-EFB Schmidt v County of Nevada, et al, No. 2:2010cv03022 - Document 24 (E.D. Cal. 2011)

Court Description: MEMORANDUM and ORDER granting 8 Motion to Dismiss signed by Judge Frank C. Damrell, Jr on 3/29/11: Plaintiff is granted fifteen (15) days from the date of this order to file an amended complaint in accordance with this order. Defendants are granted thirty (30) days from the date of service of plaintiffs' first amended complaint to file a response thereto. (Kaminski, H)

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-EFB Schmidt v County of Nevada, et al Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ----oo0oo---JON-CORY SCHMIDT NO. 2:10-CV-03022 FCD/EFB 12 13 14 15 Plaintiffs, v. MEMORANDUM AND ORDER COUNTY OF NEVADA; NEVADA COUNTY SHERIFF’S OFFICE; JAMES BENNETT; and DOES 1-20 inclusive, 16 Defendants. 17 18 ----oo0oo---This matter is before the court on the motion of defendants 19 County of Nevada (“Nevada County”), Nevada County Sheriff’s 20 Office (“Sheriff’s Office”), and James Bennet (“Bennett”) 21 (collectively, “defendants”) to dismiss plaintiff’s complaint 22 pursuant to Federal Rule of Civil Procedure (“FRCP”) 12(b)(6).1 23 Plaintiff Jon-Cory Schmidt (“plaintiff”) opposes the motion. For 24 25 26 1 27 28 Defendants also moved for a more definitive statement under FRCP 12(b)(6). Because, as set forth below, defendants motion to dismiss is GRANTED, the court does not address the merits of this motion. 1 Dockets.Justia.com 1 the reasons set forth below, defendants’ motion to dismiss is 2 GRANTED.2 3 BACKGROUND 4 Plaintiff is the owner of a parcel of land located in Nevada 5 County. 6 parties were in lawful possession of medical cannabis 7 recommendations issued by licensed California Physicians.” 8 (Pl.’s Compl. [“Compl.”], filed Oct. 12, 2010 [Docket #1], 9 ¶ 14.) According to plaintiff, he “and nine other interested “Pursuant to those recommendations, they cultivated a 10 community or collaborative garden” consisting of eighty immature 11 marijuana plants on plaintiff’s property. 12 alleges that the marijuana plants were legally cultivated in 13 compliance with California Health & Safety Code § 11362.5 et seq. 14 (Id.) (Id.) Plaintiff 15 In September 2009, defendant Bennet, a Nevada County 16 Sheriff, filed an affidavit with Nevada County Magistrate Judge 17 Catherine Heidelberger for purposes of obtaining a warrant to 18 search the premises of plaintiff’s home. 19 Heidelberger reviewed the affidavit, determined probable cause 20 existed, and issued the requested warrant. 21 22, 2009, defendants executed the warrant, seizing at least 22 eighty immature marijuana plants growing on plaintiff’s property. 23 (Id. at 16.) 24 related contraband, including ten pounds of already cultivated 25 marijuana. (Id. ¶ 15.) (Id.) Judge On September Defendants also seized various other marijuana- (Id.) 26 27 28 2 Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. E.D. Cal. L.R. 230(g). 2 1 Plaintiff then filed a motion for return of the marijuana 2 and other items seized pursuant to California Penal Code §§ 1539 3 and 1540 in California Superior Court for the County of Nevada. 4 (Pl.’s Opp’n [“Opp’n”], filed Feb 24, 2011 [Docket #21], at 5 2:20–22.) 6 appeared before Judge Heidelberger for oral argument on the 7 motion. 8 issued a written order,3 denying the motion for return of the 9 marijuana. On December 1, 2009, plaintiff and his attorney (Opp’n, Ex. 1.) (Id.) After the hearing, Judge Heidelberger The order explained that return of the 10 marijuana was not warranted because plaintiff did not have legal 11 possession. 12 (Id.) Plaintiff then petitioned for a writ of mandate, requesting 13 that the appellate division of the Nevada County Superior Court 14 vacate Judge Heidelberger’s order. 15 26, 2010, Superior Court Judge C. Anders Holmer issued a written 16 tentative order on the writ. 17 central issue [raised by the writ] was whether or not petitioner 18 was in lawful possession of the marijuana seized.” 19 to Dismiss [“MTD”], filed Dec. 01, 2010 [Docket #8], 20 The court denied the writ, holding that pursuant to relevant 21 statutory and case law, plaintiff was not in legal possession of 22 the marijuana. 23 May 26, 2010. 24 25 (Id.) (Id.) (Opp’n at 2:23–25.) On April According to the court, “the (Defs.’ Mtn Ex. 1.) The court adopted the tentative ruling on (Id.) Plaintiff then filed this complaint, asserting four claims for relief: (1) unlawful detention of personal property; (2) 26 3 27 28 While the order denied the motion for return of the marijuana and other related illegal substances, it required that certain items seized by Nevada County be returned to plaintiff. (Opp’n., Ex. A.) 3 1 declaratory relief; (3) damages for violation of equal protection 2 rights under 42 U.S.C. § 1983; and (4) conversion of personal 3 property against defendants. 4 plaintiff contends that defendants “have illegally seized such 5 medical marijuana through unlawful seizure, confiscation, and 6 impoundment.” 7 violated his constitutional rights by depriving him, without due 8 process of law, of eighty immature marijuana plants that 9 plaintiff asserts he lawfully possessed pursuant to California’s (Compl. ¶¶ 19–37.) (Compl. ¶ 22.) Specifically, Plaintiff alleges that the seizure 10 Compassionate Use Act. 11 alleges defendants “made unreasonable and illegal searches and 12 seizures . . . and deprived plaintiff of his rights, privileges, 13 and immunities as guarantied by the Fourth and Fourteenth 14 Amendments to the United States Constitution.” (Compl. ¶¶ 10–16.) 15 16 Finally, plaintiff (Compl. ¶ 11.) STANDARD Under Federal Rule of Civil Procedure 8(a), a pleading must 17 contain “a short and plain statement of the claim showing that 18 the pleader is entitled to relief.” 19 S. Ct. 1937, 1949 (2009). 20 court, the complaint must “give the defendant fair notice of what 21 the claim is and the grounds upon which it rests.” 22 v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations 23 omitted). 24 liberal discovery rules and summary judgment motions to define 25 disputed facts and issues and to dispose of unmeritorious 26 claims.” 27 28 See Ashcroft v. Iqbal, 129 Under notice pleading in federal Bell Atlantic “This simplified notice pleading standard relies on Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 4 Cruz v. Beto, 405 U.S. 319, 1 322 (1972). 2 every reasonable inference to be drawn from the “well-pleaded” 3 allegations of the complaint. 4 Schermerhorn, 373 U.S. 746, 753 n.6 (1963). 5 allege “‘specific facts’ beyond those necessary to state his 6 claim and the grounds showing entitlement to relief.” 7 550 U.S. at 570. 8 plaintiff pleads factual content that allows the court to draw 9 the reasonable inference that the defendant is liable for the 10 11 The court is bound to give plaintiff the benefit of Retail Clerks Int’l Ass’n v. A plaintiff need not Twombly, “A claim has facial plausibility when the misconduct alleged.” Iqbal, 129 S. Ct. at 1949. Nevertheless, the court “need not assume the truth of legal 12 conclusions cast in the form of factual allegations.” 13 States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th 14 Cir. 1986). 15 allegations, “it demands more than an unadorned, the defendant- 16 unlawfully-harmed-me accusation.” 17 pleading is insufficient if it offers mere “labels and 18 conclusions” or “a formulaic recitation of the elements of a 19 cause of action.” 20 1950 (“Threadbare recitals of the elements of a cause of action, 21 supported by mere conclusory statements, do not suffice.”). 22 Moreover, it is inappropriate to assume that the plaintiff “can 23 prove facts which it has not alleged or that the defendants have 24 violated the . . . laws in ways that have not been alleged.” 25 Associated Gen. Contractors of Cal., Inc. v. Cal. State Council 26 of Carpenters, 459 U.S. 519, 526 (1983). 27 28 United While Rule 8(a) does not require detailed factual Iqbal, 129 S. Ct. at 1949. A Twombly, 550 U.S. at 555; Iqbal, 129 S. Ct. at Ultimately, the court may not dismiss a complaint in which the plaintiff has alleged “enough facts to state a claim to 5 1 relief that is plausible on its face.” 2 (citing Twombly, 550 U.S. at 570). 3 failed to “nudge [his or her] claims across the line from 4 conceivable to plausible,” is the complaint properly dismissed. 5 Id. at 1952. 6 probability requirement, it demands more than “a sheer 7 possibility that a defendant has acted unlawfully.” 8 This plausibility inquiry is “a context-specific task that 9 requires the reviewing court to draw on its judicial experience 10 Iqbal, 129 S. Ct. at 1949 Only where a plaintiff has While the plausibility requirement is not akin to a and common sense.” Id. at 1949. Id. at 1950. 11 In ruling upon a motion to dismiss, the court may consider 12 only the complaint, any exhibits thereto, and matters which may 13 be judicially noticed pursuant to Federal Rule of Evidence 201. 14 See Mir v. Little Co. Of Mary Hospital, 844 F.2d 646, 649 (9th 15 Cir. 1988); Isuzu Motors Ltd. v. Consumers Union of United 16 States, Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998). 17 18 19 ANALYSIS A. Collateral Estoppel Defendants contend that the court must dismiss plaintiff’s 20 claims4 for unlawful detention and conversion because the Nevada 21 County Superior Court, in two separate proceedings and two 22 written orders, determined that plaintiff was not in lawful 23 possession of the marijuana. 24 defendants contend that the doctrine of collateral estoppel bars (“MTD” at 4:4–5:10.) Specifically, 25 4 26 27 28 Plaintiff’s claims are laid out in the complaint as follows: first cause of action: unlawful detention of personal property; second cause of action: declaratory relief; third cause of action: violation of the federal equal protection clause; sixth cause of action: conversion. (Compl. ¶¶ 19–37.) Plaintiff did not file a fourth or fifth claim. 6 1 plaintiff from re-litigating the issue of whether he was in 2 lawful possession of the marijuana, and thus, his claims for 3 unlawful detention and conversion, which require plaintiff to 4 demonstrate lawful possession, must be dismissed with prejudice. 5 State judicial proceedings receive the same full faith and 6 credit in every federal court as they would have in the courts of 7 the state in which the matter originated. 8 Section 1783 “directs a federal court to refer to the preclusion 9 law of the State in which judgment was rendered.” 28 U.S.C. § 1783. Marrese v. 10 American Assoc. of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985) 11 (“§ 1783 requires a federal court to look first to state 12 preclusion law in determining the preclusive effects of a state 13 court judgment”). 14 law to determine whether the previous adjudications in California 15 Superior Court will preclude plaintiff from relitigating whether 16 he was in lawful possession of the marijuana. 17 Therefore, this court will apply California In California, collateral estoppel precludes relitigation of 18 an issue previously adjudicated when the following elements are 19 satisfied: 20 21 22 23 24 First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. 25 Hernandez v. City of Pomona, 46 Cal. 4th 501, 513 (2009) 26 (internal citations omitted) (quoting Lucido v. Superior Court, 27 51 Cal. 3d 335, 341 (1990)). 28 7 1 Plaintiff argues that neither of the holdings by the Nevada 2 County Superior Court can be given preclusive effect because: (1) 3 the issue of lawful possession was not necessarily decided;5 (2) 4 the ruling by the magistrate on the motion for return of the 5 property was not final and on the merits because it was a 6 “special proceeding”; (3) the denial of the writ of mandamus was 7 not final and on the merits because it did not result in a 8 sufficient written decision; (4) California’s public interest 9 exception applies to preclude the application of collateral 10 estoppel; and (5) applying collateral estoppel in this case would 11 violate due process. 12 1. 13 Plaintiff contends that the Superior Court judges’ rulings 14 on the issue of lawful possession cannot have preclusive effect 15 because it was not necessarily decided. 16 issue is necessarily decided when two elements are satisfied: 17 (1) the issue was actually decided; and (2) the determination of 18 the issue was necessary to render a valid judgment on the merits 19 of the underlying proceeding. 20 Center v. Leeds, 436 F.3d 147, 153 (2d Cir. 2007). 21 Necessarily Decided (Opp’n at 6:2–6.) An See Beechwood Restorative Care In this case, both divisions of the Nevada County Superior 22 Court necessarily decided the issue of lawful possession. 23 the magistrate judge actually decided the issue on the motion for 24 return of the marijuana. 25 expressly provides that plaintiff was not in legal possession of First, Indeed, the court’s written order 26 5 27 28 Plaintiff does not dispute that the issue of whether he lawfully possessed the marijuana was actually litigated, that the issue is identical or that the party against whom preclusion is sought is the same as the party to the former proceeding. 8 1 the marijuana. 2 lawful possession was necessary to render a final judgment on the 3 merits of the that motion. 4 plaintiff “would be entitled to return of marijuana that was 5 lawfully cultivated and possessed . . . [however] there is no 6 evidence before the court to support his contention that all of 7 the marijuana was lawfully cultivated and possessed.” 8 Similarly, the Nevada County Superior Court, appellate division 9 actually and necessarily decided the same issue in ruling upon (Opp’n, Ex. 1.) Second, the determination of (See Id.) The court noted that (Id.) 10 plaintiff’s petition for writ of mandate. 11 stated: “[t]he central issue [raised by the writ was] whether or 12 not petitioner was in lawful possession of the marijuana seized.” 13 (MTD, Ex. 1 at 15.) 14 denied the petition, holding that “petitioner’s possession [of 15 marijuana] greatly exceeded the legal limit.” 16 The court explicitly The Appellate Division of The Superior Court (Id.) Therefore, the issue whether plaintiff was in lawful 17 possession of the marijuana at issue in this case was necessarily 18 decided in the negative on two separate occasions.6 19 ///// 20 ///// 21 22 23 24 25 26 27 28 6 Plaintiff argues that the determination of whether he lawfully possessed the marijuana was “arguably moot” because Nevada County already destroyed the marijuana, and thus, the court did not have power to return it. (Opp’n at 4:26.) First, plaintiff proffers no evidence that the marijuana was actually destroyed prior to judgment on the motion. Even if the state did not have the power to return the marijuana, however, the issue of lawful possession was necessary to the disposition of the specific motion in question. Moreover, the issue of lawful possession was the central issue to be determined on the petition for writ of mandate and was therefore essential to the disposition of that petition. Therefore, plaintiff’s arguments are without merit. 9 1 2. 2 Plaintiff alleges that Judge Heidelberger’s ruling on Special Proceeding 3 plaintiff’s motion for return of his property cannot be given 4 preclusive effect because plaintiff’s motion was a “special 5 proceeding.” 6 California courts have held that when a claim is brought in 7 litigation following a “special proceeding” that decided a 8 related issue, that claim is not necessarily barred by principles 9 of res judicata. See Mata v. City of Los Angeles, 20 Cal. App. 10 4th 141, 149 (1993); Knickerbocker v. City of Stockton, 199 Cal. 11 App. 3d 235, 245 (1988). 12 petition for writ of mandamus is technically a special proceeding 13 for purposes of claim preclusion. 14 explained that, notwithstanding the fact that a writ petition is 15 a special proceeding, “[t]he judgment in the mandamus proceeding 16 was not to be ignored” for purposes of issue preclusion. 17 199 Cal. App. 3d at 245. 18 the judgment in a mandamus proceeding “operates as an estoppel or 19 conclusive adjudication as to such issues in the second action 20 that were actually litigated and determined in the first action.” 21 (Id.) (internal citations omitted) (emphasis added). 22 a special proceeding will have issue preclusive effect as long as 23 the elements of collateral estoppel are met. In Mata, the court explained that a Id. However, the court Mata, Under the doctrine of issue preclusion, Therefore, 24 As set forth above, the elements of collateral estoppel have 25 been met in this case; the precise issue of lawful possession was 26 previously litigated and conclusively determined in favor of 27 defendants in both the motion for return of the marijuana and the 28 writ proceeding. Therefore, the doctrine of collateral estoppel 10 1 bars plaintiff from relitigating the issue of lawful possession 2 in this action, regardless of whether issue was previously 3 determined in a “special proceeding.” 4 3. 5 Plaintiff contends the appellate division of the Nevada Written Decision 6 County Superior Court’s ruling on the writ application was not a 7 final judgment on the merits, and thus, cannot be given 8 preclusive effect. 9 argues that “unless there is a written opinion issued following (Opp’n at 6:7–11.) Specifically, plaintiff 10 the issuance of alternative writ, the denial of writ petition 11 does not have issue preclusive effect.” 12 Id. (emphasis omitted). The issuance of an alternative writ will not be final and on 13 the merits, and thus will not have preclusive effect, unless 14 there is a sufficient writing explaining the basis for the 15 ruling. 16 (1999). Gammoh v. City of Anaheim, 73 Cal. App. 4th 186, 196 17 In this case, the appellate division of the Nevada County 18 Superior Court issued, in writing, a reasoned tentative ruling 19 explaining its basis for denying plaintiff’s petition for writ of 20 mandate. 21 addressed and refuted each of plaintiff’s arguments and, relying 22 on specific statutory and case law, explained why plaintiff was 23 not in lawful possession of the marijuana. 24 (“In [Chaves v. Superior Court], as here, petitioner’s possession 25 greatly exceeded the legal limit.”) 26 later adopted as the court’s final decision. 27 court’s ruling on the petition for writ of mandamus was supported 28 by a written order setting forth the basis for its decision. (See MTD, Ex. 1.) This tentative ruling specifically 11 (See MTD, Ex. 1.) That tentative ruling was (Id.) As such, the 1 The cases cited by plaintiff in support of his assertion 2 that the writing in this case was not sufficient are 3 distinguishable. 4 effect to a minute order that summarily denied a writ petition 5 for a preliminary injunction without explaining the basis for the 6 ruling on the merits. 7 never passed on the merits of Gammoh’s argument; and Gammoh has a 8 right to appeal from the final judgment in this case and receive 9 a written statement of reasons for the court’s decision”). In Gammoh, the court did not attach preclusive Gammoh, 73 Cal. App. 4th at 195 (“We have 10 Similarly, in Hoverstein v. Superior Court, 74 Cal. App. 4th 636 11 (1999), the court declined to give preclusive effect to the 12 summary denial of a writ decision that was not supported by any 13 written explanation. 14 and Hoverstein, in which the courts provided no basis for their 15 rulings, the appellate division in this case issued a written 16 tentative ruling that was later adopted, which adequately 17 explained its basis for denying the petition. However, unlike the facts of both Gammoh 18 Therefore, the appellate division’s determination that 19 plaintiff was not in lawful possession of the marijuana was final 20 and on the merits. 21 4. 22 Plaintiff next contends that, even if the previous decisions Public Interest Exception 23 on the issue of lawful possession satisfy the elements of 24 collateral estoppel, the “public interest requires that re- 25 litigation [of the issue] not be foreclosed.” 26 6:25–27.) 27 interest trumps the application of collateral estoppel in this 28 case “[b]ecause the officer seizing the medical marijuana failed (Opp’n at Specifically, plaintiff alleges that the public 12 1 to retain the property and seek a court order before its 2 destruction.” 3 (Opp’n at 8:13–15.) “[W]hen the issue is a question of law rather than of fact, 4 the prior determination is not conclusive either if injustice 5 would result or if the public interest requires that relitigation 6 not be foreclosed.” 7 3d 51, 64 (1990). 8 is an extremely narrow one.” 9 Dep’t of Educ., 2 Cal. 4th 251, 259 (1992). Sacramento v. State of California, 50 Cal. Importantly, “[t]he public interest exception Arcadia Unified Sch. Dist. v. State Indeed, the 10 California Supreme Court has emphasized the “it is the exception, 11 not the rule, and is only to be applied in exceptional 12 circumstances.” 13 apply when the specific issue affects the public interest at 14 large. 15 bar relitigation of the validity of a public school’s statutory 16 authority to charge fees for pupil transportation); Sacramento, 17 50 Cal. 3d 51 (explaining that parties could relitigate whether 18 the State was required to subvent costs incurred by local 19 governments); Kopp v. Fair Political Practices Comm’n, 11 Cal. 20 4th 607 (1995) (finding that the exception applied to allow 21 relitigation of whether campaign financing provisions were 22 constitutional or could be rewritten to be constitutional). 23 Id. The public interest exception will only See e.g., id. (holding that collateral estoppel does not Here, the resolution of this matter does not entail the kind 24 of broad sweeping policy matters in which courts will apply the 25 narrow public interest exception to ensure those types of salient 26 public matters receive sufficient judicial review. 27 plaintiff’s claim does not implicate the interest of the public 28 at large in any regard — plaintiff’s claim for conversion and 13 Rather, 1 unlawful detention is a private action for damages resting on 2 allegations that his marijuana was improperly seized.7 3 California’s public interest exception does not bar the 4 application of collateral estoppel in this case. Therefore, 5 5. 6 Finally, plaintiff argues that the application of collateral Due Process 7 estoppel in this case violates due process. 8 Specifically, plaintiff asserts: “it is clear that the plaintiff 9 was given no notice, nor opportunity, to object to the seizure of 10 his property by law enforcement officers.”8 (Opp’n at 8:16–9:5.) (Id. at 8:26–27.) 11 The Due Process Clause requires notice and an opportunity 12 for a hearing, appropriate to the nature of the case, before a 13 person is deprived of life, liberty, or property. 14 Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). 15 Notice is required because “the right to be heard has little 16 reality or worth unless one is informed that the matter is 17 pending and can choose for himself whether to appear or default, 18 acquiesce or contest.” 19 of a hearing, does not, however, mean that in every civil case 20 there must be a hearing on the merits. Id. at 314. Mullane v. The due process requirement See e.g., Boddie v. 21 22 23 24 25 7 Plaintiff alleges that the marijuana was illegally seized. However, plaintiff admits in his complaint that the Nevada County officials obtained a valid warrant prior to entering his property. (Opp’n at 2:9–12.) (“After due consideration of the affidavits and petition, the Court issued Search Warrant No. 2958 on September 14, 2009.”). 8 26 27 28 The court notes that whether the seizure of plaintiff’s contraband was consistent with due process is irrelevant to the determination of whether the court can apply collateral estoppel to determinations by the state court regarding whether plaintiff was in lawful possession of the marijuana. Nevertheless, the court discusses due process for the sake of completeness. 14 1 Connecticut, 401 U.S. 371, 378 (1971). 2 that the opportunity to be heard is one which must be granted “at 3 a meaningful time and in a meaningful manner.” 4 Manzo, 380 U.S. 545, 552 (1965). 5 It is well recognized Armstrong v. Here, plaintiff was provided sufficient notice and 6 opportunity to litigate the question of whether he was in lawful 7 possession of the marijuana. 8 for return of the marijuana and was present in court, represented 9 by his attorney, during the hearing on the motion. First, plaintiff filed the motion (See Opp’n, 10 Ex. 1.) 11 possession of the marijuana before the appellate division of the 12 Nevada County Superior Court. 13 cannot preclude the application of collateral estoppel in this 14 case. 15 Second, plaintiff raised and argued the issue of lawful Therefore, due process concerns Plaintiff’s claims for both unlawful detention and 16 conversion require plaintiff to show that he was in lawful 17 possession of the marijuana. 18 51 Cal. 3d 120, 136 (Cal. 1990). 19 proceedings have conclusively determined that plaintiff was not 20 in lawful possession of the marijuana, he is collaterally 21 estopped from relitigating that issue in this case. 22 plaintiff cannot, as a matter of law, prevail on his claims for 23 unlawful detention and conversion. 24 motion to dismiss plaintiff’s first and sixth claims is GRANTED 25 without leave to amend. 26 B. 27 28 Moore v. Regents of Univ. of Cal., Since two judges in two Therefore, Accordingly, defendants Section 1983 Defendants contend that plaintiff’s complaint fails to allege facts sufficient to state a claim under Section 1983. 15 1 Specifically, defendants contend that plaintiff’s allegation that 2 defendants “subjected [plaintiff] to insidious discrimination 3 with reference to various rules, codes, procedures[,] policies, 4 ordinances, and regulations of Nevada County” is insufficient to 5 Plaintiff’s allegations amount to the kind of “unadorned, 6 the defendant-unlawfully-harmed-me accusation” that Federal Rule 7 of Civil Procedure 8(a) deems insufficient to state a viable 8 claim for relief. 9 specifically which “policies” defendants applied to plaintiff and Iqbal, 129 S. Ct. at 1949. Without stating 10 the manner in which those policies were “discriminatorily 11 applied,” plaintiff’s complaint fails to comply with the notice 12 pleading requirements set forth in Federal Rule of Civil 13 Procedure 8. 14 15 Therefore, defendant’s motion to dismiss plaintiff’s third claim for relief is GRANTED with leave to amend.9 16 17 18 19 CONCLUSION For the foregoing reasons, defendants’ motion to dismiss is GRANTED: 1. Defendants’ motion to dismiss plaintiff’s first claim 20 for relief for unlawful detention is GRANTED without 21 leave to amend. 22 23 24 25 26 27 28 9 Plaintiff’s second claim for declaratory relief requires a sufficient showing that he has stated a viable claim under one of his aforementioned theories of relief. Since the court grants defendants’ motion to dismiss each of the underlying claims, the court does not reach the merits of plaintiff’s second claim for declaratory relief. To the extent that plaintiff can amend his third claim for relief under Section 1983 to state a viable claim, plaintiff may amend his claim for declaratory relief based on that violation. 16 1 2. Defendants’ motion to dismiss plaintiff’s second claim 2 for relief for declaratory relief is GRANTED with leave 3 to amend. 4 3. Defendants’ motion to dismiss plaintiff’s third claim 5 for relief for violation fo the federal Equal 6 Protection Clause is GRANTED with leave to amend. 7 4. Defendants’ motion to dismiss plaintiff’s sixth claim 8 for relief for conversion is GRANTED without leave to 9 amend. 10 Plaintiff is granted fifteen (15) days from the date of this 11 order to file an amended complaint in accordance with this order. 12 Defendants are granted thirty (30) days from the date of service 13 of plaintiffs’ first amended complaint to file a response 14 thereto. 15 16 IT IS SO ORDERED. DATED: March 29, 2011 17 18 FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 17

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