Anderson et al v. Lomas et al

Filing 30

ORDER GRANTING MOTIONS TO DISMISS BY DEFENDANT STEIN; DEFENDANTS LOMAS, VERNON, SMITH, AND HAWKINS; AND COUNTY OF SONOMA (SI, COURT STAFF) (Filed on 10/31/2011)

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NOT FOR PUBLICATION
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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BRETT ANDERSON and MICHELLE
HARRIS, individually and on behalf of their
children PRINCE JAIDEN ANDERSON and
PRINCESS JAI’ME ANDERSON,

United States District Court
For the Northern District of California

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Plaintiffs,

No. C 11-01414 SI
ORDER GRANTING MOTIONS TO
DISMISS BY DEFENDANT STEIN;
DEFENDANTS LOMAS, VERNON,
SMITH, AND HAWKINS; AND COUNTY
OF SONOMA

v.
MONIQUE LOMAS, AL VERNON, ROBIN
SMITH, SHERRY HAWKINS, COUNTY OF
SONOMA, DR. SANDRA STEIN, and DOES IXXX,
Defendants.

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On October 17, 2011, the Court held a hearing on defendants’ motions to dismiss plaintiffs’
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amended complaint. For the reasons set forth below, the Court GRANTS defendants’ motions.
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BACKGROUND
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On August 6, 2011, plaintiffs Brett Anderson and Michelle Harris filed a first amended
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complaint (the “FAC”) alleging federal and state claims against defendants Sandra Stein; the County
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of Sonoma (the “County”); and four individuals employed by the County: Officers Michelle Lomas and
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Al Vernon (the “officers”); and social workers Robin Smith and Sherry Hawkins (the “social workers”).
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Plaintiffs, who are also suing on behalf of their children Prince Jaiden and Princess Jai’me, allege six
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causes of action arising from an eviction from property owned by defendant Stein (the “premises”). The
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gist of the complaint is that plaintiffs and Stein engaged in a tumultuous and short-lived marijuana grow
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cooperative on the premises, and that when their agreement turned sour, Stein and the defendant officers
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engaged in unlawful behavior by battering, arresting, and removing plaintiffs from the property,

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followed by defendant social workers’ unlawful removal and retention of plaintiffs’ children for an

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unspecified period of time.
As an initial matter, all of the claims in the complaint arise from activities, allegedly undertaken

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by plaintiffs Anderson and Harris, which would amount to serious violations of federal law. It deeply

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concerns the Court that plaintiffs, and their counsel, filed a complaint in federal court that contains such

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allegations. The Controlled Substances Act requires that anyone convicted of possession with intent

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to distribute 100 or more marijuana plants, regardless of weight, be sentenced to a minimum of 5 years

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in prison, as well as fined up to $5,000,000.1 Yet plaintiffs aggressively allege in their complaint that

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United States District Court
For the Northern District of California

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they sought, and found, a property to rent in order to grow their 900 marijuana plants. Whatever the

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legality of these activities under California law (itself a shaky proposition), this conduct could have

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serious criminal and child-custody consequences for plaintiffs in the federal criminal justice system.

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Before submitting an amended complaint, the Court advises plaintiff’s counsel to consult with his clients

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and determine whether they feel it is prudent to again articulate facts in a pleading that expose them to

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criminal liability.

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LEGAL STANDARD

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Federal Rule of Civil Procedure 12(b)(6) permits a defendant to move to dismiss a plaintiff’s

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action for "failure to state a claim upon which relief may be granted.” To survive a 12(b)(6) motion to

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dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.”

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires

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the plaintiff to allege facts that add up to “more than a sheer possibility that a defendant has acted

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unlawfully.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). While courts do not require “heightened

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fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the

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speculative level.” Twombly, 550 U.S. at 544, 555.

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In deciding whether the plaintiff has stated a claim upon which relief may be granted, the Court

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21 U.S.C.A. § 841(b)(1)(A)(vii) imposes a mandatory minimum 10 year prison sentence for
possession with intent to distribute 1,000 or more marijuana plants, regardless of weight.
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must assume that the plaintiffs’ allegations are true and must draw all reasonable inferences in the

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plaintiffs’ favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the

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Court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions

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of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).

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DISCUSSION
Plaintiffs assert six causes of action against defendants. The false arrest, retaliation, and 14th

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Amendment causes of action assert federal claims under 42 U.S.C. § 1983 (“Section 1983"), while the

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battery, negligence, and state constitutional causes of action state claims under California law. FAC ¶

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United States District Court
For the Northern District of California

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4. Plaintiffs allege four causes of action against defendant Stein, six causes of actions against Lomas,

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five causes of action against Vernon, three causes of action against Smith and Hawkins, and five causes

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of action against the County of Sonoma.

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I.

Federal Claims Against Social Workers Smith and Hawkins

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Plaintiffs allege three causes of action against social workers Smith and Hawkins related to the

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removal and retention of plaintiffs’ children. Defendants argue that absolute immunity shields Smith

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and Hawkins as social workers from any federal civil rights claims alleged against them. “Social

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workers are entitled to absolute immunity in performing quasi-prosecutorial functions connected with

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the initiation and pursuit of child dependency proceedings.” Meyers v. Contra Costa County Dept. of

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Social Services, 812 F.2d 1154, 1157 (9th Cir. 1987). The Court agrees with defendants. Plaintiffs

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allege no facts that circumvent the absolute immunity provided to social workers under California law.

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They provide no information to the Court regarding court proceedings, or any basis to infer that the

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social workers were acting outside of their typical “quasi-prosecutorial functions connected with the

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initiation and pursuit of child dependency proceedings.” Id.

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Plaintiffs point to California Government Code section 820.21, which strips immunity from

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social workers who fail to disclose exculpatory evidence in dependency proceedings. Pl.’s Opp. to

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County Def.’s Mot. 5:21-28. Plaintiffs allege that this exculpatory information was “evidence to the

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court regarding the acts of informing law enforcement of the illegal actions of Stein . . . the request by
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plaintiffs to arrest said individuals; plaintiffs’ request to be restored to possession of the subject

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premises; [and] the request of Lomas and other law enforcement to assist with a citizen’s arrest.” Id.

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However, plaintiffs provide no allegations that Smith and Hawkins had any knowledge of these

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activities, nor is there any basis to infer that this information would, in fact, be “exculpatory.” The

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claims with respect to the social workers are DISMISSED without leave to amend.

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II.

Federal Claims Against Officers Lomas and Vernon
Plaintiffs bring three federal claims against Officers Lomas and Vernon pursuant to Section

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1983: false arrest in violation of the Fourth Amendment, retaliation in violation of the First Amendment,

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United States District Court
For the Northern District of California

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and wrongful eviction in violation of the Due Process Clause of the 14th Amendment. Section 1983

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provides a federal remedy for “the deprivation of any rights, privileges, or immunities secured by the

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Constitution and laws.”

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constitutional rights. Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 105 (1989).

The remedy encompasses violations of federal statutory as well as

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A.

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Plaintiffs assert a Section 1983 claim alleging a violation of their 4th Amendment right to be free

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from unlawful arrest (Count V). FAC ¶¶ 35, 36. Plaintiffs were arrested for “child endangerment and

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vandalism.” FAC ¶ 22B. The Fourth Amendment allows warrantless public arrests upon a showing of

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probable cause. U.S. v. Watson, 423 U.S. 411, 423 (1976). Plaintiffs plead no facts supporting an

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inference that the officers lacked probable cause to effect the arrest. Plaintiffs’ own complaint alleges

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that they were attempting to enter a house that did not belong to them, after previously being told by

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officers to leave the premises, and that they owned nine hundred marijuana plants either in or near the

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house where their children lived. FAC ¶ 15-22. The fact that no charges were brought against them

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does not, in itself, support a claim for false arrest. The claim for false arrest (Count I) against Lomas

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and Vernon is DISMISSED.

False Arrest

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B.

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The plaintiffs allege that the officers retaliated against them for “exercising their right to free

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speech and redress of grievances in violation of 42 U.S.C. § 1983 pursuant to the First Amendment of

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the U.S. Constitution.” FAC ¶ 30. They also argue that they were “wrongfully evicted from their home

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by Dr. Sandra Stein, and action was taken by Officers Lomas, Vernon, and Dr. Stein to ensure that they

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were unable to return safely to the subject premises without good cause and that a situation was being

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created where the children would be detained and taken into custody. This violated the 14th

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Amendment Due Process Clause of the U.S. Constitution, and the doctrine of wrongful eviction under

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California law.” FAC ¶ 36.

Retaliation and Wrongful Eviction

United States District Court
For the Northern District of California

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To survive a 12(b)(6) motion to dismiss, a plaintiff must allege “enough facts to state a claim

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to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The

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facts as alleged here do not meet the plausibility standard required by Twombly. Plaintiffs set forth no

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facts supporting inferences that state officials would retaliate for plaintiffs’ reporting of illegal behavior

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to authorities or requesting a citizen’s arrest; in fact, there is little allegation that Officers Lomas and

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Vernon even knew of plaintiffs’ prior activities.

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Nor does the complaint set forth sufficient facts to infer the officers were involved in a wrongful

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eviction. As an initial matter, it is unclear that an eviction even took place. No claims of a written

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agreement or lease are present in the complaint. The entire relationship between the parties was a

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sporadic 11-day spat marked by illegal drug manufacture, repeated altercations, and physical violence.

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The facts as pled do not establish a landlord-tenant relationship from which a wrongful eviction could

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take place.

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Even if there were a wrongful eviction, moreover, the facts do not suggest the officers could be

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held liable for it. On February 13, 2010 -- six days before Officers Lomas and Vernon were involved --

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defendant Stein demanded that the plaintiffs move out of her property. FAC ¶ 13. Days of altercations

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between Stein and plaintiffs ensued. FAC ¶ 14-17. On February 19, 2010, the plaintiffs’ possessions

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were moved out of the house and the locks were changed. FAC ¶ 22. Only then did Officers Lomas

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and Vernon arrive on the scene, tell the plaintiffs to leave the premises, and eventually arrest them for

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child endangerment. Id. These facts do not set forth a plausible claim that the officers were part of the
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eviction process. Plaintiffs’ claims for retaliation and wrongful eviction fail to meet the necessary

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pleading standards required under Twombly and are therefore DISMISSED.

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Federal Claims Against Defendant Stein

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Plaintiffs allege five causes of action against defendant Stein -- false arrest, retaliation, battery,

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wrongful eviction (as a violation of their 14th Amendment rights), and deprivation of their constitutional

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rights under California Civil Code 52.1. Three of the claims -- false arrest, retaliation, and wrongful

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eviction -- are brought pursuant to Section 1983.
Stein, a private citizen, moves to dismiss the federal claims for failure to allege that she acted

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United States District Court
For the Northern District of California

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under the color of law. Def. Stein’s Mot. to Dismiss at 6. In order to state a claim under Section 1983,

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a plaintiff must show 1) that the defendant acted under color of state law, and 2) that the defendant’s

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conduct “deprived a person of rights, privileges, or immunities secured by the Constitution or laws of

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the United States.” Parratt v. Taylor, 451 U.S. 527, 535 (1981). While the acts of state officials are

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usually “under color of state law,” it is not required that the accused be an officer of the state. Adickes

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v. S. H. Kress & Co., 398 U.S. 144, 152 (1970). A private citizen may be liable under Section 1983 if

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she is a willful participant in joint activity with the State or its agents. Howerton v. Gabica, 708 F.2d

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380, 383 (9th Cir. 1983).

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Here, plaintiffs claim that though defendant Stein is a private citizen, her actions qualify under

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Section 1983 because she acted with a state official -- Officer Lomas -- to deprive plaintiffs of their

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Constitutional rights. The Court disagrees. With respect to the wrongful eviction claim, Stein could

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only be held liable pursuant to Section 1983 if the eviction could be considered state action. Howerton,

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708 F.2d at 385.2 Evictions become state action only when police are involved “every step of the way.”

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Id. Yet, as described above (Section IIB), the officers were not sufficiently involved in the eviction

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process to warrant liability, let alone convert the private eviction into state action. As the eviction was

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not state action, Stein was not a state actor in effecting it. The wrongful eviction claim brought under

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The Court reiterates that it is unclear an eviction took place, considering the lack of facts
alleging a landlord-tenant relationship. See Section IIB. For the purposes of this section, the Court will
assume an eviction took place.
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Section 1983 is DISMISSED.

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With respect to plaintiffs’ false arrest claim, there is no question that an arrest by a state official

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is state action. However, merely assisting an officer by pointing out that a crime is being committed --

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in this case, child endangerment -- does not turn a private individual into a state actor. That is especially

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true when the plaintiff, as here, has failed to show that the arrest was not supported by probable cause.

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Stein pointed out to the officers that a crime may be underway; and the crime she pointed to was

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supported by probable cause and reaffirmed by the fact Child Protective Services retained the children

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for months.
Finally, plaintiffs’ claim of retaliation by Stein is simply not cognizable. It is possible a state-

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United States District Court
For the Northern District of California

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law cause of action lies when a private defendant evicts a plaintiff for reporting the private defendant’s

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illegal behavior to authorities, but plaintiffs provide no support that it is a violation of one’s First

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Amendment rights.

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Plaintiffs’ claims against Stein are therefore DISMISSED without leave to amend.

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Claims Against County of Sonoma

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The “County of Sonoma” is not a proper defendant in the case because there are no factual

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allegations brought against it. Plaintiffs only offer a conclusory statement that County of Sonoma has

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a “custom and policy of removing children from the custody of parents and not permitting them to return

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to their parents when exigent circumstances did not exist.” Plaintiffs do not further detail this allegation

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nor explain the manner in which this custom and policy exists. This claim is DISMISSED without leave

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to amend.

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State Causes of Action Alleged Against All Defendants

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Because no federal claims are sufficiently alleged against any of the defendants, they are

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dismissed. The Court declines to exercise supplemental jurisdiction over the remaining state law claims.

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28 U.S.C. § 1367(c).

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CONCLUSION

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Defendants Smith and Hawkins’ motions to dismiss is GRANTED without leave to amend.

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Defendant Stein’s motion to dismiss is also GRANTED without leave to amend. Defendants Lomas and

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Vernon’s motions to dismiss are GRANTED with leave to amend, any amended complaint to be filed

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no later than November 14, 2011. However, as stated above, the Court advises plaintiffs’ counsel to

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consult with his clients to determine whether they feel it is prudent to allege such facts in a federal court

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pleading.

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IT IS SO ORDERED.

United States District Court
For the Northern District of California

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SUSAN ILLSTON
United States District Judge

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