Demoura et al v. Ford et al, No. 1:2009cv01344 - Document 33 (E.D. Cal. 2010)

Court Description: Memorandum Decision And ORDER Re: Defendants' Motion To Dismiss (Doc. 27 ), signed by Judge Oliver W. Wanger on 7/2/2010. Defendants' motion to dismiss is GRANTED IN ITS ENTIRETY WITH LEAVE TO AMEND. Plaintiffs shall have 30 days from the date of electronic service of this memorandum decision and order to file an amended complaint. Defendants shall have 30 days to respond. (Scrivner, E)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 ADDISON J. DEMOURA, et al., 9 10 No. 1:09-CV-01344-OWW-GSA Plaintiffs, MEMORANDUM DECISION AND ORDER RE: DEFENDANTS MOTION TO DISMISS (DOC. 27.) v. 11 ANDREW J. FORD, et al. 12 Defendant. 13 14 INTRODUCTION 15 On July 31, 2009, Plaintiffs filed a complaint in United 16 States District Court for the Eastern District of California, 17 alleging eight causes of action against Tuolumne County 18 Sherriff s Deputies Andrew Ford ( Ford ) and Gary Guffey 19 ( Guffey ), Stanislaus County Sherriff s Deputies William Pooley 20 ( Pooley ) and Jason Tosta ( Tosta ), the County of Stanislaus 21 22 23 24 ( Stanislaus ), the County of Tuolumne ( Tuolumne ), and the City of Oakdale ( Oakdale ). (Doc. 1.) Plaintiffs allege (1) unlawful search; (2) excessive force; 25 (3) Conspiracy under 42 U.S.C. §§ 1983 and 1985; (4) failure to 26 adequately train and supervise agents; (5) Presenting a false 27 affidavit in support of a search warrant; (6) assault; (7) 28 1 PDF created with pdfFactory trial version www.pdffactory.com 1 battery; (8) damages and equitable relief under Cal. Civ. Code § 2 52 et seq. 3 (Doc. 1.) Before the court for decision is Defendants motion to 4 dismiss pursuant Federal Rule Civil Procedure 12(b)(6). (Doc. 5 27.) Plaintiffs oppose. (Doc. 29.) The matter came on for 6 7 hearing in Courtroom 3 (OWW) on June 28, 2010, at 10:00 a.m. 8 BACKGROUND 9 This is a civil rights action filed by Addison Demoura, 10 Jessica Demoura, and John Doe (a minor suing through his father, 11 Addison Demoura). 12 Plaintiffs were involved in the operation of a medical 13 marijuana dispensary authorized under California law. On July 14 15 31, 2007, Defendants Ford, Guffey, Pooley, and Tosta executed a 16 search warrant for Plaintiffs residence. (Doc. 1 at ¶ 20.) 17 Plaintiffs were detained while the residence was searched. 18 Plaintiffs eight causes of action result from the events 19 surrounding the issuance and execution of the search warrant. 20 Plaintiffs allege that the search warrant for their Id. 21 residence was based on false information and/or material 22 omissions. (Doc. 1 at ¶ 16.) As a result, they claim to have 23 24 been subject to an unlawful search in violation of their Fourth 25 Amendment rights. They further allege that excessive force was 26 used during the execution of the warrant in violation of the 27 Fourth Amendment. (Doc. 1 at ¶ 20.) 28 2 PDF created with pdfFactory trial version www.pdffactory.com Plaintiffs allege that the 1 officers actions were a direct result of local efforts to 2 eradicate medical marijuana dispensaries. 3 STANDARDS OF DECISION 4 Dismissal under Rule 12(b)(6) is appropriate where the 5 6 complaint lacks sufficient facts to support a cognizable legal 7 theory. 8 (9th Cir. 1988). 9 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 To sufficiently state a claim for relief and survive a 12(b)(6) motion, the pleading does not need detailed 10 factual allegations but the [f]actual allegations must be 11 12 enough to raise a right to relief above the speculative level. 13 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 14 labels and conclusions or a formulaic recitation of the 15 elements of a cause of action will not do. Id. Rather, there 16 must be enough facts to state a claim to relief that is 17 plausible on its face. Id. at 570. Mere In other words, the 18 complaint must contain sufficient factual matter, accepted as 19 true, to state a claim to relief that is plausible on its face. 20 21 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal 22 quotation marks omitted).1 23 governing standard, in light of Twombly and Iqbal, as follows: 24 In sum, for a complaint to survive a motion to dismiss, the non- 25 conclusory factual content, and reasonable inferences from that The Ninth Circuit has summarized the 26 27 28 1 The cases cited by Plaintiffs for the applicable standard under Rulel 12(b)(6) are outdated, as they pre-date Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 3 PDF created with pdfFactory trial version www.pdffactory.com 1 content, must be plausibly suggestive of a claim entitling the 2 plaintiff to relief. 3 969 (9th Cir. 2009) (internal quotation marks omitted). Moss v. U.S. Secret Serv., 572 F.3d 962, Apart 4 from factual insufficiency, a complaint is also subject to 5 dismissal under Rule 12(b)(6) where it lacks a cognizable legal 6 7 theory, Balistreri, 901 F.2d at 699, or where the allegations on 8 their face show that relief is barred for some legal reason, 9 Jones v. Bock, 549 U.S. 199, 215 (2007). 10 In deciding whether to grant a motion to dismiss, the court 11 must accept as true all well-pleaded factual allegations in the 12 pleading under attack. Iqbal, 129 S. Ct. at 1950. A court is 13 14 not, however, required to accept as true allegations that are 15 merely conclusory, unwarranted deductions of fact, or 16 unreasonable inferences. 17 F.3d 979, 988 (9th Cir. 2001); see, e.g., Doe I v. Wal-Mart 18 Stores, Inc., 572 F.3d 677, 683 (9th Cir. 2009). 19 Sprewell v. Golden State Warriors, 266 When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers 20 evidence outside the pleadings, it must normally convert the 21 22 12(b)(6) motion into a Rule 56 motion for summary judgment, and 23 it must give the nonmoving party an opportunity to respond. 24 United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). A 25 court may, however, consider certain materials -- documents 26 attached to the complaint, documents incorporated by reference in 27 the complaint, or matters of judicial notice-without converting 28 4 PDF created with pdfFactory trial version www.pdffactory.com 1 the motion to dismiss into a motion for summary judgment. 2 at 908. Id. 3 ANALYSIS 4 5 6 A. CAUSES OF ACTION AGAINST OAKDALE Defendants move to dismiss the causes of action against the 7 City of Oakdale on the grounds that Plaintiffs do not allege a 8 constitutional violation by any Oakdale employee. 9 (Doc. 27 at 6:15-17.) 10 Plaintiffs note that their complaint contains allegations 11 against DOES 1 through 40. Since the filing of the Complaint, 12 13 Plaintiffs discovered that two of the search warrant affidavits 14 indicate that employees with the Oakdale Police department were 15 involved in the investigation that established probable cause and 16 the execution of the search warrant. 17 However, the Complaint contains no such allegations. 18 (Doc. 29 at 11-12.) Alternatively, Plaintiffs assert that Oakdale had a local 19 policy to not recognize medical marijuana dispensaries, and 20 21 that the search warrant was executed in furtherance of Oakdale s 22 policy and goal of eradicating such dispensaries. 23 maintain that any such policy is preempted by the Medical 24 Marijuana Program and California Health and Safety Code § 25 11362.83, and appear to assert that, because Oakdale s policy 26 Plaintiffs against medical marijuana dispensaries is preempted by state law, 27 the justification for probable cause given in the search warrant 28 5 PDF created with pdfFactory trial version www.pdffactory.com 1 affidavits was invalid. 2 3 Plaintiffs theory is not totally baseless. Allen v. Kumagi, 356 Fed. Appx. 8, 2009 WL 3416113 (9th Cir. 2009), held 4 that the officers knowledge of [plaintiffs] medical 5 authorization may be relevant to whether they had probable cause 6 7 to believe he had committed a crime. Id. at *9. Accordingly, 8 if the officers knew of Plaintiffs status as a medical marijuana 9 user or dispenser, but deliberately omitted such information from 10 their search warrant affidavit, a constitutional claim may exist. 11 However, Plaintiffs do not allege such a claim in their 12 Complaint. Nor does this theory connect any employee of the city 13 of Oakdale to the constitutional violation. 14 Plaintiffs cannot state a claim against the City of Oakdale 15 16 without alleging a sufficient Monell claim, as there is no 17 vicarious liability under the Civil Rights Act. 18 assert that any defendant deliberately omitted material 19 information pertaining to Plaintiffs status as a medical 20 marijuana dispensary from the search warrant affadavit, If Plaintiffs 21 Plaintiffs must clearly articulate such a claim in any amended 22 complaint. 23 Defendants motion to dismiss the causes of action against 24 25 City of Oakdale is GRANTED WITH LEAVE TO AMEND. 26 B. STATUTE OF LIMITATIONS 27 Causes of action under 42 U.S.C. § 1983 must be brought 28 6 PDF created with pdfFactory trial version www.pdffactory.com 1 within the forum s state s statute of limitations for personal 2 injury torts. 3 California, the statute of limitations for personal injury torts Wilson v. Garcia, 471 U.S. 261 (1985). In 4 is two years. Cal. Code Civ. P. § 335.1. 5 The Complaint alleges that the search warrant was executed 6 7 on July 25, 2007. This action was filed on July 31, 2009, more 8 than two years later. 9 the Complaint s allegation that the search occurred on July 25, 10 2007 was a clerical error, and that the search warrant was 11 actually executed on July 31, 2007. 12 (Doc. ¶ 19.) Plaintiffs now assert that If this is true, Plaintiffs must explain this factual conflict in an amended complaint. 13 The motion to dismiss on statute of limitations grounds is 14 15 16 17 18 19 GRANTED WITH LEAVE TO AMEND. C. Municipal Liability. Defendants contend that Plaintiffs failed to allege any facts sufficient to sustain municipal liability. 8:12-13.) (Doc. 27 at Local governments are persons subject to suit for 20 constitutional tort[s] under 42 U.S.C. § 1983. Haugen v. 21 22 Brosseau, 339 F.3d 857, 874 (9th Cir. 2003) (citing Monell v. 23 Dep't of Soc. Servs., 436 U.S. 658, 691 n. 55 (1978)). 24 legislative history of the Civil Rights Act of 1871 compels the 25 conclusion that Congress did intend municipalities and other 26 local government units to be included among those persons to whom 27 § 1983 applies. Id. at 690. [T]he These bodies can be sued directly 28 7 PDF created with pdfFactory trial version www.pdffactory.com 1 under § 1983 for monetary, declaratory, or injunctive relief 2 where, as here, the action that is alleged to be unconstitutional 3 implements or executes a policy statement, ordinance, regulation, 4 or decision officially adopted and promulgated by that body's 5 officers ... [or for] deprivations visited pursuant to 6 7 governmental custom even though such a custom has not received 8 formal approval through the body's official decision making 9 channels. 10 11 12 Id. at 690-91. A local government's liability is limited. Although a local government can be held liable for its official policies or customs, it will not be held liable for an employee's actions 13 outside of the scope of these policies or customs. 14 [T]he language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, ... a municipality cannot be held liable solely because it employs a tortfeasor, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory. 15 16 17 18 19 20 21 22 Monell, 436 U.S. at 691. The statute's language plainly imposes liability on a government that, under color of some official 23 policy, causes' an employee to violate another's constitutional 24 25 26 rights. Id. at 692. To establish municipal liability, a plaintiff must prove the 27 28 8 PDF created with pdfFactory trial version www.pdffactory.com 1 existence of an unconstitutional municipal policy. 2 F.3d at 393. Haugen, 351 3 [I]t is when execution of a government's policy or custom, whether made by its law-makers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. 4 5 6 7 8 Monell, 436 U.S. at 694. 9 10 To prevail in a civil rights claim against a local government under Monell, a plaintiff must satisfy a three-part 11 test: (1) the local government official(s) must have 12 13 intentionally violated the plaintiff's constitutional rights; (2) 14 the violation must be a part of policy or custom and may not be 15 an isolated incident; and (3) there must be a link between the 16 specific policy or custom to the plaintiff's injury. 17 92. Id. at 690- 18 As alternatives to proving the existence of a policy or 19 20 custom of a municipality, a plaintiff may show: (1) a 21 longstanding practice or custom which constitutes the standard 22 operating procedure of the local government entity; (2) the 23 decision-making official was, as a matter of state law, a final 24 policymaking authority whose edicts or acts may fairly be said to 25 represent official policy in the area of decision; or (3) the 26 official with final policymaking authority either delegated that 27 authority to, or ratified the decision of, a subordinate. 28 9 PDF created with pdfFactory trial version www.pdffactory.com 1 Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005). 2 The Ninth Circuit has held that a municipal policy may be 3 inferred from widespread practices or evidence of repeated 4 constitutional violations for which the errant municipal officers 5 were not discharged or reprimanded. Id. 6 Plaintiffs allege causes of actions against Stanislaus 7 8 County, City of Oakdale, and Tuolumne County for municipal 9 liability. 10 sufficient evidence to show Stanislaus, Oakdale, and Tuolumne In their opposition, Plaintiffs maintain there is 11 have a longstanding policy and practice to violate fourth 12 amendment rights of person engaged in medical marijuana 13 14 15 collectives. (Doc. 29 23:5-8.) However, the Complaint contains no such allegations. Moreover, Plaintiffs cannot use 42 U.S.C. § 1983 to maintain 16 17 a generic challenge against a municipality s policy against 18 medical marijuana. 19 at *9 See Allen, 356 Fed. Appx. 8, 2009 WL 3416113 ( [Plaintiff] cannot use § 1983 to vindicate his purported 20 state-law right to use marijuana for medical purposes, the 21 22 officers knowledge of his medical authorization may be relevant 23 to whether they had probable cause to believe he had committed a 24 crime. ) 25 pattern and practice of officers deliberately omitting from their 26 search warrant affidavits information about a plaintiff s status 27 as a medical marijuana user or dispenser under state law. However, this does not preclude a claim based upon a 28 10 PDF created with pdfFactory trial version www.pdffactory.com 1 Defendants motion to dismiss the first, second, and third 2 cause of action against Stanislaus, Oakdale, and Tuolumne is 3 GRANTED WITH LEAVE TO AMEND. 4 5 6 D. IMMUNITY FROM PUNITIVE DAMAGES Plaintiffs demand punitive damages against public entity 7 Defendants Stanislaus, Oakdale, and Tuolumne. 8 Defendants motion to dismiss this allegation may be treated as a 9 motion to strike. (Doc. 1.) Wilkerson v. Butler, 229 F.R.D. 166, 172 (E.D. 10 Cal. 2005). 11 12 Federal Rule of Civil Procedure 12(f) provides that 13 redundant, immaterial, impertinent, or scandalous matters may 14 be stricken from any pleading. Fed. R. Civ. P. 12(f). 15 to strike are disfavored and infrequently granted. 16 Motions See Pease & Curran Ref., Inc. v. Spectrolab, Inc., 744 F. Supp. 945, 947 17 (C.D. Cal. 1990), abrogated on other grounds by Stanton Road 18 Ass'n v. Lohrey Enters., 984 F.2d 1015 (9th Cir. 1993). 19 20 [M]otions to strike should not be granted unless it is clear 21 that the matter to be stricken could have no possible bearing on 22 the subject matter of the litigation. Colaprico v. Sun 23 Microsystems, Inc., 758 F. Supp. 1335, 1339 (N.D. Cal. 1991) 24 (citation omitted). 25 While punitive damages are available in actions against a 26 27 local government official in his or her personal capacity, they 28 are not available in action against municipality under 42 U.S.C. 11 PDF created with pdfFactory trial version www.pdffactory.com 1 § 1983. City of Newport v. Facts Concert, Inc., 453 U.S. 247 2 (1981). The public entity Defendants are thus immune from 3 punitive damages. Defendants' Motion to Strike Punitive Damages 4 against Stanislaus, Oakdale, and Tuolumne is unopposed by 5 Plaintiff. Plaintiffs have acknowledged the law and abandoned 6 7 any claim for punitive damages against the public entities. 8 Defendants motion to strike the punitive damages claims 9 against Stanislaus, Oakdale, and Tuolumne is GRANTED. 10 E. SECTION 1983 CONSPIRACY CLAIM 11 Conspiracy claims are subject to a heightened pleading 12 standard. See Harris v. Roderick, 126 F.3d 1189, 1195 (9th Cir. 13 14 1997). To survive a motion to dismiss, a plaintiff alleging the 15 existence of a conspiracy must meet a standard that is more 16 demanding than that set forth in Federal Rule of Civil Procedure 17 8(a)(2). 18 19 20 21 22 23 24 25 In order to survive a motion to dismiss, plaintiffs alleging a conspiracy to deprive them of their constitutional rights must include in their complaint nonconclusory allegations containing evidence of unlawful intent or face dismissal prior to the taking of discovery. These allegations may be supported by either direct or circumstantial evidence. This standard is not intended to be difficult to meet as it serves the limited purpose of enabling the district court to dismiss insubstantial suits prior to discovery and allowing the defendant to prepare an appropriate response, and where appropriate, a motion for summary judgment based on qualified immunity. 26 27 Id. at 1195. In Harris, the complaint alleged that the defendant 28 12 PDF created with pdfFactory trial version www.pdffactory.com 1 law enforcement officers met separately and apart from the other 2 [officers], and constructed a false story about what had happened 3 in the gunfight, which false story was designed to conceal their 4 own and [others'] criminal, civil, and moral responsibility for 5 [two] deaths.... The Harris complaint also alleged that the 6 7 defendant officers repeated the false story in official 8 documents, reports, and under oath in court proceedings. 9 Finally, the plaintiff in Harris alleged that the falsehoods led 10 ultimately to the bringing of false charges against him that 11 resulted in the federal murder trial at which he was acquitted on 12 all counts [and] caused him to serve time in jail awaiting trial 13 on the federal charges. The Ninth Circuit held that this 14 15 complaint satisfied the heightened pleading standard. Critically, 16 the complaint in Harris explained which defendants conspired, 17 how they conspired and how the conspiracy led to a deprivation of 18 his constitutional rights.... Id. at 1196 (emphasis added). 19 The complaint in this case alleges Defendants acted in 20 concert to commit an individual act, or a lawful act by unlawful 21 means, to deprive plaintiff of a protected right and to inflict a 22 wrong against or injury upon Plaintiffs. (Doc. 1 at ¶ 37.) 23 24 These are conclusions of law. Plaintiff alleges generally that 25 Defendants conspired together without providing any factual 26 detail as to the nature of the alleged conspiracy. 27 allegation does not specify which defendants conspired, how they 28 13 PDF created with pdfFactory trial version www.pdffactory.com The 1 conspired and how the conspiracy led to a deprivation of his 2 constitutional rights.... 3 Id. at 1196. Defendants motion to dismiss is GRANTED WITH LEAVE TO AMEND. 4 F. SECTION 1985 CONSPIRACY CLAIM 5 6 Plaintiff's conspiracy claim attempts to invoke 42 U.S.C. § 7 1985(3), which prohibits conspiracies to interfere with civil 8 rights. 9 conspiracy to deprive Plaintiff of equal protection under the 10 law; (2) an act in furtherance of the conspiracy; and (3) a Elements of a 1985(3) claim are: (1) existence of a 11 resulting injury. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 12 1141 (9th Cir. 2000) (citing Scott v. Ross, 140 F.3d 1275, 1284 13 14 15 (9th Cir. 1998)). An essential requirement for a 1985(3) claim is that there 16 must be some racial or otherwise class-based invidious 17 discriminatory animus for the conspiracy. Bray v. Alexandria 18 Women's Health Clinic, 506 U.S. 263, 268-69 (1993) (citing 19 Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). Section 20 21 1985(3) was not meant to apply to all tortious conspiracies to 22 deprive the rights of another. 23 extend to classes beyond race unless that class can show that the 24 government has determined that class members require and warrant 25 special federal assistance in protecting their civil rights. 26 Id. Section 1985(3) does not Orin v. Barclay, 272 F.3d 1207, 1217 n. 4 (9th Cir.2001). More 27 specifically, we require either that the courts have designated 28 14 PDF created with pdfFactory trial version www.pdffactory.com 1 the class in question a suspect or quasi-suspect classification 2 requiring more exacting scrutiny or that Congress has indicated 3 through legislation that the class required special protection. 4 Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992). 5 6 Plaintiffs do not allege a racially-motivated animus, nor 7 that they are members of a class that requires special federal 8 protection. 9 the State of California, both California voters through the CUA, 10 and the California Legislature through the enactment of the In their opposition, Plaintiffs assert that [i]n 11 Medical Marijuana Program Act recognized a class of persons, who 12 use marijuana for medical purposes. (Doc. 29 at 24:16-18.) 13 14 Plaintiffs cite no legal authority, nor does it appear that any 15 authority exists, to support the proposition that California 16 medical marijuana users are a protected class under 42 U.S.C. § 17 1985(3). 18 controlled substance, use and trafficking is what is criminalized 19 To the contrary, marijuana remains a schedule I under federal law. 20 21 22 Defendants motion to dismiss the conspiracy claim is GRANTED WITH LEAVE TO AMEND. 23 CONCLUSION 24 25 For the reasons set forth above, 26 Defendants motion to dismiss is GRANTED IN ITS ENTIRETY 27 WITH LEAVE TO AMEND. Plaintiffs shall have 30 days from the date 28 15 PDF created with pdfFactory trial version www.pdffactory.com 1 of electronic service of this memorandum decision and order to 2 file an amended complaint. 3 respond. Defendants shall have 30 days to 4 5 IT IS SO ORDERED. 6 7 8 9 DATED: July 2, 2010. /s/ Oliver W. Wanger Oliver W. Wanger United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 PDF created with pdfFactory trial version www.pdffactory.com

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