-CMK Chico Scrap Metal, Inc. et al v. Robinson et al, No. 2:2011cv01201 - Document 54 (E.D. Cal. 2011)

Court Description: ORDER granting 31 Motion to Dismiss signed by Judge John A. Mendez on 11/22/11: All of Plaintiffs' claims against Defendants are dismissed with prejudice. (Kaminski, H)
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-CMK Chico Scrap Metal, Inc. et al v. Robinson et al Doc. 54 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CHICO SCRAP METAL, INC., a California corporation; GEORGE W. SCOTT, SR., individually and as trustee of GEORGE W. SCOTT, SR. REVOCABLE INTER VIVOS TRUST DATED SEPTEMBER 25, 1995, ) ) ) ) ) ) ) Plaintiffs, ) ) v. ) ) DEBBIE RAPHAEL, in her official ) capacity as Director of ) California Department of Toxic ) Substances Control; LEONARD ) ROBINSON, in his official ) capacity as former Acting ) Director of the California ) Department of Toxic Substances ) Control; RAYMOND LECLERC, in his ) official capacity as the ) Assistant Deputy Director of ) California Department of Toxic ) Substances; DIANE SHERIDAN, in ) her official capacity as an ) employee of California ) Department of Toxic Substances ) Control; NANCY LANCASTER, an ) individual; SAMUEL MARTINEZ, JR, ) an individual; VIVIAN MURAI, an ) individual; STEVEN BECKER, an ) individual; LEONA WINNER, an ) individual; MICHAEL RAMSEY, in ) his official capacity as ) District Attorney of Butte ) ) Case No. 2:11-CV-1201-JAM-CMK ORDER GRANTING THE DISTRICT ATTORNEY DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT 1 Dockets.Justia.com 1 2 3 County; HAROLD THOMAS, an individual; GEORGE BARBER, an individual; and DOES 1-20, inclusive, Defendants. 4 ) ) ) ) ) ) ) This matter comes before the court on Defendants Michael 5 6 Ramsey in his official capacity, Harold Thomas in his individual 7 capacity, and George Barber in his individual capacity’s 8 (collectively Defendants ) Motion to Dismiss First Amended 9 Complaint Pursuant to Federal Rule of Civil Procedure 12(B)(1) and 10 (6) (Doc. #31).1 11 Scott, Sr., individually and as trustee of the George W. Scott, Sr. 12 Revocable Inter Vivos Trust Dated September 25, 1995 (collectively 13 Plaintiffs ) oppose the motion ( Opposition ) (Doc. #47). 14 Defendants filed a reply to Plaintiffs’ opposition (Doc. #50). Plaintiffs Chico Scrap Metal, Inc., and George W. 15 I. 16 FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY This action arises out of state enforcement of hazardous waste 17 18 laws against Plaintiffs at four operating scrap metal facilities. 19 Defendants, all associated with the Butte County District 20 Attorney’s Office, initiated an investigation and then allegedly 21 acted with the Department of Toxic Substances Control ( DTSC ), 22 members of which are also defendants in this action, to impose 23 clean-up requirements on Plaintiffs’ four commercial properties. 24 Plaintiffs bring three causes of action against Defendants in their 25 First Amended Complaint ( FAC ) (Doc. #17). 26 (1) injunctive relief and (2) damages pursuant to 42 U.S.C. § 1983. 27 28 1 They seek This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was originally scheduled for September 21, 2011. 2 1 Plaintiffs also seek (3) a declaration of the Defendants’ legal 2 right to continue enforcing existing clean-up orders. 3 Beginning in 2007, DTSC working with Defendants investigated 4 Plaintiffs for various criminal violations related to the operation 5 of Chico Scrap Metal. 6 not intended to enforce California hazardous waste laws, but that 7 the investigation was instead intended to produce revenue for DTSC 8 and Defendants. 9 investigation was not to protect the public health or enforce the 10 law because the primary motivation was revenue generation through 11 the levying of fines and enforcement costs against Plaintiffs. 12 Plaintiffs allege that the investigation was Plaintiffs also allege that the motivation for the The investigation culminated in Plaintiffs’ agreement to 13 several DTSC consent orders requiring compliance with a DTSC 14 monitored environmental remediation program. 15 filed criminal felony charges against Plaintiffs, leading to 16 Plaintiffs’ pleas of nolo contendere in exchange for a plea 17 agreement. 18 referenced and incorporated the DTSC consent orders, requiring 19 compliance with them as a term of Plaintiffs’ probation. Further, Defendants The plea agreement between Plaintiffs and Defendants 20 A. Defendants’ 2007 Investigation 21 In 2007, Defendants started investigating Plaintiffs’ 22 business. The first sample taken from Plaintiffs’ property was 23 acquired by Defendant Barber and tested by DTSC. 24 that this sample, which was the basis for Defendants’ 25 investigation, was taken without a proper sampling plan and was 26 tested improperly by DTSC. 27 obtained through the reckless use of unsound testing methods in 28 order to yield evidence of waste, which was subsequently Plaintiffs allege Plaintiffs claim that the sample was 3 1 mischaracterized as hazardous. Plaintiffs allege the following 2 improprieties: (1) Defendants had no sampling plan; (2) Defendants 3 did not apply the proper scrap metal industry exemptions to the 4 sample; and (3) the testing performed on the samples was done 5 incorrectly. 6 B. 7 In 2008, both DTSC and Defendants carried out enforcement The DTSC Orders and Plaintiffs’ Criminal Conviction 8 actions against Plaintiffs. After DTSC imposed an Imminent 9 Endangerment Order shutting down one of Plaintiffs’ sites, 10 Plaintiffs agreed to consent orders that permitted DTSC to 11 investigate and monitor Plaintiffs’ businesses. 12 required Plaintiffs to pay fees and costs to DTSC. 13 The orders also In October, 2008, Plaintiffs pleaded nolo contendere to a 14 series of misdemeanors in state court pursuant to a plea agreement 15 with Defendants. 16 felonies to misdemeanors. 17 investigation and cleanup costs incurred by DTSC up to that point. 18 Further, Plaintiffs agreed to abide by the terms of the DTSC 19 orders. 20 suspended pending successful completion of Plaintiffs’ probation, 21 but no term of imprisonment was imposed. 22 incorporates the DTSC orders, DTSC was not a party to the plea 23 agreement. Defendants agreed to reduce all charges from Plaintiffs agreed to pay $181,000 for Finally, Plaintiffs were fined $700,000 with $500,000 While the plea agreement 24 C. Events Leading to the Present Litigation 25 Plaintiffs allege that they began to question to necessity of 26 DTSC and Defendants’ actions for a number of reasons. First, 27 Plaintiffs hired an independent expert in 2009 who was a former 28 manager at the DTSC laboratory. That expert allegedly identified 4 1 various deficiencies in the testing system used by DTSC on samples 2 taken from Plaintiffs’ properties. 3 Plaintiffs allege that DTSC investigations at two out of four Chico 4 Scrap Metal properties determined that no hazardous waste existed. 5 Plaintiffs claim that DTSC was not willing to modify its orders, 6 even though Plaintiffs’ consultants determined that any problems 7 that did exist could be managed by existing procedures at the 8 sites. 9 Then, in 2010 and 2011, DTSC subsequently reported to Defendants that Plaintiffs were 10 no longer complying with the DTSC orders. 11 with Plaintiffs’ cleanup efforts, the alleged reason for DTSC’s 12 noncompliance report is that Plaintiffs objected to being double- 13 billed by both DTSC and Defendants for the $181,000 in costs 14 preceding the state court conviction. 15 Rather than any concern Plaintiffs filed the present lawsuit to challenge the DTSC 16 consent orders and the actions taken by all defendants leading up 17 to those orders. 18 plea agreement. 19 Plaintiffs do not plead claims arising from the Defendants’ response to Plaintiffs’ allegations is emphatic: 20 This action arises out of the civil and criminal proceedings 21 against Plaintiffs stemming from the finding of hazardous waste at 22 all four of Plaintiffs’ scrap metal sites in Butte County. 23 at 1. MTD, 24 25 II. OPINION 26 A. 27 A party may move to dismiss an action for failure to state a 28 Legal Standard claim upon which relief can be granted pursuant to Federal Rule of 5 1 Civil Procedure 12(b)(6). In considering a motion to dismiss, the 2 court must accept the allegations in the complaint as true and draw 3 all reasonable inferences in favor of the plaintiff. 4 Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by 5 Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 6 322 (1972). 7 are not entitled to the assumption of truth. 8 129 S. Ct. 1937, 1950 (2009) (citing Bell Atl. Corp. v. Twombly, 9 550 U.S. 544, 555 (2007)). Scheuer v. Assertions that are mere legal conclusions, however, Ashcroft v. Iqbal, To survive a motion to dismiss, a 10 plaintiff needs to plead enough facts to state a claim to relief 11 that is plausible on its face. 12 Dismissal is appropriate where the plaintiff fails to state a claim 13 supportable by a cognizable legal theory. 14 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 15 Twombly, 550 U.S. at 570. Balistreri v. Pacifica Upon granting a motion to dismiss for failure to state a 16 claim, the court has discretion to allow leave to amend the 17 complaint pursuant to Federal Rule of Civil Procedure 15(a). 18 Dismissal with prejudice and without leave to amend is not 19 appropriate unless it is clear . . . that the complaint could not 20 be saved by amendment. 21 316 F.3d 1048, 1052 (9th Cir. 2003). 22 23 24 B. Eminence Capital, L.L.C. v. Aspeon, Inc., Discussion 1. Jurisdiction Defendants raise three jurisdictional doctrines in their 25 motion: the Rooker-Feldman doctrine, Younger abstention, and the 26 exhaustion requirement established by Heck v. Humphrey. 27 these doctrines applies to the claims before the Court, the Court 28 must grant Defendants’ motion, or at least stay proceedings pending 6 If any of 1 resolution of the state court action. 2 3 a) Heck v. Humphrey Defendants argue that Plaintiffs’ claims are barred by the 4 rule set forth in Heck v. Humphrey, 512 U.S. 477 (1994), because 5 Plaintiffs’ success in this suit will call into question the 6 validity of their state law convictions. 7 respond that success in this lawsuit does nothing to change the 8 state law convictions, as the conduct at issue here is distinct 9 from the state court criminal decisions. MTD, at 5. Plaintiffs Opp., at 8. 10 The Heck rule is simple: if finding in favor of a § 1983 11 plaintiff would necessarily imply the invalidity of his conviction 12 or sentence the complaint must be dismissed. 13 L.A., 632 F.3d 607, 611 (9th Cir. 2011) (quoting Heck, 512 U.S. at 14 486-87). 15 Szajer v. City of Defendants offer two cases to support the argument that 16 Plaintiffs’ lawsuit calls into question the validity of Plaintiffs’ 17 state court conviction. 18 In Szajer, the plaintiffs were convicted of illegally possessing a 19 particular weapon in state court based on nolo contendere pleas. 20 Szajer, 632 F.3d at 609. 21 convictions was found when the police executed a search warrant at 22 the plaintiffs’ business and home. 23 contest or question the legality of the searches during the course 24 of the state proceedings. 25 plaintiffs filed suit in federal court to recover damages for what 26 they alleged were illegal searches. 27 that declaring the search warrant invalid necessarily called into 28 question the state court conviction because there was no evidence First, they rely on Szajer. MTD, at 9. The only evidence supporting their Id. Id. The plaintiffs did not After entering their pleas, the 7 Id. at 609-10. The court held 1 other than that recovered by the police during the execution of the 2 search warrant to support the charge that they illegally possessed 3 the weapon. 4 plaintiffs did not provide any other basis for the discovery of 5 the assault weapon found in their home, which formed the basis of 6 the plea conviction. 7 Id. at 612. The Szajer court noted that the Id. Plaintiffs in this case respond to Szajer by contending that 8 other evidence can provide a basis for their state court conviction 9 independently of the DTSC orders and investigation. Opp., at 10. 10 This information includes admissions of Plaintiff Scott, 11 observations made by Defendant Barber, and allegations of unsafe 12 working methods used by Plaintiffs at one of their facilities. 13 Defendants next rely upon Price v. Schwarzenegger, 344 F. Id. 14 App'x 375 (9th Cir. 2009). 15 federal action alleging denial of due process at a parole hearing 16 and in the imposition of a mandatory parole term. 17 court dismissed the claim challenging the mandatory parole term on 18 the grounds that the parole term was a statutorily required 19 consequence of the guilty plea in the prior state court proceeding. 20 Id. at 376. 21 the plea agreement itself, the court held that Heck barred the 22 federal court action. 23 that the DTSC orders became a mandatory consequence of their plea 24 agreement, and, therefore, like Price, Plaintiffs’ request to 25 invalidate the DTSC Order is barred by Heck. 26 In Price, the plaintiff brought a Id. at 375. The Since the only way to avoid parole was to invalidate Id. Defendants rely on Price on the grounds Reply, at 4. Plaintiffs respond to Defendants’ arguments by claiming that 27 successfully challenging the DTSC Orders in this federal action 28 against Defendants will not change the status of their state court 8 1 convictions. Plaintiffs argue that the state court conviction is 2 based on their nolo contendere pleas, not the legal validity of the 3 DTSC orders. Plaintiffs cite two Ninth Circuit cases in support of 4 their argument that a conviction based on a nolo contendere plea 5 does not in any way depend on the validity of the evidence 6 underlying the conviction. 7 3836467, at *4 (9th Cir. Aug. 31, 2011) (citing Ove v. Gwinn, 264 8 F.3d 817, 823 (9th Cir. 2001)). Plaintiffs’ argument fails for two 9 reasons. Lockett v. Ericson, — F.3d —, 2011 WL First, in this case the DTSC orders are not evidence used 10 to support the plea agreement, they are prospective requirements of 11 the plea agreement and the state court terms of probation. 12 permitting Defendants to challenge the DTSC orders in federal court 13 would effectively invalidate the state court’s mandate that 14 Plaintiffs abide by the terms of those orders. 15 kind of action barred by Heck, and Lockett’s holding is 16 inapplicable to the facts of the present case. 17 Second, This is exactly the Defendants’ position is clearly supported by both Price and 18 Szajer. 19 guilty plea, the term of parole, was deemed inseparable from the 20 plea agreement. 21 terms of the DTSC orders are incorporated by reference in the plea 22 agreement itself and are similarly inseparable. 23 invalidating the parole term also invalidated the plea agreement, 24 and that is the functional effect in this case as well. 25 orders are clearly a mandatory term of Plaintiffs’ plea agreement. 26 Heck, as explained by Szajer and Price, bars Plaintiffs’ federal 27 claims against Defendants. 28 In Price, the mandatory consequence of the plaintiff’s Price, 344 F. App’x. at 376. In this case, the In Price, The DTSC Accordingly, the Court GRANTS Defendants’ motion to dismiss on 9 1 these grounds. 2 a) 3 The Rooker-Feldman Doctrine & Younger Abstention 4 Having granted dismissal on the basis of Heck v. Humphrey, the 5 Court need not reach Defendants’ motion insofar as it relies on the 6 Rooker-Feldman doctrine and Younger abstention. The Court also 7 declines to reach Defendants’ argument that Plaintiffs failed to 8 properly plead an equal protection claim. 9 10 2. Defendants’ Immunity Defendants also seek dismissal claiming that they are immune 11 from suit. The Court will address each of the three immunities 12 raised by Defendants and finds, as an alternative ground for 13 dismissal, that Defendants have qualified immunity in this action. 14 15 a) Absolute Immunity Defendants argue that they are absolutely immune from suit 16 because prosecutors enjoy absolute immunity for actions taken as 17 officers of the court. 18 absolute immunity for Defendants’ actions because Plaintiffs’ 19 claims stem from two areas where absolute immunity is not 20 applicable: 1) giving advice to police during an investigation, and 21 2) making statements to the press. Plaintiffs respond that there is no 22 Prosecutors are absolutely immune from liability under Section 23 1983 for their conduct in initiating a prosecution when the conduct 24 is intimately associated with the judicial phase of the criminal 25 process. 26 citations omitted). 27 to suits for damages, it does not bar suits for prospective 28 injunctive relief. Burns v. Reed, 500 U.S. 478, 486 (1991) (internal Absolute prosecutorial immunity only extends Supreme Court of Virginia v. Consumers Union of 10 1 the United States, Inc., 446 U.S. 719, 736-37 (1980).2 2 3 The Ninth Circuit explained when absolute prosecutorial immunity is applicable: [T]he actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor. Prosecutorial immunity depends on the nature of the function performed, not the identity of the actor who performed it. Prosecutors are entitled to qualified immunity, rather than absolute immunity, when they perform administrative functions, or investigative functions normally performed by a detective or police officer. 4 5 6 7 8 9 Genzler v. Longanbach, 410 F.3d 630, 636 (9th Cir. 2005) (internal 10 citations omitted). 11 prosecutors perform functions intimately associated with the 12 judicial process, it does not apply when prosecutors perform the 13 same function as police during the early stages of an 14 investigation, or when prosecutors hold a defamatory press 15 conference. 16 259, 270 (1993)). 17 Since absolute immunity only applies when Id. at 637 (citing Buckley v. Fitzsimmons, 509 U.S. Defendants argue that once Defendant Barber collected a sample 18 from Plaintiffs property and it tested positive for hazardous 19 waste, probable cause existed and absolute immunity kicked in at 20 that point. 21 bright line rule for when absolute immunity applies. 22 F.3d at 637 ( The analysis of whether prosecutorial acts constitute Defendants are incorrect, however, because there is no Genzler, 410 23 2 24 25 26 27 28 Only defendants Barber and Thomas are sued for damages in Plaintiffs’ first cause of action. FAC, at 41. Plaintiffs do, however, indicate that Defendant Ramsey ratified Defendants Barber and Thomas’s conduct. FAC, at 42. Plaintiffs have not clearly stated a claim against Mr. Ramsey, but even if they had, he is immune from § 1983 liability because he is a state official and not a person for § 1983 purposes. Weiner v. San Diego County, 210 F.3d 1025, 1031 (9th Cir. 2000) (holding that a district attorney is a state official when prosecuting a criminal violation and is not subject to § 1983 liability). 11 1 advocacy or police-type investigative work is complicated by the 2 fact that the Supreme Court has resisted any attempt to draw a 3 bright-line between the two. ). 4 of activity performed and its relation to the judicial process. 5 Id. at 637-38. 6 The analysis focuses on the type In this case, Plaintiffs argue that Defendants do not enjoy 7 absolute immunity for the advice that they provided to DTSC. The 8 allegation is that Defendant Barber assisted DTSC in investigating 9 Plaintiffs’ assets and the best course of action to take in 10 assessing DTSC penalties, as distinct from the subsequent criminal 11 prosecution. 12 however, is that they do not indicate how giving advice to DTSC is 13 necessarily separate from the work Defendants did in preparing 14 their own criminal prosecution of Plaintiffs. 15 that establishing probable cause does not necessarily establish 16 absolute prosecutorial immunity, in this case Defendants were 17 engaging in their own prosecution. 18 authority that suggests that sharing resources and recommendations 19 with a state regulatory agency, DTSC, is grounds upon which 20 absolute immunity can be denied or waived. 21 Opp., at 16. The problem with Plaintiffs’ position, While it is true Plaintiffs do not cite The proper inquiry is instead whether or not Defendants’ 22 investigatory work is of the type normally done by police . . . or 23 whether an investigation is bound up with the judicial 24 process . . . . 25 Defendants clearly explain that they were working with DTSC in an 26 investigatory capacity to gather evidence prior to the December 2007 27 to January 2008 period, when the decision to initiate criminal 28 prosecution was finally made. Genzler, 410 F.3d at 638. MTD, at 1. 12 In the present case, Defendants agree that 1 they spent over 40 hours planning the execution of a search warrant 2 on Plaintiffs’ properties and conducting an asset search on 3 Plaintiffs. 4 the later decision to initiate a criminal prosecution. 5 that the decision to prosecute either civilly or criminally was not 6 made until after the execution of the search warrant (MTD, at 1), 7 Defendants’ investigatory efforts were too attenuated from the 8 judicial process to support absolute immunity. 9 Id. These actions give rise to Plaintiffs’ claims, not Considering Plaintiffs’ complaint alleges that Defendants engaged in 10 police-like investigatory actions prior to initiating judicial 11 proceedings. 12 such actions. 13 capacity for injunctive relief, and absolute immunity does not 14 limit that claim. 15 at 736-37. 16 grounds is DENIED. 17 Absolute prosecutorial immunity does not extend to Defendant Ramsey has been sued only in his official FAC, at 42; Supreme Court of Virginia, 446 U.S. Accordingly, Defendants’ motion to dismiss on these b) 18 Sovereign Immunity Defendants also argue that Plaintiffs’ second claim for relief 19 against Defendant Ramsey in his official capacity is barred by the 20 11th Amendment to the United States Constitution. 21 Prospective injunctive relief against state officials in their 22 official capacity is not prohibited by the 11th Amendment. 23 v. Jordan, 415 U.S. 651, 664 (1974) (citing Ex parte Young, 209 24 U.S. 123 (1908)). 25 equivalent of requiring a payment made out of the state treasury is 26 barred by the 11th Amendment, but prospective injunctive relief is 27 not. 28 Edelman Retroactive equitable relief which is the Id. at 668-69. In this case, Plaintiffs seek to enjoin enforcement of the 13 1 DTSC Orders prospectively, which will not require any payment from 2 the state treasury. 3 c) 4 The 11th Amendment does not bar this claim. Qualified Immunity Defendants finally argue that they are immune from suit in 5 this instance because of qualified immunity. 6 that there was no rational basis for Defendants’ decision to 7 investigate Plaintiffs’ property for hazardous substances, making 8 qualified immunity inapplicable. 9 Plaintiffs respond The doctrine of qualified immunity shields public officials 10 sued in their individual capacity from monetary damages, unless 11 their conduct violates clearly established law that would be 12 known to a reasonable public officer. 13 194, 199 (2001). 14 Saucier v. Katz, 533 U.S. The Court must make a two-step inquiry in deciding the issue 15 of qualified immunity. 16 must determine whether, under the facts alleged, taken in the light 17 most favorable to the plaintiff, a violation of a constitutional 18 right occurred. 19 constitutional right was clearly established at the time of the 20 violation. 21 Id. Saucier, 533 U.S. at 200. First, the court If so, the court must then ask whether the Id. Initially, the Supreme Court in Saucier held that these two 22 inquiries must be decided in rigid order. Saucier, 533 U.S. at 23 200. 24 of a constitutional right occurred before it could evaluate whether 25 the right was clearly established. 26 there are cases in which it is plain that a constitutional right 27 is not clearly established but far from obvious whether in fact 28 there is such a right, the Supreme Court recently relaxed the That is, a district court had to resolve whether a violation 14 Recognizing, however, that 1 order of analysis. 2 In Pearson, the Court held that the Saucier analysis may be 3 addressed in either order if the second step is clearly dispositive 4 and can address the matter efficiently. 5 Pearson v. Callahan, 555 U.S. 223, 237 (2009). Id. at 241-42. In this case, the parties do not dispute that Plaintiffs’ 6 allegations concern a clearly established constitutional right: 7 violation of the 14th Amendment’s guarantee of equal protection. 8 The Court is only left with deciding whether or not Plaintiffs 9 adequately allege an actual violation of that right. 10 Plaintiffs claim that the DTSC investigation, assisted and 11 encouraged by Defendants, had no rational basis. 12 Plaintiffs allege that DTSC neither produced evidence to support a 13 rational basis for the investigation of Plaintiffs’ properties, nor 14 did they show that other similarly situated scrap metal facilities 15 were also investigated. 16 class of one, were intentionally treated differently from other 17 scrap yards. 18 obtained by Defendant Barber from Plaintiffs’ property that tested 19 positive for hazardous waste according to the DTSC provided the 20 rational basis for the investigation. 21 Defendants argue that merely pointing out that other scrap metal 22 facilities were not investigated is insufficient to show an equal 23 protection violation. Id. Id. at 20. Opp., at 19. Plaintiffs’ claim is that they, as a Defendants respond that the sample Id. at MTD, at 15. Further, 15-16. 24 A valid class of one claim arises where an entity can show 25 that it has been intentionally treated differently from others 26 similarly situated and there is no rational basis for the 27 difference in treatment. 28 562, 564 (2000). Vill. of Willowbrook v. Olech, 528 U.S. 15 1 Plaintiffs did not adequately plead that Defendants violated 2 their right to equal protection, and the arguments in their briefs 3 indicate that they may not be able to. 4 example, focuses on DTSC’s actions because this suit does not 5 challenge Plaintiffs’ criminal conviction, for which Defendants are 6 responsible. 7 properly test materials retrieved from Plaintiffs’ properties. 8 Defendants merely assisted and encouraged DTSC. 9 Plaintiffs also argue, in an attempt to overcome the Heck bar Plaintiffs’ Opposition, for It was, Plaintiffs allege, DTSC that failed to Opp., at 19. 10 discussed above, that Defendants based their investigation and 11 prosecution on other evidence including Defendant Barber’s 12 observations and Plaintiff Scott’s own admissions. 13 testing did not provide a rational basis for Defendants’ 14 investigation, then this other information did. 15 their equal protection claim in an attempt to win the Heck battle, 16 but as a result they lose the war. If the DTSC Plaintiffs pleaded 17 It is also meaningful that Plaintiffs do not allege that any 18 other similarly situated scrap metal facility tested positive for 19 hazardous waste. 20 other scrap metal facilities are not subject to DTSC enforcement 21 actions. 22 facilities tested positive for hazardous waste and despite that, 23 Defendants chose to only investigate Plaintiffs. 24 plaintiffs must demonstrate that they were treated differently than 25 someone who is prima facie identical in all relevant respects[,] 26 but they have not done that. 27 CV F 05–1184 LJO SMS, 2008 WL 2690431, at *9 (E.D. Cal. July 3, 28 2008) (internal quotations omitted). It is not enough for Plaintiffs to allege that They must also allege that these other scrap metal To succeed, Occhionero v. City of Fresno, No. 16 1 The Court finds that Plaintiffs’ allegations indicate that 2 there was a rational basis for Defendants’ investigation. 3 Defendants are alleged to have relied on the DTSC testing and other 4 independent evidence to support their investigation. 5 Plaintiffs have not pleaded that any other similarly situated scrap 6 metal facility was not investigated despite testing positive for 7 hazardous waste. 8 against Defendants in their individual capacities is also GRANTED 9 on the alternative grounds that Defendants have qualified immunity 10 Further, Accordingly, the motion to dismiss the claims from suit. 11 12 13 14 III. ORDER For all the foregoing reasons, it is hereby ordered that all 15 of Plaintiffs’ claims against Defendants are dismissed with 16 prejudice. 17 18 19 IT IS SO ORDERED. Dated: November 22, 2011 ____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 17