Raley v. Williams et al

Filing 27

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 3/7/2019 RECOMMENDING that 22 Motion to Dismiss be granted. Referred to Judge District Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Huang, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEPHEN RALEY,

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Plaintiff,

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No. 2:14-CV-2652-JAM-DMC

v.

FINDINGS AND RECOMMENDATIONS

BOB WILLIAMS, et al.,

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Defendants.

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Plaintiff, who is proceeding pro se, brings this civil action. Pending before the

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court is defendants’ motion to dismiss (Doc. 22). The matter was heard before the undersigned in

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Redding, California, on March 6, 2019, at 10:00 a.m. Stephen Raley appeared pro se. Jonz

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Norine, Esq., appeared for defendants. After hearing arguments, the matter was submitted.

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I. BACKGROUND

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A.

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Procedural History
Plaintiff initiated this action by way of a complaint filed on November 13, 2014.

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Defendants responded with a motion to dismiss filed on April 9, 2018. In findings and

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recommendations issued on August 23, 2018, the court recommended dismissal of the action

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without leave to amend. See Doc. 17. The District Judge adopted the findings and

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recommendations in part and modified the findings and recommendations in part and provided

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plaintiff an opportunity to amend. See Doc. 20.
Magistrate Judge’s Findings and Recommendations

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1.

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In the findings and recommendations, the court summarized plaintiff’s

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allegations as follows:

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Plaintiff filed this action against Tehama County officials,
including the Board of Supervisors, each named individually as well as the
Board itself, the County Counsel of Tehama County, the County
Administrator, the Director of the Department of Environmental Health, the
County Sheriff, an Enforcement Officer, the County Clerk, and the Code
Enforcement Coordinator. The allegations in the complaint are difficult to
decipher, but it appears plaintiff is a medical marijuana user who was
growing marijuana plants on his property. The County enforcement officer
cited plaintiff for growing too many plants, without proper fencing, and too
close to the property line. Plaintiff was issued a notice to abate, as he was in
violation of the County ordinance regulating marijuana grows. Plaintiff
appealed the notice and received a hearing before the Board of Supervisors.
He was then was fined for untimely abatement.
In his complaint, plaintiff alleges his due process rights were
violated in regards to the notice of abatement and hearing procedures; his
Equal Protection rights were violated as he was singled out for enforcement;
the County ordinance is unlawful, unreasonable, and discriminatory; the
excessive fines he was assessed were cruel and unusual punishment; his right
to privacy was invaded by the enforcement officer trespassing on his
property; the violation notice violated ex post facto laws because he was
growing before the County passed the ordinance; he was deprived of his
medication; and there were procedural violation as the appeal was heard by
the Board of Supervisors.

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Doc. 17, pgs. 1-2.

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As to plaintiff’s due process claim, the court held:

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Although plaintiff’s contentions are not stated succinctly and
clearly, reading the complaint broadly as the court must, he alleges his due
process rights were violated throughout the abatement process. Essentially,
he alleges the Board of Supervisors relied upon a report by Enforcement
Officer Rulofson, which contained false information. He also contends he
was not given adequate notice as he was provided a copy of the report by
Rulofson five minutes before the hearing.
“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, 436 U.S. 1, 9 (1978). “Property
interests derive not from the Constitution but from existing rules or
understandings that stem from an independent source such as state law....”
Samson v. City of Bainbridge Island, 683 F.3d 1051, 1057 (9th Cir.2012);
see Memphis Light, 436 U.S. at 9; Lawson v. Umatilla County, 139 F.3d
690, 692 (9th Cir. Or.1998). However, “federal constitutional law determines
whether that interest rises to the level of a legitimate claim of entitlement
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protected by the Due Process Clause.” Memphis Light, 436 U.S. at 9;
Samson, 683 F.3d at 1057; Lawson, 139 F.3d at 692. That is, even though
“state law creates a property interest, not all state-created rights rise to the
level of a constitutionally protected interest.” Brady
v. Gebbie, 859 F.2d 1543, 1548 n. 3 (9th Cir.1988). If a person possess a
protected property interest, then “some form of hearing is required before an
individual is finally deprived of [that] property interest,” because “the
fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424
U.S. 319, 333 (1976); United States v. Clifford Matley Family Trust, 354
F.3d 1154, 1161 (9th Cir.2004).
There is a fundamental problem with plaintiff’s due process
claim that the parties have not addressed. Plaintiff’s claim in this case relate
to the proceedings relating the abatement of his property, specifically
marijuana. Cases in the Eastern District of California have dismissed federal
due process claims where the property interest at issue was possession of
marijuana. See Staffin v. County of Shasta, 2013 U.S. Dist. LEXIS 64625,
12–14, 2013 WL 1896812 (E.D. Cal. May 6, 2013); Schmidt v. County of
Nev., 2011 U.S. Dist. LEXIS 78111, 2011 WL 2967786 (E.D. Cal. July 19,
2011). In both cases, no protected property interest was found for purposes of
the Fourteenth Amendment. See id. In Schmidt, the court explained:
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.”).
“The Supremacy Clause unambiguously provides that
if there is any conflict between federal and state law,
federal law shall prevail.” Id. at 29. While California’s
Compassionate Use Act 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. . . .

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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

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federal law, marijuana is undisputably illegal and
contraband per se.

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Schmidt, 2011 U.S. Dist. LEXIS 78111 at *15–*17, 2011 WL 2967786;3 see
also Marble v. Strecker, 2014 U.S. Dist. LEXIS 50770, *22 (D. Mont. Feb.
26, 2014) (citing Schmidt and holding that plaintiff did not have a “federal
property interest” in marijuana or a state issued marijuana card because
marijuana is contraband per se under federal law). Similarly, Staffin relied in
part on Schmidt and explained:

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Procedural due process, as required by the United
States Constitution, protects only those matters that
may be construed as liberty or property interests.
Conejo Wellness Ctr., Inc. v. City of Agoura Hills,
214 Cal.App.4th 1534, 154 Cal.Rptr.3d 850 (2013) . .
. (noting the differences between procedural due
process under the United States and California
Constitutions). However, no person can have a legally
protected interest in contraband per se.
Schmidt v. Cnty. of Nevada, 2011 WL 2967786, at
*5–6 (E.D. Cal. July 19, 2011) (citations omitted).
Therefore, because marijuana is contraband per se
under federal law, as mentioned above, no person can
have a cognizable legal interest in it. Id.

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Staffin, 2013 U.S. Dist. LEXIS 64625 at *13, 2013 WL 1896812.
Thus, plaintiff’s claims that his due process rights were
violated in relation to his possession of marijuana fail in this court as a matter
of law. The claim should therefore be dismissed, and no amendment can cure
the defect.

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Doc. 17, pgs. 5-8.
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Regarding an apparent equal protection claim, the court stated:
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Plaintiff’s second federal claim appears to be an equal
protection claim. He argues that he was singled out for enforcement of the
marijuana ordinance. He contends that several neighbors are also in violation
of the ordinance, and they have not been found to be in violation. Defendants
argue “there is no such thing as an ‘unfair and selective’ code
enforcement” citing state law. See City & Cty. of San Francisco v. Burton,
201 Cal. App. 2d 749, 755 (1962).

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Plaintiff argues in his opposition to the motion to dismiss that
he was the only one targeted for abatement in his entire community of
Rancho Tehama. He argues that other property in the immediate area are
cultivating marijuana with larger grows that he had, with partial or no
fences and clearly visible from the street. However, the other cultivations
were not subject to abatement or enforcement issues. In essence, he contends
he was targeted for selective enforcement.

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While plaintiff states in the complaint that he was unfairly
singled out, other than his conclusory statements, he fails to allege facts
demonstrating that the defendants failed to enforce the marijuana ordinances
against similarly situated property owners, that he was intentionally targeted,
and that such disparate treatment lacked a rational basis. In addition, the
selective enforcement plaintiff is complaining about is the type of
discretionary action addressed in the cases cited above. There is no argument
that the County Ordinance is not uniformly applicable, and county officials
can exercise “discretionary authority based on subjective, individualized
determinations.” See Engquist, 553 U.S. at 602-03. The decision as to
whether a property is in violation of a county ordinance is subject to the type
of discretionary decision-making courts have found are not in violation of the
class-of-one doctrine. Thus, the undersigned finds plaintiff fails to state a
claim for violation of his equal protection rights.

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Doc. 17, pgs. 8-10.
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The court also held plaintiff failed to state a claim for excessive fines:

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The Eighth Amendment provides “Excessive bail shall not be
required, nor excessive fines imposed not cruel and unusual punishments
inflicted.” In Austin v. United States, 509 U.S. 602, 609-610 (1993) (1989),
the Supreme Court held that the Excessive Fines Clause “limits the
Government’s power to extract payments, whether in cash or in kind ‘as
punishment for some offense.’” Under constitutional principles “[a] penalty
is unconstitutionally excessive if (1) the payment to the government
constitutes punishment for an offense, and (2) the payment is grossly
disproportionate to the gravity of the defendant’s offense.” U.S. v. Mackby,
261 F.3d 821, 829 (9th Cir. 2001) (citing United States v. Bajakajian, 524
U.S. 321, 327–28, 334 (1998)). Here, plaintiff alleges “[t]hat the
respondents’ actions inflicted undue hardship, cruel and unusual punishment
and mental and emotional distress and anguish on Raley be defaming his
character and attempting to unlawfully impose an excessive fine which they
knew he could not pay.” (Comp., Doc. 1 at 6 (emphasis added)). He does not,
however, contend that an excessive fine was actually imposed, nor that it was
imposed as punishment rather than for a remedial purpose.
Plaintiff’s conclusory allegations relating to any potential
Eighth Amendment violation for the fines imposed is too vague and
conclusory to state a claim. To the extent plaintiff alleges his Eighth
Amendment rights were violated by the defendants attempting to impose an
excessive fine, he cannot state a claim. Unless excessive fines were actually
imposed, and the fines were imposed for punishment rather than for a
remedial purpose, no Eighth Amendment violation would be possible.

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Doc. 17, pgs. 10-11.
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District Judge’s Order

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The District Judge adopted the findings and recommendations with respect to

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plaintiff’s due process and equal protection, which the court dismissed with prejudice. See

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Doc. 20. The court, however, modified the findings and recommendations without explanation

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with respect to plaintiff’s excessive fines claim, which was dismissed with leave to amend.

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See id.

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B.

Pursuant to the District Judge’s order, plaintiff filed a document entitled

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Plaintiff’s Current Allegations

“Plaintiff’s Response to Court Order and Amended Writ of Mandate,” which can be construed

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as plaintiff’s amended complaint (Doc. 21). Regarding fines, plaintiff now claims he was in

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fact ultimately assessed a fine in the amount of $2,000.00. See id. at pgs. 9-10. According to

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plaintiff, a lien was placed on his home for unpaid fines, which he settled by paying $1,000.00

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to the County of Tehama. See id. at 10.

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II. STANDARD FOR MOTION TO DISMISS

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In considering a motion to dismiss, the court must accept all allegations of material

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fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must

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also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes,

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416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740

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(1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or

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doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411,

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421 (1969). However, legally conclusory statements, not supported by actual factual allegations,

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need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se

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pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v.

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Kerner, 404 U.S. 519, 520 (1972).

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement

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of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair

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notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly,

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550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order

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to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain

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more than “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The

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complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at

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570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

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Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but

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it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting

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Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a

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defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement

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to relief.” Id. (quoting Twombly, 550 U.S. at 557).

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In deciding a Rule 12(b)(6) motion, the court generally may not consider materials

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outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998);

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Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1)

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documents whose contents are alleged in or attached to the complaint and whose authenticity no

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party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question,

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and upon which the complaint necessarily relies, but which are not attached to the complaint, see

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Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials

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of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.

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1994).
Finally, leave to amend must be granted “[u]nless it is absolutely clear that no

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amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per

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curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).

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III. DISCUSSION
Defendants argue the current complaint does not support the only remaining

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claims of excessive fines under the Eighth Amendment because the fine imposed was not

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grossly disproportionate to the offense. The court agrees. As defendants note, plaintiff claims

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he was fined $500.00 per day for violating the county’s ordinance prohibiting outdoor

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marijuana cultivation. Plaintiff also states that, although he was not in compliance for several

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weeks, he was ultimately only fined $1,000.00. Thus, on the face of the amended complaint, it

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cannot be said plaintiff was subjected to excessive fines. See Mackby, 261 F.3d at 829;

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Bajakajian, 524 U.S. at 327–28, 334. To the contrary, his ultimate fine amount represented a

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substantial discount.

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IV. CONCLUSION
Because no further amendment could possibly cure the defect in plaintiff’s only

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remaining federal claim relating to excessive fines, the court should decline to exercise

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supplemental jurisdiction over plaintiff’s state law claims, defendants’ motion to dismiss should

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be granted, and this action should be dismissed in its entirety with prejudice.

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Based on the foregoing, the undersigned recommends that defendants’ motion to
dismiss (Doc. 22) be granted.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written objections

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with the court. Responses to objections shall be filed within 14 days after service of objections.

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Failure to file objections within the specified time may waive the right to appeal. See Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: March 7, 2019
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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