facts alleged in the FAC do not support a takings claim, at least not under federal takings jurisprudence. The takings clause applies to two types of government action: (a) the taking of physical possession of property or of an interest in that property for a public use; and (b) the regulatory prohibition of a private use. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 321-23, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002). “The first type of taking occurs through the physical appropriation of property. The second type — regulatory taking — involves state imposition of a regulation that prohibits or prevents property owners from using their property in a way that diminishes its value.” Mateos-Sandoval v. County of Sonoma, 2012 WL 6086225 (N.D.Cal. Dec. 6, 2012). The reasoning of the recent district court decision in Mateos-Sandoval is highly instructive here. That case concerned California Vehicle Code § 14602.6(a)(1), which permits impoundment of a vehicle under certain circumstances, when a peace officer determines the driver was operating the vehicle without a valid license. 2012 WL 6086225, *1. Plaintiffs challenged the impoundment of their vehicles pursuant to § 14602.6(a)(1) on Fourth Amendment, Fourteenth Amendment procedural due process, and Fifth Amendment takings grounds. Examining the Fifth Amendment Claim, the district court addressed defendants’ argument that plaintiffs are not entitled to just compensation for the takings of their vehicles because they were not taken for “public use.” Id. at *16. The Supreme Court has construed the public use requirement broadly. See Kelo v. City of New London, 545 U.S. 469, 483,125 S.Ct. 2655,162 L.Ed.2d 439 (2005) (noting that Court’s “public use jurisprudence has ... eschewed rigid formulas and intensive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power”); Hawaii Housing Authority v. Midkiff 467 U.S. 229, 240, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984) (holding that the scope of the “public use” requirement of the Taking Clause is “coterminous with the scope of the sovereign’s police powers”). In Bennis v. Michigan, the Court considered whether the state’s forfeiture of a woman’s interest in a car constituted a “public use.” The state trial court ordered the sale of the car pursuant to an indecency statute after her husband had sex with a prostitute in it while it was parked on a Detroit city street. 516 U.S. 442, 453, 116 S.Ct. 994, 134 L.Ed.2d 68 (1996). Having determined that the sale did not violate the Fourteenth Amendment’s due process clause, the Court further held: [I]f the forfeiture proceeding here in question did not violate the Fourteenth Amendment, the property in the automobile was transferred by virtue of that proceeding from petitioner to the State. The government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain. Bennis, 516 U.S. at 452 [116 S.Ct. 994]. Similarly, in Tate v. District of Columbia, the D.C. Circuit held that the impoundment and sale of Plaintiffs vehicle as a result of unpaid traffic fines did not “constitute a taking for public use for which she was entitled to compensation under the Fifth Amendment’s Takings Clause.” 627 F.3d 904, 909 (D.C.Cir. 2010). The Court reasoned that “if the [government’s] impoundment of Tate’s vehicle did not deprive her of due process ... then there was no unlawful taking and no compensation due for the lawful taking that did occur.” Id. In the present case, if Plaintiffs can prove their Fourth Amendment claim, then Defendants’ interference with then-property rights — the impoundment of their trucks — was unjustified. But that does not mean that the taking was “for public use.” The takings clause only “requires compensation in the event of otherwise proper interference amounting to a taking.” Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 543, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005). The “public use” requirement “goes to the legitimacy of the government’s taking to begin with; if a taking is not for public use, the government has no right to complete the act of eminent domain.” Lee v. City of Chicago, 330 F.3d 456, 475 (7th Cir.2003) (Wood, J., concurring). The unlawful seizure of property therefore does not constitute “public use.” If, on the other hand, Plaintiffs ultimately fail to prove their Fourth Amendment claim, their takings clause claim would also fail because Defendants lawfully acquired their trucks “under the exercise of governmental authority other than the power of eminent domain.” Bennis, 516 U.S. at 452 [116 S.Ct. 994]. To be clear, as a general matter, the applicability of one constitutional amendment does not preclude a claim under another. See Soldal [u Cook County ], 506 U.S. [56] at 70 [113 S.Ct. 538, 121 L.Ed.2d 450 (1992) ]. But under the facts as alleged in the present case, Plaintiffs’ takings clause claim cannot proceed under any theory of liability. It will therefore be dismissed. 2012 WL 6086225, *1 (emphasis added). This case presents a nearly exact parallel to Mateos-Sandoval. Plaintiff alleges his property was unlawfully destroyed by Defendants in violation of the Fourth and Fourteenth Amendments. If he prevails on any such claim, he will have demonstrated that the destruction was unlawful, and therefore could not possibly be a taking because the conduct was not a “proper interference” with his property rights. On the other hand, if he does not prevail on any Fourth or Fourteenth Amendment claim, then Defendants lawfully destroyed his property “under the exercise of governmental authority other than the power of eminent domain.” In either event, takings liability has not been triggered. The one decision that even arguably supports the existence of a takings claim here is not persuasive. The district court in Pottinger v. City of Miami, 810 F.Supp. 1551, 1570 (S.D.Fla.1992), reasoned, in a footnote, that the City of Miami’s seizure and destruction of homeless individuals’ property constituted a taking of private property for public use without just compensation: The [ ] City’s seizure and destruction of plaintiffs’ personal property violate the fifth amendment, which prohibits the taking of private property for public use without just compensation. U.S. Const. Amend. V. The City argues that plaintiffs’ fifth amendment claim must fail because they have not shown that their property was taken for a “public use.” However, the United States Supreme Court has defined “public use” very broadly. See Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 240, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984). In Midkiff, the Court stated that “[t]he “public use” requirement is ... coterminous with the scope of a sovereign’s police powers,” id., and that the proper test is whether “exercise of the eminent domain power is rationally related to a conceivable public purpose,” id. at 241, 104 S.Ct. 2321. In rejecting the argument that the government must use or possess the condemned property, the Court stated that “it is only the taking’s purpose, and not its mechanics, that must pass scrutiny under the Public Use Clause.” Id. at 244, 104 S.Ct. 2321. Similarly, under the Midkijf analysis, the fact that the City does not actually use or possess the property taken from the homeless does not mean that there is no “public use,” and therefore no taking under the fifth amendment. Although the evidence does substantiate plaintiffs’ claim that there have been “takings” of class members’ property, the more difficult question in this case is how plaintiffs may be “justly compensated.” The Supreme Court has defined “just compensation” as placing the property owner in the same position monetarily as he would have been if his property had not been taken. United States v. Reynolds, 397 U.S. 14, 16, 90 S.Ct. 803, 25 L.Ed.2d 12 (1970). The court is unable to address this issue based on the evidence presented. Consequently, the issue of “just compensation” will have to be the subject of a separate evidentiary hearing. Pottinger fails to discuss Bennis, the more recent, and far more factually analogous, Supreme Court authority relied upon in Mateos-Sandoval. For that reason, this Court will follow Mateos-Sandoval, not Pottinger, and finds that the FAC cannot possibly state a claim under federal takings jurisprudence. The parties have not briefed the issue of whether such a claim could nevertheless be stated under California inverse condemnation jurisprudence, but no authority the Court has been able to locate indicates California courts would diverge from federal jurisprudence substantially. Accordingly, Defendants’ motion to dismiss takings claim is GRANTED WITHOUT LEAVE TO AMEND, as amendment would be futile under federal precedent. If Plaintiff believes California caselaw demands a different conclusion, he may file a motion to amend the complaint setting forth relevant authorities. (5) Equal Protection Claim. Plaintiffs Fourth Claim for Relief for “Denial of Constitutional Right to Equal Protection of the Laws — Fourteenth Amendment” alleges in pertinent part: Defendants’ [] policies, practices and conduct are intended and designed to single out homeless people and have the purpose and effect of depriving homeless people of their property and of driving homeless people from the City of Fresno. These policies and actions are based on defendants’ animus toward this disfavored group and lack a rational relationship to any legitimate government interest. In adopting and implementing these policies and practices with the intent to harm and disadvantage homeless persons in the City of Fresno, the defendants have violated the Equal Protection Clause of the United States Constitution and 42 U.S.C. § 1988 FAC ¶ 43. There are several general methods by which a plaintiff may allege an equal protection violation. First, he may allege “defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class." Lee, 250 F.3d at 686 (emphasis added). Such actions are subjected to “strict scrutiny” and “will only be sustained if they are suitably tailored to serve a compelling state interest.” City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Similar oversight is applied where state action “impinges on personal rights,” otherwise framed as “fundamental rights,” protected by the Constitution.” Id. Alternatively, when a policy distinguishes one group of persons from another, that distinction must be rationally related to a legitimate governmental purpose. Id. at 439, 105 S.Ct. 3249. Relatedly, an equal protection claim can lie where plaintiff can establish that he is a “class of one” in that he “has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). (a) Strict Scrutiny. Plaintiff asserts that strict scrutiny applies here on two independent grounds: (1) he is a member of a protected class; and (2) Defendants violated his fundamental rights. (i) Protected Class. As a general matter, a classification is suspect (and therefore entitled to strict scrutiny) if it is directed to a discrete and insular minority group. United States v. Carolene Prods., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938); Abebe v. Mukasey, 554 F.3d 1203, 1206 (9th Cir. 2009). Courts have found that race, alien-age, national origin, and to a some degree, gender and illegitimacy, are suspect classes. See Cleburne, 473 U.S. at 440-41, 105 S.Ct. 3249. However, no court has ever held the homeless to be a suspect class under this standard. The Supreme Court has declined to define suspect classifications based upon housing status, Lindsey, 405 U.S. 56, 92 S.Ct. 862, or wealth, Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 108 S.Ct. 2481, 101 L.Ed.2d 399 (1988). Although the Ninth Circuit has not directly addressed the issue, both the Eleventh and Third Circuits have refused to define homeless persons as a suspect class. See Joel v. City of Orlando, 232 F.3d 1353, 1357 (11th Cir.2000); Kreimer v. Bureau of Police, 958 F.2d 1242, 1269 n. 36 (3d Cir.1992). Likewise, several district courts within the Ninth Circuit have followed this rule. See Batiste v. Williams, 2012 WL 221912, *2 (D.Nev. Jan. 25, 2012); Garber v. Flores, 2009 WL 1649727, *10 (C.D.Cal. June 10, 2009); Damson v. City of Tucson, 924 F.Supp. 989, 993 (D.Ariz. 1996); Joyce v. City and County of San Francisco, 846 F.Supp. 843, 859 (N.D.Cal. 1994). Although one district court in the Southern District of Florida noted that an argument could be made that the homeless bear “traditional indicia of suspectness,” that court declined to rule on the issue. Pottinger, 810 F.Supp. at 1578. This Court will follow the overwhelming weight of authority indicating the homeless are not a suspect class. Plaintiffs contention that this is an issue not amenable to resolution on the pleadings is without merit. Courts have routinely treated this as an issue of law for the Court to determine without reference to the specific circumstances of the case. See Batiste, 2012 WL 221912 (dismissing pursuant to Fed.R.Civ.P. 12(b)(6) during screening process equal protection claim based upon assertion that homeless belong to a protected class); Garber, 2009 WL 1649727 (dismissing similar equal protection claim on Rule 12(b)(6) motion to dismiss). Defendant’s motion to dismiss any equal protection claim based upon classification of the homeless as “suspect” is GRANTED WITHOUT LEAVE TO AMEND. (ii) Fundamental Rights. Plaintiff next argues that his equal protection claim nevertheless is entitled to the benefit of strict scrutiny because Defendants’ conduct violates his fundamental right to travel and/or