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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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 KAMAJI OM, KRSNAYA OM, and SUKLA TARA AUSHADHALAY, Plaintiffs, 6 7 8 9 v. OFFICER MELERO, et al. Defendants. ________________________________/ 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) 10 United States District Court For the Northern District of California Plaintiffs Kamaji and Krsnaya Om, proceeding pro se, bring 11 this action against Defendants Vickie Virk and various employees 12 of the City of Berkeley. City Defendants move to dismiss the 13 complaint. Krsnaya Om opposes the motion and moves for leave file 14 a first amended complaint (FAC) and miscellaneous other forms of 15 relief. The Court took the matter under submission on the papers 16 and now grants City Defendants’ motion to dismiss. Plaintiff’s 17 motions are denied as moot. 18 BACKGROUND 19 The following facts are taken from Plaintiffs’ complaint. On 20 October 3, 2012, seven or eight Berkeley Police Department (BPD) 21 officers raided Sukla Tara Aushadhalay, a spiritual healing 22 clinic1 operated by Kamaji Om (also known as Mary Lund). Docket 23 No. 1, Compl. at 14, 25. The police, who had a warrant to search 24 the property, seized over three-hundred marijuana plants from the 25 clinic as well as cash and other “personal items” belonging to 26 27 28 1 Plaintiffs describe the clinic in their complaint as a “duly registered religious Trust.” Compl. at 14. 1 Kamaji Om. 2 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 3 4 clinic’s landlord, Virk, to inform her that her property was being 5 used for criminal activity. 6 that she needed to evict Plaintiffs from the property and warned 7 Virk that she could face criminal charges for failing to do so. 8 Id. at 17. 9 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 10 whether Kamaji Om or the clinic were actually evicted from the 11 property. 12 On October 24, 2012, Kamaji and Krsnaya Om filed this lawsuit 13 on behalf of themselves and Sukla Tara Aushadhalay against Virk, 14 BPD Chief Michael K. Meehan, BPD Officers Melero and Kalcek, and 15 City of Berkeley employees Gregory Daniel, William Rogers, and 16 Wendy Cosin. 17 thirty-six causes of action against Defendants under state and 18 federal law. 19 compensatory damages, three million dollars in punitive damages, 20 and an order directing the City of Berkeley to close all licensed 21 marijuana dispensaries operating within city limits. 22 31. 23 property in the United States “where a Sukla Tara Aushadhalay or 24 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 25 26 2 27 28 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. 2 1 according to lease contract agreement.” 2 failed to serve their complaint on either City Defendants or Virk. Id. at 30-31. Plaintiffs 3 On November 29, 2012, City Defendants moved to dismiss the 4 complaint for failure to state a claim, insufficient service of 5 process, insufficient process, and failure to comply with Federal 6 Rule of Civil Procedure 8. 7 failed to file a timely opposition, the Court extended their 8 deadline to do so by one week. 9 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 10 of her opposition to City Defendants’ motion. 11 20. 12 including (1) a motion for leave to file a FAC, Docket No. 21; 13 (2) a “request for extra time to serve summons to four John Doe 14 Federal Agents & United Parcel Post,” Docket No. 16; and (3) two 15 “ex parte request[s] for federal injunctions against police and 16 constitutional obstructors,” Docket Nos. 17 & 19. 17 2013, she filed a “motion for summons” seeking permission to serve 18 a summons, a FAC, and discovery requests on California Attorney 19 General Kamala Harris, United States Attorney Melinda Haag, 20 “United Parcel Post,” and four John Doe federal agents. 21 No. 38. 22 any of her moving papers. 23 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 24 in support of their motion to dismiss. 25 they note that, because Plaintiffs attempted service in December 26 2012, City Defendants are now “willing to withdraw the procedural 27 arguments regarding service of process as a basis for dismissal.” 28 3 Docket No. 30. In it, 1 Id. at 2. 2 appear to have been served. Virk has not appeared in this action and does not 3 4 LEGAL STANDARD A complaint must contain a “short and plain statement of the 5 claim showing that the pleader is entitled to relief.” 6 Civ. P. 8(a). 7 state a claim, dismissal is appropriate only when the complaint 8 does not give the defendant fair notice of a legally cognizable 9 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 10 Twombly, 550 U.S. 544, 555 (2007). 11 complaint is sufficient to state a claim, the court will take all 12 material allegations as true and construe them in the light most 13 favorable to the plaintiff. 14 896, 898 (9th Cir. 1986). 15 to legal conclusions; “threadbare recitals of the elements of a 16 cause of action, supported by mere conclusory statements,” are not 17 taken as true. 18 (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) 19 When granting a motion to dismiss, the court is generally 20 required to grant the plaintiff leave to amend, even if no request 21 to amend the pleading was made, unless amendment would be futile. 22 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 23 F.2d 242, 246-47 (9th Cir. 1990). 24 amendment would be futile, the court examines whether the 25 complaint could be amended to cure the defect requiring dismissal 26 “without contradicting any of the allegations of [the] original 27 complaint.” 28 Cir. 1990). In determining whether Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th 4 1 2 DISCUSSION I. 3 Failure to State a Claim Plaintiffs’ complaint is poorly organized and contains few 4 concrete factual allegations. 5 historical, and religious arguments against government 6 prohibitions on marijuana possession. 7 Plaintiffs’ views on tenants’ rights and religious freedom. 8 complaint fails to link Plaintiffs’ numerous causes of action 9 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 10 Court will assume, therefore, that Plaintiffs’ claims arise from 11 the two events described in the complaint: the October 2012 BPD 12 raid of the clinic and the subsequent eviction notice issued by 13 Virk. 14 gives rise to a claim upon which relief might granted. For the reasons outlined below, neither of these events 15 A. 16 Kamaji Om is the only plaintiff here who is alleged to have Kamaji Om’s Claims 17 been present during the October 2012 raid. 18 plaintiff alleged to have had her personal property seized by BPD, 19 to have held an administrative position at the clinic, or to have 20 received an eviction notice from Virk. 21 direct involvement in these events, she has failed to state a 22 claim here. She is also the only Nevertheless, despite her 23 The central barrier to Kamaji Om’s claims against City 24 Defendants is her admission that she knowingly engaged in illegal 25 activity -- namely, the possession and distribution of marijuana 26 without a permit. 27 with the cannabis we give away free after he leaves the clinic is 28 up to him.”). See Compl. at 14-15, 26 (“What a customer does These activities are prohibited under both state 5 1 and federal law. 2 Safety Code §§ 11357-58. 3 these prohibitions as well as their own local nuisance and 4 criminal ordinances. 5 (9th Cir. 1983) (concluding that state officers have authority to 6 enforce federal criminal law), overruled on other grounds in 7 Hodgers–Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999); 8 Sturgeon v. Bratton, 174 Cal. App. 4th 1407, 1412-13 (2009); City 9 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 10 Accordingly, neither Kamaji Om nor any other Plaintiff may state a 11 claim against City Defendants for seizing marijuana from the 12 clinic. 13 In her opposition, Krsnaya Om argues that Plaintiffs are not 14 bound by any laws prohibiting marijuana possession because of 15 their spiritual beliefs. 16 argument on multiple occasions. 17 F.3d 1210, 1215-16 (9th Cir. 2002) (“Guam may constitutionally 18 punish [the defendant] for importing a controlled substance, even 19 if doing so substantially burdens his ability to practice his 20 religion.”); Multi-Denominational Ministry of Cannabis & Rastafari 21 v. Gonzales, 474 F. Supp. 2d 1133, 1143-44 (N.D. Cal. 2007) 22 (dismissing religious nonprofit’s First Amendment claims against 23 county sheriff’s deputies for seizure of marijuana plants), aff’d 24 365 Fed. App’x 817, 819 (9th Cir. 2010). 25 generally held that the “right to freely exercise one’s religion 26 . . . ‘does not relieve an individual of the obligation to comply 27 with a valid and neutral law of general applicability.’” 28 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1128 (9th Cir. 2009) Federal courts have rejected this See, e.g., Guam v. Guerrero, 290 6 The Ninth Circuit has 1 (quoting Employment Division v. Smith, 494 U.S. 872, 879 (1990)). 2 Thus, all claims against City Defendants based on the lawful 3 seizure of illegal drugs must be dismissed with prejudice. 4 Kamaji Om’s claims against Virk, the clinic’s landlord, must 5 also be dismissed. 6 breached her lease with any Kamaji Om or any other Plaintiff. 7 does it allege that Virk lacked the authority to evict tenants 8 from her property. 9 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 10 v. Equity Residential Briarwood Apts., 171 Cal. App. 4th 1004, 11 1039-40 (2009) (stating that plaintiffs must have “peaceable 12 possession” of property to bring a wrongful eviction action 13 against the property owner). 14 allege that Virk actually evicted anyone. 15 alleged to have taken is serving Kamaji Om with an eviction notice 16 at the request of the police. 17 insufficient to state a cognizable claim. 18 against Virk are therefore dismissed. 19 claims against Virk if she can truthfully allege that she had a 20 lawful, possessory interest in the property and that Virk 21 wrongfully evicted her. 22 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 23 either copy of the opposition brief filed by Krsnaya Om. 24 the complaint states that Krsnaya Om will serve as Kamaji Om’s 25 “appointed counsel,” the local rules prohibit such an arrangement 26 because both are proceeding pro se here. 27 states that any “party representing him or herself without an 28 attorney must appear personally and may not delegate that duty to 7 Although Civil Local Rule 3-9(a) 1 any other person who is not a member of the bar of this Court.” 2 Krsnaya Om is not a member of the bar of this Court and, 3 therefore, may not serve as Kamaji Om’s appointed counsel. 4 in addition to the grounds for dismissal outlined above, Kamaji 5 Om’s claims are dismissed for her failure to oppose City 6 Defendants’ motion personally. Thus, 7 B. 8 Krsnaya Om’s involvement this action remains unclear. 9 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 10 during the police raid nor does it state whether her property was 11 seized by BPD. 12 had any financial or property interest in Sukla Tara Aushadhalay 13 or was otherwise affected by the eviction notice. The complaint also fails to specify whether she 14 Based on the complaint, Krsnaya Om’s only apparent connection 15 to this suit is as (1) Kamaji Om’s “appointed counsel,” (2) Kamaji 16 Om’s “guru,” and (3) the “Trust Fiduciary of Sukla Tara Ayurvda 17 Institute,” which appears to be an alternative name for Sukla Tara 18 Aushadhalay. 19 is expressly precluded under the local rules, as noted above. 20 Civil L.R. 3-9(a). 21 Fiduciary” -- do not support her claims in this case. 22 Accordingly, Krsnaya Om’s claims must be dismissed. 23 claims against City Defendants are dismissed with prejudice for 24 the reasons discussed above, she is granted leave to amend her 25 claims against Virk if she can truthfully allege that she had a 26 lawful, possessory interest in the property and was wrongfully 27 evicted. Id. at 5. Of these three possible roles, the first See The other two roles -- “guru” and “Trust 28 8 Although her 1 C. 2 Sukla Tara Aushadhalay’s claims against City Defendants are Sukla Tara Aushadhalay’s Claims 3 dismissed for the same reasons that Kamaji and Krsnaya Om’s claims 4 against them are dismissed. 5 because Sukla Tara Aushadhalay is not a natural person and thus, 6 under the local rules, may only appear “through a member of the 7 bar of this Court.” 8 Krsnaya Om are not members of the bar of this Court, they may not 9 represent Sukla Tara Aushadhalay in this action. United States District Court For the Northern District of California 10 11 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, 12 City Defendants move to dismiss based on qualified immunity and 13 Plaintiffs’ failure to abide by Rule 8. 14 claims against City Defendants are dismissed with prejudice, the 15 Court does not address these alternative grounds for dismissal. 16 III. Plaintiff Krsnaya Om’s Motions for Miscellaneous Relief 17 Because Plaintiffs’ Krsnaya Om’s motion for leave to file a FAC is denied. The 18 motion fails to articulate any justifications for amending the 19 complaint and, more importantly, her proposed FAC fails to cure 20 the various pleading deficiencies identified above. 21 the proposed FAC has not been signed by Kamaji Om. 22 Furthermore, Krsnaya Om’s other motions all involve either enjoining or 23 effecting service upon City Defendants, Attorney General Harris, 24 United States Attorney Haag, John Doe federal agents, “United 25 Parcel Post,” and employees of Chase Manhattan Bank. 26 have failed to state a claim against any of these individuals: the 27 claims against City Defendants are dismissed with prejudice and 28 none of the other individuals identified in these motions are 9 Plaintiffs 1 named as parties in Plaintiffs’ original complaint. 2 of these motions are denied as moot. 3 4 As such, all CONCLUSION For the reasons set forth above, City Defendants’ motion to 5 dismiss (Docket No. 10) is GRANTED. 6 for leave to file a FAC (Docket No. 21), motion for summons 7 (Docket No. 38), requests for “federal injunctions” (Docket Nos. 8 17 & 19), and request for “extra time to serve summons to four 9 John Doe Federal Agents & United Parcel Post” (Docket No. 16) are United States District Court For the Northern District of California 10 11 Plaintiff Krsnaya Om’s motion DENIED. All claims against City Defendants are dismissed with 12 prejudice. 13 they must file a proposed amended complaint with the Court within 14 twenty-one days of this order. 15 cause why their claims against Virk should not be dismissed for 16 failure to complete timely service as required by Federal Rule of 17 Civil Procedure 4(m). 18 (1) allege sufficiently detailed facts for the Court to determine 19 whether they are entitled to relief; (2) clearly describe the 20 alleged injury or injuries for which Virk specifically is alleged 21 to be responsible; and (3) not raise any new claims. 22 pursuant to the local rules, their amended complaint must be 23 signed by both Krsnaya and Kamaji Om and may not assert any claims 24 on behalf of Sukla Tara Aushadhalay, or any other entity, unless 25 Plaintiffs are represented by a member of the bar of this Court. 26 Plaintiffs are responsible for prosecuting this case. 27 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 28 10 Furthermore, 1 in the dismissal of this action for failure to prosecute, pursuant 2 to Federal Rule of Civil Procedure 41(b). 3 IT IS SO ORDERED. 4 5 6 Dated: 2/27/2013 CLAUDIA WILKEN United States District Judge 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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