Little et al v. Gore et al, No. 3:2014cv02181 - Document 17 (S.D. Cal. 2015)
Court Description: ORDER denying Defendant Shelley Zimmerman's 3 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part Defendants William D. Gore, Matthew Stevens, and Evan Sobczak's 7 Motion to Dismiss the Second, Third, and Fourth Causes of Action of Plaintiffs' Complaint; granting in part and denying in part Defendant's Justin Faw's 13 Motion to Dismiss for Failure to State a Claim. If Plaintiffs wish to file a First Amended Complaint, they must do so by 1/15/2016. Signed by Judge Cynthia Bashant on 12/8/2015. (jah)
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Little et al v. Gore et al Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DEBORAH DEE LITTLE, ET AL., Plaintiffs, 12 13 14 15 Case No. 14-cv-02181-BAS(JMA) ORDER: (1) DENYING MOTION TO DISMISS PLAINTIFFS’ COMPLAINT OF DEFENDANT SHELLEY ZIMMERMAN (ECF NO. 3); v. WILLIAM D. GORE, ET AL., Defendants. (2) GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS THE SECOND, THIRD, AND FOURTH CAUSES OF ACTION OF PLAINTIFFS’ COMPLAINT FILED ON BEHALF OF DEFENDANTS WILLIAM D. GORE, MATTHEW STEVENS AND EVAN SOBCZAK (ECF NO. 7); 16 17 18 19 20 21 (3) GRANTING IN PART AND DENYING IN PART JUSTIN FAW’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT (ECF NO. 13) 22 23 24 25 26 On September 12, 2014, Plaintiffs Deborah Dee Little and Dennis George 27 Little (collectively, “Plaintiffs”) commenced this action against Defendants William 28 D. Gore (“Gore”), as Sheriff for the County of San Diego, Shelley Zimmerman –1– 14cv02181 Dockets.Justia.com 1 (“Zimmerman”), as Chief of Police for the City of San Diego, Matt Stevens 2 (“Stevens”), a Deputy Sheriff for the County of San Diego, Evan Sobczak 3 (“Sobczak”), a Deputy Sheriff for the County of San Diego, Paul Paxton (“Paxton”), 4 a Detective for the San Diego Police Department, and Justin Faw (“Faw”), a Special 5 Agent for the Drug Enforcement Administration (“DEA”). Presently before the 6 Court are (1) a motion to dismiss all causes of action filed by Zimmerman; (2) a 7 motion to dismiss the second, third, and fourth causes of action filed by Stevens and 8 Sobczak, and all causes of action by Gore; and (3) a motion to dismiss all causes of 9 action by Faw. 10 The Court finds these motions suitable for determination on the papers 11 submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons set 12 forth below, the Court DENIES Zimmerman’s motion to dismiss (ECF No. 3); 13 GRANTS IN PART and DENIES IN PART the motion to dismiss filed by Gore, 14 Sobczak and Stevens (ECF No. 7); and GRANTS IN PART and DENIES IN PART 15 Faw’s motion to dismiss (ECF No. 13). 16 I. BACKGROUND 17 On October 16, 2012, Stevens swore an affidavit to San Diego County Superior 18 Court stating that he observed “well over 100 growing marijuana plants” on 19 Plaintiffs’ property while conducting aerial reconnaissance on September 17, 2012 20 and October 11, 2012. (ECF No. 1 (“Compl.”) at ¶ 11-12.) Plaintiffs allege 21 Defendant Stevens “knew from his observations that there were well under 100 22 marijuana plants on the [property] but embellished his observations in order to 23 deceive Judge Rubin into issuing a search warrant.” (Id. at ¶ 12.) Judge Rubin 24 subsequently issued a search warrant authorizing the search of Plaintiffs’ property 25 and the seizure of any marijuana. (Id. at ¶ 12.) 26 At 5:00 a.m. on October 17, 2012, Stevens, Sobczak, Paxton, and Faw 27 (collectively, the “Defendant Officers”), members of the San Diego County 28 Integrated Narcotics Task Force, executed the search warrant at Plaintiffs’ property. –2– 14cv02181 1 (Id. at ¶15.) The Defendant Officers, “dressed in military-style fatigues and armed 2 with firearms, some of which were assault rifles, stormed [Plaintiffs’ property] in a 3 SWAT-style raid with weapons drawn.” (Id. at ¶ 16.) Upon entering Plaintiffs’ 4 property, the Defendant Officers located Mr. Little, arrested him and put him in 5 handcuffs. (Id. at ¶ 17.) Stevens allegedly “questioned [Mr. Little] without reading 6 him Miranda rights despite keeping [Mr. Little] in handcuffs.” (Id. at ¶ 18.) The 7 Defendant Officers then located Mrs. Little, and Sobczak “arrested [her] by putting 8 handcuffs on [her] wrists behind her back and locking her in the rear seat of his patrol 9 vehicle with the air conditioning running, despite the cold air outside. (Id. at ¶ 19.) 10 Prior to her arrest, Mrs. Little informed the Defendant Officers that “she has been 11 sick for the past two months with pneumonia.” (Id. at ¶19.) 12 “After an unknown period of time, [Stevens] questioned [Mrs. Little] without 13 reading her Miranda rights.” (Id. at ¶ 20.) Sobczak then removed Mrs. Little from 14 the patrol vehicle “after an unknown period of time” and ordered her to remain seated 15 in a chair. (Id. at ¶ 21.) Before sitting down, Mrs. Little, who was wearing only 16 shorts and a t-shirt, informed the Defendant Officers “that the chair was on top of an 17 anthill of red ants and that she was extremely allergic to red ants, that she was very 18 cold, and that she was suffering from various symptoms of HIV.” (Id.) Despite 19 informing the Defendant Officers on several occasions that she needed to use the 20 bathroom and could not control her bladder because of radiation damage to her 21 bladder and intestines from her cancer treatment, Mrs. Little was not allowed to use 22 the bathroom. (Id. at ¶ 22.) As a result, she involuntarily relieved herself while seated 23 outside and was unable to change into clean clothing until the Defendant Officers left 24 the property. (Id.) 25 At the time of the search, Plaintiffs were “valid qualified patients under Cal. 26 Health & Safety [Code] §§ 11362.5 and 11362.765,” and Mr. Little was Mrs. Little’s 27 primary caregiver. (Id. at ¶ 24.) Plaintiffs allege the Defendant Officers searching 28 the property were aware of these facts. (Id.) –3– 14cv02181 1 In the course of conducting the search, Stevens claimed the Defendant Officers 2 located over 640 pounds of marijuana “in the form of untrimmed buds, packaged 3 marijuana, and marijuana edibles.” (Id. at ¶ 25.) Plaintiffs allege that “[i]n reality, 4 [they] were in possession of far less processed and unprocessed marijuana.” (Id.) 5 Plaintiffs allege the Defendant Officers destroyed the seized marijuana the following 6 day by dumping it at the Miramar Landfill. (Id. at ¶ 26.) 7 On November 5, 2012, the San Diego County District Attorney filed a criminal 8 complaint charging Plaintiffs with one count of unlawful possession of marijuana for 9 sale in violation of California Health and Safety Code section 11359, and one count 10 of unlawful cultivation of marijuana in violation of California Health and Safety 11 Code section 11358. (Id. at ¶ 27.) In the course of pretrial hearings, the trial court 12 granted a motion to exclude evidence pursuant to Arizona v. Youngblood, 488 U.S. 13 51 (1988) and California v. Trombetta, 467 U.S. 479 (1984), “finding that the 14 [Defendant] [O]fficers had violated the [Plaintiffs’] due process rights by destroying 15 material, exculpatory evidence.” (Id. at ¶ 28.) At the end of the trial, the jury returned 16 a verdict of not guilty on the charge of unlawful possession and deadlocked on the 17 charge of unlawful cultivation. (Id. at ¶ 29.) The trial court ultimately dismissed the 18 cultivation count in the furtherance of justice pursuant to California Penal Code 19 section 1385. (Id.) 20 Plaintiffs commenced this action on September 12, 2014 asserting the 21 following causes of action in violation of 42 U.S.C. § 1983: (1) search and seizure 22 unsupported by a warrant against Stevens; (2) unreasonable search against all 23 defendants; (3) excessive force against all defendants; (4) Miranda violations against 24 Stevens; and (5) due process violations against all defendants. 25 II. LEGAL STANDARD 26 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 27 Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. 28 Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court –4– 14cv02181 1 must accept all allegations of material fact pleaded in the complaint as true and must 2 construe them and draw all reasonable inferences from them in favor of the 3 nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 4 1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed 5 factual allegations, rather, it must plead “enough facts to state a claim to relief that is 6 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 7 claim has facial plausibility when the plaintiff pleads factual content that allows the 8 court to draw the reasonable inference that the defendant is liable for the misconduct 9 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 10 556). “Where a complaint pleads facts that are merely consistent with a defendant’s 11 liability, it stops short of the line between possibility and plausibility of entitlement 12 to relief.” Id. at 678 (quoting Twombly, 550 U.S. at 557) (internal quotations 13 omitted). 14 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 15 relief’ requires more than labels and conclusions, and a formulaic recitation of the 16 elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (quoting 17 Papasan v. Allain, 478 U.S. 265, 286 (1986) (alteration in original)). A court need 18 not accept “legal conclusions” as true. Iqbal, 556 U.S. at 678. “[T]o be entitled to 19 the presumption of truth, allegations in a complaint or counterclaim may not simply 20 recite the elements of a cause of action, but must contain sufficient allegations of 21 underlying facts to give fair notice and to enable the opposing party to defend itself 22 effectively.” Starr v. Baca, 652 F. 3d 1202, 1216 (9th Cir. 2011). Despite the 23 deference the court must pay to the plaintiff’s allegations, it is not proper for the court 24 to assume that “the [plaintiff] can prove facts that [he or she] has not alleged or that 25 defendants have violated the…laws in ways that have not been alleged.” Associated 26 Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 27 (1983). 28 /// –5– 14cv02181 1 Generally, courts may not consider material outside the complaint when ruling 2 on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 3 F.2d 1542, 1555 n.19 (9th Cir. 1990); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 4 1994) (overruled on other grounds by Galbraith v. Cnty of Santa Clara, 307 F.3d 5 1119, 1121 (9th Cir. 2002)). “However, material which is properly submitted as part 6 of the complaint may be considered.” Hal Roach Studios, Inc., 896 F.2d at 1555, n. 7 19. Documents specifically identified in the complaint whose authenticity is not 8 questioned by the parties may also be considered. Fecht v. Price Co., 70 F.3d 1078, 9 1080 n.1 (9th Cir. 1995) (superseded by statute on other grounds); see also Branch, 10 14 F.3d at 453-54. Such documents may be considered, so long as they are referenced 11 in the complaint, even if they are not physically attached to the pleading. Branch, 14 12 F.3d at 453-54; see also Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) 13 (rule extends to documents upon which the plaintiff’s complaint “necessarily relies” 14 but which are not explicitly incorporated in the complaint). Moreover, the court may 15 consider the full text of those documents even when the complaint quotes only 16 selected portions. Fecht, 70 F.3d at 1080 n.1. Additionally, the court may consider 17 materials which are judicially noticeable. Barron v. Reich, 13 F.3d 1370, 1377 (9th 18 Cir. 1994). 19 As a general rule, a court freely grants leave to amend a complaint which has 20 been dismissed. Fed. R. Civ. P. 15(a); Schreiber Distrib. Co. v. Serv-Well Furniture 21 Co., 806 F.2d 1393, 1401 (9th Cir. 1986). However, leave to amend may be denied 22 when “the court determines that the allegation of other facts consistent with the 23 challenged pleading could not possibly cure the deficiency.” Schreiber Distrib. Co., 24 806 F.2d at 1401 (citing Bonanno v. Thomas, 309 F.2d 320, 322 (9th Cir. 1962)). 25 III. DISCUSSION 26 Zimmerman moves to dismiss all causes of action for failure to state a claim 27 under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 3.) Stevens and Sobczak 28 move to dismiss the second, third, and fourth causes of action, and Gore moves to –6– 14cv02181 1 dismiss all causes of action, for failure to state a claim under Rule 12(b)(6). (ECF 2 No. 7.) Faw moves to dismiss all causes of action pursuant to Rule 12(b)(6) on the 3 grounds that Plaintiffs’ claims against him are barred by qualified immunity, and that 4 Plaintiffs improperly brought section 1983, rather than Bivens, claims against him as 5 a federal officer. (ECF No. 13.) 6 A. Zimmerman’s Motion to Dismiss 7 Zimmerman moves to dismiss all causes of action in the Complaint, arguing 8 that she was not Chief of Police at the time of the incident, but rather the Assistant 9 Chief, and is therefore not a properly named defendant in this action, and that Paxton 10 was not acting as a San Diego Police Department Detective at the time of the incident, 11 but rather under the authority of the Drug Enforcement Administration. (ECF No. 3- 12 1 at pp. 3-4.) As an initial matter, Zimmerman raises factual disputes in her motion. 13 Courts may not consider material outside the complaint when ruling on a motion to 14 dismiss, unless submitted as part of the complaint, identified in the complaint, or 15 materials which are judicially noticeable. See Hal Roach Studios, Inc., 896 F.2d at 16 1555, n. 19; Branch, 14 F.3d at 453-54; Barron, 13 F.3d at 1377; Lee, 250 F.3d at 17 688. In support of her motion to dismiss, Zimmerman does not submit any materials 18 or request judicial notice of the fact she was not Chief of Police at the time of the 19 events underlying the Complaint, or that Paxton was not acting as a San Diego Police 20 Department Detective at the time. Simply making these arguments in her motion is 21 insufficient. Accordingly, these facts are not properly before the Court and cannot 22 be considered in deciding the motion to dismiss. 23 Regardless, the Court notes this is an official capacity suit1 and “[o]fficial- 24 capacity suits . . . ‘generally represent only another way of pleading an action against 25 1 26 27 28 Although Zimmerman argues it is unclear whether she is being sued in her official or individual capacity, the Complaint, in combination with Plaintiffs’ opposition, make it clear that Zimmerman is only being sued in her official capacity. See Graham, 473 U.S. at 167 n. 14 (where it is not clear in the complaint whether an official is being sued personally, or in his or her official capacity, or both, “[t]he –7– 14cv02181 1 an entity of which an officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 165- 2 66 (1985) (citing Monell v. N.Y.C. Dept. of Soc. Servs., 436 U.S. 658, 690, n. 55 3 (1978)). “As long as the government entity receives notice and an opportunity to 4 respond, an official-capacity suit is, in all respects other than name, to be treated as a 5 suit against the entity.” Id. (citing Brandon v. Holt, 469 U.S. 464, 471–472 (1985)). 6 “It is not a suit against the official personally, for the real party in interest is the 7 entity.” 8 Zimmerman in her official capacity, is not a suit against her personally, but a suit 9 against the entity. Id. at 166. Accordingly, this suit, which is solely brought against 10 Moreover, under Federal Rule of Civil Procedure 25(d), if the prior Chief of 11 Police had been named in the Complaint in his or her official capacity, once the prior 12 Chief ceased to hold office, “[t]he officer’s successor is automatically substituted as 13 a party.” Fed. R. Civ. P. 25(d). Therefore, even if the prior Chief of Police had been 14 named in the Complaint, the current Chief of Police, which is claimed to be 15 Zimmerman, would automatically be substituted as a party. See Griffith v. Lanier, 16 521 F.3d 398, 399 (D.C. Cir. 2008). As Zimmerman only moves to dismiss on the 17 grounds she was an improperly named party because she was not the Chief of Police, 18 and Paxton was not acting as a San Diego Police Department Detective, at the time 19 of the incident, for the foregoing reasons, Zimmerman’s motion to dismiss is 20 DENIED.2 21 22 23 24 25 26 27 28 course of the proceedings in such cases typically will indicate the nature of the liability sought to be imposed”); Larez v. City of L.A., 946 F.2d 630, 640-41 (9th Cir. 1991). (See also Compl. at ¶ 5 (Zimmerman “is the chief policymaker and decisionmaker for the San Diego Police Department on the use of force and the disposition of evidence.”); ECF No. 8 at p. 3 (“[T]he Complaint specifies that Zimmerman is being sued in her official capacity as Chief of Police. . . . [Plaintiffs] sued Zimmerman in her official capacity in order [to] reach the City of San Diego.”) and p. 2 (“As Zimmerman is being sued in her official capacity….”).) 2 In her reply, Zimmerman also argues that the Complaint’s allegations regarding the policies promulgated and adopted are vague and conclusory. However, because Zimmerman did not make this argument in her initial motion to dismiss, the –8– 14cv02181 1 B. Faw’s Motion to Dismiss: Bivens vs. Section 1983 2 Faw, who Plaintiffs allege is a Special Agent with the Drug Enforcement 3 Administration, moves to dismiss all causes of action alleged against him “because 4 federal actors generally cannot be held liable under 42 U.S.C. § 1983.” (ECF No. 5 13-1 at p. 16.) Instead, Faw argues, the proper cause of action is pursuant to Bivens 6 v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). 7 (Id.) Bivens permits suits against “federal officials to compensate plaintiffs for 8 violations of their constitutional rights,” W. Ctr. for Journalism v. Cederquist, 235 9 F.3d 1153, 1156 (9th Cir. 2000) (citing Bivens, 403 U.S. at 394), while section 1983 10 only provides a cause of action against any person “acting under color of State law,” 11 Morse v. N. Coast Opportunities, Inc., 118 F.3d 1338, 1343 (9th Cir. 1997) (citing 12 42 U.S.C. § 1983). 13 In their opposition to Faw’s motion to dismiss, Plaintiffs assert that their 14 section 1983 claim against Faw is alternatively asserted as a Bivens claim, arguing 15 that they need not plead a specific legal theory so long as sufficient factual allegations 16 show that Plaintiffs may be entitled to some relief. (ECF No. 15 at p. 12.) Here, 17 Plaintiffs allege in the Complaint that Faw was a member of the San Diego County 18 Integrated Narcotics Task Force at the time of the incident, and participated, along 19 with other members, in executing a State search warrant at Plaintiffs’ property. 20 (Compl. at ¶¶ 14, 15, n. 1.) The search warrant resulted in the State bringing criminal 21 charges against Plaintiffs. (Id. at ¶ 27.) 22 23 24 25 26 27 28 argument is waived. See Somers v. Digital Realty Trust, Inc., --- F. Supp. 3d ----, 2015 WL 4483955, at *13 (N.D. Cal. July 22, 2015); see also Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (finding district court did not commit clear error in failing to consider arguments raised for the first time on reply because it “need not consider arguments raised for the first time in a reply brief”); United States v. Anderson, 472 F.3d 662, 668 (9th Cir. 2006) (recognizing the general principle that arguments raised for the first time in a reply brief are waived); Dytch v. Yoon, No. C 10–02915 MEJ, 2011 WL 839421, at *3 (N.D. Cal. Mar. 7, 2011) (explaining that parties “cannot raise a new issue for the first time in their reply briefs”). –9– 14cv02181 1 “Although federal officials acting under federal authority are generally not 2 considered to be state actors, they may be liable under [section] 1983 if they are found 3 to have conspired with or acted in concert with state officials to some substantial 4 degree.” Cabrera v. Martin, 973 F.2d 735, 742 (9th Cir. 1992); see also Gibson v. 5 United States, 781 F.2d 1334, 1343 (9th Cir. 1986) (“Federal officers acting under 6 federal authority are immune from suit under section 1983 unless the state or its 7 agents significantly participated in the challenged activity.”). “The touchstone of this 8 analysis is ultimately “whether there is a sufficiently close nexus between the State 9 and the challenged action of the [federal actors] so that the action of the latter may be 10 fairly treated as that of the State itself.” Id. (quoting Jackson v. Metro. Edison Co., 11 419 U.S. 345, 351 (1974)). 12 Given the foregoing, the Court finds that Plaintiffs have plausibly pled that 13 Faw was acting under color of state law. See e.g., Motley v. Parks, 432 F.3d 1072, 14 1076-77 (9th Cir. 2005), overruled on other grounds by United States v. King, 687 15 F.3d 1189 (9th Cir. 2012) (analyzing action brought against law enforcement officers 16 who participated in a combined state and federal gang task force under section 1983); 17 Reynoso v. City & Cnty. of S.F., No. C 10-00984 SI, 2012 WL 646232, at *5-6 (N.D. 18 Cal. Feb. 28, 2012) (finding plaintiffs sufficiently alleged a symbiotic relationship 19 between police officers and ATF agents engaging in a search of plaintiffs’ residence 20 to claim liability under section 1983); see also Byars v. United States, 273 U.S. 28, 21 32 (1927) (“[T]he mere participation in a state search of one who is a federal officer 22 does not render it a federal undertaking.”). Accordingly, to the extent that Faw moves 23 to dismiss on the grounds that Plaintiffs improperly brought this action as a section 24 1983 action, the motion is DENIED.3 25 3 26 27 28 Although courts have considered claims denominated as section 1983 claims against federal officers to be Bivens claims for the purpose of deciding a motion to dismiss, as the same analysis largely applies, the Court declines to read a Bivens claim into Plaintiffs’ Complaint. See Morse, 118 F.3d at 1340 n. 4 (assuming, as did the district court, for the purpose of deciding a motion to dismiss that the – 10 – 14cv02181 1 2 C. Motion to Dismiss First Cause of Action: Invalid Search Warrant in Violation of 42 U.S.C. § 1983 Against Stevens 3 Faw moves to dismiss Plaintiffs’ first cause of action for search and seizure 4 unsupported by a warrant. The Fourth Amendment prohibits a search conducted 5 pursuant to “an ill-begotten or otherwise invalid warrant.” Bravo v. City of Santa 6 Maria, 665 F.3d 1076, 1083 (9th Cir. 2011). To establish a claim of judicial 7 deception under 42 U.S.C. § 1983, a plaintiff must “(1) establish that the warrant 8 affidavit contained misrepresentations or omissions material to the finding of 9 probable cause, and (2) make a ‘substantial showing’ that the misrepresentations or 10 omissions were made intentionally or with reckless disregard for the truth.” Id. 11 (citing Ewing v. City of Stockton, 588 F.3d 1218, 1223–24 (9th Cir. 2009)). 12 Plaintiffs allege Stevens made fraudulent statements in his warrant affidavit 13 “concerning the amount of marijuana on [Plaintiffs’ property] and the implications 14 of California’s medical marijuana laws in an effort to subvert the magistrate’s neutral 15 function in issuing warrants, in violation of the Fourth and Fourteenth Amendments 16 to the U.S. Constitution.” (Compl. at ¶ 31.) As a “proximate result of Stevens’s 17 conduct,” Plaintiffs allege “Judge Rubin issued a warrant that was not in fact 18 supported by probable cause, which led to an illegal search” of Plaintiffs’ property, 19 the illegal arrest of Plaintiffs, and the illegal seizure and destruction of Plaintiffs’ 20 marijuana. (Id. at ¶ 32.) 21 Faw moves to dismiss this cause of action on the grounds that it is not directed 22 to him, as it is not alleged that he participated in obtaining the search warrant. (ECF 23 No. 13-1 at p. 9.) Plaintiffs agree that the only defendant on this cause of action is 24 25 26 27 28 plaintiff’s claim could have been brought under Bivens although the complaint only recited a section 1983 claim); see also Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991) (“Actions under [section] 1983 and those under Bivens are identical save for the replacement of a state actor under [section] 1983 by a federal actor under Bivens.”) If Plaintiffs wish to bring section 1983 and Bivens claims, in the alternative, they must specifically do so in a First Amended Complaint, and provide supporting factual allegations for each claim. – 11 – 14cv02181 1 Stevens. (See ECF No. 15 at p. 1.) Accordingly, the Court GRANTS Faw’s motion 2 to dismiss the first cause of action as to him. 3 D. Motion to Dismiss Second Cause of Action: Unreasonable Search in Violation of 42 U.S.C. § 1983 Against All Defendants 4 5 Plaintiffs allege the Defendant Officers conducted an unreasonable search of 6 Plaintiffs’ property. (Compl. at ¶ 37.) “The test of what is necessary to ‘execute a 7 warrant effectively’ is reasonableness.” San Jose Charter of Hells Angels Motorcycle 8 Club v. City of San Jose, 402 F. 3d 962, 971 (9th Cir. 2005) (quoting Lawmaster v. 9 Ward, 125 F. 3d 1341, 1349 (10th Cir. 1997)). A court “must examine the totality of 10 the circumstances to determine whether a given search was reasonably executed.” 11 United States v. Combs, 394 F.3d 739, 743 (9th Cir. 2005). 12 reasonableness is often a question for the jury.” Jackson v. City of Bremerton, 268 13 F.3d 646, n. 1 (9th Cir. 2001). 1. 14 “[T]he test for Stevens and Sobczak 15 Stevens and Sobczak move to dismiss the second cause of action on the 16 grounds that “[d]escribing the execution of the search warrant as ‘SWAT-style’ and 17 identifying the clothes worn and the weapons carried by the officers does not make 18 the search unlawful.” (ECF No. 7-1 at p. 5.) In the Complaint, Plaintiffs allege that 19 the Defendant Officers executed the search warrant at approximately 5:00 a.m. on 20 October 17, 2012, unannounced, and “stormed” the property wearing military 21 fatigues and using assault rifles “in a SWAT-style raid with weapons drawn.” 22 (Compl. at ¶¶ 15, 16, 37.) Plaintiffs allege that the execution of the search in such a 23 manner was unreasonable in violation of the Fourth and Fourteenth Amendments. 24 (Id. at ¶ 37.) 25 The deployment of a SWAT team in the dark with weapons drawn may be 26 considered unreasonable in light of the totality of the circumstances. See Bravo, 665 27 F. 3d. at 1086 (“SWAT officers’ nighttime searches . . . constitute much greater 28 intrusions on one’s privacy than ordinary daytime searches and carry a much higher – 12 – 14cv02181 1 risk of injury to persons and property); Alexander v. City & Cnty. of S.F., 29 F.3d 2 1355, 1366-67 (9th Cir. 1994) (explaining that a jury might conclude that deployment 3 of a SWAT team for the purpose of inspecting property was excessive); Holland ex 4 rel. Overdorff v. Harrington, 268 F.3d 1179, 1190 (10th Cir. 2001) (“[T]he decision 5 to deploy a SWAT team to execute a warrant must be ‘reasonable’ because it largely 6 determines how the seizure is carried out, thereby determining the extent of the 7 intrusion on the individual’s Fourth Amendment interests.”); Estate of Smith v. 8 Marasco, 430 F.3d 140, 149 (3d Cir. 2005) (“[A] decision to employ a SWAT-type 9 team can constitute excessive force if it is not ‘objectively reasonable’ to do so in 10 light of ‘the totality of the circumstances.’”); Rush v. City of Mansfield, 771 F. Supp. 11 2d 827, 857-59 (N.D. Ohio 2011) (finding a reasonable jury could conclude that the 12 use of a SWAT-style team was unreasonable). “The decision to deploy a SWAT 13 team to execute a warrant necessarily involves the decision to make an overwhelming 14 show of force—force far greater than that normally applied in police encounters with 15 citizens.” Holland ex rel. Overdorff, 268 F.3d at 1190. Therefore, as the Ninth 16 Circuit has stated, a “nighttime incursion by a SWAT force is a far more serious 17 occurrence than an ordinary daytime intrusion pursuant to a regular warrant and 18 therefore requires higher justification beyond mere probable cause to search.” Bravo, 19 665 F.3d. at 1086. 20 Given the alleged time and manner of the search, the Court finds Plaintiffs 21 have pleaded “enough facts to state a claim to relief that is plausible on its face.” 22 Twombly, 550 U.S. at 570. Accordingly, the Court DENIES the motion to dismiss 23 filed by Stevens and Sobczak on the second cause of action. 24 2. Faw 25 Faw moves to dismiss the second cause of action on the grounds of qualified 26 immunity, arguing that “officers who execute a search warrant often enter into a 27 dangerous situation that requires the use of protective gear, weapons, and some use 28 of force in order to minimize the risk of harm to both officers and occupants,” and – 13 – 14cv02181 1 searching the residence of suspected drug traffickers presents an “inherently 2 dangerous” situation. (ECF No. 13-1 at pp. 10-11.) 3 “The doctrine of qualified immunity protects government officials ‘from 4 liability for civil damages insofar as their conduct does not violate clearly established 5 statutory or constitutional rights of which a reasonable person would have known.’” 6 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 7 U.S. 800, 818 (1982)). Qualified immunity shields an officer from liability even if 8 his or her action resulted from “‘a mistake of law, a mistake of fact, or a mistake 9 based on mixed questions of law and fact.’” Id. (quoting Groh v. Ramirez, 540 U.S. 10 551, 567 (2004)). The purpose of qualified immunity is to strike a balance between 11 the competing “need to hold public officials accountable when they exercise power 12 irresponsibly and the need to shield officials from harassment, distraction, and 13 liability when they perform their duties reasonably.” Id. 14 “Determining whether officials are owed qualified immunity involves two 15 inquiries: (1) whether, taken in the light most favorable to the party asserting the 16 injury, the facts alleged show the official’s conduct violated a constitutional right; 17 and (2) if so, whether the right was clearly established in light of the specific context 18 of the case.” Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009) (citing Saucier v. 19 Katz, 533 U.S. 194, 201 (2001)). The Supreme Court has instructed that courts may 20 exercise “sound discretion in deciding which of the two prongs of the qualified 21 immunity analysis should be addressed first.” Pearson, 555 U.S. at 236. 22 As discussed above, the Court has already determined that Plaintiffs have 23 pleaded enough facts to plausibly allege a violation of the Fourth Amendment. 24 Accordingly, the Court turns to whether the right was clearly established at the time 25 of the incident. See Jensen v. City of Oxnard, 145 F.3d 1078, 1085 (9th Cir. 1998) 26 (“A particular right is clearly established if the contours of [that] right [are] 27 sufficiently clear that a reasonable official would understand that what he is doing 28 violates that right.” (internal quotations and citation omitted)). While officers are – 14 – 14cv02181 1 given greater latitude in the execution of a search warrant in “inherently dangerous” 2 situations, see Avina v. United States, 681 F.3d 1127, 1131-32 (9th Cir. 2012), the 3 Ninth Circuit had clearly established at the time of the alleged incident that the use 4 of a SWAT team, particularly at night, may be unreasonable under the totality of the 5 circumstances, see Alexander, 29 F.3d at 1366-67; Bravo, 665 F. 3d. at 1086. Here, 6 Plaintiffs allege the Officer Defendants arrived at 5:00 a.m., unannounced, and 7 “stormed” the property wearing military fatigues and using assault rifles “in a SWAT- 8 style raid with weapons drawn.” (See Compl. at ¶¶ 15-16, 37.) Plaintiffs further 9 allege that the search warrant was issued because of the observed cultivation of 10 marijuana plants by an elderly couple suffering from several serious ailments, which 11 does not automatically imply the same level of dangerousness as suspected drug 12 traffickers or gang members. See Avina, 681 F.3d at 1131-32 (inherently dangerous 13 situation where warrant authorized for residence of suspected drug trafficker); 14 Muehler v. Mena, 544 U.S. 93, 100 (2005) (inherently dangerous situation where 15 search warrant authorized a search for weapons and a wanted gang member resided 16 on premises); see also Alexander, 29 F.3d at 1367 (“The force which was applied 17 must be balanced against the need for that force[.]”). 18 Given the foregoing, and considering all alleged facts in the light most 19 favorable to Plaintiffs, the Court cannot determine at this time whether Faw is entitled 20 to qualified immunity on this cause of action. Accordingly, the Court DENIES 21 Faw’s motion to dismiss the second cause of action on the grounds of qualified 22 immunity. 23 24 E. Motion to Dismiss Third Cause of Action: Excessive Force in Violation of 42 U.S.C. § 1983 Against All Defendants 25 Plaintiffs allege the Defendant Officers “violated the Fourth and Fourteenth 26 Amendments to the U.S. Constitution by using excessive force on and effectuating 27 an unreasonable arrest of [Mrs. Little], an older, seriously ill woman of small statute 28 who posed no threat to the legitimate interests” of the officers. (Compl. at ¶ 43.) – 15 – 14cv02181 1 Specifically, Plaintiffs allege the Defendant Officers used excessive force by (1) 2 “handcuffing her wrists, placing them behind her back, and placing her in the back 3 of a police cruiser, which caused [Mrs. Little] serious physical discomfort;” (2) 4 “leaving on the air conditioning in the police cruiser despite the cold air outside and 5 [Mrs. Little] having informed the [officers] that she had been suffering from 6 pneumonia for two months;” (3) “ordering [Mrs. Little] to remain seated while 7 handcuffed near a hill full of red ants after she expressly informed [officers] that she 8 was seriously allergic to red ants;” (4) “ordering [Mrs. Little] to remain seated while 9 handcuffed outside despite the very cold temperatures and that [Mrs. Little] only was 10 wearing shorts and a t-shirt;” and (5) “failing to allow [Mrs. Little] to use the 11 bathroom despite her informing the [officers] that she could not control her bladder 12 due to radiation damage.” (Id.) 13 Stevens and Sobczak move to dismiss the third cause of action for excessive 14 force on the basis that no excessive force was used. Defendants argue that “none of 15 the alleged facts in the complaint involve any actual force.” (ECF No. 7-1 at p. 6, 16 line 14.) Faw similarly moves to dismiss on the grounds that only “very minimal 17 force that was incident to the execution of a search warrant” was used in arresting 18 Mrs. Little. (ECF No. 13-1 at p. 14, lines 18-20.) 19 “Determining whether the force used to effect a particular seizure is reasonable 20 under the Fourth Amendment requires a careful balancing of the nature and quality 21 of the intrusion on the individual’s Fourth Amendment interests against the 22 countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 23 396 (1989) (internal quotation marks and citation omitted). A court must first 24 consider the nature and quality of the intrusion, evaluating the type and amount of 25 force inflicted. Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (citing Deorle 26 v. Rutherford, 272 F.3d 1272, 1279-80 (9th Cir. 2001)); Chew v. Gates, 27 F.3d 1432, 27 1440 (9th Cir. 1994). Next, the court must determine the government’s interest at 28 stake in the use of force, weighing factors “including the severity of the crime at – 16 – 14cv02181 1 issue, whether the suspect poses an immediate threat to the safety of the officers or 2 others, and whether [the suspect] is actively resisting arrest or attempting to evade 3 arrest by flight.” Graham, 490 U.S. at 396; see also Mattos, 661 F.3d at 441 (citing 4 Deorle, 272 F.3d at 1279-80). “These factors, however, are not exclusive. Rather, 5 [courts should] examine the totality of the circumstances and consider ‘whatever 6 specific factors may be appropriate in a particular case, whether or not listed in 7 Graham.’” Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (quoting 8 Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994)). 9 The reasonableness of a particular use of force requires taking the “perspective 10 of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” 11 Graham, 490 U.S. at 396. “The right to make an arrest carries with it the right to 12 employ some level of force to effect it.” Bryan, 630 F.3d at 818 (citing Graham, 490 13 U.S. at 396). Thus, “[a] court must consider that the officer may be reacting to a 14 dynamic and evolving situation, requiring the officer to make split-second decisions.” 15 Id. (citing Graham, 490 U.S. at 396-97). “[A]n officer need not have perfect 16 judgment, nor must he resort only to the least amount of force necessary to 17 accomplish legitimate law enforcement objectives.” Id. 18 1. Handcuffing 19 The Ninth Circuit has held that excessively tight handcuffing can constitute a 20 Fourth Amendment violation, but only where a plaintiff claims to have been 21 demonstrably injured by the handcuffs or where complaints to the officers about the 22 handcuffs being too tight or painful are ignored. See e.g., Wall v. Cnty. of Orange, 23 364 F.3d 1107, 1109–12 (9th Cir. 2004) (denying qualified immunity on excessive 24 force claim where arrestee suffered nerve damage as a result of continued restraint in 25 tight handcuffs); LaLonde v. Cnty. of Riverside, 204 F.3d 947, 952, 960 (9th Cir. 26 2000) (finding excessive force question should have gone to a jury where an arrestee 27 complained to officer who refused to loosen handcuffs); Palmer v. Sanderson, 9 F.3d 28 1433, 1434–36 (9th Cir. 1993) (denying officer’s motion for summary judgment on – 17 – 14cv02181 1 excessive force claim where arrestee’s wrists were discolored and officer ignored his 2 complaint); Hansen v. Black, 885 F.2d 642, 645 (9th Cir. 1989) (finding district court 3 improperly granted summary judgment to officers where arrestee received treatment 4 for injuries sustained as a result of rough handcuffing); Hupp v. City of Walnut Creek, 5 389 F. Supp. 2d 1229, 1233 (N.D. Cal. 2005) (denying plaintiff’s motion for 6 summary judgment in the absence of “evidence of a physical manifestation of injury 7 or of a complaint about tight handcuffs that was ignored”); Burchett v. Kiefer, 310 8 F.3d 937, 945 (6th Cir. 2002) (refusing to find a constitutional violation where 9 officers immediately acted after arrestee complained that handcuffs were too tight). 10 Plaintiffs have not alleged that Mrs. Little was demonstrably injured by the 11 handcuffs or that she made any complaints which were ignored by the Defendant 12 Officers about the tightness of the handcuffs. Accordingly, the Court finds that 13 Plaintiffs do not sufficiently allege a constitutional violation with respect to how Mrs. 14 Little was handcuffed during the arrest and GRANTS the motions to dismiss filed 15 by Stevens, Sobczak, and Faw on this claim WITH LEAVE TO AMEND. 16 2. Air Conditioned Vehicle 17 Plaintiffs rely on Kassab v. San Diego Police Dept., 453 F. App’x. 747 (9th 18 Cir. 2011), for their claim that putting Mrs. Little in an air conditioned car on a cold 19 day, while she was only wearing shorts and a t-shirt, after she informed the officers 20 she had pneumonia, constitutes excessive force. 21 reversed the district court’s grant of summary judgment to defendant officers where 22 the officers allegedly detained the plaintiff “in a police car for more than four hours, 23 with the windows rolled up, no air conditioning, and an interior temperature of 115 24 degrees.” Id. at 748. The plaintiff claimed to have “suffered from heat stroke, had 25 difficulty breathing, and almost passed out several times.” Id. However, in Dillman 26 v. Vasquez, No. 13–CV–00404 LJO SKO, 2015 WL 881574 (E.D. Cal. Mar. 2, 2015), 27 the court found there was no violation of the plaintiffs’ Fourth Amendment rights 28 where the plaintiffs were exposed to excessive heat for a time period between one – 18 – In Kassab, the Ninth Circuit 14cv02181 1 and two-and-a-half hours and when the defendant officer was “confined to the same 2 patrol car as Plaintiffs for substantially the same amount of time.” Id. at *9-10 3 (emphasis in original). The Dillman court explained: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Whereas an “unnecessary exposure to heat” may cause a constitutional violation, see Dillman v. Tuolumne Cnty., No. 1:13–cv–404–LJO– SKO, 2013 WL 1907379, at *15 (E.D. Cal. May 7, 2013) (discussing cases) (“MTD Order”), being briefly confined in uncomfortable conditions, such as a hot patrol car, does not amount to a constitutional violation. See Estmon v. City of New York, 371 F. Supp. 2d 202, 214 (S.D. N.Y. 2005) (finding no Fourth Amendment violation where the plaintiff was held in hot police car for ten minutes); Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998) (finding “without merit” pretrial detainee’s “complain[t] about the temperature in his cell,” where plaintiff failed to show those circumstances “ultimately deprived him of the minimal civilized measures of life’s necessities). In every case finding that a plaintiff’s Fourth Amendment rights were violated due to being exposed to excessive heat, the plaintiff was confined for substantially longer periods of time than were Plaintiffs. See, e.g., Burchett v. Kiefer, 310 F.3d 937, 945 (6th Cir. 2002) (arrestee held in police vehicle for three hours in 90 degree heat); Hope v. Pelzer, 536 U.S. 730, 738, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (prisoner tied to hitching post and exposed to sun for seven hours); Kassab, 453 Fed. App’x at 748 (arrestee held in police car for more than four hours). Conversely, the Fifth Circuit held that “a post-arrest detention for approximately one-half hour in an unventilated police vehicle in the sun was not in violation of the Fourth Amendment.” Arias [v. Amador], 2014 WL 6633240, at *10 [(E.D. Cal. Nov. 21, 2014)] (citing Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001)). Thus, the case law suggests that a brief (e.g., 30–minute–long) confinement in a hot patrol car does not violate the Fourth Amendment, see, e.g., Glenn, 242 F.3d at 314, but an extended (e.g., four-hour-long) confinement in a hot police car does violate the Fourth Amendment. See, e.g., Kassab, 453 Fed. App’x at 478. Id. at *9. 26 Here, Plaintiffs have not alleged how long Mrs. Little was subjected to the cold 27 temperatures of the police vehicle, what the approximate temperature was inside the 28 vehicle, whether the officers were subject to the same conditions, or how she was – 19 – 14cv02181 1 injured as a result. As Dillman states, these factors are relevant to determining the 2 unreasonableness of the confinement. Absent such allegations, the Court finds 3 Plaintiffs have failed to sufficiently allege a constitutional violation with respect to 4 this claim and GRANTS the motions to dismiss filed by Stevens, Sobczak, and Faw 5 on this claim WITH LEAVE TO AMEND. 6 3. Ant Hill 7 Plaintiffs cite no authority to show that being seated in a chair on top of or near 8 an anthill of red ants after officers are informed the arrestee is extremely allergic to 9 red ants constitutes excessive force. However, the Court finds the facts of Perry v. 10 Post, No. CIV 04–2842–PHX–JAT (VAM), 2006 WL 3333092 (D. Ariz. Nov. 16, 11 2006) to be instructive. In Perry, the court found the plaintiff had established an 12 excessive force claim when the defendant officers purposefully dragged the plaintiff 13 ten feet into an ant bed where he was bitten twenty times in two minutes while an 14 officer taunted him about being bitten. Id. at *2-4. In making this determination, the 15 court stated that “[p]urposefully dragging someone into an ant bed to be bitten might 16 not be near the top of the Supreme Court’s list [‘of all the acts by which cruel and 17 sadistic purpose to harm another would be manifest’] but the conduct definitely 18 would make the list.” Id. at *4. The Perry court rejected the defendant officers’ 19 “contention that [the] [p]laintiff must have suffered a physical injury to establish a 20 constitutional violation.” Id. at *5 (emphasis in original). 21 In this case, however, there is no allegation that Mrs. Little had any physical 22 contact with the red ants, there was any danger of physical contact, how long she was 23 near the red ants, or that Mrs. Little suffered any injury other than mental and 24 emotional pain as a result of being near the anthill. She simply alleges she was seated 25 in a chair that was either “on top of” or “near” a red anthill for an unspecified period 26 of time. (Cf. Compl. at ¶ 21 with ¶ 43(c)).) Guided by Perry, the Court finds the 27 mental and emotional pain alleged as a result of being merely being near—but not in 28 actual contact with—red ants for an unspecified period of time, even when someone – 20 – 14cv02181 1 is seriously allergic to them, does not rise to the level of plausibility required to 2 establish a claim for excessive force. Cf. Robinson v. Solano Cnty., 278 F. 3d 1007, 3 1010-15 (9th Cir. 2002) (finding sufficient allegations of a Fourth Amendment 4 violation where an unarmed, peaceful plaintiff “feared for his life” when defendant 5 officer held a gun “three or four feet” from the plaintiff’s head). As such, the Court 6 GRANTS the motions to dismiss filed by Stevens, Sobczak, and Faw on this claim 7 WITH LEAVE TO AMEND. 8 4. Cold Temperatures and Minimal Clothing 9 As previously discussed, courts have found that “unnecessary detention in 10 extreme temperatures,” including extremely cold weather, violates the Fourth 11 Amendment’s prohibitions on unreasonable searches and seizures. Miller v. Sanilac 12 Cnty., 606 F.3d 240, 251 (6th Cir. 2010) (quoting Burchett v. Kiefer, 310 F.3d 937, 13 945 (6th Cir. 2002)); see also Kassab, 453 F. App’x. at 748. Here, Plaintiffs simply 14 allege the defendant officers committed excessive force when they ordered Mrs. 15 Little “to remain seated while handcuffed outside despite the very cold temperatures 16 and . . . [Mrs. Little] only was wearing shorts and a t-shirt.” (Compl. at ¶ 43(c).) 17 The Court finds these allegations insufficient to plausibly allege an excessive 18 force claim, in light of the fact there are no allegations as to how cold it was outside, 19 how long Mrs. Little remained outside, whether the Defendant Officers were 20 subjected to the same temperatures, whether or not Mrs. Little informed the 21 Defendant Officers that she was cold, whether Mrs. Little needed medical attention 22 as a result of being in the cold, or how Mrs. Little was injured as a result of being 23 seated in such a condition. See Miller, 606 F.3d at 251-52 (finding no excessive force 24 where there were no allegations the arrestee was left in the cold longer than necessary 25 to conduct a field sobriety test or that the deputy was not exposed to the cold for the 26 same amount of time, and the arrestee never told the deputy he was cold or indicated 27 he needed medical attention during the booking process, and did not present 28 symptoms for hypothermia); Johnson v. Ciesielski, No. 10-cv-1453-LJM-DML, 2013 – 21 – 14cv02181 1 WL 139673, at *4 (S.D. Ind. Jan. 8, 2013) (finding no excessive force where an 2 individual was allegedly “handcuffed in sub-freezing weather [and] placed on the 3 curb with no more than a thin jacket and shorts, and held him for a time exceeding 4 one (1) hour,” where there was no evidence the plaintiff demonstrated any symptoms 5 of hypothermia, complained of being cold, requested any medical attention, or had 6 medical records showing he suffered an adverse reaction to the weather); see also 7 Arias v. Amador, 61 F. Supp. 3d 960, 975-76 (E.D. Cal. 2014) (finding force is not 8 excessive when an arrestee is exposed to extreme temperatures for thirty minutes or 9 less). Accordingly, the Court GRANTS the motions to dismiss filed by Stevens, 10 Sobczak, and Faw on this claim WITH LEAVE TO AMEND. 5. 11 Restroom 12 Plaintiffs allege that “on several occasions [Mrs. Little] also informed the 13 [Defendant] [O]fficers that she needed to use the bathroom and could not control her 14 bladder because of radiation damage to her bladder and intestines from her cancer 15 treatment. Nonetheless, the [Defendant] [O]fficers did not allow [Mrs. Little] to use 16 the bathroom.” (Compl. ¶22.) As a result, [Mrs. Little] involuntarily relieved herself 17 while seated outside and was unable to change into clean clothing until the 18 [defendant] officers left.” (Id.) Although Plaintiffs bring this alleged violation as an 19 excessive force claim, the Court has not located any case law finding that the refusal 20 to allow a detainee to use the restroom constitutes “excessive force.” Such refusal is 21 more properly analyzed under the Fourth Amendment’s prohibition on unreasonable 22 detention. 23 Under Supreme Court and Ninth Circuit precedent, “the police may detain a 24 building’s occupants while officers execute a search warrant as long as the detention 25 is reasonable.” Dawson v. City of Seattle, 435 F.3d 1054, 1065 (9th Cir. 2006). “The 26 reasonableness of a detention made pursuant to a search warrant is examined under 27 the totality of the circumstances and includes consideration of any danger posed to 28 the police by the detainee, the nature of the crime being investigated/the object of the – 22 – 14cv02181 1 search, any resistance by the detainee, the age of the detainee, and the health or 2 medical condition of the detainee.” Campbell v. City of Bakersfield, No. CIV F04– 3 5585 AWI TAG, 2006 WL 2054072, at *26 (E.D. Cal. July 21, 2006) (citing 4 Franklin, 31 F.3d at 876). “A detention conducted in connection with a search may 5 be unreasonable if it is unnecessarily painful, degrading, or prolonged, or if it 6 involves an undue invasion of privacy.” Franklin, 31 F.3d at 876. “Detentions, 7 particularly lengthy detentions, of the elderly, or of children, or of individuals 8 suffering from a serious illness or disability raise additional concerns.” Id. 9 Under certain circumstances, refusing to allow a detained individual to use the 10 restroom may rise to the level of a Fourth Amendment violation, but the Court finds 11 no authority, and Plaintiffs cite none, establishing the right on the part of one lawfully 12 detained pursuant to the execution of a search warrant to use a toilet upon demand. 13 See Hunter v. Namanny, 219 F. 3d 825, 831 (8th Cir. 2000); see also Dawson, 435 14 F.3d at 1069 (“[D]enying Plaintiffs’ requests . . . to use the restroom unattended 15 furthered the officers’ interest in facilitating an efficient inspection by [Department 16 of Public Health] personnel” as “[a] tenant left unsupervised to use the restroom . . . 17 could retrieve a weapon and assault an officer.”). In Hunter, for example, during an 18 hour-and-a-half search, the plaintiff “asked to be allowed to use the toilet, explaining 19 that she was disabled and taking medication that caused her to urinate frequently. The 20 officers refused [the plaintiff’s] repeated requests until she urinated and defecated on 21 herself.” Id. at 828. In granting qualified immunity to the defendant officer on any 22 claimed violation of rights resulting from his denial of the plaintiff’s request to use 23 the toilet, the Eighth Circuit explained that although the plaintiff’s “dignity was 24 certainly compromised by what transpired as the search was conducted, [it was] 25 unable to conclude that the Constitution requires that police engaged in a search for 26 drugs allow a resident of the subject property access to a ready means of disposal of 27 such contraband.” Id. at 831. 28 – 23 – 14cv02181 1 As mentioned above, the length of time of the detention is particularly relevant. 2 Cf. Heitschmidt v. City of Houston, 161 F.3d 834, 837-39 (5th Cir. 1998) (finding 3 that a detainee who was “held for more than four hours in painful restraints without 4 being allowed access to a bathroom, even though he was not a target of the 5 investigation and police had no articulable reason for suspecting him of misconduct” 6 had “at least conceivably alleged a violation of his clearly established Fourth 7 Amendment right to be free from unreasonable seizure”); Pac. Marine Ctr., Inc. v. 8 Silva, 809 F. Supp. 2d 1266, 1286-87 (E.D. Cal. 2011) (although “[a] complete denial 9 of the usage of the toilet over the period of many hours . . might give rise to a 10 constitutional violation,” only “[o]ne request to use the restroom over a four hour 11 period is not a constitutional violation.”); Campbell, 2006 WL 2054072, at *27 12 (denying summary judgment and qualified immunity after finding that “three refusals 13 to use the restroom after six hours is arguably unnecessarily degrading and painful”). 14 Given the foregoing, the Court finds Plaintiffs have not plausibly alleged an 15 excessive force claim. Even if the Court considers this claim as one for unreasonable 16 search under the vague language of paragraph 37 of the Complaint, as Plaintiffs do 17 not allege how long Mrs. Little was detained or prevented from using the restroom, 18 the Court finds the facts as stated in the Complaint do not rise to the level of 19 plausibility required to allege a constitutional violation, and GRANTS the motions 20 to dismiss filed by Stevens, Sobczak, and Faw on this claim WITH LEAVE TO 21 AMEND. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// – 24 – 14cv02181 1 F. Motion to Dismiss Fourth Cause of Action for Violation of 42 U.S.C. § 1983: Miranda Violations Against Stevens4 2 3 Plaintiffs allege that Stevens “violated the Fifth and Fourteenth Amendments 4 to the U.S. Constitution by interrogating the LITTLES while they were in custody 5 without reading them their rights, as required by Miranda v. Arizona, 384 U.S. 486 6 (1966).” (Compl. at ¶ 49; see also ¶¶ 18, 20, 50-52.) “The Miranda exclusionary 7 rule [is] a prophylactic measure to prevent violations of the right protected by the text 8 of the Self–Incrimination Clause [of the Fifth Amendment]—the admission into 9 evidence in a criminal case of confessions obtained through coercive custodial 10 questioning.” Chavez v. Martinez, 538 U.S. 760, 772 (2003). However, failing to 11 read a suspect his or her Miranda rights is not a Fifth Amendment violation “absent 12 use of the statements in a criminal case.” Stoot v. City of Everett, 582 F. 3d 910, 923 13 (9th Cir. 2009) (citing Chavez, 538 U.S. at 766). A statement “has been ‘used’ in a 14 criminal case when it has been relied upon to file formal charges against the declarant, 15 to determine judicially that the prosecution may proceed, and to determine pretrial 16 custody status.” Id. at 925. A Fifth Amendment Miranda violation may provide the 17 basis for a section 1983 action. See Crowe v. Cnty. of San Diego, 608 F.3d 406, 430 18 (9th Cir. 2010); Stoot, 582 F.3d at 925-26. 19 Plaintiffs concede in their opposition that “they failed to allege that they gave 20 any statements or that [such statements] were used against them at trial.” (ECF No. 21 11 at p. 6, lines 3-4.) Plaintiffs further failed to allege the statements were used 22 against them in any other capacity, but assert they would be able to allege additional 23 facts if given leave to amend. (See id. at p. 6, lines 4-7.) Although Stevens and 24 25 26 27 28 4 Although Plaintiffs state in paragraph 49 that the Defendant Officers violated the Fifth and Fourteenth Amendments “by interrogating the LITTLES while they were in custody without ready them their [Miranda] rights,” the rest of the Complaint clearly indicates that this cause of action is only against Stevens. If Plaintiffs choose to file a First Amended Complaint, they must clarify who the defendants are for each cause of action, and in what capacity they are being sued. – 25 – 14cv02181 1 Sobczak argue leave to amend should not be granted, the Court finds it appropriate 2 to grant Plaintiffs leave to amend. For the foregoing reasons, the Court GRANTS 3 the motions to dismiss filed by Stevens, Sobczak, and Faw with respect to this claim 4 WITH LEAVE TO AMEND. 5 6 G. Motion to Dismiss Fifth Cause of Action for Violation of 42 U.S.C. § 1983: Due Process Violation Against All Defendants 7 In the Complaint, Plaintiffs claim that the Defendant Officers violated the 8 Fourteenth Amendment to the U.S. Constitution by (1) destroying material, 9 exculpatory evidence, and (2) depriving Plaintiffs of their marijuana without due 10 process of law. (Id. at ¶¶ 54, 55.) Faw moves to dismiss this claim on the grounds 11 that marijuana is “absolutely prohibited by federal law,” thus Plaintiffs “have no 12 substantive or procedural due process right under the Fourteenth Amendment to 13 possess a narcotic that is prohibited under federal law.” (ECF No. 13-1 at pp. 15, 14 16.) Additionally, Faw argues, under the federal Controlled Substances Act (“CSA”), 15 marijuana possessed in violation of the act is subject to forfeiture and destruction. 16 (Id. at p. 16.) 17 “The Fourteenth Amendment places procedural constraints on the actions of 18 government that work a deprivation of interests enjoying the stature of ‘property’ 19 within the meaning of the Due Process Clause.” Memphis Light Gas & Water Div. 20 v. Craft, 436 U.S. 1, 9 (1978). “Property interests derive not from the Constitution 21 but from existing rules or understandings that stem from an independent source such 22 as state law.” Samson v. City of Bainbridge Island, 683 F.3d 1051, 1057 (9th Cir. 23 2012) (internal quotations and citation omitted); see Memphis Light, 436 U.S. at 9; 24 Lawson v. Umatilla Cnty., 139 F.3d 690, 692 (9th Cir. 1998). However, “federal 25 constitutional law determines whether that interest rises to the level of a ‘legitimate 26 claim of entitlement’ protected by the Due Process Clause.” Memphis Light, 436 U.S. 27 at 9; Samson, 683 F.3d at 1057; Lawson, 139 F.3d at 692. That is, even though “state 28 law creates a property interest, not all state-created rights rise to the level of a – 26 – 14cv02181 1 constitutionally protected interest.” Brady v. Gebbie, 859 F.2d 1543, 1548 n. 3 (9th 2 Cir. 1988). 3 With respect to medical marijuana, although California state law may create a 4 property interest in the marijuana, California district courts have found there is no 5 protected property interest for purposes of the Fourteenth Amendment. See Barrios 6 v. Cnty. of Tulare, 13–CV–1665 AWI GSA, 2014 WL 2174746, at *4 (E.D. Cal. May 7 23, 2014); Staffin v. Cnty. of Shasta, No. 13:cv-00315 JAM-CMK, 2013 WL 8 1896812, at *4-5 (E.D. Cal. May 6, 2013); Schmidt v. Cnty. of Nev., No. 10-cv-3022 9 FCD/EFB, 2011 WL 2967786, at *5-6 (E.D. Cal. July 19, 2011). 10 As the court explained in Schmidt: 11 The Supreme Court has held that no person can have a legally protected interest in contraband per se. See United States v. Jeffers, 342 U.S. 48, 53, 72 S.Ct. 93, 96 L.Ed. 59 (1951); see also Cooper v. City of Greenwood, Mississippi, 904 F.2d 302, 305 (5th Cir.1990) . . . . “An object is contraband per se if its possession, without more, constitutes a crime; or in other words, there is no legal purpose to which the object could be put.” United States v. Harrell, 530 F.3d 1051, 1057 (9th Cir.2008). Under the federal Controlled Substances Act (“CSA”), it is illegal for any private person to possess marijuana. 21 U.S.C. §§ 812(c), 841(a)(1), 844(a). Thus, under federal law, marijuana is contraband per se, which means no person can have a cognizable legal interest in it. See Gonzales v. Raich, 545 U.S. 1, 27, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) (“The CSA designates marijuana as contraband for any purpose.” (emphasis in original)). “The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail.” Id. at 29. While California’s Compassionate Use Act (“CUA”) provides narrow exceptions for marijuana use involving qualified patients and care givers, federal law dictates that marijuana is illegal for any purpose. Id. at 27. . . . In this case, plaintiff cannot recover damages as a result of the confiscation or destruction of marijuana because he had no cognizable property interest in the marijuana. Plaintiff asserts a due process claim under the federal Constitution in federal court, where, under federal law, marijuana is undisputably illegal and contraband per se. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 27 – 14cv02181 1 Schmidt, 2011 WL 2967786, at *5-6. 2 Plaintiffs’ reliance on Cnty. of Butte v. Super. Ct., 175 Cal. App. 4th 729 3 (2009), is misplaced. In Butte, the plaintiff asserted that the destruction of his medical 4 marijuana plants was a violation of due process under the California Constitution, 5 and not, as asserted here, a violation of the Fourteenth Amendment. See Butte, 175 6 Cal. App. 4th at 739-40 (acknowledging the Compassionate Use Act “has no effect 7 on marijuana arrests and prosecutions or searches and seizures under federal law 8 because “[t]he Act presents the unusual circumstance of a state law that, under limited 9 circumstances, permits the possession of a substance deemed to be contraband under 10 federal law.”). 11 As Plaintiffs had no property interest in the marijuana that was protected by 12 the Fourteenth Amendment’s due process clause, Faw’s motion to dismiss Plaintiffs’ 13 fifth claim for deprivation of Plaintiffs’ marijuana without due process of law is 14 GRANTED WITHOUT LEAVE TO AMEND. The Court finds that the claim 15 cannot be saved by amendment. See Schreiber Distrib. Co., 806 F.2d at 1401; see 16 also Barrios, 2014 WL 2174746, at *5; Staffin, 2013 WL 1896812, at *5; Schmidt, 17 2011 WL 2967786, at *6. 18 However, as Plaintiffs point out in their opposition, Faw does not move to 19 dismiss Plaintiffs’ claim the Defendant Officers violated the Fourteenth Amendment 20 by destroying material, exculpatory evidence. (See ECF No. 15 at p. 9.) Faw does 21 not make this argument until his reply. Because Faw did not make this argument in 22 his initial motion to dismiss, the argument is waived. See Somers, --- F. Supp. 3d --- 23 -, 2015 WL 4483955, at *13; Dytch, 2011 WL 839421, at *3; Zamani, 491 F.3d at 24 997; Anderson, 472 F.3d at 668. 25 H. Gore’s Motion to Dismiss 26 Gore moves to dismiss all causes of action against him, in both his official and 27 individual capacities, arguing that “the Complaint in the instant case merely alleges 28 that Defendants had promulgated and adopted policies causing officers to execute – 28 – 14cv02181 1 warrants unlawfully; such a conclusory, formulaic recitation of a claim is insufficient 2 to overcome a motion to dismiss.” (ECF No. 7-1 at p. 7.) As with Zimmerman, Gore 3 is being sued solely in his official capacity.5 (See ECF No. 11 at p. 6, lines 11-12.) 4 Therefore, this suit shall be treated as a suit against the entity. See Graham, 473 U.S. 5 at 165-66; Streit v. Cnty. of Los Angeles, 236 F.3d 552 (9th Cir. 2001). 6 Local governing bodies can be sued directly under section 1983 when “the 7 action that is alleged to be unconstitutional implements or executes a policy 8 statement, ordinance, regulation, or decision officially adopted and promulgated by 9 that body’s officers,” or there is a widespread practice that, although not authorized 10 by an ordinance or an express municipal policy, is “so permanent and well settled as 11 to constitute a custom or usage with the force of law.” Monell v. Dep’t of Soc. Servs. 12 of City of New York, 436 U.S. 658, 690–91 (1978); see also Bd. of Cnty. Comm’rs of 13 Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 403-04 (1997); Castro v. Cnty. of Los 14 Angeles, 797 F.3d 654, 671 (9th Cir. 2015) (“[A] plaintiff . . . must show a pattern of 15 similar incidents in order for the factfinder to conclude that the alleged informal 16 policy was ‘so permanent and well settled’ as to carry the force of law.”). The Ninth 17 Circuit has broadly defined “policy” for purposes of a Monell claim as “‘a deliberate 18 choice to follow a course of action . . . made from among various alternatives by the 19 official or officials responsible for establishing final policy with respect to the subject 20 matter in question.’” Brass v. Cnty. of Los Angeles, 328 F.3d 1192, 1199 (9th Cir. 21 2003) (quoting Fairley v. Luman, 281 F.3d 913, 918 (9th Cir. 2002)). A policy can 22 be one of action or inaction. Fairley, 218 F.3d at 918. 23 In the Complaint, Plaintiffs allege Gore, as the chief policymaker and decision 24 maker for the San Diego County Sheriff’s Department on the use of force and the 25 disposition of evidence, “promulgated, adopted, ratified, and acquiesced to policies, 26 27 28 5 Plaintiffs similarly allege Gore “is the chief policymaker and decisionmaker for the San Diego County Sheriff’s Department.” (Compl. at ¶ 4.) However, if Plaintiffs choose to file a First Amended Complaint, they must specify whether Gore is being sued in his official or individual capacity. – 29 – 14cv02181 1 procedures, and customs” governing: (1) “the conduct of investigations and execution 2 of search warrants relating to marijuana offenses that cause police officers to conduct 3 such investigations and execute such warrants in violation of the Fourth and 4 Fourteenth Amendments;” (2) “the conduct of police contacts with civilians that lead 5 to arrests of individuals with no regard to whether they can pose a risk of physical 6 resistance and with no regard to the discomfort or pain of those individuals, and such 7 policies, procedures, and customs cause police officers to illegally arrest 8 individuals;” and (3) “the disposition of evidence in marijuana investigations by 9 which law enforcement are directed to seize and destroy marijuana and marijuana 10 products soon after collection without regard to the materiality or exculpatory nature 11 of the evidence and without regard to the rights of the owners of the marijuana to 12 seek its return, even in the face of evidence that the marijuana was legally possessed 13 and cultivated.” (Compl. at ¶¶ 4, 38, 44, 56.) 14 While the Ninth Circuit previously had a liberal pleading policy with respect 15 to Monell claims, requiring nothing more than “a bare allegation that government 16 officials’ conduct conformed to some unidentified government policy or custom,” 17 this precedent did not survive Iqbal. AE ex rel. Hernandez v. Cnty. of Tulare, 666 18 F.3d 631, 636-37 (9th Cir. 2012). Courts in this circuit now generally dismiss claims 19 that fail to identify the specific content of the municipal entity’s alleged policy or 20 custom. See La v. San Mateo Cnty. Transit Dist., No. 14-cv-01768-WHO, 2014 WL 21 4632224, at *7 (N.D. Cal. Sept. 16, 2014). 22 Under Iqbal, the Court finds Plaintiffs’ bare allegations as to Plaintiffs’ second 23 and third causes of action to be insufficient to give fair notice and to enable Gore to 24 defend himself effectively. In addition, the allegations with respect to Plaintiffs’ third 25 cause of action must fail because, as discussed herein, Plaintiffs have failed to allege 26 a cognizable underlying constitutional violation. See Scott v. Henrich, 39 F.3d 912, 27 916 (9th Cir. 1994). With respect to Plaintiffs’ fifth cause of action, Plaintiffs’ 28 allegations that Gore “promulgated, adopted, ratified, and acquiesced to policies, – 30 – 14cv02181 1 procedures, and customs governing the disposition of evidence in marijuana 2 investigations by which law enforcement are directed to seize and destroy marijuana 3 and marijuana products soon after collection without regard to the rights of the 4 owners of the marijuana to seek its return, even in the face of evidence that the 5 marijuana was legally possessed and cultivated” must similarly fail because Plaintiffs 6 have not sufficiently alleged an underlying cognizable due process violation. (See 7 Compl. at ¶ 56.) 8 However, with respect to Plaintiffs’ allegations that Gore “promulgated, 9 adopted, ratified, and acquiesced to policies, procedures, and customs governing the 10 disposition of evidence in marijuana investigations by which law enforcement are 11 directed to seize and destroy marijuana and marijuana products soon after collection 12 without regard to the materiality or exculpatory nature of the evidence,” the Court 13 finds Plaintiffs allegations to be sufficient to allege a Monell claim. (Compl. at ¶¶ 14 38, 44, 56.) 15 Accordingly, Gore’s motion to dismiss the Monell claims is GRANTED IN 16 PART, WITH LEAVE TO AMEND as to the second and third causes of action, 17 and DENIED IN PART. 18 IV. CONCLUSION & ORDER 19 For the foregoing reasons, the Court DENIES Zimmerman’s motion to dismiss 20 (ECF No. 3); GRANTS IN PART and DENIES IN PART the motion to dismiss 21 filed by Gore, Sobczak, and Stevens (ECF No. 7); and GRANTS IN PART and 22 DENIES IN PART Faw’s motion to dismiss (ECF No. 13). In summary: 23 (1) and Zimmerman in their official capacities; 24 25 (2) The first cause of action for invalid search warrant is alleged against Stevens only; 26 27 The Complaint only alleges section 1983 causes of action against Gore (3) The second cause of action for unreasonable search is not dismissed; 28 – 31 – 14cv02181 1 (4) amend; 2 3 (5) The fourth cause of action for Miranda violations against Stevens is dismissed with leave to amend; 4 5 The third cause of action for excessive force is dismissed with leave to (6) The fifth cause of action for due process violations is dismissed without 6 leave to amend as to Plaintiffs’ claim the Defendant Officers violated 7 the Fourteenth Amendment by depriving Plaintiffs of their marijuana 8 without due process of law. However, the fifth cause of action is not 9 dismissed as to Plaintiffs’ claim the Defendant Officers violated the 10 Fourteenth Amendment by destroying material, exculpatory evidence; 11 and 12 (7) Sheriff Gore is dismissed from all causes of action except the Monell 13 claim in the fifth cause of action that he “promulgated, adopted, ratified, 14 and acquiesced to policies, procedures, and customs governing the 15 disposition of evidence in marijuana investigations by which law 16 enforcement are directed to seize and destroy marijuana and marijuana 17 products soon after collection without regard to the materiality or 18 exculpatory nature of the evidence.” 19 20 21 If Plaintiffs wish to file a First Amended Complaint, they must do so no later than January 15, 2016. IT IS SO ORDERED. 22 23 DATED: December 8, 2015 24 25 26 27 28 – 32 – 14cv02181
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