Om et al v. Melero et al

Filing 41

ORDER by Judge Claudia Wilken GRANTING 10 MOTION TO DISMISS; DENYING PLAINTIFFS MISCELLANEOUS ( 16 , 17 , 19 , 21 , 38 ) MOTIONS FOR RELIEF. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 2/27/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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KAMAJI OM, KRSNAYA OM, and SUKLA
TARA AUSHADHALAY,
Plaintiffs,

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v.
OFFICER MELERO, et al.
Defendants.
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No. C 12-5498 CW
ORDER GRANTING
MOTION TO DISMISS
(Docket No. 10);
DENYING
PLAINTIFF’S
MISCELLANEOUS
MOTIONS FOR RELIEF
(Docket Nos. 16,
17, 19, 21, 38)

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United States District Court
For the Northern District of California

Plaintiffs Kamaji and Krsnaya Om, proceeding pro se, bring
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this action against Defendants Vickie Virk and various employees
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of the City of Berkeley.

City Defendants move to dismiss the

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complaint.

Krsnaya Om opposes the motion and moves for leave file

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a first amended complaint (FAC) and miscellaneous other forms of
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relief.

The Court took the matter under submission on the papers

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and now grants City Defendants’ motion to dismiss.

Plaintiff’s

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motions are denied as moot.
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BACKGROUND
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The following facts are taken from Plaintiffs’ complaint.

On

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October 3, 2012, seven or eight Berkeley Police Department (BPD)
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officers raided Sukla Tara Aushadhalay, a spiritual healing
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clinic1 operated by Kamaji Om (also known as Mary Lund).

Docket

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No. 1, Compl. at 14, 25.

The police, who had a warrant to search

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the property, seized over three-hundred marijuana plants from the
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clinic as well as cash and other “personal items” belonging to
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Plaintiffs describe the clinic in their complaint as a “duly
registered religious Trust.” Compl. at 14.

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Kamaji Om.

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not charged anyone in connection with the raid.

Id. at 14-15.

They did not make any arrests and have
Id. at 15.

Shortly after the raid, a BPD officer2 telephoned the

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clinic’s landlord, Virk, to inform her that her property was being

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used for criminal activity.

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that she needed to evict Plaintiffs from the property and warned

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Virk that she could face criminal charges for failing to do so.

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Id. at 17.

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with an eviction notice.

Id. at 16-17.

The officer told Virk

Virk eventually hired an attorney and served Kamaji Om
Id.

The complaint does not state

United States District Court
For the Northern District of California

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whether Kamaji Om or the clinic were actually evicted from the

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property.

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On October 24, 2012, Kamaji and Krsnaya Om filed this lawsuit

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on behalf of themselves and Sukla Tara Aushadhalay against Virk,

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BPD Chief Michael K. Meehan, BPD Officers Melero and Kalcek, and

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City of Berkeley employees Gregory Daniel, William Rogers, and

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Wendy Cosin.

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thirty-six causes of action against Defendants under state and

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federal law.

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compensatory damages, three million dollars in punitive damages,

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and an order directing the City of Berkeley to close all licensed

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marijuana dispensaries operating within city limits.

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31.

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property in the United States “where a Sukla Tara Aushadhalay or

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botanical garden is established and where rents are being paid

Id. at 1.

In their complaint, Plaintiffs assert

Id. at 4-5, 29-31.

They seek 1.5 million dollars in

Id. at 29-

They also seek an injunction barring evictions from any

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Although Plaintiffs allege that this officer’s name is Darren
Kalcek, they also refer to him as John Doe in their complaint. See
Compl. at 17.

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according to lease contract agreement.”

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failed to serve their complaint on either City Defendants or Virk.

Id. at 30-31.

Plaintiffs

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On November 29, 2012, City Defendants moved to dismiss the

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complaint for failure to state a claim, insufficient service of

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process, insufficient process, and failure to comply with Federal

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Rule of Civil Procedure 8.

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failed to file a timely opposition, the Court extended their

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deadline to do so by one week.

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On January 14, 2013, after Plaintiffs

Docket No. 15.

The next day, January 15, 2013, Krsnaya Om filed two copies

United States District Court
For the Northern District of California

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of her opposition to City Defendants’ motion.

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20.

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including (1) a motion for leave to file a FAC, Docket No. 21;

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(2) a “request for extra time to serve summons to four John Doe

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Federal Agents & United Parcel Post,” Docket No. 16; and (3) two

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“ex parte request[s] for federal injunctions against police and

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constitutional obstructors,” Docket Nos. 17 & 19.

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2013, she filed a “motion for summons” seeking permission to serve

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a summons, a FAC, and discovery requests on California Attorney

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General Kamala Harris, United States Attorney Melinda Haag,

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“United Parcel Post,” and four John Doe federal agents.

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No. 38.

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any of her moving papers.

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Docket Nos. 18 &

She also filed several motions for miscellaneous relief,

On January 31,

Docket

Kamaji Om did not sign Krsnaya Om’s opposition brief nor

On January 23, 2013, City Defendants filed their reply brief

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in support of their motion to dismiss.

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they note that, because Plaintiffs attempted service in December

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2012, City Defendants are now “willing to withdraw the procedural

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arguments regarding service of process as a basis for dismissal.”

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Docket No. 30.

In it,

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Id. at 2.

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appear to have been served.

Virk has not appeared in this action and does not

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LEGAL STANDARD
A complaint must contain a “short and plain statement of the

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claim showing that the pleader is entitled to relief.”

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Civ. P. 8(a).

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state a claim, dismissal is appropriate only when the complaint

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does not give the defendant fair notice of a legally cognizable

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claim and the grounds on which it rests.

Fed. R.

On a motion under Rule 12(b)(6) for failure to

Bell Atl. Corp. v.

United States District Court
For the Northern District of California

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Twombly, 550 U.S. 544, 555 (2007).

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complaint is sufficient to state a claim, the court will take all

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material allegations as true and construe them in the light most

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favorable to the plaintiff.

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896, 898 (9th Cir. 1986).

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to legal conclusions; “threadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements,” are not

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taken as true.

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(citing Twombly, 550 U.S. at 555).

In considering whether the

NL Indus., Inc. v. Kaplan, 792 F.2d

However, this principle is inapplicable

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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When granting a motion to dismiss, the court is generally

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required to grant the plaintiff leave to amend, even if no request

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to amend the pleading was made, unless amendment would be futile.

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Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911

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F.2d 242, 246-47 (9th Cir. 1990).

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amendment would be futile, the court examines whether the

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complaint could be amended to cure the defect requiring dismissal

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“without contradicting any of the allegations of [the] original

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complaint.”

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Cir. 1990).

In determining whether

Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th

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DISCUSSION
I.

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Failure to State a Claim
Plaintiffs’ complaint is poorly organized and contains few

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concrete factual allegations.

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historical, and religious arguments against government

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prohibitions on marijuana possession.

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Plaintiffs’ views on tenants’ rights and religious freedom.

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complaint fails to link Plaintiffs’ numerous causes of action

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directly to any specific Defendants or factual allegations.

It consists mostly of broad legal,

It also summarizes
The

The

United States District Court
For the Northern District of California

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Court will assume, therefore, that Plaintiffs’ claims arise from

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the two events described in the complaint: the October 2012 BPD

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raid of the clinic and the subsequent eviction notice issued by

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Virk.

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gives rise to a claim upon which relief might granted.

For the reasons outlined below, neither of these events

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A.

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Kamaji Om is the only plaintiff here who is alleged to have

Kamaji Om’s Claims

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been present during the October 2012 raid.

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plaintiff alleged to have had her personal property seized by BPD,

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to have held an administrative position at the clinic, or to have

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received an eviction notice from Virk.

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direct involvement in these events, she has failed to state a

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claim here.

She is also the only

Nevertheless, despite her

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The central barrier to Kamaji Om’s claims against City

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Defendants is her admission that she knowingly engaged in illegal

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activity -- namely, the possession and distribution of marijuana

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without a permit.

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with the cannabis we give away free after he leaves the clinic is

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up to him.”).

See Compl. at 14-15, 26 (“What a customer does

These activities are prohibited under both state
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and federal law.

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Safety Code §§ 11357-58.

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these prohibitions as well as their own local nuisance and

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criminal ordinances.

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(9th Cir. 1983) (concluding that state officers have authority to

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enforce federal criminal law), overruled on other grounds in

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Hodgers–Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999);

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Sturgeon v. Bratton, 174 Cal. App. 4th 1407, 1412-13 (2009); City

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of Oakland v. Superior Court, 45 Cal. App. 4th 740, 456 (1996).

See 21 U.S.C. §§ 841(b), 844; Cal. Health &
Cities have the authority to enforce

See Gonzales v. Peoria, 722 F.2d 468, 475-76

United States District Court
For the Northern District of California

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Accordingly, neither Kamaji Om nor any other Plaintiff may state a

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claim against City Defendants for seizing marijuana from the

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clinic.

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In her opposition, Krsnaya Om argues that Plaintiffs are not

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bound by any laws prohibiting marijuana possession because of

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their spiritual beliefs.

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argument on multiple occasions.

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F.3d 1210, 1215-16 (9th Cir. 2002) (“Guam may constitutionally

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punish [the defendant] for importing a controlled substance, even

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if doing so substantially burdens his ability to practice his

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religion.”); Multi-Denominational Ministry of Cannabis & Rastafari

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v. Gonzales, 474 F. Supp. 2d 1133, 1143-44 (N.D. Cal. 2007)

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(dismissing religious nonprofit’s First Amendment claims against

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county sheriff’s deputies for seizure of marijuana plants), aff’d

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365 Fed. App’x 817, 819 (9th Cir. 2010).

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generally held that the “right to freely exercise one’s religion

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. . . ‘does not relieve an individual of the obligation to comply

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with a valid and neutral law of general applicability.’”

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Stormans, Inc. v. Selecky, 586 F.3d 1109, 1128 (9th Cir. 2009)

Federal courts have rejected this
See, e.g., Guam v. Guerrero, 290

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The Ninth Circuit has

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(quoting Employment Division v. Smith, 494 U.S. 872, 879 (1990)).

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Thus, all claims against City Defendants based on the lawful

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seizure of illegal drugs must be dismissed with prejudice.

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Kamaji Om’s claims against Virk, the clinic’s landlord, must

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also be dismissed.

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breached her lease with any Kamaji Om or any other Plaintiff.

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does it allege that Virk lacked the authority to evict tenants

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from her property.

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Plaintiff had a possessory interest in the property.

The complaint does not allege that Virk
Nor

Nor does the complaint allege that any
See Spinks

United States District Court
For the Northern District of California

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v. Equity Residential Briarwood Apts., 171 Cal. App. 4th 1004,

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1039-40 (2009) (stating that plaintiffs must have “peaceable

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possession” of property to bring a wrongful eviction action

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against the property owner).

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allege that Virk actually evicted anyone.

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alleged to have taken is serving Kamaji Om with an eviction notice

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at the request of the police.

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insufficient to state a cognizable claim.

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against Virk are therefore dismissed.

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claims against Virk if she can truthfully allege that she had a

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lawful, possessory interest in the property and that Virk

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wrongfully evicted her.

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Indeed, the complaint does not even
The only action Virk is

Standing alone, this allegation is
Kamaji Om’s claims

Kamaji Om may amend her

Finally, the Court notes that Kamaji Om has failed to sign

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either copy of the opposition brief filed by Krsnaya Om.

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the complaint states that Krsnaya Om will serve as Kamaji Om’s

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“appointed counsel,” the local rules prohibit such an arrangement

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because both are proceeding pro se here.

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states that any “party representing him or herself without an

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attorney must appear personally and may not delegate that duty to
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Although

Civil Local Rule 3-9(a)

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any other person who is not a member of the bar of this Court.”

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Krsnaya Om is not a member of the bar of this Court and,

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therefore, may not serve as Kamaji Om’s appointed counsel.

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in addition to the grounds for dismissal outlined above, Kamaji

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Om’s claims are dismissed for her failure to oppose City

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Defendants’ motion personally.

Thus,

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B.

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Krsnaya Om’s involvement this action remains unclear.

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complaint does not state whether she was present at the clinic

Krsnaya Om’s Claims
The

United States District Court
For the Northern District of California

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during the police raid nor does it state whether her property was

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seized by BPD.

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had any financial or property interest in Sukla Tara Aushadhalay

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or was otherwise affected by the eviction notice.

The complaint also fails to specify whether she

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Based on the complaint, Krsnaya Om’s only apparent connection

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to this suit is as (1) Kamaji Om’s “appointed counsel,” (2) Kamaji

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Om’s “guru,” and (3) the “Trust Fiduciary of Sukla Tara Ayurvda

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Institute,” which appears to be an alternative name for Sukla Tara

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Aushadhalay.

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is expressly precluded under the local rules, as noted above.

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Civil L.R. 3-9(a).

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Fiduciary” -- do not support her claims in this case.

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Accordingly, Krsnaya Om’s claims must be dismissed.

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claims against City Defendants are dismissed with prejudice for

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the reasons discussed above, she is granted leave to amend her

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claims against Virk if she can truthfully allege that she had a

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lawful, possessory interest in the property and was wrongfully

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evicted.

Id. at 5.

Of these three possible roles, the first
See

The other two roles -- “guru” and “Trust

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Although her

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C.

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Sukla Tara Aushadhalay’s claims against City Defendants are

Sukla Tara Aushadhalay’s Claims

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dismissed for the same reasons that Kamaji and Krsnaya Om’s claims

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against them are dismissed.

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because Sukla Tara Aushadhalay is not a natural person and thus,

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under the local rules, may only appear “through a member of the

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bar of this Court.”

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Krsnaya Om are not members of the bar of this Court, they may not

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represent Sukla Tara Aushadhalay in this action.

United States District Court
For the Northern District of California

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II.

In addition, its claims are dismissed

Civil L.R. 3-9(b).

Because Kamaji and

Other Grounds for Dismissal
In addition to the grounds for dismissal discussed above,

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City Defendants move to dismiss based on qualified immunity and

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Plaintiffs’ failure to abide by Rule 8.

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claims against City Defendants are dismissed with prejudice, the

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Court does not address these alternative grounds for dismissal.

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III. Plaintiff Krsnaya Om’s Motions for Miscellaneous Relief

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Because Plaintiffs’

Krsnaya Om’s motion for leave to file a FAC is denied.

The

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motion fails to articulate any justifications for amending the

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complaint and, more importantly, her proposed FAC fails to cure

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the various pleading deficiencies identified above.

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the proposed FAC has not been signed by Kamaji Om.

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Furthermore,

Krsnaya Om’s other motions all involve either enjoining or

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effecting service upon City Defendants, Attorney General Harris,

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United States Attorney Haag, John Doe federal agents, “United

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Parcel Post,” and employees of Chase Manhattan Bank.

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have failed to state a claim against any of these individuals: the

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claims against City Defendants are dismissed with prejudice and

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none of the other individuals identified in these motions are
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Plaintiffs

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named as parties in Plaintiffs’ original complaint.

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of these motions are denied as moot.

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As such, all

CONCLUSION
For the reasons set forth above, City Defendants’ motion to

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dismiss (Docket No. 10) is GRANTED.

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for leave to file a FAC (Docket No. 21), motion for summons

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(Docket No. 38), requests for “federal injunctions” (Docket Nos.

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17 & 19), and request for “extra time to serve summons to four

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John Doe Federal Agents & United Parcel Post” (Docket No. 16) are

United States District Court
For the Northern District of California

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Plaintiff Krsnaya Om’s motion

DENIED.
All claims against City Defendants are dismissed with

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prejudice.

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they must file a proposed amended complaint with the Court within

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twenty-one days of this order.

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cause why their claims against Virk should not be dismissed for

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failure to complete timely service as required by Federal Rule of

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Civil Procedure 4(m).

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(1) allege sufficiently detailed facts for the Court to determine

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whether they are entitled to relief; (2) clearly describe the

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alleged injury or injuries for which Virk specifically is alleged

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to be responsible; and (3) not raise any new claims.

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pursuant to the local rules, their amended complaint must be

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signed by both Krsnaya and Kamaji Om and may not assert any claims

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on behalf of Sukla Tara Aushadhalay, or any other entity, unless

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Plaintiffs are represented by a member of the bar of this Court.

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Plaintiffs are responsible for prosecuting this case.

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Failure to comply with the instructions in this order may result

If Plaintiffs seek to amend their claims against Virk,

In addition, they must show good

Plaintiffs’ amended complaint must

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Furthermore,

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in the dismissal of this action for failure to prosecute, pursuant

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to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.

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Dated:

2/27/2013

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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