Ambrose v. Travelers Property & Casualty Company of America, No. 2:2008cv01664 - Document 64 (E.D. Cal. 2009)
Court Description: ORDER granting 47 Motion to Dismiss dfts James C. Weydert; Gary Coffey and The County of San Joaquin, signed by Senior Judge Lawrence K. Karlton on 12/23/09. Complaints are dismissed without prejudice as to dfts County of San Joaquin, Gary Coffey, and James C. Weydert, and with leave to amend. Plaintiffs are given 20 days from the date this order is issued to file any amended complaints. (Kastilahn, A)
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Ambrose v. Travelers Property & Casualty Company of America Doc. 64 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 JOSEPH AMBROSE, D.C., 10 NO. CIV. S-08-1664 LKK/GGH 11 12 Plaintiff, v. O R D E R 13 GARY COFFEY, et al., 14 Defendants. 15 16 / Plaintiffs bring suits arising out of an investigation of 17 them, their arrests, and their criminal prosecution. 18 court disposes of various motions to dismiss. Below, the I. BACKGROUND 19 20 A. Procedural Posture 21 On July 18, 2008, plaintiff Joseph Ambrose (“Ambrose”) 22 filed a complaint against Gary Coffey (“Coffey”), James C. 23 Weydert (“Weydert”), William Reynolds (“Reynolds”), Travelers 24 Property and Casualty Company of America (“Travelers”), Zenith 25 Insurance Company (“Zenith”), and the County of San Joaquin 26 (“County”). On August 20, 2008, Travelers and Reynolds moved to 1 Dockets.Justia.com 1 dismiss all causes of action pled against them, and on August 2 28, 2008, the County, Coffey, and Weydert also moved to dismiss 3 all claims against them. Ambrose voluntarily dismissed Zenith on 4 September 4, 2008. On November 13, 2008, the court granted 5 defendants’ motions to dismiss Ambrose’s complaint in part, and 6 granted Ambrose leave to amend his complaint. Ambrose filed an 7 amended complaint on September 18, 2009. 8 On May 28, 2009, plaintiffs Richard Sausedo (“Sausedo”) and 9 Pedram Vaezi (“Vaezi”) filed a complaint against Travelers, 10 Reynolds, County, Weydert, and Coffey, Sausedo v. Travelers 11 Prop. & Cas. Co., 2:09-cv-01477-LKK-GGH, arising out of the same 12 facts. Plaintiffs concurrently filed a notice of related cases 13 to Ambrose v. Coffey, 2:09-cv-01664-LKK-GGH. On June 16, 2009, 14 the court consolidated Ambrose and Sausedo. 15 On July 27, 2009, plaintiff Michael Yates (“Yates”) filed a 16 virtually identical complaint as Sausedo against the same 17 defendants, Yates v. Travelers Prop. & Cas. Co., 2:09-cv-02062- 18 LKK-GGH. Yates filed a notice of related cases with his 19 complaint to Ambrose and Sausedo. On August 3, 2009, the court 20 ordered the cases related, and on September 2, 2009, the court 21 consolidated Yates with Ambrose and Sausedo. On October 5, 2009, 22 defendants County, Coffey, and Weydert (“moving defendants”) 23 moved to dismiss Yates’s and Sausedo and Vaezi’s complaints. 24 Plaintiffs filed an opposition to the motion on November 6, 25 2009. 26 On September 21, 2009, plaintiff Wilmer D. Origel 2 1 (“Origel”) filed a complaint virtually identical to those of 2 Sausedo and Yates, Origel v. Travlers Prop. & Cas. Co, 2:09- 3 02640-LKK-GGH. On October 2, 2009, Origel filed a notice of 4 related cases with Ambrose, Sausedo, and Yates. On October 30, 5 2009, the court ordered Origel related to Ambrose, Sausedo, and 6 Yates. The court has not consolidated Origel with the other 7 three cases. On October 15, 2009, the moving defendants filed a 8 motion to dismiss Origel’s complaint. Origel filed an opposition 9 on November 6, 2009. Both the motion and the opposition filed in 10 Origel are virtually identical to those filed in Sausedo and 11 Yates. For these reasons this order will address all the motions 12 together. 13 14 15 B. Factual Allegations 1. Plaintiffs’ Chiropractic Practice Sausedo, Vaezi, Yates, and Origel (“plaintiffs”) were all 16 licensed as chiropractors under California law, and practiced in 17 California prior to their arrests in 2005. Sausedo Complaint 18 (“SC”) ¶ 2; Yates Complaint (“YC”) ¶ 2; Origel Complaint (“OC”) 19 ¶ 2. Plaintiffs performed a chiropractic procedure called 20 Manipulation Under Anesthesia (“MUA”). SC ¶ 7; YC ¶ 7; OC ¶ 7. 21 This procedure is one in which “a medical doctor anesthetizes a 22 patient and a chiropractor performs a manipulation of the 23 patient during the time the patient is anesthetized.” SC ¶ 7; YC 24 ¶ 7; OC ¶ 7. 25 26 Plaintiffs allege that MUAs are a legal procedure in California. SC ¶ 7; YC ¶ 7; OC ¶ 7. In support of this 3 1 conclusion, plaintiffs cite a policy from the Board of 2 Chiropractic Examiners of the State of California dated 3 September 13, 1990. SC ¶ 7; YC ¶ 7; OC ¶ 7. This policy, 4 plaintiffs assert, provides “that a proper chiropractic 5 adjustment, if within the scope of practice of § 302, is not 6 made illegal simply because the patient is under anesthesia.” SC 7 ¶ 7; YC ¶ 7; OC ¶ 7. 8 9 2. Travelers Initiates Criminal Investigations Plaintiffs allege that non-moving Defendant Travelers owed 10 them and the business entities of which they were members, 11 payment “for lawful chiropractic services provided by each 12 through the workers’ compensation system.” SC ¶ 3; YC ¶ 3; OC ¶ 13 3. Plaintiffs allege that as a result, non-moving defendant 14 Reynolds, an employee of Travelers, “prepared and submitted a 15 ‘Request for Criminal Prosecution’ to the San Joaquin County 16 District Attorneys Office” for the prosecution of plaintiffs and 17 other California chiropractors utilizing the MUA technique. SC 18 ¶¶ 4, 9; YC ¶¶ 4, 9; OC ¶¶ 4, 9. The basis of Reynolds’ request 19 was that the practice of MUAs by chiropractors was illegal in 20 California. SC ¶ 9; YC ¶ 9; OC ¶ 9. Plaintiffs allege that 21 Reynolds submitted this report in order to benefit Travelers. SC 22 ¶ 9; YC ¶ 9; OC ¶ 9. Specifically, they allege that Travelers 23 sought to avoid paying chiropractors, including plaintiffs, for 24 MUAs they performed. SC ¶ 9; YC ¶ 9; OC ¶ 9. Plaintiffs also 25 allege that Travelers and other workers’ compensation insurance 26 carriers “had unsuccessfully challenged MUA payments ow[ed] to 4 1 licensed chiropractors before the Workers’ Compensation Appeals 2 Board, and in other forums.” SC ¶ 9; YC ¶ 9; OC ¶ 9. 3 Additionally, plaintiffs allege that Weydert and Coffey, 4 “with the knowledge and approval of the County” District 5 Attorney’s Office, “and in furtherance of policies and 6 procedures of that office, made public statements to the 7 electronic media, print press, and in other public forums, 8 falsely stating that [plaintiffs] had committed criminal acts, 9 fraudulent acts, and [were] engaged in unlawful and sham 10 activities in violation of [their] chiropractic license[s].” SC 11 ¶ 14; YC ¶ 14; OC ¶ 14. Furthermore, plaintiffs allege that 12 Coffey and nonmoving defendant Reynolds acted with malice 13 towards plaintiffs by making statements while aware that 14 plaintiffs had not violate the law for the sole purpose of 15 “providing financial benefit to Travelers and other insurance 16 companies by providing a pretext to deny payments to 17 chiropractors, including plaintiff[s], for the performance of 18 past lawful MUAs, and the intimidation of all chiropractors 19 within the State of California from performing lawful MUAs, or 20 seeking payment of sums owed to them by Travelers and other 21 insurance companies for the lawful performance of MUAs because 22 of fear of criminal prosecution.” SC ¶ 14; YC ¶ 4; OC ¶ 14. 23 Plaintiffs do not allege that Weydert acted with malice. SC ¶ 24 10; YC ¶ 10; OC ¶ 10. 25 26 5 1 3. District Attorney Files and Dismisses Criminal Charges Against Plaintiffs 2 3 With the assistance of Reynolds and Travelers, moving 4 defendants Deputy District Attorney Weydert and Coffey, an 5 investigator for the District Attorney, filed criminal 6 complaints against plaintiffs. SC ¶¶ 6, 10; YC ¶¶ 6, 10; OC ¶¶ 7 6, 10. Moreover, it is alleged that, Reynolds “interviewed 8 witnesses, prepared court documents, provided and prepared 9 evidence for court hearings, drafted legal and factual 10 arguments, and in other ways substantially assisted in the . . . 11 prosecution of plaintiffs.” SC ¶ 10; YC ¶ 10; OC ¶ 10. 12 “Travelers provided financial assistance to the County and to 13 Reynolds and Coffey to pay for the expenses of the 14 prosecutions.” SC ¶ 10; YC ¶ 10; OC ¶ 10. Plaintiffs allege that 15 defendants were aware of the California Board of Chiropractic 16 Examiners policy and the Workers’ Compensation board approval of 17 MUAs, and that no charges had ever been brought against 18 chiropractors in California for performing MUAs. SC ¶¶ 7, 11, 19 12; YC ¶¶ 7, 11, 12; OC ¶¶ 7, 11, 12. 20 On January 5, 2005, Weydert and the District Attorney of 21 San Joaquin County filed a criminal complaint in the Superior 22 Court of California, County of San Joaquin against Origel. OC ¶ 23 6. Origel was charged with numerous felonies, including the 24 uncertified practice of medicine, unlawful client or patient 25 referral, conspiracy to commit a crime, grand theft of personal 26 property, forgery, worker’s compensation false statements, 6 1 making false or fraudulent claims, money laundering, and 2 unlawful rebates. Id. On July 29, 2008, Weydert and the district 3 attorney filed an amended information charging Origel with the 4 following felonies, making false and fraudulent claims, worker’s 5 compensation false statements, insurance fraud, money 6 laundering, uncertified practice of medicine, and several theft 7 charges. Id. Origel alleges that on November 20, 2008, the court 8 dismissed all charges against Origel “in the interests of 9 justice.”1 Id. 10 On August 23, 2005, Weydert and the District Attorney filed 11 another criminal complaint against Vaezi and Sausedo. SC ¶ 6. 12 Vaezi and Sausedo were charged with the uncertified practice of 13 medicine and the filing of false worker’s compensation 14 statements. SC ¶ 6. On March 11, 2008, all charges against 15 Sausedo were dismissed by the court upon motion of the district 16 attorney “in the interests of justice, and for insufficient 17 evidence.” Id. On the same day, the court dismissed all charges 18 against Vaezi due to “insufficient evidence and in the interest 19 of justice.” Id. 20 Also on August 23, 2005, Weydert and the district attorney 21 filed a complaint against Yates along with Ambrose. YC ¶ 6. In 22 addition to the charges brought against Vaezi and Sausedo, Yates 23 24 25 26 1 At oral argument, defendants informed the court that Origel was tried and that the trial resulted in a hung jury. If true, Origel’s allegations concerning the dismissal of criminal charges against him merely mentioning a dismissal in the interest of justice is misleading and may border on sanctionable conduct. 7 1 and Ambrose were charged with making false and fraudulent 2 claims, conspiracy to commit a crime, unlawful rebates, and 3 several felonies of theft and/or the taking of property. Id. All 4 charges against Yates were dismissed by the court “in the 5 interests of justice.”2 Id. 6 Plaintiffs allege that they were “subject to search, 7 seizure, and arrest, and [were] held in custody and under legal 8 disabilities. . . . As a result of the conduct . . . 9 plaintiff[s] . . . [were] deprived of [their] . . . rights to 10 lawfully practice [their] profession as licensed chiropractors . 11 . . [and of their] rights to speak freely and practice [their] 12 profession.” SC ¶ 13; YC ¶ 13; OC ¶ 13. 13 II. STANDARD FOR A FED. R. CIV. P. 12(b)(6) MOTION TO DISMISS 14 A Federal Rule of Civil Procedure 12(b)(6) motion 15 challenges a complaint's compliance with the pleading 16 requirements provided by the Federal Rules. In general, these 17 requirements are established by Federal Rule of Civil Procedure 18 8. 19 Under Federal Rule of Civil Procedure 8(a)(2), a pleading 20 must contain a “short and plain statement of the claim showing 21 that the pleader is entitled to relief.” The complaint must give 22 23 24 25 26 2 Defendants have presented some evidence that criminal proceedings against Yates proceeded to a preliminary examination. Yate’s allegations concerning the dismissal of the criminal proceedings, however, do not at all reflect this posture. Rather, they mirror the allegations for Saucedo and Vaezi. While perhaps not sanctionable conduct, the court notes that Yates must accurately and clearly plead facts within his knowledge. 8 1 defendant “fair notice of what the claim is and the grounds upon 2 which it rests.” Bell Atlantic v. Twombly, 550 U.S, 544, 555 3 (2007) (internal quotation and modification omitted). 4 To meet this requirement, the complaint must be supported 5 by factual allegations. Ashcroft v. Iqbal, ___ U.S. ___, 129 S. 6 Ct. 1937, 1950 (2009). “While legal conclusions can provide the 7 framework of a complaint,” neither legal conclusions nor 8 conclusory statements are themselves sufficient, and such 9 statements are not entitled to a presumption of truth. Id. at 10 1949-50. Iqbal and Twombly therefore proscribe a two step 11 process for evaluation of motions to dismiss. The court first 12 identifies the non-conclusory factual allegations, and the court 13 then determines whether these allegations, taken as true and 14 construed in the light most favorable to the plaintiff, 15 “plausibly give rise to an entitlement to relief.” Id.; Erickson 16 v. Pardus, 551 U.S. 89 (2007).3 17 “Plausibility,” as it is used in Twombly and Iqbal, does 18 not refer to the likelihood that a pleader will succeed in 19 proving the allegations. Instead, it refers to whether the 20 non-conclusory factual allegations, when assumed to be true, 21 “allow[ ] the court to draw the reasonable inference that the 22 23 24 25 26 3 As discussed below, the court may consider certain limited evidence on a motion to dismiss. As an exception to the general rule that non-conclusory factual allegations must be accepted as true on a motion to dismiss, the court need not accept allegations as true when they are contradicted by this evidence. See Mullis v. United States Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987), Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). 9 1 defendant is liable for the misconduct alleged.” Iqbal, 129 2 S.Ct. at 1949. “The plausibility standard is not akin to a 3 ‘probability requirement,’ but it asks for more than a sheer 4 possibility that a defendant has acted unlawfully.” Id. (quoting 5 Twombly, 550 U.S. at 557). A complaint may fail to show a right 6 to relief either by lacking a cognizable legal theory or by 7 lacking sufficient facts alleged under a cognizable legal 8 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 9 (9th Cir. 1990). 10 The line between non-conclusory and conclusory allegations 11 is not always clear. Rule 8 “does not require ‘detailed factual 12 allegations,’ but it demands more than an unadorned, 13 the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S.Ct. 14 at 1949 (quoting Twombly, 550 U.S. at 555). While Twombly was 15 not the first case that directed the district courts to 16 disregard “conclusory” allegations, the court turns to Iqbal and 17 Twombly for indications of the Supreme Court's current 18 understanding of the term. In Twombly, the Court found the naked 19 allegation that “defendants ‘ha[d] entered into a contract, 20 combination or conspiracy to prevent competitive entry . . . and 21 ha[d] agreed not to compete with one another,’ “ absent any 22 supporting allegation of underlying details, to be a conclusory 23 statement of the elements of an anti-trust claim. Id. at 1950 24 (quoting Twombly, 550 U.S. at 551). In contrast, the Twombly 25 plaintiffs' allegations of “parallel conduct” were not 26 conclusory, because plaintiffs had alleged specific acts argued 10 1 to constitute parallel conduct. Twombly, 550 U.S. at 550-51, 2 556. 3 Twombly also illustrated the second, “plausibility” step of 4 the analysis by providing an example of a complaint that failed 5 and a complaint that satisfied this step. The complaint at issue 6 in Twombly failed. While the Twombly plaintiffs’ allegations 7 regarding parallel conduct were non-conclusory, they failed to 8 support a plausible claim. Id. at 566. Because parallel conduct 9 was said to be ordinarily expected to arise without a prohibited 10 agreement, an allegation of parallel conduct was insufficient to 11 support the inference that a prohibited agreement existed. Id. 12 Absent such an agreement, plaintiffs were not entitled to 13 relief.4 Id. 14 In contrast, Twombly held that the model pleading for 15 negligence demonstrated the type of pleading that satisfies Rule 16 8. Id. at 565 n. 10. This form provides “On June 1, 1936, in a 17 public highway called Boylston Street in Boston, Massachusetts, 18 defendant negligently drove a motor vehicle against plaintiff 19 who was then crossing said highway.” Form 9, Complaint for 20 Negligence, Forms App., Fed. Rules Civ. Proc., 28 U.S.C. App., p 21 829. These allegations adequately “ ‘state[ ] ... circumstances, 22 occurrences, and events in support of the claim presented.’ “ 23 24 25 26 4 This judge must confess that it does not appear self-evident that parallel conduct is to be expected in all circumstances and thus would seem to require evidence. Of course, the Supreme Court has spoken and thus this court’s own uncertainty may be noted, but cannot form the basis of a ruling. 11 1 Twombly, 550 U.S. at 556 n. 3 (quoting 5 C. Wright & A. Miller, 2 Federal Practice and Procedure § 1216, at 94, 95 (3d ed. 2004)). 3 The factual allegations that defendant drove at a certain time 4 and hit plaintiff render plausible the conclusion that defendant 5 drove negligently. IV. ANALYSIS 6 7 A. 8 Defendants County, Coffey, and Weydert have moved to 9 Plaintiffs’ Conceded Claims dismiss all claims against them. In their oppositions, 10 plaintiffs concede that their conspiracy claim under 42 U.S.C. § 11 1985 should be dismissed. Sausedo Opposition (“SO”) at 11; 12 Origel Opposition (“OO”) at 8. Plaintiffs also concede that they 13 have not sufficiently pled a claim against the County for 14 liability under 42 U.S.C. § 1983. SO at 11; OO at 8. For these 15 reasons, the court grants County, Coffey, and Weydert’s motion 16 to dismiss the conspiracy claims under § 1985, and grants the 17 County’s motions to dismiss all claims against it under § 1983. 18 Both claims are dismissed without prejudice.5 19 //// 20 //// 21 //// 22 //// 23 //// 24 5 25 26 Plaintiffs request an opportunity to discover the District Attorney's policy and procedure. Discovery in this district is before the Magistrate Judges and the court makes no ruling on that matter. 12 1 B. Whether Weydert and Coffey are Entitled to Qualified Immunity.6 1. Grounds for Qualified Immunity 2 3 Defendants argue that they are entitled to qualified 4 immunity because it is not clearly established that MUAs are 5 legal. Weydert and Coffey are “entitled to qualified immunity 6 where clearly established law does not show” their actions 7 violated the Constitution. Pearson v. Callahan, 555 U.S. ___, 8 129 S. Ct. 808, 822 (2009). “The principles of qualified 9 immunity shield an officer from personal liability when an 10 officer reasonably believes that his or her conduct complies 11 with the law.” Id. at 823. Consequently, Weydert and Coffey are 12 immune from “civil damages insofar as their conduct does not 13 violate clearly established statutory or constitutional rights 14 of which a reasonable person would have known.” Id. at 815 15 (internal quotation omitted). 16 17 18 19 20 21 22 23 24 25 26 6 As a prosecutor, Weydert is entitled to absolute, prosecutorial immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 26869 (1993). “In determining whether particular actions of government officials fit within a common-law tradition of absolute immunity, or only the more general standard of qualified immunity, we have applied a functional approach, . . . which looks to the nature of the function performed, not the identity of the actor who performed it. Id. at 269 (internal quotations omitted). Here, plaintiffs have alleged facts that Weydert violated their constitutional rights through actions that both constitute prosecutorial and nonprosecutorial functions. See November 13, 2008 Order, Doc. No. 29, for a discussion of the actions that constitute prosecutorial functions. However, because the court holds that Weydert is entitled to qualified immunity for all claims alleged against him, the court need not distinguish between those actions for which Weydert is entitled to absolute immunity and those for which he is entitled to qualified immunity. 13 1 In this case, the issue of qualified immunity does not 2 concern whether it is clearly established that Weydert and 3 Coffey could arrest and prosecute plaintiffs without probable 4 cause or prevent them from lawfully practicing their 5 professions. Rather, the issue defendants argue is not clearly 6 established is the basis for all claims alleged by plaintiffs, 7 namely whether the MUAs were legal, or in other words, whether 8 defendants could have reasonably believed that they were 9 prosecuting plaintiffs for a violation of state law. As an 10 initial matter, the court must decide whether it is clearly 11 established that the performance of MUAs by licensed 12 chiropractors in California is legal. 13 As discussed above, plaintiffs allege in their complaints 14 that MUAs are legal procedures because of a policy of the Board 15 of Chiropractic Examiners of the State of California indicating 16 that chiropractic adjustments are not made illegal because they 17 are performed under anaesthesia and because no chiropractors had 18 ever been prosecuted for performing MUAs in California. In their 19 oppositions, plaintiffs argue, in essence, that the actions of 20 chiropractors in performing MUAs never exceeded the statutory 21 limits on the practice of chiropractors because a doctor 22 administers and monitors the anaesthesia, chiropractors only 23 perform legal manipulations during the procedure. Plaintiffs 24 continue to argue that there is no authority that explicitly 25 states that MUAs are illegal. Finally, plaintiffs distinguish 26 the cases cited by defendants on the grounds that they do not 14 1 “involve[] a chiropractor performing manipulation in conjunction 2 with other professionals.” Plaintiffs have made a reasonable 3 argument that MUAs are legal under California law. However, to 4 escape qualified immunity, plaintiffs must show that no 5 reasonable deputy district attorney or investigator could 6 reasonably believe that MUAs were illegal. 7 Defendants primarily refer to the interpretation of the 8 Chiropractic Initiative Act of 1922 (“Act”) by California 9 courts. The primary case relied upon by defendants is Tain v. 10 State Board of Chiropractic Examiners, 130 Cal. App. 4th 609 11 (Cal. Ct. App. 2005). This decision, however, was issued on July 12 22, 2005, which was several months after a criminal complaint 13 was filed against Origel, yet a month prior to the filing of 14 charges against the other plaintiffs. Consequently, to the 15 extent that new interpretations of the Act were utilized in 16 Tain, they cannot be considered when deciding whether it was 17 clearly established that MUAs were lawful with respect to 18 Origel’s claims alone. Nonetheless, to the extent that Tain 19 relies upon Crees v. California State Board of Medical 20 Examiners, 213 Cal. App. 2d 195 (Cal. Ct. App. 1963), and People 21 v. Fowler, 32 Cal. App. 2d. Supp. 737 (Cal. Ct. App. 1938), 22 defendants’ analysis is relevant to consideration of whether the 23 law was clearly established when the complaint was filed against 24 Origel. 25 26 Section 7 of the Act states that a chiropractic license “shall authorize the holder thereof to practice chiropractic in 15 1 the State of California as taught in chiropractic schools or 2 colleges; . . . but shall not authorize the practice of 3 medicine, . . . nor the use of any drug or medicine.” Cal. Bus. 4 & Prof. Code § 1000-7. The Board of Medical Examiners has 5 promulgated a regulation opining on the effect of section 7 of 6 the Act.7 This regulation states that, “A chiropractic license 7 issued in the State of California does not authorize the holder 8 thereof . . . to use any drug or medicine.” Cal. Code Regs., 9 tit. 16, § 302(4). 10 California courts have interpreted the Act to limit 11 chiropractors “‘to the practice of chiropractic and the use of 12 mechanical, hygienic and sanitary measures incident to the care 13 of the body, which do not invade the field of medicine and 14 surgery, irrespective of whether or not additional phases of the 15 healing art, including medicine and surgery or the use of drugs, 16 may have been taught in chiropractic schools or colleges’ and . 17 . . irrespective of whether any such additional phases have 18 actually been used by some chiropractors illegally as part of 19 professional treatment.” Crees, 213 Cal. App. 2d at 205 (quoting 20 Fowler, 23 Cal. App. 2d Supp at 748). 21 California courts have held “that the permissible limits of 22 practice by the holder of a chiropractic license did not extend 23 beyond the scope of ‘chiropractic’ as that term was understood 24 25 26 7 It is not clear to the court what authority the Board of Medical Examiners has to define chiropractic practice, as is made of the administrative infighting, it appears besides the point. 16 1 and defined in 1922, when voters adopted the Chiropractic Act.” 2 Tain, 130 Cal. App. 4th at 621 (citing Crees, 213 Cal. App. 2d 3 at 204).8 Specifically, when ascertaining the meaning of the 4 term chiropractic in 1922, “the Fowler court . . . referr[ed] to 5 several commonly used dictionaries available at the time the 6 Chiropractic Act was enacted [in 1922], including the ‘Standard 7 Dictionary, 1913 edition,’ which defined ‘chiropractic’ as ‘A 8 drugless method of treating disease chiefly by manipulation of 9 the spinal column.’” Tain, 130 Cal. App. 4th at 620 (quoting 10 People v. Fowler, 32 Cal. App. 2d Supp. 737, 745 (1938)). 11 Plaintiffs have not argued or presented any evidence that MUAs 12 were performed by chiropractors in 1922. Of course, the 13 defendants have not tendered such evidence either. 14 the burden is on the plaintiff and their failure appears 15 dispositive, given the California courts construction of the 16 statute. See Eng v. Cooley, 552 F.3d 1062, 1075 (9th Cir. 2009) 17 ("Plaintiff must . . . demonstrate that the constitutional 18 rights at issue were clearly established at the time of 19 [defendant’s] conduct.") 20 Nonetheless, The plaintiffs' argument rests on their assertion that 21 they perform only traditional chiropractic practice, and it is 22 the M.D. who administers anaesthesia . 23 an argument is persuasive, the issue is whether a reasonable Even assuming that such 24 8 25 26 Such an interpretation appears to forbid the practice of any technique developed by virtue of new scientific developments in the field and appears not to be consistent with the plain language of the initiative. 17 1 D.A. (or investigator) would know that such conduct was lawful. 2 Under the circumstances, the court concludes that a reasonable 3 prosecutor or investigator could have relied on the language in 4 Fowley that the practice of chiropracty is drugless to conclude 5 that any use of drugs, regardless of who administers them, 6 violates the Chiropractic Act. 7 Moreover, a few months after defendants filed criminal 8 charges against plaintiffs, the Office of Administrative Law of 9 the State of California expressed concern that the terms of the 10 Chiropractic Act may prohibit the practice of MUAs by 11 chiropractors, yet declined to decide the matter due to an 12 insufficient record.9 Specifically, the office reasoned that 13 there is “a question of whether this regulation [to allow MUAs] 14 is consistent with the provisions of section 7 of the 15 [Chiropractic] Act providing that a license to practice 16 chiropratic ‘shall not authorize . . . the use of any drug or 17 18 19 20 21 22 23 24 25 26 9 In their motions, defendants seek judicial notice of and cite to a decision of the Office of Administrative Law for the State of California, which disapproved of a California Board of Chiropractic Examiner’s proposed regulatory amendment permitting licensed chiropractors to perform MUAs because the regulation did not comply with the “consistency, authority, necessity, and clarity standards of the Administrative Procedure Act.” This decision is judicially noticeable because it is “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned,” Fed. R. Evid. 201(b). However, it is not relevant to determine whether the law concerning MUAs was legal at the time defendants initiated criminal charges against plaintiffs. Specifically, the decision was issued on October 11, 2005, and criminal complaints were filed against plaintiffs in January and August of 2005. Nonetheless, the reasoning in this decision does bear upon whether a reasonable person at around the same time could have reached a conclusion that MUAs were illegal. 18 1 medicine.” State of California Office of Administrative Law, 2 Decision of Disapproval of Regulatory Action, OAL File No. 05- 3 0826-03 S (October 11, 2005). The office continued to state that 4 while the proposed regulation “does not authorize a chiropractor 5 to administer anesthesia,” it may nonetheless violate the terms 6 of the Act. Id. (emphasis in original). Specifically, the office 7 argued that the term “use” is broader than the term 8 “administer,” and the Act prohibits the use of any drug or 9 medicine in the practice of chiropractic.” Id. (emphasis in 10 original). “If the use of anaesthesia is integral to the 11 performance of MUA, and if anaesthesia is a ‘drug,’ it is highly 12 questionable whether the regulation is consistent with the Act’s 13 prohibition on ‘the use of any drug or medicine.’” Id. Thus, at 14 approximately the same time that defendants filed charges 15 against plaintiffs, a state agency expressed concern that the 16 practice of MUAs by chiropractors may violate the Chiropractic 17 Act’s prohibition on the use of drugs. This reasoning provides 18 further support that the law was not clearly established as to 19 whether MUAs were lawful at the time defendants filed criminal 20 charges against plaintiffs, and consequently, that defendants 21 may have reasonably believed that MUAs were unlawful.10 22 23 Based on California case law, plaintiffs can, and do, make a reasonable argument that MUAs are not prohibited because a 24 25 26 10 While, of course, the court need not, nor does it take sides in the interagency scuffle, the court notes the Office's opinion to demonstrate the unsettled nature of the controversy. 19 1 doctor administers the anaesthesia. However, a reasonable 2 attorney or investigator could view the same statute and case 3 law and conclude that the practice of MUAs was illegal in that a 4 chiropractor performs a procedure with the use of drugs. 5 Because the law was not clearly established, defendants are 6 entitled to qualified immunity to the extent that plaintiffs’ 7 claims rely on MUAs being lawful. 2. 8 Application to Plaintiffs’ Claims Under § 1983 a. 9 Plaintiffs’ First Amendment Claims 10 Plaintiffs allege that defendants violated the First 11 Amendment by depriving them of their “right(s) to speak freely 12 and practice their profession.” SC ¶ 13; YC ¶ 13; OC ¶ 13. 13 Plaintiffs allege no facts to support a claim that their right 14 to speak freely was limited. As such, plaintiffs have not stated 15 a claim for relief under that theory.11 b. 16 17 Plaintiffs’ Fourth Amendment Claims Similarly, plaintiffs’ Fourth Amendment claims for unlawful 18 search, seizure, and arrest depend upon their being “no factual 19 or legal basis for their prosecution” and investigation. SC ¶ 20 12; YC ¶ 12; OC ¶ 12. Because it is not clearly established that 21 MUAs are legal, it is not clearly established that plaintiffs 22 were searched, seized, and arrested without probable cause (i.e. 23 without a legal or factual basis). For these reasons, Weydert 24 25 26 11 To the extent that any alleged violation arises by virtue of plaintiffs' claims that MUAs are lawful, the uncertain state of the law would also preclude this cause of action. 20 1 and Coffey are entitled to qualified immunity on plaintiffs’ 2 Fourth Amendment claims. 3 4 c. Plaintiffs’ Due Process Claims In their opposition, plaintiffs identify their claims as 5 substantive due process, however plaintiffs’ complaints and 6 arguments in the opposition suggest that they actually have pled 7 a procedural due process claim. Specifically, plaintiffs allege 8 that they were “deprived . . . of their . . . rights to lawfully 9 practice their profession . . . without due process of law. SC ¶ 10 13; YC ¶ 13; OC ¶ 13. Nonetheless, regardless of which sort of 11 due process claim plaintiffs have alleged, their claim relies 12 upon their practice being lawful. As described above, it is not 13 clearly established that plaintiffs’ performance of MUAs was 14 lawful, and, as such, Weydert and Coffey are entitled to 15 qualified immunity for this claim as well. 16 17 d. Plaintiffs’ Malicious Prosecution Claims As described in this court’s previous order concerning the 18 motion to dismiss Ambrose’s complaint, Doc. No. 29, to succeed 19 on a malicious prosecution claim, plaintiffs must show that the 20 proceeding was (1) pursued to a legal termination favorable to 21 the plaintiff; (2) brought without probable cause; (3) initiated 22 with malice; and (4) brought for the purpose of denying a 23 specific constitutional right. See Womack v. County of Amador, 24 551 F. Supp. 2d 1017, 1031 (E.D. Cal. 2008). Because it is not 25 clearly established whether MUAs are lawful, it is also not 26 clearly established that Weydert and Coffey brought criminal 21 1 proceedings against plaintiffs without probable cause. 2 Defendants could have reasonably believed that plaintiffs 3 conduct was unlawful, and because plaintiffs admit that they 4 were performing MUAs, the proceedings were brought with probable 5 cause. Thus, Weydert and Coffey are entitled to qualified 6 immunity as to plaintiffs’ malicious prosecution claims. IV. CONCLUSION 7 8 9 For the foregoing reasons, defendants County of San Joaquin, Gary Coffey, and James C. Weydert’s motions to dismiss 10 plaintiffs Richard Sausedo and Pedram Vaezi’s, Michael Yates’s 11 and Wilmer D. Origel’s complaints are GRANTED. Complaints are 12 dismissed without prejudice as to these defendants, and with 13 leave to amend.12 Plaintiffs are given twenty (20) days from the 14 date this order is issued to file any amended complaints. 15 IT IS SO ORDERED. 16 DATED: December 23, 2009. 17 18 19 20 21 22 23 24 25 26 12 The court grants leave to amend for theories of liability that do not depend on MUAs being legal and theories for which Weydert and Coffey would not be entitled to qualified immunity. 22
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