Anderson v. Municipality of Anchorage

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ROBERT ANDERSON,
Plaintiff,
vs.
MUNICIPALITY OF ANCHORAGE,
Defendant.
Case No. 3:21-cv-00139-JMK
ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS
Before the Court at Docket 11 is a Motion to Dismiss filed by Defendant
Municipality of Anchorage (“the Municipality”). Plaintiff Robert Anderson, representing
himself, filed his Opposition at Docket 14, and Defendant replied at Docket 15. 	For the
reasons stated below, the Motion is GRANTED in part and DENIED in part as follows:
With respect to Claim I, the Motion is DENIED.
With respect to Claims II–VI, the Motion is GRANTED, and these claims
are DISMISSED WITH PREJUDICE.
With respect to Claim VII, the Motion is GRANTED, and this claim is
DISMISSED WITHOUT PREJUDICE. 	Mr. Anderson is granted leave to amend his
Complaint, only with respect to Claim VII, before March 15, 2022.
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Anderson v. Municipality of Anchorage 	Case No. 3:21-cv-00139-JMK
Order Granting in Part and Denying in Part Motion to Dismiss 	Page 2
I. 	BACKGROUND
Mr. Anderson’s Complaint challenges the constitutionality of two events:
(1) a Municipal property appraiser entering his property to examine the exterior of his
residence, and (2) the Municipality levying a $50 tax penalty on him without sending a
notice. 	For the purposes of this Motion, the Court assumes Mr. Anderson’s version of
events are true.1
A. 	Property Appraiser’s Entry onto Mr. Anderson’s Yard
Mr. Anderson has lived at 4908 Roger Drive, Anchorage, Alaska since 1989.
Between 1997 and 2000, Municipal Department of Finance (“the Department”) personnel
entered Mr. Anderson’s property on multiple occasions, either to deliver documents or
measure the exterior of the house for his property tax appraisal.2 	On January 4, 2000,
Mr. Anderson wrote both the ombudsman and the mayor to express concern about the
intrusions and request that any personnel obtain written permission before entering his
land.3 	The ombudsman responded to Mr. Anderson’s letter and assured him that the
Department would comply with his request.4 The ombudsman explained to Mr. Anderson
that Alaska Stat. § 29.45.130(b) grants the assessor authority to enter his land.5 This statute
states:
For investigation, the assessor or the assessor’s agent may
enter real property during reasonable hours to examine visible
1 See Kawn v. SanMedica Int’l, 854 F.3d 1088, 1096 (9th Cir. 2017).
2 Mr. Anderson outlines these events as background, but his claims exclusively focus on the tax
assessor’s entry into his property on July 11, 2019. See Docket 1 at 31–37. The Court does not interpret
Mr. Anderson’s claims as including the events between 1997 and 2000.
3 See Dockets 1-2, 1-3.
4 Docket 1-4.
5 Id.
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Anderson v. Municipality of Anchorage 	Case No. 3:21-cv-00139-JMK
Order Granting in Part and Denying in Part Motion to Dismiss 	Page 3
personal property and the exterior of a dwelling or other
structure on the real property. . . . A person shall, on request,
furnish to the assessor or the assessor’s agent assistance for the
investigation and permit the assessor or the assessor’s agent to
enter a dwelling or other structure to examine the structure or
personal property in it during reasonable hours. The assessor
may seek a court order to compel entry and production of
records needed for assessment purposes.6
The ombudsman went on to explain that “the policy of the assessor office is to attempt
contact with the resident and explain what they are doing. If there is no answer, the assessor
is allowed to do an exterior inspection in accordance with the state statute.”7
On July 11, 2019, an appraiser entered onto Mr. Anderson’s property without
written consent or administrative search warrant. The appraiser visited every residence on
Roger Drive, knocked on the front door of each house, and “interviewed” eleven of the
twenty-four residences.8 When the appraiser did not make contact with Mr. Anderson, he
entered into Mr. Anderson’s front yard, side yard, and backyard “for the purpose of
gathering information.”9 	The appraiser then placed a “Property Appraisal Data Review
Inquiry” door hanger on Mr. Anderson’s front door, and a business card identifying the
individual as a senior appraiser for the Department of Finance.10 Mr. Anderson claims that
the actions of the appraiser in July 2019 represent the Department’s policy or custom to
6 Alaska Stat. § 29.45.130(b). The law also provides that the assessor may not enter the interior
of an occupied dwelling or structure without permission or a court order.
7 Docket 1-4 at 2.
8 Docket 1 at 10.
9 Id.
10 Id. at 11–12; see also Docket 1-5.
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Anderson v. Municipality of Anchorage 	Case No. 3:21-cv-00139-JMK
Order Granting in Part and Denying in Part Motion to Dismiss 	Page 4
enter private residential property without consent to gather information for governmental
purposes, and that the Department is acting under state authority to do so.11
B. 	Municipal Tax Penalty
Mr. Anderson received a municipal property tax bill in 2019, the second
installment of which was due August 15, 2019. 	Mr. Anderson miswrote the check,
accidentally underpaying his bill by $500.12 	He discovered this error when his bank
statement showed a lesser amount than he intended to pay. On August 29, 2019, he went
to City Hall to explain the error and pay the outstanding amount.13 He paid the $500 and
was charged a 10 percent ($50) penalty under Municipal Code § 12.15.060(C)(1)(a). He
did 	not 	incur 	any 	interest 	due 	to 	the 	late 	payment. 	The 	cashier 	acknowledged
Mr. Anderson’s 	explanation 	for 	his 	late 	payment, 	saying 	that 	it 	was 	a 	“common
occurrence.”14 The cashier asked if Mr. Anderson would like to discuss the penalty with
the head cashier, who had access to remove the penalty.15 The head cashier explained to
Mr. Anderson how the penalty was calculated but did not remove it. 	Mr. Anderson then
paid the balance in full.16
Prior to paying the balance, Mr. Anderson had not received notice from the
Municipality about the account delinquency. Mr. Anderson claims that the Municipality’s
policy is to provide mailed notice that includes the outstanding amount.17
11 Docket 1 at 8–9, 12, 31–32; see also Docket 1-4.
12 Docket 1 at 19.
13 Id.
14 Id. at 20.
15 Id.
16 Id.; see also Dockets 1-6, 1-7.
17 Docket 1 at 19.
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Mr. Anderson claims that “on investigation and belief,” the head cashier had
adjusted penalties of similarly situated taxpayers between the payment’s due date and when
the notice is mailed.18 	In 2015, the Municipality made an administrative error and sent
Mr. Anderson’s bill to the incorrect address, which caused his payment to be late. 	The
Municipality had sent a delinquency notice prior to Mr. Anderson actually receiving the
bill. His penalty and interest were adjusted to $0 after Mr. Anderson raised the issue with
the Municipality.19
II. 	LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss
a complaint because it fails to state a claim upon which relief can be granted. This means
that the facts alleged by the complaint do not amount to a claim under any cognizable legal
theory.20 To survive a motion to dismiss, the complaint must contain enough facts that, if
taken as true, would state a legal claim to relief that is “plausible on its face.”21 As such,
the Court assumes that the facts alleged in the complaint are true and construe them in the
light 	most 	favorable 	to 	the 	nonmoving 	party.22 	However, 	conclusory 	statements,
unwarranted inferences, and naked assertions of law will not suffice; “they must be
supported by factual allegations” to survive a motion to dismiss.23
18 Id. at 20.
19 Id. at 29.
20 Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015).
21 Id.
22 Kwan, 854 F.3d at 1096.
23 Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
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Anderson v. Municipality of Anchorage 	Case No. 3:21-cv-00139-JMK
Order Granting in Part and Denying in Part Motion to Dismiss 	Page 6
Though conclusory statements are insufficient, “a plaintiff need not plead all
facts necessary to carry his or her burden. 	Determining whether a complaint states a
plausible claim for relief . . . [is] a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense. 	So long as plaintiffs meet this
standard of plausibility, their claim survives a 12(b)(6) motion even if defendants present
a similarly plausible description of the disputed events. A dismissal for failure to state a
claim is proper only if it appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief.”24
III. 	DISCUSSION
A. 	Mr. Anderson has Pleaded Sufficient Facts to State a Plausible Claim Under
the Fourth Amendment with Respect to the Tax Assessor’s Entry Onto His
Curtilage
Mr. 	Anderson’s 	first 	claim 	alleges 	that 	the 	property 	appraiser’s 	visit
constituted an unreasonable search in violation of the Fourth Amendment. Mr. Anderson
claims it is the Municipality’s policy or custom that appraisers may enter a person’s
property without a warrant or consent to conduct an investigation for tax assessment
purposes.
The Fourth Amendment protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures.” For
a constitutional violation to have occurred, there must first be a “search” as understood by
24 Laborers’ Int’l Union of N. Am., Loc. 341 v. Main Bldg. Maint., Inc., 435 F. Supp. 3d 995, 1000
(D. Alaska 2020) (internal quotations and citations omitted).
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the Fourth Amendment. 	If a “search” has occurred, the Court analyzes whether it was
unreasonable, i.e., without a warrant or without an exception to the warrant requirement.25
The Municipality argues that the tax assessor’s inspection is not a “search”
under the Fourth Amendment because it did not violate Mr. Anderson’s reasonable
expectation of privacy.26 In support, the Municipality cites a Sixth Circuit decision and a
Washington state court decision that analyze the intrusiveness of a tax assessor’s entry onto
the curtilage and exterior observation of the home.27 These cases found that the assessment
did not compromise any legitimate interest in privacy, therefore were not searches under
the Fourth Amendment. In response, Mr. Anderson argues that the “reasonable expectation
of privacy” test, first articulated in Katz v. United States,28 does not apply when there is a
physical intrusion into the curtilage.29
The Ninth Circuit appears to agree with Mr. Anderson. In United States v.
Perea-Rey, the Court held that the district court erred in applying the Katz “reasonable
expectation of privacy” test when a government official entered the home’s curtilage.30
Citing the Supreme Court’s holding in United States v. Jones, the Ninth Circuit explained
that the Katz test “has been added to, not substituted for, the common-law trespassory test,”
and should be used “only in determining the scope of the curtilage, not the propriety of the
25 See, i.e., Camara v. Mun. Ct. of City and Cnty. of San Francisco, 387 U.S. 523, 528–29 (1967).
26 Docket 12 at 5.
27 See Widgren v. Maple Grove Twp., 429 F.3d 575, 585–86 (6th Cir. 2005); State v. Vonhof, 751
P.2d 1221, 1225 (Ct. App. Wash. 1988). The Municipality also cites Ehlers v. Bogue, 626 F.2d 1314, 1315
(5th Cir. 1980) for the proposition that an administrative survey of the exterior of the home does not
constitute a search, even when the inspector was on plaintiff’s property. However, in this case, there was
no entry onto the curtilage; plaintiff’s apartment was surveyed from an area akin to “open fields.”
28 389 U.S. 347 (1967).
29 See Docket 1 at 14 (citing United States v. Jones, 565 U.S. 400, 409 (2012); Docket 14 at 9.
30 680 F.3d 1179, 1185–86 (9th Cir. 2012).
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Anderson v. Municipality of Anchorage 	Case No. 3:21-cv-00139-JMK
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intrusion.”31 	Thus, a physical intrusion into a constitutionally protected area (here, the
curtilage of the home) was sufficient to establish a search under the Fourth Amendment;
“no further showing was required.”32 One year later in Sims v. Stanton, the Ninth Circuit
reiterated its holding that, “because the curtilage is part of the home, searches and seizures
in the curtilage without a warrant are also presumptively unreasonable” and concluded that
the district court erred in applying a “totality of the circumstances” balancing test to justify
an officer’s warrantless entry into the curtilage.33
Mr. Anderson claims that, per municipal custom, the tax assessor explored
the curtilage of his home to conduct an investigation without a warrant or consent. These
facts constitute a plausible claim that the Municipality violated his Fourth Amendment
rights. This is true even though the search was performed to further a regulatory scheme;
an administrative search implicates the Fourth Amendment even if refusal to consent
carries no criminal penalty and the search is not related to a criminal investigation.34
Mr. Anderson is not required to address any exceptions to the warrant requirement,
including 	any 	relationship 	between 	the 	Municipality’s 	policy 	and 	Alaska 	Stat.
§ 29.45.130(b), as these are affirmative defenses that the Municipality has not yet raised.35
31 Id. at 1186 (quoting Jones, 565 U.S. at 409).
32 Id.
33 Sims v. Stanton, 706 F.3d 954, 959–60 (9th Cir. 2013).
34 See Sanchez v. Cnty. of San Diego, 464 F.3d 916, 922 n.8 (9th Cir. 2006) (collecting cases); see
also Camara, 387 U.S. 523 at 534; G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977) (warrantless
entry by IRS agents violates corporation’s right to privacy).
35 See Covey v. Assessor of Ohio Cnty., 777 F.3d 186, 195 (4th Cir. 2015) (plaintiff’s claim
survived motion to dismiss where plaintiff pleaded that tax assessor entered their property to collect data).
Mr. Anderson appears to preemptively argue that whether the assessors are authorized under state law is
immaterial to whether the conduct violates the constitution, citing McNeese v. Bd. of Ed. for Cmty. Unit
Sch. Dist., 373 U.S. 668, 674 (1963).
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Anderson v. Municipality of Anchorage 	Case No. 3:21-cv-00139-JMK
Order Granting in Part and Denying in Part Motion to Dismiss 	Page 9
Mr. Anderson pleaded a plausible claim that the tax assessor’s inspection of
his property violated the Fourth Amendment. 	With respect to Claim I, the Motion to
Dismiss is DENIED.
B. 	The 	Property 	Appraiser’s 	Entry 	onto 	Mr. 	Anderson’s 	Yard 	does 	not
Constitute a “Takings” under the Fifth and Fourteenth Amendments
Mr. Anderson’s second claim alleges that the property appraiser’s visit
violated his property rights (namely the “right to exclude”), which he claims amounts to an
unconstitutional taking under the Fifth and Fourteenth Amendments.36 	Mr. Anderson
argues that by entering his property, “Anchorage treats private residential property as
public property to be entered and searched at the will of the Anchorage Department of
Finance.”37
The tax assessor’s brief entry onto Mr. Anderson’s curtilage does not amount
to a taking of his property. A taking occurs when the government seizes private property.38
The seizure could be done physically or via regulations that deny the owner any beneficial
or productive use of his land.39
Here, Mr. Anderson has not pleaded any facts that would amount to a seizure
of his property. By his own account, the tax assessor’s presence on the property was brief;
the 	assessor 	did 	not 	remain 	on 	the 	property 	or 	otherwise 	take 	possession 	of 	it.
36 See Docket 1 at 34; Docket 14 at 15. The Municipality reads Mr. Anderson’s claim as also
including a procedural due process claim, but the Court does not interpret it as such. To the extent that
Claim II includes a due process claim, it follows from the Court’s reasoning that the brief visit by the
assessor did not deprive Mr. Anderson of a property interest, and therefore cannot violate his due process
rights. 37 Docket 1 at 7.
38 See Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071–72 (2021).
39 Id.
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Anderson v. Municipality of Anchorage 	Case No. 3:21-cv-00139-JMK
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Mr. Anderson has not alleged that the Municipality has restricted his property via
regulations such that he is denied any beneficial use of the land.
With respect to Claim II, the Motion to Dismiss is GRANTED and Claim II
is DISMISSED WITH PREJUDICE.
C. 	The Municipality’s Tax Assessment Policy does not violate the Fourteenth
Amendment’s Equal Protection Clause
Mr. 	Anderson’s 	third 	claim 	alleges 	that 	the 	Municipality’s 	policy
discriminates between “home occupants who answer a knock at the door and home
occupants who do not answer a knock at the door.”40 	Those who answer are given an
opportunity to refuse or consent to a search, while those who do not answer are forced to
give 	“implied 	consent.”41 	Mr. 	Anderson 	brings 	his 	claim 	under 	the 	Fourteenth
Amendment’s Equal Protection Clause both as a “class of one” and on behalf of “home
occupants not given an opportunity to demand [tax assessors] leave the property.”42
“To state an equal protection claim under § 1983, a plaintiff must allege that
the defendants acted with an intent or purpose to discriminate against him based upon
membership in a protected class. 	Alternatively, a plaintiff may state an equal protection
claim in some circumstances by alleging that he has been irrationally singled out as a so-
called ‘class of one.’”43
40 Docket 1 at 35; see also Docket 14 at 16.
41 Docket 1 at 35.
42 Id.
43 Gagic v. Cnty. of Maricopa, No. 21-15857, 2021 WL 6102183, at *1 (9th Cir. Dec. 22, 2021)
(internal citations and quotations omitted).
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Whether or not a homeowner answers the door is not a protected class for the
purposes of the Fourteenth Amendment, and Mr. Anderson does not allege that the
Municipality classified him or others on any other basis.44 Although equal protection can
apply to a “class of one,” by his own account, Mr. Anderson was not treated differently.
The tax appraiser visited every property on Roger Drive. 	The appraiser interviewed any
homeowner 	who 	answered 	the 	door, 	and 	physically 	examined 	the 	homes 	of 	any
homeowner who did not. 	Mr. Anderson was not discriminated against or “irrationally
singled out” because he was treated the same as other homeowners and, as he claims, in
accordance with Municipal policy.45
Mr. 	Anderson 	also 	appears 	to 	allege 	that 	the 	Municipality’s 	policy
discriminates “against plaintiff’s fundamental right to tax parcel reevaluation.”46 However,
Mr. Anderson does not allege that his property taxes were materially impacted by the
assessor’s visit to his home or that the Municipality levied a discriminatory tax on his land.
Rather, he alleges that he has a fundamental right to have his parcel reevaluated “in the
same manner and at the same time” as other homeowners.47 Mr. Anderson does not cite
any caselaw in support of this proposition. 	There simply is no fundamental right in the
Constitution to have a tax parcel reevaluated at the same time as other homeowners, nor
does the equal protection clause “require identity of treatment” for all people.48
44 C.f. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441–42 (1985).
45 See id.; Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601 (2008).
46 Docket 1 at 37.
47 Id.
48 See Garrison v. United States, 930 F.2d 920 at *1 (9th Cir. 1991) (quoting Walters v. City of St.
Louis, 347 U.S. 231, 237 (1954)) (upholding classification giving different tax treatment to business and
personal incomes).
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Anderson v. Municipality of Anchorage 	Case No. 3:21-cv-00139-JMK
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With respect to Claim III, the Motion to Dismiss is GRANTED. Claim III is
DISMISSED WITH PREJUDICE.
D. 	The Municipality’s Policy of Knocking on Homeowners’ Front Doors does not
Violate the Fourth, Fifth, or Fourteenth Amendments
Mr. Anderson’s fourth claim alleges that his rights and his neighbors’ rights
were violated when the tax assessor knocked on the front door or spoke with any
homeowner that answered their door.49 	Mr. Anderson appears to argue that because the
tax appraiser could see inside the home when a person answers the door, it is an
unconstitutional search under the Fourth Amendment and violates his “substantive right to
privacy” under the Fifth and Fourteenth Amendments.50 He also argues that because the
assessor’s approach is unannounced and without prior consent, it violates an expectation
of privacy.51 	These facts cannot constitute a plausible claim under the Fourth, Fifth, or
Fourteenth Amendment.
While physical intrusion onto a home’s curtilage is protected by the Fourth
Amendment, this protection does not bar a government official from knocking on a front
door, leaving documents, or otherwise speaking with homeowners. 	The Supreme Court
has recognized an implied license for a member of the public to “approach the home by the
49 Docket 1 at 33; Docket 14 at 7.
50 Mr. Anderson’s fourth claim also appears to reiterate much of his first claim that a tax assessor
may not enter the curtilage of the home. Treating the first and fourth claim as separate, the Court interprets
any reference to the curtilage in Mr. Anderson’s fourth claim as relating to the tax assessor’s approach to
the front door.
51 Mr. Anderson’s Opposition appears to include a procedural due process claim, which is not
included in his Complaint. 	The Court will not consider a new claim in an Opposition to a Motion to
Dismiss. However, it follows from the Court’s reasoning that the brief visit by the assessor did not deprive
Mr. Anderson of a property interest, and therefore cannot violate his due process rights.
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front path, knock promptly, wait briefly to be received, and then (absent invitation to linger
longer) leave.”52 	As such, a government official may approach a home and knock
“precisely because that is ‘no more than any private citizen might do.’”53 A person may
consent to answer the door or, like Mr. Anderson, may not answer the door; there is no
obligation to do so.54
Here, 	Mr. 	Anderson 	has 	not 	pleaded 	any 	facts 	that 	the 	tax 	assessor
improperly approached his front door, improperly knocked, or otherwise violated the
implied license to request to speak with homeowners. 	Mr. Anderson did not answer the
door when the assessor knocked, and he does not allege that the assessor improperly viewed
or entered the inside of his home. Mr. Anderson’s Complaint does not plead any facts that
suggest the tax assessor’s conduct went beyond the reasonable, respectful conduct of a
private citizen knocking on the front door. 	This is not a violation of his constitutional
rights. Further, to the extent that Mr. Anderson’s claim alleges a violation of his neighbors’
rights, he does not have standing to sue on their behalf.55
With respect to Claim IV, the Motion to Dismiss is GRANTED. Claim IV
is DISMISSED WITH PREJUDICE.
52 Florida v. Jardines, 569 U.S. 1, 8 (2013).
53 Id. (quoting Kentucky v. King, 563 U.S. 452, 469 (2011)).
54 Kentucky v King, 563 U.S. at 470.
55 See Munns v. Kerry, 782 F.3d 402, 409 (9th Cir. 2015) (an injury sufficient to create standing
must be “concrete and particularized” and “actual or imminent” to rather than conjectural or hypothetical).
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E. 	The Tax Penalty Levied on Mr. Anderson does not Violate the Fourteenth
Amendment’s Due Process Clause
Mr. Anderson’s fifth and sixth claims allege that the tax penalty violated both
his procedural and substantive due process rights under the Fourteenth Amendment.56
Procedural due process is violated when there is a “deprivation of a constitutionally
protected liberty or property interest and denial of adequate procedural protection.”57
Substantive due process “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.’”58
Mr. Anderson fails to state a due process claim because he was not deprived
of his property. 	Mr. Anderson does not claim that the penalty itself was erroneous or
otherwise unconstitutional.59 	He admits that he underpaid his taxes, and that Anchorage
Municipal Code § 12.15.060(C) provides for a ten percent penalty on unpaid balances after
a seven-day grace period has elapsed. 	Mr. Anderson states that he voluntarily paid the
penalty after speaking with the head cashier.60
The main basis for Mr. Anderson’s claim is that—theoretically—if the
Municipality never sent him a notice and he had not independently realized his account
56 Docket 1 at 39–42; Docket 14 at 19–25.
57 Vazquez Romero v. Garland, 999 F.3d 656, 666 (9th Cir. 2021).
58 Corales v. Bennett, 567 F.3d 554, 568 (9th Cir. 2009).
59 Docket 14 at 20–21, 23. See Multistar Indus., Inc. v. U.S. Dept. of Transp., 707 F.3d 1045, 1056
(9th Cir. 2013) (no procedural due process violation where plaintiff did not challenge the validity of the
underlying deprivation).
60 See Hill v. Giani, 296 P.3d 14, 24 (Alaska 2013) (“Absent coercion, voluntarily relinquishing a
property interest does not trigger due process protections).
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Anderson v. Municipality of Anchorage 	Case No. 3:21-cv-00139-JMK
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was delinquent, there could be severe consequences.61 	But that did not occur.62 	The
Municipality had not taken steps to collect the penalty, it did not charge interest on the late
payment, and Mr. Anderson even acknowledges that the policy of the Municipality is to
send notices of delinquency. 	Indeed, in 2015, when the Municipality unfairly levied a
penalty on his account, it sent him a notice. Mr. Anderson challenged the penalty, and the
Municipality adjusted the penalty to $0. 	In short, neither Mr. Anderson’s voluntary
payment nor the speculative injuries constitute a deprivation of his property.63 	As such,
the question of notice or opportunity to be heard is irrelevant, and his substantive due
process claim must fail because he was not denied a substantive right.
Without deprivation of a property interest or other right, Mr. Anderson
cannot state a claim for procedural or substantive due process. With respect to Claims V
and VI, the Motion to Dismiss is GRANTED. Claims V and VI are DISMISSED WITH
PREJUDICE.
F. 	The Tax Penalty Levied on Mr. Anderson does not Violate the Fourteenth
Amendment’s Equal Protection Clause
Mr. Anderson’s seventh claim alleges that the Municipal tax penalty is
enforced arbitrarily in violation of the Fourteenth Amendment’s Equal Protection Clause.
He states that the Municipality allows the head cashier to use her discretion to modify tax
61 Docket 1 at 40–41.
62 See Munns, 782 F.3d at 409; see also Schroeder v. Diamond Parking, Inc., Civ. No. 12–00378
HG–RLP, 2013 WL 5348472 at *9 (D. Haw. Sept. 17, 2013) (plaintiff alleged multiple consequences that
he believed could occur because of failure to pay parking penalty but did state a due process claim because
those consequences did not occur).
63 See Schroeder, 2013 WL 5348472 at *9 (“Plaintiff's unsubstantiated fears about possible
consequences for failing to pay the penalty notice do not transform the voluntary payment into a deprivation
of property.”)
Case 3:21-cv-00139-JMK Document 16 Filed 02/16/22 Page 15 of 17

Anderson v. Municipality of Anchorage 	Case No. 3:21-cv-00139-JMK
Order Granting in Part and Denying in Part Motion to Dismiss 	Page 16
penalties, and that “on information and belief” he understands the cashier to have adjusted
penalties of persons in his same situation. 	Mr. Anderson claims this is a violation of his
equal protection rights because some taxpayers are arbitrarily treated differently than
others.64
The Court first notes that the Municipality’s Motion has not directly
addressed this claim. 	However, it has explicitly moved to dismiss the entire Complaint
and Mr. Anderson’s Opposition briefs this claim. As such, the Court evaluates the claim
under Rule 12(b)(6).65
Mr. Anderson has not alleged a protected class. He appears to allege that he
has been irrationally singled out, but he does not provide any facts in support besides the
assertion that, “on information and belief,” other taxpayers in his same situation have had
their penalty waived.66 This bare conclusion of discriminatory treatment is insufficient to
survive a motion to dismiss. 	The Court notes that Mr. Anderson describes how the
Municipality waived his tax penalty in 2015. To the extent that his argument refers to this
waiver, the discrepancy does not constitute a violation of equal protection because that
situation was wholly distinct from the present facts.67
However, given Mr. Anderson’s pro se status, the Court will dismiss this
claim without prejudice and grant Mr. Anderson leave to amend his complaint.68 	To
64 Docket 1 at 43–44.
65 Reed v. Lieurance, 863 F.3d 1196, 1207 (9th Cir. 2017) (the district court has authority under
Rule 12(b)(6) to dismiss a claim sua sponte, so long as Plaintiff has opportunity to oppose the motion to
dismiss.)
66 See Docket 1 at 20; Docket 14 at 26.
67 Docket 1 at 29.
68 See Lacey v. Maricopa Cnty, 693 F.3d 896, 926–27 (9th Cir. 2012).
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Anderson v. Municipality of Anchorage 	Case No. 3:21-cv-00139-JMK
Order Granting in Part and Denying in Part Motion to Dismiss 	Page 17
survive a subsequent motion to dismiss, Mr. Anderson must plead specific facts that show
he was “intentionally treated differently from others similarly situated, and that there is no
rational basis for the difference in treatment.”69 This cannot be a bare assertion that others
have been treated differently than him.
With respect to Claim VII, the Motion to Dismiss is GRANTED. The claim
is dismissed WITHOUT PREJUDICE and, with respect to this claim only, Mr. Anderson
is granted leave to amend his Complaint before March 15, 2022.
IV. 	CONCLUSION
For the above reasons, the Municipality’s Motion to Dismiss is GRANTED
in part and DENIED in part as follows:
With respect to Claim I, the Motion is DENIED.
With respect to Claims II–VI, the Motion is GRANTED, and these claims
are DISMISSED WITH PREJUDICE.
With respect to Claim VII, the Motion is GRANTED, and this claim is
DISMISSED WITHOUT PREJUDICE. 	Mr. Anderson is granted leave to amend his
Complaint, only with respect to Claim VII, before March 15, 2022.
IT IS SO ORDERED this 15th day of February 2022, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
69 Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
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