Little et al v. Gore et al, No. 3:2014cv02181 - Document 32 (S.D. Cal. 2016)
Court Description: ORDER granting in part and denying in part 21 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 22 Motion to Dismiss; granting in part and denying in part 23 Motion to Dismiss. Court grants Dfts' Motio ns to Dismiss Counts 3, 5, and 7. Counts 5 and 7 are dismissed without prejudice. Because Court gave Plaintiffs leave to amend with directions after dismissing Count 3 in the original Complaint, Court finds leave to amend this count would be futile. Court dismisses Count 3 with prejudice. Court denies Dfts' Motions to Dismiss Counts 1, 2, 4, and 6, except the Motion to Dismiss Count 6 is granted to the extent it seeks a claim against Agent Faw in his official capacity. Signed by Judge Cynthia Bashant on 5/26/2016. (jah)
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Little et al v. Gore et al Doc. 32 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DEBORAH DEE LITTLE, et al., Plaintiffs, 12 13 14 Case No. 14-cv-02181-BAS(JMA) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS v. WILLIAM D. GORE, et al., 15 [ECF Nos. 21, 22, 23] Defendants. 16 17 18 19 On September 12, 2014, Plaintiffs filed a Complaint against the Defendant 20 Officers. (ECF No. 1.) Following Defendants’ previous Motions to Dismiss, this 21 Court ordered the Complaint dismissed in part with leave to amend. (ECF No. 17.) 22 On February 29, 2016, Plaintiffs filed their First Amended Complaint (“FAC”). (ECF 23 No. 20.) Defendants now move to dismiss the FAC in its entirety. (ECF Nos. 21, 24 22, 23.) Many of the arguments in the Motions to Dismiss and Responses in 25 Opposition are largely a rehashing of the Court’s previous ruling on Defendants’ 26 earlier Motions to Dismiss. Therefore, as noted below, many of the rulings made in 27 the previous Order (ECF No. 17) are simply adopted and repeated for the purposes 28 of this Order. –1– 14cv2181 Dockets.Justia.com 1 The Court finds these motions suitable for determination on the papers 2 submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons set 3 forth below, the Court GRANTS IN PART AND DENIES IN PART Defendants’ 4 Motions to Dismiss (ECF Nos. 21, 22, 23). 5 6 I. BACKGROUND1 7 On October 16, 2012, Matt Stevens, a Deputy Sheriff for the County of San 8 Diego (“Stevens”), swore an affidavit to San Diego County Superior Court stating 9 that he observed “well over 100 growing marijuana plants” on Plaintiffs’ property 10 while conducting aerial reconnaissance on September 17, 2012, and October 11, 11 2012. (FAC ¶¶ 11–12.) Stevens “knew from his observations that there were well 12 under 100 marijuana plants on the [property] but embellished his observations in 13 order to deceive Judge Rubin into issuing a search warrant.” (Id. ¶ 12.) Judge Rubin 14 subsequently issued a search warrant authorizing the search of Plaintiffs’ property 15 and the seizure of any marijuana. (Id. ¶ 14.) 16 At 5:00 a.m. on October 17, 2012, Stevens together with Evan Sobczak, a 17 Deputy Sheriff for the County of San Diego (“Sobczak”), Paul Paxton, a Detective 18 for the San Diego Police Department (“Paxton”) and Justin Faw, a Special Agent for 19 the Drug Enforcement Administration (“Faw”), all members of the San Diego 20 County Integrated Narcotics Task Force (collectively, the “Defendant Officers”), 21 executed the search warrant at Plaintiffs’ property. (FAC ¶ 15.) The Defendant 22 Officers, “dressed in military-style fatigues and armed with firearms, some of which 23 were assault rifles, stormed [Plaintiffs’ property] in a SWAT-style raid with weapons 24 drawn.” (Id. ¶ 16.) Upon entering Plaintiffs’ property, the Defendant Officers 25 located Mr. Little, arrested him and put him in handcuffs. (Id. ¶ 17.) Stevens 26 allegedly “questioned [Mr. Little] without reading him Miranda rights despite 27 1 28 All facts are taken from the FAC. For the purposes of these Motions, the Court assumes all facts alleged in the FAC are true. See Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). –2– 14cv2181 1 keeping [Mr. Little] in handcuffs.” (Id. ¶ 18.) The Defendant Officers then located 2 Mrs. Little, and Sobczak “arrested [her] by tightly putting handcuffs on [her] wrists 3 behind her back and locking her in the rear seat of his patrol vehicle.” (Id. ¶ 19.) At 4 the time of the arrest, Mrs. Little “suffered from severe arthritis.” (Id. ¶ 20.) She 5 “feared asking any of the NTF officers to loosen her handcuffs” and “was forced to 6 wear the handcuffs for at least 1 ½ hours.” (Id.) 7 Prior to her arrest, Mrs. Little informed the Defendant Officers that “she has 8 been sick for the past two months with pneumonia.” (FAC ¶ 19.) Nonetheless, 9 Sobczak put Mrs. Little, who was wearing only shorts and a t-shirt, in a police car 10 for approximately 30 minutes with the air conditioner running. (Id. ¶¶ 21, 25.) 11 “During this time, [Mrs. Little] was visibly shivering due to the cold air, which was 12 approximately 50 degrees Fahrenheit and at least as cold as the outside air.” (Id. ¶ 13 21.) The Defendant Officers ignored Mrs. Little’s complaint that she was too cold. 14 (Id.) “As a result of her lengthy exposure to these cold conditions, [her] pneumonia 15 symptoms were exacerbated in the following days, lengthening the time for her 16 recovery.” (Id. ¶ 25.) 17 “At some point while she was in the police car, [Stevens] questioned [Mrs. 18 Little] without reading her Miranda rights.” (FAC ¶ 22.) Sobcazk then removed 19 Mrs. Little from the patrol vehicle “after an unknown period of time” and ordered 20 her to remain seated in a chair. (Id. ¶ 23.) Before sitting down, Mrs. Little informed 21 the Defendant Officers “that the chair was on top of a hill of red ants and that she 22 was extremely allergic to red ants.” (Id.) In fact, Mrs. Little’s “allergy is so severe 23 that it can cause her to go into anaphylactic shock for which she normally carries an 24 EpiPen which she did not have access to at the time.” (Id. ¶ 24.) Mrs. Little told the 25 Defendant Officers this “but they failed to take action” and therefore Mrs. Little 26 “began having a panic attack as she was afraid the ants may get on her feet or that 27 she might fall out of the chair on to the anthill, either of which could have killed her.” 28 (Id.) –3– 14cv2181 1 Despite informing the Defendant Officers on several occasions that she needed 2 to use the bathroom and could not control her bladder because of radiation damage 3 to her bladder and intestines from her cancer treatment, Mrs. Little was not allowed 4 to use the bathroom. (FAC ¶ 26.) As a result, she involuntarily relieved herself while 5 seated outside and was unable to change into clean clothing until the Defendant 6 Officers left the property. (Id.) 7 Officers further threatened Mrs. Little, saying they would call animal control 8 to remove her Bengal kittens, “despite having no cause to believe the animals were 9 being mistreated, abused or maintained in violation of law.” (FAC ¶ 27.) 10 At the time of the search, Plaintiffs were “valid qualified patients under Cal. 11 Health & Safety [Code] §§ 11362.5 and 11362.765,” and Mr. Little was Mrs. Little’s 12 primary caregiver. (FAC ¶ 28.) The Defendant Officers were aware of these facts. 13 (Id.) 14 In the course of conducting the search, Stevens claimed the Defendant Officers 15 located over 640 pounds of marijuana “in the form of untrimmed buds, packaged 16 marijuana, and marijuana edibles.” (FAC ¶ 29.) “In reality, [they] were in possession 17 of far less processed and unprocessed marijuana.” (Id.) The Defendant Officers 18 destroyed the seized marijuana the following day by dumping it at the Miramar 19 Landfill. (Id. ¶ 30.) 20 On November 5, 2012, the San Diego County District Attorney filed a criminal 21 complaint charging Plaintiffs with one count of unlawful possession of marijuana for 22 sale in violation of California Health and Safety Code Section 11359, and one count 23 of unlawful cultivation of marijuana in violation of California Health and Safety 24 Code Section 11358. (FAC ¶ 31.) In the course of pretrial hearings, the trial court 25 granted a motion to exclude evidence pursuant to Arizona v. Youngblood, 488 U.S. 26 51 (1988), and California v. Trombetta, 467 U.S. 479 (1984), “finding that the 27 [Defendant] [O]fficers had violated the [Plaintiffs’] due process rights by destroying 28 material, exculpatory evidence.” (Id. ¶ 32.) At the end of the trial, the jury returned –4– 14cv2181 1 a verdict of not guilty on the charge of unlawful possession and deadlocked on the 2 charge of unlawful cultivation. (Id. ¶ 33.) The trial court ultimately dismissed the 3 cultivation count in the furtherance of justice pursuant to California Penal Code 4 Section 1385. (Id.) 5 The FAC reasserts causes of action in violation of 42 U.S.C. § 1983 for: (1) 6 search and seizure unsupported by a proper warrant against Stevens; (2) unreasonable 7 search against all Defendants; (3) excessive force against all Defendants; (4) Miranda 8 violations against Stevens; and (5) due process violations against all Defendants. 9 Plaintiffs add two causes of action against Faw for unreasonable search and seizure 10 and due process violations, both pursuant to Bivens v. Six Unknown Agents, 403 U.S. 11 388 (1971). 12 13 II. LEGAL STANDARD 14 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 15 Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. 16 Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court 17 must accept all factual allegations pleaded in the complaint as true and must construe 18 them and draw all reasonable inferences from them in favor of the nonmoving party. 19 Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). To avoid a 20 Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, 21 rather, it must plead “enough facts to state a claim to relief that is plausible on its 22 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial 23 plausibility when the plaintiff pleads factual content that allows the court to draw the 24 reasonable inference that the defendant is liable for the misconduct alleged.” 25 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombley, 550 U.S. at 556). 26 “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s 27 liability, it stops short of the line between possibility and plausibility of ‘entitlement 28 to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). –5– 14cv2181 1 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 2 relief’ requires more than labels and conclusions, and a formulaic recitation of the 3 elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (quoting 4 Papasan v. Allain, 478 U.S. 265, 286 (1986) (alteration in original). A court need 5 not accept “legal conclusions” as true. Iqbal, 556 U.S. at 678. Despite the deference 6 the court must pay to the plaintiff’s allegations, it is not proper for the court to assume 7 that “the [plaintiff] can prove facts that [he or she] has not alleged or that defendants 8 have violated the…laws in ways that have not been alleged.” Associated Gen. 9 Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 10 (1983). 11 Courts may not usually consider material outside the complaint when ruling 12 on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 13 1542, 1555 n.19 (9th Cir. 1990). However, documents specifically identified in the 14 complaint whose authenticity is not questioned by parties may also be considered. 15 Fecht v. Price Co., 70 F.3d 1078, 1080 n.1 (9th Cir. 1995), superseded by statute on 16 other grounds as stated in Marksman Partners, L.P. v. Chantal Pharm. Corp., 927 17 F. Supp. 1297, 1309 (C.D. Cal. 1996). 18 Moreover, the court may consider the full text of those documents even when 19 the complaint quotes only selected portions. Id. It may also consider material 20 properly subject to judicial notice without converting the motion into one for 21 summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). 22 As a general rule, a court freely grants leave to amend a complaint which has 23 been dismissed. Fed. R. Civ. P. 15(a). However, leave to amend may be denied 24 when “the court determines that the allegation of other facts consistent with the 25 challenged pleading could not possibly cure the deficiency.” Schreiber Distrib. Co. 26 v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). 27 // 28 // –6– 14cv2181 1 III. ANALYSIS Count One – Invalid Warrant v. Stevens 2 A. 3 Count One alleges that Stevens “made fraudulent statements in his warrant 4 affidavit concerning the amount of marijuana on the subject property and the 5 implications of California’s medical marijuana laws.” (FAC ¶ 35.) Stevens argues 6 this Count should be dismissed because of collateral estoppel or issue preclusion. 7 (ECF No. 23.) Stevens attaches a minute order from the criminal state court 8 proceeding saying that the state court judge denied a Motion to Quash or Traverse 9 the Warrant filed pursuant to California Penal Code Section 1538.5(a)(1)(B)(i). 10 (ECF No. 23, Ex. A.)2 11 Stevens argues this minute order shows the validity of the search warrant was 12 already litigated in state court and should be given preclusive effect by this Court. 13 There are two problems with Stevens’ argument. First, this case poses a unique 14 situation where, because the charges were eventually dismissed, Plaintiffs were not 15 able to appeal the denial of the motion to traverse the warrant. Plaintiffs argue that 16 they thus were unable to have a full and fair litigation of the issue. A comparison of 17 Ayer v City of Richmond, 895 F.2d 1267 (9th Cir. 1990), with Heath v. Cast, 813 18 F.2d 254 (9th Cir. 1987), is helpful to the Court’s analysis. 19 In Heath, similarly to this case, the charges against a criminal defendant were 20 ultimately dismissed. During the motion to suppress hearing, the criminal court 21 found the officers had acted without probable cause in arresting the defendant. Thus, 22 the evidence was suppressed and the charges dismissed. 23 defendant then filed a civil action pursuant to 42 U.S.C. § 1983, the officers argued 24 that the issue had already been litigated in state court during the motion to suppress When the criminal 25 26 27 28 The Court will grant Stevens’ request to take judicial notice of this minute order pursuant to Rule 201 of the Federal Rules of Civil Procedure. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 747 n.6 (9th Cir. 2006) (citing Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998)) (noting a court may take judicial notice of court filings and other matters of public record). 2 –7– 14cv2181 1 hearing and, therefore, issue preclusion should apply. The Ninth Circuit found that 2 a ruling on a motion to suppress is a “preliminary evidentiary determination and is 3 independent of the real question in the proceedings, that of the accused’s guilt.” 813 4 F.2d at 258 (quoting People v. Gephart, 93 Cal. App. 3d 989, 1000 (1979)) (internal 5 quotation marks omitted). Thus, the court found granting the motion to suppress in 6 state court could not act as issue preclusion in a civil rights case in federal court based 7 on the same conduct. 8 The court in Ayers disagreed. Relying on the more recent California state case, 9 McGowan v. City of San Diego, 208 Cal. App. 3d 890 (1989), the Court found that a 10 motion to suppress could constitute a final judgment. In Ayers, the criminal court 11 denied Ayer’s motion to suppress based on a false arrest. Ayer appealed this ruling, 12 and it was affirmed. Ayers pled guilty to the criminal charges, but filed an action 13 under 42 U.S.C. § 1983 for false arrest. The court distinguished Heath because Ayers 14 was able to appeal his criminal conviction, whereas Heath was not. 15 Since the Plaintiffs in this case were not given the opportunity to appeal, the 16 facts in this case appear more akin to Heath than Ayers. However, the Court need 17 not reach this issue because ultimately the minute order presented by Stevens does 18 not show what issue was ultimately litigated and decided by the state court. 19 Collateral estoppel requires identity of issues. See Ayers, 895 F.2d at 1271. In order 20 for issue preclusion or collateral estoppel to apply, Stevens would have to show that 21 Plaintiffs raised the issue of his alleged false statements in the search warrant, the 22 issue was litigated and the Superior Court found against Plaintiffs on this issue. The 23 brief minute order submitted by Stevens only reflects that a motion to quash was 24 denied pursuant to California Penal Code Section 1538.5(a)(1)(B)(i). Subsection 25 1538.5(a)(1)(B)(i) allows a judge to suppress evidence obtained as the result of a 26 search warrant that is insufficient on its face. 27 // 28 // –8– 14cv2181 1 The minute order gives no indication as to what issues the trial court decided. 2 For all this Court knows, the Motion to Quash or Traverse the Warrant could have 3 been denied because it was untimely, the issue was being deferred until trial, or the 4 moving party failed to produce witnesses as ordered. Even if the criminal court 5 reached the merits, it could just have found that the search warrant stated sufficient 6 probable cause without reaching any issue regarding false statements in the warrant. 7 Nothing in the minute order illuminates the issue raised or the reasons for the denial 8 of the motion. 9 Because Stevens’ Motion to Dismiss Count One fails to show that the same 10 issues raised in this lawsuit were fully litigated in the state court, his Motion to 11 Dismiss must be DENIED. 12 B. 13 Count Two—Unreasonable Search v. All Defendants 1. 14 Faw’s Claims 15 Defendant Faw moves to dismiss Count Two by simply making the same 16 arguments the Court denied in an earlier Order (ECF No. 21). For the reasons stated 17 in the Order denying Faw’s Motion to Dismiss Count Two of the original Complaint 18 (ECF No. 17), his motion to dismiss this Count is DENIED. 19 2. 20 Paxton’s Claims 21 Paxton argues the FAC fails to allege any facts that plausibly suggest he was 22 personally involved in the violation. However, the FAC alleges Paxton was one of 23 the officers who executed the search warrant at 5 a.m., “storming” the property in 24 military fatigues, SWAT-style with assault rifles drawn. (FAC ¶¶ 15–16.) Hence, 25 the allegations are sufficient that he was personally involved and his Motion to 26 Dismiss on this ground is DENIED. 27 // 28 // –9– 14cv2181 3. 1 Monell Claims 2 This Court previously found Plaintiffs’ Monell claims in the original 3 Complaint were “insufficient to give fair notice” and did not enable Defendants to 4 defend themselves effectively. (ECF No. 17 at 30.) The original Complaint alleged 5 that the San Diego County Sheriff’s Office adopted or acquiesced in policies 6 governing “the conduct of investigations and execution of search warrants in regard 7 to marijuana offenses that cause police officers to conduct such investigations and 8 execute such warrants in violation of the Fourth and Fourteenth Amendments.” 9 (Compl. ¶ 38.) 10 The FAC now adds the allegation that these policies: 11 direct law enforcement officials to treat each investigation or execution of a search warrant related to the residential cultivation of marijuana as though a violent group of heavily armed individuals is present and as though there is no possibility that the individual residents could be compliant with California law. Such policies, procedures and customs authorize and direct the use of powerful tactical police gear, SWATstyle raid tactics and violent behavior. 12 13 14 15 16 (FAC ¶ 42.) Although Defendants claim that these allegations are substantially the 17 same as the original Complaint and that the allegations fail to identify the specific 18 content of the municipal entity’s alleged policy or custom, this Court disagrees. To 19 state a claim under Monell v. Department of Social Services of New York, 436 U.S. 20 658 (1978), a plaintiff must allege either a policy, ordinance or regulation or a custom 21 “even though such a custom has not received formal approval through the body’s 22 official decision-making channels” that deprives the plaintiff of his constitutional 23 rights and causes injury. Id. at 690–91. Assuming the allegations in Plaintiffs’ FAC 24 are true, as this Court must, the allegations are sufficiently specific to constitute a 25 cause of action under Monell, and therefore, Defendants’ Motions to Dismiss on this 26 ground are DENIED. 27 // 28 // – 10 – 14cv2181 1 C. 2 The Court previously ruled that Mrs. Little’s allegations of excessive force 3 were insufficient based on the claims of (1) handcuffing causing her severe 4 discomfort, (2) leaving her in an air conditioned car despite knowing she was 5 recovering from pneumonia, (3) ordering her to remain seated in handcuffs near red 6 ants when she informed the officers she was severely allergic to red ants, (4) being 7 left outside wearing only short and a t-shirt despite her recent recovery from 8 pneumonia and (5) failing to allow her to use the restroom even though she informed 9 the officers she could not control her bladder because of radiation damage. (ECF No. 10 17.) However, the Court gave Plaintiffs leave to amend these allegations. (Id.) Plaintiffs, in responding to Defendants’ Motions, argue that the following facts 11 12 Count Three—Excessive Force v. All Defendants have been added to the FAC: 13 (1) The handcuffs caused Mrs. Little severe pain. She did not complain to the 14 officers because she had been told repeatedly to shut up, but her husband did 15 ask that her handcuffs be moved from back to front, and his requests were 16 ignored. (FAC ¶¶ 19–20.) 17 (2) Mrs. Little was left in the air conditioned car alone for approximately 30 18 minutes, and the temperature was around 50 degrees Fahrenheit. 19 Defendants were all in full uniform wearing heavy police gear to ensure their 20 warmth. (Id. ¶¶ 21, 25.) 21 (3) After she was removed from the car, she was seated outside in handcuffs 22 for approximately 45 minutes. (Id. ¶¶ 23, 25.) The 23 Although Plaintiffs’ Responses in Opposition to the Motions to Dismiss do not argue 24 any new facts with respect to the allegations about the red ant exposure or the failure 25 to allow use of the restroom (ECF Nos. 25, 26, 27), it appears the FAC adds the 26 following facts: 27 // 28 // – 11 – 14cv2181 1 (1) Mrs. Little was so allergic to red ants that it “can cause her to go into 2 anaphylactic shock for which she normally carries an EpiPen which she did 3 not have access to at that time” (Id. ¶ 24.) 4 (2) When sitting on the ant hill, Mrs. Little “began having a panic attack as she 5 was afraid the ants may get on her feet or that she might fall out of the chair 6 on to the anthill, either of which could have killed her.” (Id.)3 7 1. 8 Handcuffing 9 Although overly tight handcuffs can constitute excessive force, Wall v. County 10 of Orange, 364 F.3d 1107 (9th Cir. 2004), that does not appear to be the allegation 11 in this case. Instead, Mrs. Little asserts that, because she had arthritis, the handcuffs 12 caused her severe pain, and she was afraid to tell the officers she was in pain because 13 they had repeatedly told her to shut up. (FAC ¶¶ 19–20.) She alleges her husband 14 asked if her handcuffs could be moved from back to front but the officers refused. 15 (Id.) However, noticeably absent from the FAC are allegations that: (1) the handcuffs 16 were overly tight; (2) Mrs. Little told the officers that the handcuffs were hurting her; 17 (3) any obvious physical manifestation of her pain was apparent to the Defendants; 18 or (4) Mrs. Little was demonstrably injured as a result of the handcuffs. Therefore, 19 for the reasons stated in the Court’s original Order Granting the Motions to Dismiss 20 this Count (ECF No. 17), Defendants’ Motions to Dismiss on this ground are 21 GRANTED. 22 // 23 // 24 // 25 // 26 3 27 28 Although Plaintiffs’ redlined complaint claims that paragraph 26 of their FAC adds new facts about Mrs. Little’s lack of access to a restroom, this paragraph appears to be a verbatim recitation of paragraph 21 of the original Complaint. The Court will only address the new allegations and relies on its previous Order for claims previously made in the earlier Complaint. – 12 – 14cv2181 2. 1 Air Conditioned Car and Confinement in Cold Temperatures 2 3 Plaintiffs now add allegations that Mrs. Little was in the air conditioned car 4 for 30 minutes and that the temperature in the car was around 50 degrees Fahrenheit. 5 Plaintiffs then allege that Mrs. Little was removed from the car and handcuffed 6 outside for a period of 45 minutes, again in 50 degree temperatures. As pointed out 7 in Dillman v. Vasquez, No. 13-CV-00404 LJO SKO, 2015 WL 881574, at *9 (E.D. 8 Cal. Mar. 2, 2015), “the case law suggests that a brief (e.g., 30-minute-long) 9 confinement in a hot patrol car does not violate the Fourth Amendment” whereas 10 extended periods of confinement (e.g., four-hours-long) do. A similar analysis 11 applies to Plaintiffs’ allegations of confinement in the cold. The allegation that Mrs. 12 Little was confined for 30 minutes in a cold, air conditioned car are insufficient to 13 constitute excessive force. Similarly, the allegation that she was left outside for 45 14 minutes when the temperature was around 50 degrees Fahrenheit is simply 15 insufficient to constitute excessive force. Therefore, for the reasons stated in the 16 Court’s original Order Granting the Motions to Dismiss this Count (ECF No. 17), 17 Defendants’ Motions to Dismiss on this ground are GRANTED. 18 3. 19 Red Ants and Failure to Allow Access to Restroom 20 Plaintiffs fail to argue any new significant facts and simply argue that the 21 Court’s original Order improperly applies the case law. Therefore, the Court adopts 22 its original Order Granting the Motions to Dismiss (ECF No. 17) and GRANTS 23 Defendants’ Motions to Dismiss on this Ground. 24 25 D. Count Four—Miranda Violation v. Stevens 26 In the fourth cause of action, Plaintiffs allege that they were forced to testify 27 against themselves in violation of their Fifth and Fourteenth Amendment rights when 28 Officer Stevens interrogated them without advising them first of their rights under – 13 – 14cv2181 1 Miranda v. Arizona. (FAC ¶ 53.) Plaintiffs allege they each gave statements to 2 Stevens which were later used against them at their criminal trial. (Id. ¶ 54.) 3 Stevens argues a mere failure to advise of Miranda rights is insufficient to 4 show that the Plaintiffs’ free will was overborne such that they were compelled or 5 coerced to make statements in any way. (ECF No. 23.) However, Stevens ignores 6 the fact that the FAC also realleges paragraphs 1–33 in Count Four, thus claiming 7 that the misrepresentations in the search warrant, the entry at 5 a.m. in SWAT 8 uniforms with assault rifles drawn, handcuffs that bothered Mrs. Little’s arthritis, 9 threats to remove the Bengal kittens, cold temperatures, proximity to red ants, and 10 failure to allow access to the restroom, coupled with the failure to advise of Miranda 11 rights, compelled and coerced the Plaintiffs to make statements that were later used 12 against them. The Court need not determine whether an absence of Miranda rights 13 alone would constitute a constitutional violation because in this case Plaintiffs allege 14 more than the absence of those warnings alone. These allegations, assuming they are 15 all true, are sufficient to allege a cause of action. Therefore, Defendants’ Motions to 16 Dismiss this count are DENIED. 17 18 E. Count Six—Unreasonable Search v. Faw 19 Defendant Faw moves to dismiss the sixth cause of action to the extent it is 20 being filed against him in his official capacity or against the DEA or the United 21 States, as the Court lacks subject matter jurisdiction over such a suit. See generally 22 Cato v. United States, 70 F.3d 1103 (9th Cir. 1995). Although the Plaintiffs respond 23 that they are not alleging a cause of action against Faw in his official capacity, nor 24 are they making any claim against the United States or any agency of the United 25 States, the FAC clearly state the Little are suing Faw “in both his individual and 26 official capacity.” (FAC ¶ 9.) Hence, Faw’s Motion to Dismiss on this ground is 27 GRANTED to the extent it is being filed against Faw in his official capacity but 28 DENIED otherwise. – 14 – 14cv2181 1 F. Counts Five and Seven—Due Process Violations 2 Plaintiffs voluntarily move to dismiss the Fifth and Seventh causes of action. 3 (ECF No. 25.) Therefore, Defendants’ Motions to Dismiss these two causes of action 4 are GRANTED. 5 6 IV. CONCLUSION 7 The Court GRANTS IN PART AND DENIES IN PART Defendants’ 8 Motions to Dismiss. (ECF Nos. 21, 22, 23.) The Court GRANTS Defendants’ 9 Motions to Dismiss Counts Three, Five and Seven. Counts Five and Seven are 10 dismissed WITHOUT PREJUDICE. However, because this Court gave Plaintiffs 11 leave to amend with directions after dismissing Count Three in the original 12 Complaint, the Court finds allowing Plaintiffs further leave to amend this count 13 would be futile. Hence the Court dismisses Count Three WITH PREJUDICE. 14 The Court DENIES Defendants’ Motions to Dismiss Counts One, Two, Four 15 and Six, except that the Motion to Dismiss Count Six is GRANTED to the extent it 16 seeks a claim against Agent Faw in his official capacity. 17 IT IS SO ORDERED. 18 19 DATED: May 26, 2016 20 21 22 23 24 25 26 27 28 – 15 – 14cv2181
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