ORDER:
(1) DENYING MOTION TO DISMISS PLAINTIFFS’ COMPLAINT OF DEFENDANT SHELLEY ZIMMERMAN (ECF NO. 3);
(2) GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS THE SECOND, THIRD, AND FOURTH CAUSES OF ACTION OF PLAINTIFFS’ COMPLAINT FILED ON BEHALF OF DEFENDANTS WILLIAM D. GORE, MATTHEW STEVENS AND EVAN SOBCZAK (ECF NO. 7);
(3) GRANTING IN PART AND DENYING IN PART JUSTIN FAW’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT (ECF NO. 13)
On September 12, 2014, Plaintiffs Deborah Dee Little and Dennis George Little (collectively, “Plaintiffs”) commenced this action against Defendants William D. Gore (“Gore”), as Sheriff for the County of San Diego, Shelley Zimmerman (“Zimmerman”), as Chief of Police for the City of San Diego, Matt Stevens (“Stevens”), a Deputy Sheriff for the County of San Diego, Evan Sobczak (“Sobczak”), a Deputy Sheriff for the County of San Diego, Paul Paxton (“Paxton”), a Detective for the San Diego Police Department, and Justin Faw (“Faw”), a Special Agent for the Drug Enforcement Administration (“DEA”). Presently before the Court are (1) a motion to dismiss all causes of action filed by Zimmerman; (2) a motion to dismiss the second, third, and fourth causes of action filed by Stevens and Sobczak, and all causes of action by Gore; and (3) a motion to dismiss all causes of action by Faw.
The Court finds these motions suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons set forth below, the Court DENIES Zimmerman’s motion to dismiss (ECF No. 3); GRANTS IN PART and DENIES IN PART the motion to dismiss filed by Gore, Sobczak and Stevens (ECF No. 7); and GRANTS IN PART and DENIES IN PART Fair’s motion to dismiss (ECF No. 13).
I. BACKGROUND
On October 16, 2012, Stevens swore an affidavit to San Diego County Superior Court stating that he observed “well over 100 growing marijuana plants” on Plaintiffs’ property while conducting aerial reconnaissance on September 17, 2012 and October 11, 2012. (ECF No. 1 (“Compl.”) at ¶ 11-12.) Plaintiffs allege Defendant Stevens “knew from his observations that there were well under 100 marijuana plants on the [property] but embellished his observations in order to deceive Judge Rubin into issuing a search warrant.” (Id. at ¶ 12.) Judge Rubin subsequently issued a search warrant authorizing the search of Plaintiffs’ property and the seizure of any marijuana. (Id. at ¶ 12.)
At 5:00 a.m. on October 17, 2012, Stevens, Sobczak, Paxton, and Faw (collectively, the “Defendant Officers”), members of the San Diego County Integrated Nar
“After an unknown period of time, [Stevens] questioned [Mrs. Little] without reading her Miranda rights.” (Id. at ¶ 20.) Sobczak then removed Mrs. Little from the patrol vehicle “after an unknown period of time” and ordered her to remain seated in a chair. (Id. at ¶ 21.) Before sitting down, Mrs. Little, who was wearing only shorts and -a t-shirt, informed the Defendant Officers “that the chair was.on top of an anthill of red ants and that she was extremely allergic to red ants, that she was very cold, and that she was suffering from various symptoms of HIV.” (Id.) Despite informing the Defendant Officers on several occasions that she needed to use the bathroom and could not control her bladder because of radiation damage to her bladder and intestines from her cancer treatment, Mrs. Little was not allowed to use the bathroom. (Id. at ¶ 22.) As a result, she involuntarily relieved herself while seated outside and was unable to change into clean clothing until the Defendant Officers left the property. (Id.)
At the time of the search, Plaintiffs were “valid qualified patients under Cal. Health & Safety [Code] §§ 11362.5 and 11362.765,” and Mr. Little was Mrs. Little’s primary caregiver. (Id. at ¶ 24.) Plaintiffs allege the Defendant Officers searching the property were aware of these facts. (Id.)
In the course of conducting the search, Stevens claimed the Defendant Officers located over 640 pounds of marijuana “in the form of untrimmed buds, packaged marijuana, and marijuana edibles.” (Id. at ¶ 25.) Plaintiffs' allege that “[i]n reality, [they] were in possession of far less processed and unprocessed marijuana.” (Id.) Plaintiffs allege the Defendant Officers destroyed the seized marijuana the following day by dumping it at the Miramar Landfill. (Id. at ¶ 26.)
On November 5, 2012, the San Diego County District Attorney filed a criminal complaint charging Plaintiffs with one count of unlawful possession of marijuana for sale in violation of California Health and Safety Code section 11359, and one count of unlawful cultivation of marijuana in violation of California Health and Safety Code section 11358. (Id. at ¶ 27.) In the course of pretrial hearings, the trial court granted a motion to exclude evidence pursuant to Arizona v. Youngblood,
Plaintiffs commenced this action on September 12, 2014 asserting the following causes of action in violation of 42 U.S.C. § 1983: (1) search and seizure unsupported by a warrant against Stevens; (2) unreasonable search against all defendants; (3) excessive force against all defendants; (4) Miranda violations against Stevens; and (5) due process violations against all defendants.
II. LEGAL STANDARD
.A motion to dismiss pursuant to Rulé 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. P. 12(b)(6); Navarro v. Block,
“[A] plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of . the elements of a cause of action will not do.” Twombly,
Generally, courts may not consider material outside the complaint when ruling on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc.,
As a general rule, a court freely grants leave to amend a complaint which has been dismissed. Fed. R. Civ. P. 15(a); Schreiber Distrib. Co. v. Serv-Well Furniture Co.,
III. DISCUSSION
Zimmerman moves to dismiss all causes of action for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 3.) Stevens and Sobczak move to dismiss the second, third, and fourth causes of action, and Gore moves to dismiss all causes of action, for failure to state a claim under Rule 12(b)(6). (ECF No. 7.) Faw moves to dismiss all causes of action pursuant to Rule 12(b)(6) on the grounds that Plaintiffs’ claims against him are barred by qualified immunity, and that Plaintiffs improperly brought section 1983, rather than Bivens, claims against him as a federal officer. (ECF No. 13.)
A. Zimmerman’s Motion to Dismiss
Zimmerman moves to dismiss all causes of action in the Complaint, arguing that she was not Chief of Police at the time of the incident, but rather the Assistant Chief, and is therefore not a properly named defendant in this action, and that Paxton was not acting as a San' Diego Police Department Detective at the time .of the incident, but rather under the authority of the Drug Enforcement Administration. (ECF No. 3-1 at pp. 3-4.) As an initial matter, Zimmerman raises factual disputes in her motion. Courts may not consider material outside the complaint when ruling on a motion to dismiss, unless submitted as part of the complaint, identified in the complaint, or materials which are judicially noticeable. See Hal Roach Studios, Inc.,
Regardless, the Court notes this is an official capacity suit
Moreover, under Federal Rule of Civil Procedure 25(d), if the prior Chief of Police had been named in the Complaint in his or her official capacity, once the prior Chief ceased to hold office, “[t]he officer’s successor is automatically substituted as a party.” Fed. R. Civ. P. 25(d). Therefore, even if the prior Chief of Police had been named in the Complaint, the current Chief of Police, which is claimed to be Zimmerman, would automatically be substituted as a party. See Griffith v. Lanier,
B. Faw’s Motion to Dismiss; Bivens vs. Section 1983
Faw, who Plaintiffs allege is a Special Agent with the Drug Enforcement Administration, moves to dismiss all causes of action alleged against him “because federal actors generally cannot be held liable under 42 U.S.C. § 1983.” (EOF No. 13-1 at p. 16.) Instead, Faw argues, the proper cause of action is pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
In their opposition to Fav/s motion to dismiss, Plaintiffs assert that their section 1983 claim against Faw is alternatively asserted as a Bivens claim, arguing that they need not plead a specific legal theory so long as sufficient factual allegations show that Plaintiffs may be entitled to some relief. (EOF No. 15 at p. 12.) Here, Plaintiffs allege in the Complaint that Faw was a member of the San Diego County-Integrated Narcotics Task Force at the time of the incident, and participated, along with other members, in executing a State search warrant at Plaintiffs’ property. (Compl. at ¶¶ 14, 15, n. 1.) The search warrant resulted in the State bringing criminal charges against Plaintiffs. (Id. at ¶ 27.)
“Although federal officials acting under federal authority are generally not considered to be state actors, they may be hable under [section] 1983 if they are found to have conspired with or acted in concert with state officials to some substantial degree.” Cabrera v. Martin,
Given the foregoing, the Court finds that Plaintiffs have plausibly pled that Faw was acting under color of state law. See e.g., Motley v. Parks,
Faw moves to dismiss Plaintiffs’ first cause of action for search and seizure unsupported by a warrant. The Fourth Amendment prohibits a search conducted pursuant to “an ill-begotten or otherwise invalid warrant.” Bravo v. City of Santa Maria,
Plaintiffs allege Stevens made fraudulent statements in his warrant affidavit “concerning the amount of marijuana on [Plaintiffs’ property] and the implications of California’s medical marijuana laws in an effort to subvert the magistrate’s neutral function in issuing warrants, in violation of the Fourth and Fourteenth Amendments to the U.S. Constitution.” (Compl. at ¶ 31.) As a “proximate result of Stevens’s conduct,” Plaintiffs allege “Judge Rubin issued a warrant that was not in fact supported by probable cause, which led to an illegal search’.’ of Plaintiffs’ property, the illegal arrest of Plaintiffs, and the illegal seizure and destruction of Plaintiffs’ marijuana. (Id. at ¶ 32.)
Faw moves to dismiss this cause of action on the grounds,that it is not directed to him, as it is not alleged that he participated in obtaining the search warrant. (EOF No. 13-1 at p. 9.) Plaintiffs agree that the only defendant on this cause of action is Stevens. (See ECF No. 15 at p. 1.) Accordingly, the Court GRANTS Few’s motion to dismiss the first cause of action as to him.
D. Motion to Dismiss Second Cause of Action: Unreasonable Search in Violation of 42 U.S.C. § 1983 Against All Defendants
Plaintiffs allege the Defendant Officers conducted an unreasonable search of Plaintiffs’ property. (Compl. at ¶ 37.) “The test of what is necessary to ‘execute a warrant effectively’ is reasonableness.” San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose,
1. Stevens and Sobczak
Stevens and Sobczak move to dismiss the second cause of action on the grounds that “[describing the execution of the search warrant as- ‘SWAT-style’ and identifying the clothes worn and the weapons carried by the officers does not make the search unlawful.” (ECF No. 7-1 at p. 5.) In the Complaint, Plaintiffs allege that the Defendant Officers executed the search warrant at approximately 5:00 a.m. on October 17, 2012, unannounced, and “stormed” the property wearing military fatigues and using assault rifles “in a SWÁT-style raid with weapons drawn.” (Compl. at ¶¶ 15, 16, 37.) Plaintiffs allege that the execution of the search in such a manner was unreasonable in violation of the Fourth and Fourteenth Amendments. (Id. at ¶ 37.) .. .
Given the alleged time and manner of the search, the Court finds Plaintiffs have pleaded “enough facts to state a claim to relief that is plausible on its face.” Twombly,
2. Faw
Faw moves to dismiss the second cause of action on the grounds of qualified immunity, arguing that “officers who execute a search warrant often enter, into a dangerous situation that requires the use of protective gear, weapons, and some use of force in order to minimize the risk of harm to both officers and occupants,” and searching the residence of suspected drug traffickers presents an “inherently dangerous” situation. (ECF No. 13-1 at pp. 10-11.)
“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly-established statutory or constitutional rights of which a reasonable person would have known.’ Pearson v. Callahan,
“Determining whether officials are owed qualified immunity involves two inquiries: (1) whether, taken in the light
As discussed above, the Court has already determined that Plaintiffs have pleaded enough facts to plausibly allege a violation of the Fourth Amendment. Accordingly, the Court turns to whether the right was clearly established at the time of the incident. See Jensen v. City of Oxnard,
Given the foregoing, and considering all alleged facts in the light most favorable to Plaintiffs, the Court cannot determine at this time whether Faw is entitled to qualified immunity on this cause of action. Accordingly, the Court DENIES Faw’s motion to dismiss the second cause of action on the grounds of qualified immunity.
E. Motion to Dismiss Third Cause of Action: Excessive Force in Violation of 42 U.S.C. § 1983 Against All Defendants
Plaintiffs allege the Defendant Officers “violated the Fourth and Fourteenth Amendments to the U.S. Constitution by using excessive force on and effectuating an unreasonable arrest of [Mrs. Little], an older, seriously ill woman of small statute who posed no threat to the legitimate interests” of the officers. (Compl. at ¶ 43.) Specifically, Plaintiffs allege the Defendant Officers used excessive force by (1) “handcuffing her wrists, placing them behind her back, and placing her in the back of a police cruiser, which caused [Mrs. Little] serious physical discomfort;” (2) “leaving on the air conditioning in the police cruiser despite the cold air outside and [Mrs. Little] having informed the [officers] that she had been suffering from pneumonia for
Stevens and Sobczak move to dismiss the third cause of action for excessive force on the basis that no excessive force was used. Defendants argue that “none of the alleged facts in the complaint involve any actual force.” (ECF No. 7-1 at p. 6, line 14.) Faw similarly moves to dismiss on the grounds that only “very minimal force that was incident to the execution of a search warrant” was used in arresting Mrs. Little. (ECF No. 13-1 atp. 14, lines 18-20.)
“Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham v. Connor,
The reasonableness of a particular use of force requires taking the “perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham,
1. Handcuffing
The Ninth Circuit has held that excessively tight handcuffing can constitute a Fourth Amendment violation, but only where a. plaintiff claims to have been demonstrably injured by the handcuffs or where complaints to the officers about the handcuffs being too tight or painful are ignored. See e.g., Wall v. Cnty. of Orange,
Plaintiffs have not alleged that Mrs. Little was demonstrably injured by the handcuffs or that she made any complaints which were ignored by the Defendant Officers about the tightness of the handcuffs. Accordingly,' the Court finds that Plaintiffs do not sufficiently allege a constitutional violation with respect to how Mrs. Little was handcuffed during the arrest and GRANTS the motions to dismiss filed by Stevens, Sobczak, and Faw on this claim WITH LEAVE TO AMEND.
2, Air Conditioned Vehicle
Plaintiffs rely on Kassab v. San Diego Police Dept.,
Whereas an “unnecessary exposure to heat” may cause a constitutional violation, see Dillman v. Tuolumne Cnty., No. 1:13-cv-404-LJO-SKO,2013 WL 1907379 , at *15 (E.D.Cal. May 7, 2013) (discussing eases) (“MTD Order”), being briefly confined in uncomfortable conditions, such as a hot patrol car, does not amount to a constitutional violation. See Esmont v. City of New York,371 F. Supp. 2d 202 , 214 (S.D.N.Y.2005) (finding no Fourth Amendment. violation where the plaintiff was held in hot police car for ten minutes); Frost v. Agnos,152 F.3d 1124 , 1130 (9th Cir.1998) (finding “without merit” pretrial detainee’s “complain[t] about the temperature in his cell,” where plaintiff failed to show those circumstances “ultimately deprived him of the minimal civilized measures of life’s necessities). In every case finding that a plaintiffs Fourth Amendment rights were violated due to being exposed to excessive heat, the plaintiff was confined for substantially longer periods of time than were Plaintiffs. See, e.g., Burchett v. Kiefer, 310 F.3d 937 , 945 (6th Cir.2002) (arrestee held in police vehicle for three hours in 90 degree heat); Hope v. Pelzer,536 U.S. 730 , 738,122 S.Ct. 2508 ,153 L.Ed.2d 666 (2002) (prisoner tied to hitching post and exposed to sun for seven hours); Kassab,453 Fed.Appx. at 748 (arrestee held in police car for more than four hours). Conversely, the Fifth Circuit held that “a post-arrest detention for approximately one-half hour in an unventilated police vehicle in the sun was not in violation of the Fourth Amendment.” Arias [v. Amador],2014 WL 6633240 , at *10 [(E.D.Cal. Nov. 21, 2014)] (citing Glenn v. City of Tyler,242 F.3d 307 , 314 (5th Cir.2001)). Thus, the case law suggests that a brief (e.g., 30-minute-long) confinement in a hot patrol car does not violate the Fourth Amendment, see, e.g., Glenn,242 F.3d at 314 , but an extended (e.g., four-hour-long) confinement in a hot police car does violate the Fourth Amendment. See, e.g., Kassab,453 Fed.Appx. at 748 .
Id. at *9.
Here, Plaintiffs have not alleged how long Mrs. Little was subjected to the cold temperatures of the police vehicle, what the approximate temperature was inside the vehicle, whether the officers were subject to the same conditions, or how-she was injured as a result, As Dillman states, these factors are relevant to determining the unreasonableness, of the confinement. Absent such allegations, the Court finds Plaintiffs have failed to sufficiently allege a constitutional violation with respect to this claim and GRANTS the motions to dismiss filed by Stevens, Sobczak, and Faw on this claim WITH LEAVE TO AMEND.
3. Ant Hill
Plaintiffs cite no authority to show that being seated in a chair on top of or near an anthill of red ants after officers are informed the arrestee is extremely allergic to red ants constitutes excessive force. However,' the Court finds the facts of Perry v. Post, No. CIV 04-2842-PHX-JAT (VAM),
In this case, however, there is no allegation that Mrs. Little had any physical contact with the red ants, there was any danger of physical contact, how long she was near the red ants, or that Mrs. Little suffered any injury other than mental and emotional pain as a result of being near the anthill. She simply alleges- she was seated in a chair that was either “on top of’ or “near” a red anthill for an unspecified period of time. (Cf. Compl. at ¶ 21 with ¶ 43(c)).) Guided by Perry, the Court finds the mental and emotional pain alleged as a result of being merely being near — but‘not in actual contact with — red ants for an unspecified period of time, even when someone is seriously, allergic to
4. Cold Temperatures and Minimal Clothing
As previously discussed, courts have found that .“unnecessary detention in extreme temperatures,” including extremely cold weather, violates the Fourth Amendment’s prohibitions on unreasonable searches and seizures. Miller v. Sanilac Cnty.,
The Court finds these allegations insufficient to plausibly allege an excessive force claim, in light of the fact there are no allegations as to how cold it was outside, how long Mrs. Little remained outside, whether the Defendant Officers were subjected to the same temperatures, whether or not Mrs. Little informed the Defendant Officers that she was cold, whether Mrs'. Little needed medical attention as a result of being in the cold, or how Mrs. Little was injured as a result of being seated in such a condition. See Miller,
5. Restroom
Plaintiffs allege that “on several occasions [Mrs. Little] also informed the [Defendant] [Officers that she needed to use the bathroom and could not control her bladder because of radiation damage to her bladder and intestines from her cancer treatment. Nonetheless, the [Defendant] [Officers did not allow [Mrs. Little] to use the bathroom.” (Compl. ¶22.) As a result, [Mrs. Little] involuntarily relieved herself while seated outside and was unable to change into clean clothing until the [defendant] officers left.” (Id.) Although Plaintiffs bring this alleged violation as an excessive force claim, the Court has not located any case law finding that the refusal to allow a detainee to use the rest
Under Supreme Court and Ninth Circuit precedent, “the police may detain a building’s occupants while officers execute a search warrant as long as the detention is reasonable.” Dawson v. City of Seattle,
Under certain circumstances, refusing to allow a detained individual to use the restroom may rise to the level of a Fourth Amendment violation, but the Court finds no authority, and Plaintiffs cite none, establishing the right on the part of one lawfully detained pursuant to the execution of a search warrant to use a toilet upon demand. See Hunter v. Namanny,
As mentioned above, the length of time of the detention is particularly relevant. Cf. Heitschmidt v. City of Houston,
Given the foregoing,, the Court finds Plaintiffs have not plausibly alleged an excessive force claim. Even if the Court considers this claim as one for unreasonable search under the vague language of paragraph 37 of the Complaint, as Plaintiffs do not allege how long Mrs. Little was detained or prevented from using the restroom, the Court finds the facts as stated in the' Complaint do not rise to the level of plausibility required to allege a constitutional violation, and GRANTS the motions to dismiss filed by St'evens, Sobczak,"-and Faw on this-claim WITH LEAVE TO AMEND.
F. Motion to Dismiss Fourth Cause of Action for Violation of 42 U.S.C. § 1983:Miranda Violations Against Stevens
Plaintiffs allege that Stevens “violated the Fifth and Fourteenth Amendments to the U.S. Constitution by interrogating the LITTLES while they were in custody without reading them their rights, as required by Miranda v. Arizona,
Plaintiffs concede in their opposition that “they-failed to allege that they gave any statements or that [such statements] were used against them at trial.” (ECF No. 11 at p, 6, lines 3-4.) Plaintiffs further failed to allege the statements were used against them in any other capacity, but assert they would be able to allege additional facts if given leave to amend. (See id. at p. 6, lines 4-7.) Although Stevens and Sobczak argue leave to amend should not be granted, the Court finds it appropriate to grant Plaintiffs leave to amend. For the foregoing reasons, the Court GRANTS the motions to dismiss filed by Stevens, Sobc-zak, and Faw with respect to this claim WITH LEAVE TO AMEND.
G. Motion to Dismiss Fifth Cause of Action for Violation of 42 U.S.C. § 1983: Due Process Violation Against All Defendants
In the Complaint, Plaintiffs claim that the Defendant Officers violated the Fourteenth Amendment to the U.S. Constitution by (1) destroying material, exculpatory evidence, and (2) depriving
“The Fourteenth Amendment places procedural constraints on the actions of government that work a deprivation of interests enjoying the stature of ‘property’ within the meaning of the'Due Process Clause.” Memphis Light Gas & Water Div. v. Craft,
With respect to medical marijuana, although California state law may create a property interest in the marijuana, California district courts have found there is no protected property interest for purposes of the Fourteenth Amendment. See Barrios v. Cnty. of Tulare, 13-CV-1665 AWI GSA,
As'the court explained in Schmidt:
The Supreme Court has held that no person can have a legally protected interest in contraband per se. See United States v. Jeffers,342 U.S. 48 , 53,72 S.Ct. 93 ,96 L.Ed. 59 (1951); see also Cooper v. City of Greenwood, Mississippi,904 F.2d 302 , 305 (5th Cir.1990) .... “An object is contraband per se if its possession, without more, constitutes a crime; or in other words,.there is no legal purpose to which the object could be put.” United States v. Harrell,530 F.3d 1051 , 1057 (9th Cir.2008). Under the federal Controlled-Substances Act (“CSA”), it is illegal for any private person to possess marijuana. 21 U.S.C. §§ 812(c), 841(a)(1), 844(a). Thus, under federal law, marijuana is contraband per se, which means no person can have a cognizable legal interest in it. See Gonzales v. Raich,545 U.S. 1 , 27,125 S.Ct. 2195 ,162 L.Ed.2d 1 (2005) (“The CSA designates marijuana as; contraband for any purpose.” (emphasis in original)).
“The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail.” Id. at 29,125 S.Ct. 2195 . While California’s Compassionate Use Act (“CUA”) provides narrow exceptions for marijuana use involving qualified patients and care givers, federal law dictates that marijuana is illegal for any purpose. Id. at 27,125 S.Ct. 2195 ....
In this case, plaintiff cannot recover damages as a result of the confiscation or destruction of marijuana because he had no cognizable property interest in the marijuana. Plaintiff asserts a due process claim under the federal Constitution in federal court, where, under federal law, marijuana is undisputably illegal and contraband per se.
Schmidt,
Plaintiffs’ reliance on Cnty. of Butte v. Super. Ct.,
As Plaintiffs had no property interest in the marijuana that was protected by the Fourteenth Amendment’s due process clause, Faw’s motion to dismiss Plaintiffs’ fifth claim for deprivation of Plaintiffs’ marijuana without due process of law is GRANTED WITHOUT LEAVE TO AMEND. The Court finds that the claim cannot be saved by amendment. See Schreiber Distrib. Co.,
However, as Plaintiffs point out in their opposition, Faw does not move to dismiss Plaintiffs’ claim the Defendant Officers violated the Fourteenth Amendment by destroying material, exculpatory evidence. (See ECF No. 15 at p. 9.) Faw does not make this argument until his reply. Because Faw did not make this argument in his initial motion to dismiss, the argument is waived. See Somers,
H. Gore’s Motion to Dismiss
Gore moves to dismiss all causes of action against him, in both his official and individual capacities, arguing that “the Complaint in the instant case merely alleges that Defendants had promulgated and adopted policies causing officers to execute warrants unlawfully; such a conclusory, formulaic recitation of a claim is insufficient to overcome a motion to dismiss.” (ECF No. 7-1 at p. 7.) As with Zimmerman, Gore is being sued solely in his official capacity.
Local governing bodies can be sued directly under section 1983 when “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers,” or there is a widespread practice that, although not authorized by an ordinance or an express municipal policy, is “so permanent and well settled as to constitute a custom or usage with the force of law.” Monell v. Dep’t of Soc. Servs. of City of New York,
In the Complaint, Plaintiffs allege Gore, as the chief policymaker and decision maker for the San Diego County Sheriffs Department on the use of force and the disposition of evidence, “promulgated, adopted, ratified, and acquiesced to policies, procedures, and customs” governing: (1) “the conduct of investigations and execution of search warrants relating to marijuana offenses that cause police officers to conduct such investigations and execute such warrants in violation of the Fourth and Fourteenth Amendments;” (2) “the conduct of police contacts with civilians that lead to arrests of individuals with no regard to whether they can pose a risk of physical resistance and with no regard to the discomfort or pain of those individuals, and such policies, procedures, and customs cause police officers to illegally arrest individuals;” and (3) “the disposition of evidence in marijuana investigations by which law enforcement are directed to seize and destroy marijuana and marijuana products soon after collection without regard to the materiality or exculpatory nature of the evidence and without regard to the rights of the owners of the marijuana to seek its return, even in the face of evidence that the marijuana was legally possessed and cultivated.” (Compl. at ¶¶ 4, 38, 44, 56.)
While the Ninth Circuit previously had a liberal pleading policy with respect to Mo-nell claims, requiring nothing more than “a bare allegation that government officials’ conduct conformed to some unidentified government policy or custom,” this precedent did not survive Iqbal. AE ex rel. Hernandez v. Cnty. of Tulare,
Under Iqbal, the Court finds Plaintiffs’ bare allegations as to Plaintiffs’ second and third causes of action to be insufficient to give fair notice and to enable Gore to defend himself effectively. In addition, the allegations with respect to Plaintiffs’ third cause of action must fail because, as discussed herein, Plaintiffs have failed to allege a cognizable underlying constitutional violation. See Scott v. Henrich,
Accordingly, Gore’s motion to dismiss the Monell claims is GRANTED IN PART, WITH LEAVE TO AMEND as to the second and third causes of action, and DENIED IN PART.
IV. CONCLUSION & ORDER
For the foregoing reasons, the Court DENIES Zimmerman’s motion to dismiss (ECF No. 3); GRANTS IN PART and DENIES IN PART the. motion to dismiss filed by Gore, Sobczak, and Stevens (ECF No. 7); and GRANTS IN PART and DENIES IN PART Faw’s motion to dismiss (ECF No. 13). In summary:
(1) The Complaint only alleges section 1983 causes , of action against Gore , and Zimmerman in their official capacities;
(2) The first cause of action for invalid search warrant is alleged against Stevens only;
(3) The second cause of action for unreasonable search is not'dismissed;
(4) The third cause of action for excessive force "is dismissed with leave to amend;
(5) The fourth cause of action for Miranda violations against Steyens is dismissed with leave to amend;
(6) The fifth cause of action for due process violations is dismissed without leave to amend as to Plaintiffs’ claim the Defendant Officers violated the Fourteenth Amendment by depriving Plaintiffs of their marijuana without due process of law. How- ' ever, the fifth cause of action is not dismissed as to Plaintiffs’ claim the Defendant Officers violated the Fourteenth Amendment by destroying material, exculpatory evidence; and
(7)Sheriff Gore is dismissed from all causes of action except the Monell claim in the fifth cause of action that he “promulgated, adopted, ratified, and acquiesced to policies, procedures, and customs governing the disposition of evidence in marijuana investigations by which law enforcement are directed to seize and destroy marijuana and marijuana products soon after collection without regard to the materiality or exculpatory nature of the evidence.”
If Plaintiffs wish to file a First Amended Complaint, they must do so no later than January 15,2016.
IT IS SO ORDERED.
Notes
. Although Zimmerman argues it is unclear whether she is being sued in her official or individual capacity, the Complaint, in combination with Plaintiffs’ opposition, make it clear that Zimmerman is only being sued in her official capacity. See Graham,
. In her reply, Zimmerman also argues that the Complaint’s allegations regarding the policies promulgated and adopted are vague and conclusory. However, because Zimmerman did not make this argument in her initial motion to dismiss, the argument is waived. See Somers v. Digital Realty Trust, Inc.,
. Although courts have considered claims denominated as section 1983 claims against federal officers to be Bivens claims for the purpose of deciding a motion to dismiss, as the same analysis largely applies, the Court declines to read a Bivens claim into Plaintiffs’ Complaint. See Morse,
. Although Plaintiffs state in paragraph 49 that the Defendant Officers violated the Fifth and Fourteenth Amendments "by interrogating the LITTLES while they were in custody without ready them their [Miranda] rights,” the rest of the Complaint clearly indicates that this cause of action is only against Stevens. If Plaintiffs choose to file a First Amended Complaint, they must clarify who the defendants are for each cause of action, and in what capacity they are being sued.
. Plaintiffs similarly allege Gore "is the chief policymaker and decisionmaker for the San Diego County Sheriff's Department.” (Compl. at ¶ 4.) However, if Plaintiffs choose to file a First Amended Complaint, they must specify whether Gore is being sued in his official or individual capacity.