Boyd v. Santa Cruz County et al, No. 5:2015cv00405 - Document 81 (N.D. Cal. 2015)
Court Description: ORDER GRANTING 61 , 66 MOTIONS TO DISMISS WITH LEAVE TO AMEND; AND TERMINATING 63 , 64 MOTIONS FOR JOINDER AS MOOT. Signed by Judge Beth Labson Freeman on 10/13/2015. (blflc1, COURT STAFF) (Filed on 10/13/2015)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 MICHAEL BOYD, 8 Case No. 15-cv-00405-BLF Plaintiff, 9 v. 10 SANTA CRUZ COUNTY, et al., 11 United States District Court Northern District of California Defendants. ORDER GRANTING MOTIONS TO DISMISS WITH LEAVE TO AMEND; AND TERMINATING MOTIONS FOR JOINDER AS MOOT [RE: ECF 61, 63, 64, 66] 12 13 14 Before the Court are the following motions, directed to the operative first amended 15 complaint (“FAC”) filed by Plaintiff Michael Boyd: (1) a motion to dismiss or, in the alternative, 16 for a more definite statement filed by Defendants Santa Cruz County, Santa Cruz County Board of 17 Supervisors, individual board members John Leopold, Zach Friend, Neal Coonerty, Greg Caput, 18 and Bruce McPherson, and Fire Chief Scott M. Jalbert (collectively, “County Defendants”)1; (2) a 19 motion to dismiss filed by Defendants City of Santa Cruz, Santa Cruz City Council, City 20 Councilmembers Pamela Comstock, David Terrazas, Hillary Bryant, Cynthia Mathews, and 21 Micah Posner, Mayor Lynn Robinson, Vice Mayor Don Lane, Former Mayor Katherine Beiers, 22 Deputy Chief of Police Rick Martinez, and President of City of Santa Cruz Firefighters Charles 23 Prevedelli (collectively, “City Defendants”); (3) a motion for joinder in County Defendants’ 24 motion filed by Defendant Colin Disheroon; and (4) a motion for joinder in County Defendants’ 25 motion filed by Defendants Sempervirens Fund and Fred Keeley. 26 1 27 28 County Defendants also filed an answer to the FAC, stating that they did so in an abundance of caution because they had filed an answer to the original complaint. See County Defs.’ Answer at 1 n.1, ECF 62. County Defendants expressly request that the Court consider and rule on their pending motion. Id. 1 After the motions were filed, the Court approved the parties’ stipulated request for 2 dismissal of Plaintiff’s claims against Defendants Rick Martinez, Charles Prevedelli, Fred Keeley, 3 Sempervirens Fund, Katherine Beiers, Scott Jalbert, and Colin Disheroon. See Order Approving 4 Stipulation, ECF 71. Accordingly, the motions for joinder brought by Defendants Disheroon, 5 Sempervirens Fund, and Keeley are TERMINATED as MOOT. The Court heard oral argument on the motions to dismiss on September 10, 2015. During 7 the hearing, Plaintiff expressed some reluctance to proceed in federal court. The Court suggested 8 that Plaintiff meet and confer with moving parties’ counsel to discuss the possibility of voluntarily 9 dismissing the federal claims from this action. On September 18, 2015, the parties submitted a 10 status update informing the Court that Plaintiff had elected not to dismiss his federal claims and 11 United States District Court Northern District of California 6 that he wished the Court to rule on the pending motions. See Status Update, ECF 80. Having 12 considered the briefing, the relevant legal authorities, and the oral argument presented at the 13 hearing, the Court hereby GRANTS the motions to dismiss WITH LEAVE TO AMEND. I. 14 BACKGROUND Plaintiff, proceeding pro se, filed this action in the Santa Cruz County Superior Court on 15 16 July 15, 2014. Compl., Notice of Removal Exh. B, ECF 1-2. The complaint was removed to 17 federal district court on the basis of federal question jurisdiction. Notice of Removal, ECF 1. The 18 Court thereafter permitted Plaintiff to amend the complaint and terminated as moot motions to 19 dismiss that had been filed by several defendants. See Order of June 1, 2015, ECF 48. Plaintiff 20 filed the operative FAC on June 22, 2015. The FAC is hard to understand. It is seventy-six pages long, including exhibits. The 21 22 pleading focuses in large part on a cannabis2 business tax approved by County voters and a 23 separate cannabis business tax approved by City voters. The FAC describes in great detail the 24 events leading up to the passage of the cannabis business taxes.3 The FAC also discusses the 25 2 26 The FAC, the briefing, and the relevant case law use the terms “cannabis” and “marijuana” interchangeably. This order does the same. 27 3 28 The Court GRANTS County Defendants’ request for judicial notice of the County’s Cannabis Business Tax and related public records. See Fed. R. Evid. 201; Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1016 n.9 (9th Cir. 2012) (court may take judicial notice of matters of public 2 1 collection of sales and use taxes on marijuana, the passage of a County ordinance relating to the 2 cultivation of marijuana, and a “civil conspiracy” involving a “cartel” of marijuana growers who 3 allegedly have obtained a monopoly on medical marijuana in the Santa Cruz area. Sprinkled 4 throughout the FAC are lengthy quotations from and discussions of federal legislation relating to 5 marijuana. Plaintiff has a “Therapeutic Cannabis Recommendation” from a doctor and purchases 6 medical marijuana from dispensaries in both the County and the City. See FAC Exhs. 5 (receipts), 8 12 (Therapeutic Cannabis Recommendation), ECF 49; Notice of Cash Receipt for Cannabis 9 Business Tax Paid in the County of Santa Cruz, ECF 79. Plaintiff objects to the County and City 10 cannabis business taxes, the collection of sales and use taxes on marijuana, and what he calls the 11 United States District Court Northern District of California 7 County’s “cultivation ban” on marijuana. Although the FAC contains a number of digressions 12 regarding the alleged mistreatment of various other individuals and organizations, Plaintiff’s 13 claims on his own behalf appear to be based upon his contention that taxing his “medicine” – 14 medical marijuana – or otherwise interfering with his access to it violates his federal and state 15 constitutional rights. Plaintiff also appears to claim that the elections that resulted in the passage 16 of the cannabis business taxes were held in retaliation for Plaintiff’s exercise of his free speech 17 rights. 18 The FAC contains two separate sets of claims numbered one through seven. Claims 1-7 of 19 set one are labeled as: (1) Improper Imposition of Santa Cruz County Cannabis Business Tax; (2) 20 Improper Imposition of City of Santa Cruz Cannabis Business Tax; (3) Improper Collection by 21 County of Sales and Use Tax; (4) Improper Imposition of City of Santa Cruz Cannabis Business 22 Tax; (5) County Medical Marijuana Cultivation Ban; (6) Federal Taxpayers Claim, First 23 Amendment, Due Process Violations, and 42 U.S.C. § 1983; and (7) Free Speech. Claims 1-7 of 24 set two are labeled as: (1) California Constitution Article XIIID § 6 as to County Cannabis 25 Business Tax; (2) California Constitution Article XIIID § 6 as to City Cannabis Business Tax; (3) 26 California Constitution Article XIII § 32 as to County Sales and Use Tax; (4) California 27 28 record that are not subject to reasonable dispute). 3 1 Constitution Article XIII § 32 as to County Sales and Use Tax; (5) First Amendment, Due Process 2 Violations, and 42 U.S.C. § 1983; (6) Federal Taxpayers Claim, First Amendment, Due Process 3 Violations, and 42 U.S.C. § 1983; and (7) Free Speech. In addition to moving parties and defendants who have been dismissed from the case, 4 5 Plaintiff sues the following individuals, who do not appear to have been served as of yet: Susan 6 A. Mauriello, a County administrative officer; Kathy Previsich, a County planning director; Jim 7 Hart, Sheriff Coroner; Ryan Coonerty, a County board member; Ben Rice, identified as “the 8 grower monopoly’s Attorney”; Tamyra Rice, identified as Ben Rice’s wife and an employee of 9 County Counsel; Ian Rice, identified as the son of Ben and Tamyra Rice and a member of the “Rice Cartel”; and Jason Mathys, who apparently excluded Plaintiff from a meeting of a private 11 United States District Court Northern District of California 10 entity known as the Cannabis Advocates Alliance. See FAC ¶¶ 10, 17, 105. 12 II. DISCUSSION 13 Both motions are brought under Federal Rule of Civil Procedure 12(b)(6), which tests the 14 legal sufficiency of the claims. See Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th 15 Cir. 2011). The County alternatively seeks a more definite statement of Plaintiff’s claims under 16 Federal Rule of Civil Procedure 12(e). However, both motions assert that Plaintiff lacks Article 17 III standing, a challenge that properly should have been brought under Federal Rule of Civil 18 Procedure 12(b)(1). See Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011) (“[L]ack of 19 Article III standing requires dismissal for lack of subject matter jurisdiction under Federal Rule of 20 Civil Procedure 12(b)(1).”). The Court therefore applies Rule 12(b)(1) standards to the Article III 21 portions of Defendants’ motions. 22 A. Article III Standing 23 “Article III . . . gives the federal courts jurisdiction over only cases and controversies.” 24 Public Lands for the People, Inc. v. United States Dep’t of Agric., 697 F.3d 1192, 1195 (9th Cir. 25 2012) (internal quotation marks and citation omitted). “The oft-cited Lujan v. Defenders of 26 Wildlife case states the three requirements for Article III standing: (1) an injury in fact that (2) is 27 fairly traceable to the challenged conduct and (3) has some likelihood of redressability.” Id. at 28 1195-96 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). If those 4 1 requirements are not satisfied, the action should be dismissed for lack of subject matter 2 jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 109-10 (1998). 3 Defendants contend that Plaintiff cannot show injury in fact traceable to the cannabis 4 business taxes, because those taxes are assessed only against cannabis businesses and Plaintiff has 5 not alleged that he owns such a business. To the extent that Plaintiff asserts that dispensaries are 6 passing the cannabis business tax through to consumers, Defendants rely upon Glanton v. ALCOA 7 Prescription Drug Plan, 465 F.3d 1123 (9th Cir. 2006) to establish that such assertion fails to state 8 a claim. In Glanton, participants of ERISA plans sued a plan fiduciary, claiming that the fiduciary 9 charged too much for drugs and thus caused the plans to demand higher co-payments and contributions from participants. The plaintiffs claimed that if their suit were successful, the plans’ 11 United States District Court Northern District of California 10 drug costs would decrease and the plans then might reduce participants’ co-payments or 12 contributions. The Ninth Circuit rejected that claim, holding that nothing would force the plans to 13 lower co-payments or contributions. The court held that “[t]here is no redressability, and thus no 14 standing, where (as is the case here) any prospective benefits depend on an independent actor who 15 retains broad and legitimate discretion the courts cannot presume either to control or to predict.” 16 Id. at 1125 (internal quotation marks and citation omitted). 17 Glanton is distinguishable from the present case, in which Plaintiff has submitted receipts 18 suggesting that the County and City business taxes were directly passed on to him by dispensaries 19 from which he purchased marijuana. See FAC Exhs. 5 (receipts), ECF 49; Notice of Cash Receipt 20 for Cannabis Business Tax Paid in the County of Santa Cruz, ECF 79. The Court may consider 21 evidence submitted by the parties in deciding a Rule 12(b)(1) challenge to subject matter 22 jurisdiction. See McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). If in fact Plaintiff 23 paid the cannabis business taxes, he may be able to show that he suffered direct injury that could 24 be redressed by a ruling that the taxes are unconstitutional. Accordingly, the Court concludes that 25 Defendants have failed to demonstrate that Plaintiff lacks Article III standing to raise claims based 26 upon the cannabis business taxes. 27 28 The Court notes that although the County and City cannabis business taxes are the centerpieces of the FAC, Plaintiff does allege claims based upon the collection of sales and use 5 1 taxes and based upon the alleged cultivation ban. Accordingly, even if Defendants had succeeded 2 in showing a lack of Article III standing to challenge the cannabis business taxes, that showing 3 would not have established a lack of Article III standing with respect to the entire FAC. 4 B. Failure to State a Claim 5 Both motions assert that Plaintiff has failed to state a claim upon which relief may be 6 granted under Federal Rule of Civil Procedure 12(b)(6). When determining whether a claim has 7 been stated, the Court accepts as true all well-pled factual allegations and construes them in the 8 light most favorable to the plaintiff. Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 9 (9th Cir. 2011). However, the Court need not “accept as true allegations that contradict matters properly subject to judicial notice” or “allegations that are merely conclusory, unwarranted 11 United States District Court Northern District of California 10 deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 12 1055 (9th Cir. 2008) (internal quotation marks and citations omitted). While a complaint need not 13 contain detailed factual allegations, it “must contain sufficient factual matter, accepted as true, to 14 ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 15 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible 16 when it “allows the court to draw the reasonable inference that the defendant is liable for the 17 misconduct alleged.” Id. 18 Before addressing Plaintiff’s specific allegations, the Court makes a general observation 19 regarding the length of the FAC and the way that Plaintiff has chosen to draft it. “To survive a 20 Rule 12(b)(6) motion for failure to state a claim, a complaint must meet the requirements of 21 Federal Rule of Civil Procedure 8(a)(2).” Salman v. City of Phoenix, No. CV-12-01219-PHX- 22 JAT, 2015 WL 4272101, at *3 (D. Ariz. July 14, 2015); see also Shilling v. PolyOne Corp., No. 23 14-cv-03562-BLF, 2015 WL 3988267, at *2 (N.D. Cal. June 30, 2015) (complaint that does not 24 meet Rule 8(a) requirements may be dismissed under Rule 12(b)(6)). Rule 8(a)(2) requires that a 25 complaint contain “a short and plain statement of the claim showing that the pleader is entitled to 26 relief.” Fed. R. Civ. P. 8(a)(2). As discussed above, Plaintiff’s FAC is not short or plain. To the 27 contrary, it is very hard to follow because of its length, the duplication of Claims 1-7, the long 28 discussions of legislation and legislative history interspersed with factual allegations, and the 6 1 failure to state clearly and concisely what each defendant is alleged to have done. Accordingly, 2 the FAC is subject to dismissal for failure to comply with Rule 8(a)(2). 3 Turning to Plaintiff’s specific claims, the Court begins with those that raise a federal question. That is because Plaintiff’s failure to make out a viable federal claim would result in the 5 remand of his remaining state law claims to the Santa Cruz County Superior Court. Although a 6 district court has discretion to retain supplemental jurisdiction over state law claims after dismissal 7 of all federal claims, the Ninth Circuit has indicated that the district court ordinarily should not 8 retain state law claims in those circumstances. See Acri v. Varian Assocs., Inc., 114 F .3d 999, 9 1001 (9th Cir. 1997) (“The Supreme Court has stated, and we have often repeated, that ‘in the 10 usual case in which all federal-law claims are eliminated before trial, the balance of factors . . . 11 United States District Court Northern District of California 4 will point toward declining to exercise jurisdiction over the remaining state-law claims.’”) 12 (quoting Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988)) (ellipses in original). 13 Plaintiff’s federal claims are not clearly articulated. His first “Sixth Cause of Action,” 14 labeled “Federal Taxpayers Claim, First Amendment, Due Process Violations, and 42 U.S.C. § 15 1983,” and his first “Seventh Cause of Action,” labeled “Free Speech,” are unaccompanied by any 16 text other than statements that prior paragraphs “are incorporated herein by reference.” See FAC 17 ¶¶ 51-52. 18 Plaintiff’s second “Fifth Cause of Action,” labeled “First Amendment, Due Process 19 Violations, and 42 U.S.C. § 1983,” his second “Sixth Cause of Action,” labeled “Federal 20 Taxpayers Claim, First Amendment, Due Process Violations, and 42 U.S.C. § 1983,” and his 21 second “Seventh Cause of Action,” labeled “Free Speech,” appear to assert a federal constitutional 22 right to access to cannabis. However, that assertion is without legal basis. Congress has classified 23 cannabis as a Schedule I drug under the Controlled Substances Act. See 21 U.S.C. § 812 (c). 24 “Schedule I drugs are categorized as such because of their high potential for abuse, lack of any 25 accepted medical use, and absence of any accepted safety for use in medically supervised 26 treatment.” Gonzales v. Raich, 545 U.S. 1, 14 (2005). “By classifying marijuana as a Schedule I 27 drug, as opposed to listing it on a lesser schedule, the manufacture, distribution, or possession of 28 marijuana became a criminal offense, with the sole exception being use of the drug as part of a 7 1 2 Food and Drug Administration preapproved research study.” Id. The Ninth Circuit has recognized that “the use of marijuana for medical purposes is 3 gaining traction in the law,” but it has concluded that “legal recognition has not yet reached the 4 point where a conclusion can be drawn that the right to use medical marijuana is ‘fundamental’ 5 and ‘implicit in the concept of ordered liberty.’” Raich v. Gonzales, 500 F.3d 850, 866 (9th Cir. 6 2007). For now, “federal law does not recognize a fundamental right to use medical marijuana 7 prescribed by a licensed physician.” Id. 8 9 Plaintiff argues that use of marijuana is medically necessary for him and that the Supreme Court has left open the possibility of a “medical necessity defense” to statutes relating to marijuana. Plaintiff’s reliance upon United States v. Oakland Cannabis Buyers’ Cooperative, 532 11 United States District Court Northern District of California 10 U.S. 483 (2001), in support of that argument is misplaced. Even assuming that a plaintiff could 12 assert a medical necessity defense in the context of a civil action, Oakland Cannabis holds that “a 13 medical necessity exception for marijuana is at odds with the terms of the Controlled Substances 14 Act” and thus that “the defense is unavailable” with respect to marijuana. Id. at 491. 15 Plaintiff appears to assert that Defendants retaliated against Plaintiff’s exercise of free 16 speech rights by holding the elections that resulted in approval of the County and City cannabis 17 business taxes. See FAC ¶ 95. That conclusory assertion is unsupported by any factual 18 allegations and it is wholly implausible that the County and the City organized and held elections 19 in retaliation for Plaintiff’s speech activities. 20 Based upon the theories articulated to date, the Court cannot see how Plaintiff could amend 21 his pleading to state a viable federal claim. However, because Plaintiff is pro se and because this 22 is the first time that his pleading has been tested by a motion to dismiss, the Court will grant him 23 an opportunity to amend. If Plaintiff chooses to amend, he is advised to set forth his theories 24 clearly and concisely so as to ensure that they are recognized and addressed by the Court in the 25 event of future motion practice. 26 As noted above, the Court generally will not exercise supplemental jurisdiction over state 27 law claims once all federal claims have been dismissed. Because it is uncertain whether Plaintiff 28 ever will be able to state a viable federal claim here, the Court declines to address the sufficiency 8 1 of the state law claims at this time. 2 C. More Definite Statement 3 County Defendants request that if Plaintiff’s claims are not dismissed without leave to 4 amend, Plaintiff be required to provide a more definite statement of his claims under Federal Rule 5 of Civil Procedure 12(e). Rule 12(e) provides that “[a] party may move for a more definite 6 statement of a pleading to which a responsive pleading is allowed but which is so vague or 7 ambiguous that the party cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e). “Although 8 generally viewed with disfavor, the proper test in evaluating a Rule 12(e) motion is whether the 9 complaint provides the defendant with a sufficient basis to frame his responsive pleadings.” Zody v. Microsoft Corp., No. 12-cv-00942-YGR, 2012 WL 1747844, at *3 (N.D. Cal. May 16, 2012) 11 United States District Court Northern District of California 10 (internal quotation marks and citation omitted). As discussed above, the SAC is hard to understand because of its length, repetition, and 12 13 lack of clarity as to the alleged conduct of each defendant. Defendants have done a credible job of 14 framing responses in the form of the pending motions to dismiss. However, Defendants 15 understandably seek clarification as to the nature of the claims asserted against them. 16 Accordingly, County Defendant’s Rule 12(e) motion is GRANTED. Any amended pleading shall 17 set forth a single set of claims. Each claim shall describe the conduct giving rise to the claim, 18 identify the defendants who engaged in that conduct, and explain why the conduct was wrongful. 19 III. ORDER 20 For the foregoing reasons, IT IS HEREBY ORDERED that: 21 (1) the motions to dismiss brought by County Defendants and City Defendants under Rule 12(b)(6) are GRANTED WITH LEAVE TO AMEND as set forth herein; (2) the motion for more definite statement brought by County Defendants under Rule 12(e) is GRANTED; 24 (3) any amended pleading shall be filed on or before November 4, 2015; and 25 (4) the motions for joinder brought by Defendants Colin Disheroon, Sempervirens Fund and Fred Keeley are TERMINATED as MOOT. 22 23 26 27 28 Dated: October 13, 2015 ______________________________________ BETH LABSON FREEMAN United States District Judge 9
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