Little et al v. Gore et al
Filing
32
ORDER granting in part and denying in part 21 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 22 Motion to Dismiss; granting in part and denying in part 23 Motion to Dismiss. Court grants Dfts' Motio ns to Dismiss Counts 3, 5, and 7. Counts 5 and 7 are dismissed without prejudice. Because Court gave Plaintiffs leave to amend with directions after dismissing Count 3 in the original Complaint, Court finds leave to amend this count would be futile. Court dismisses Count 3 with prejudice. Court denies Dfts' Motions to Dismiss Counts 1, 2, 4, and 6, except the Motion to Dismiss Count 6 is granted to the extent it seeks a claim against Agent Faw in his official capacity. Signed by Judge Cynthia Bashant on 5/26/2016. (jah)
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UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
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DEBORAH DEE LITTLE, et al.,
Plaintiffs,
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13
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Case No. 14-cv-02181-BAS(JMA)
ORDER GRANTING IN PART
AND DENYING IN PART
DEFENDANTS’ MOTIONS TO
DISMISS
v.
WILLIAM D. GORE, et al.,
15
[ECF Nos. 21, 22, 23]
Defendants.
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17
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19
On September 12, 2014, Plaintiffs filed a Complaint against the Defendant
20
Officers. (ECF No. 1.) Following Defendants’ previous Motions to Dismiss, this
21
Court ordered the Complaint dismissed in part with leave to amend. (ECF No. 17.)
22
On February 29, 2016, Plaintiffs filed their First Amended Complaint (“FAC”). (ECF
23
No. 20.) Defendants now move to dismiss the FAC in its entirety. (ECF Nos. 21,
24
22, 23.) Many of the arguments in the Motions to Dismiss and Responses in
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Opposition are largely a rehashing of the Court’s previous ruling on Defendants’
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earlier Motions to Dismiss. Therefore, as noted below, many of the rulings made in
27
the previous Order (ECF No. 17) are simply adopted and repeated for the purposes
28
of this Order.
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1
The Court finds these motions suitable for determination on the papers
2
submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons set
3
forth below, the Court GRANTS IN PART AND DENIES IN PART Defendants’
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Motions to Dismiss (ECF Nos. 21, 22, 23).
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6
I.
BACKGROUND1
7
On October 16, 2012, Matt Stevens, a Deputy Sheriff for the County of San
8
Diego (“Stevens”), swore an affidavit to San Diego County Superior Court stating
9
that he observed “well over 100 growing marijuana plants” on Plaintiffs’ property
10
while conducting aerial reconnaissance on September 17, 2012, and October 11,
11
2012. (FAC ¶¶ 11–12.) Stevens “knew from his observations that there were well
12
under 100 marijuana plants on the [property] but embellished his observations in
13
order to deceive Judge Rubin into issuing a search warrant.” (Id. ¶ 12.) Judge Rubin
14
subsequently issued a search warrant authorizing the search of Plaintiffs’ property
15
and the seizure of any marijuana. (Id. ¶ 14.)
16
At 5:00 a.m. on October 17, 2012, Stevens together with Evan Sobczak, a
17
Deputy Sheriff for the County of San Diego (“Sobczak”), Paul Paxton, a Detective
18
for the San Diego Police Department (“Paxton”) and Justin Faw, a Special Agent for
19
the Drug Enforcement Administration (“Faw”), all members of the San Diego
20
County Integrated Narcotics Task Force (collectively, the “Defendant Officers”),
21
executed the search warrant at Plaintiffs’ property. (FAC ¶ 15.) The Defendant
22
Officers, “dressed in military-style fatigues and armed with firearms, some of which
23
were assault rifles, stormed [Plaintiffs’ property] in a SWAT-style raid with weapons
24
drawn.” (Id. ¶ 16.) Upon entering Plaintiffs’ property, the Defendant Officers
25
located Mr. Little, arrested him and put him in handcuffs. (Id. ¶ 17.) Stevens
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allegedly “questioned [Mr. Little] without reading him Miranda rights despite
27
1
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All facts are taken from the FAC. For the purposes of these Motions, the Court assumes all facts
alleged in the FAC are true. See Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337–38 (9th Cir.
1996).
–2–
14cv2181
1
keeping [Mr. Little] in handcuffs.” (Id. ¶ 18.) The Defendant Officers then located
2
Mrs. Little, and Sobczak “arrested [her] by tightly putting handcuffs on [her] wrists
3
behind her back and locking her in the rear seat of his patrol vehicle.” (Id. ¶ 19.) At
4
the time of the arrest, Mrs. Little “suffered from severe arthritis.” (Id. ¶ 20.) She
5
“feared asking any of the NTF officers to loosen her handcuffs” and “was forced to
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wear the handcuffs for at least 1 ½ hours.” (Id.)
7
Prior to her arrest, Mrs. Little informed the Defendant Officers that “she has
8
been sick for the past two months with pneumonia.” (FAC ¶ 19.) Nonetheless,
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Sobczak put Mrs. Little, who was wearing only shorts and a t-shirt, in a police car
10
for approximately 30 minutes with the air conditioner running. (Id. ¶¶ 21, 25.)
11
“During this time, [Mrs. Little] was visibly shivering due to the cold air, which was
12
approximately 50 degrees Fahrenheit and at least as cold as the outside air.” (Id. ¶
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21.) The Defendant Officers ignored Mrs. Little’s complaint that she was too cold.
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(Id.) “As a result of her lengthy exposure to these cold conditions, [her] pneumonia
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symptoms were exacerbated in the following days, lengthening the time for her
16
recovery.” (Id. ¶ 25.)
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“At some point while she was in the police car, [Stevens] questioned [Mrs.
18
Little] without reading her Miranda rights.” (FAC ¶ 22.) Sobcazk then removed
19
Mrs. Little from the patrol vehicle “after an unknown period of time” and ordered
20
her to remain seated in a chair. (Id. ¶ 23.) Before sitting down, Mrs. Little informed
21
the Defendant Officers “that the chair was on top of a hill of red ants and that she
22
was extremely allergic to red ants.” (Id.) In fact, Mrs. Little’s “allergy is so severe
23
that it can cause her to go into anaphylactic shock for which she normally carries an
24
EpiPen which she did not have access to at the time.” (Id. ¶ 24.) Mrs. Little told the
25
Defendant Officers this “but they failed to take action” and therefore Mrs. Little
26
“began having a panic attack as she was afraid the ants may get on her feet or that
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she might fall out of the chair on to the anthill, either of which could have killed her.”
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(Id.)
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1
Despite informing the Defendant Officers on several occasions that she needed
2
to use the bathroom and could not control her bladder because of radiation damage
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to her bladder and intestines from her cancer treatment, Mrs. Little was not allowed
4
to use the bathroom. (FAC ¶ 26.) As a result, she involuntarily relieved herself while
5
seated outside and was unable to change into clean clothing until the Defendant
6
Officers left the property. (Id.)
7
Officers further threatened Mrs. Little, saying they would call animal control
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to remove her Bengal kittens, “despite having no cause to believe the animals were
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being mistreated, abused or maintained in violation of law.” (FAC ¶ 27.)
10
At the time of the search, Plaintiffs were “valid qualified patients under Cal.
11
Health & Safety [Code] §§ 11362.5 and 11362.765,” and Mr. Little was Mrs. Little’s
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primary caregiver. (FAC ¶ 28.) The Defendant Officers were aware of these facts.
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(Id.)
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In the course of conducting the search, Stevens claimed the Defendant Officers
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located over 640 pounds of marijuana “in the form of untrimmed buds, packaged
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marijuana, and marijuana edibles.” (FAC ¶ 29.) “In reality, [they] were in possession
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of far less processed and unprocessed marijuana.” (Id.) The Defendant Officers
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destroyed the seized marijuana the following day by dumping it at the Miramar
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Landfill. (Id. ¶ 30.)
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On November 5, 2012, the San Diego County District Attorney filed a criminal
21
complaint charging Plaintiffs with one count of unlawful possession of marijuana for
22
sale in violation of California Health and Safety Code Section 11359, and one count
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of unlawful cultivation of marijuana in violation of California Health and Safety
24
Code Section 11358. (FAC ¶ 31.) In the course of pretrial hearings, the trial court
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granted a motion to exclude evidence pursuant to Arizona v. Youngblood, 488 U.S.
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51 (1988), and California v. Trombetta, 467 U.S. 479 (1984), “finding that the
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[Defendant] [O]fficers had violated the [Plaintiffs’] due process rights by destroying
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material, exculpatory evidence.” (Id. ¶ 32.) At the end of the trial, the jury returned
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1
a verdict of not guilty on the charge of unlawful possession and deadlocked on the
2
charge of unlawful cultivation. (Id. ¶ 33.) The trial court ultimately dismissed the
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cultivation count in the furtherance of justice pursuant to California Penal Code
4
Section 1385. (Id.)
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The FAC reasserts causes of action in violation of 42 U.S.C. § 1983 for: (1)
6
search and seizure unsupported by a proper warrant against Stevens; (2) unreasonable
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search against all Defendants; (3) excessive force against all Defendants; (4) Miranda
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violations against Stevens; and (5) due process violations against all Defendants.
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Plaintiffs add two causes of action against Faw for unreasonable search and seizure
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and due process violations, both pursuant to Bivens v. Six Unknown Agents, 403 U.S.
11
388 (1971).
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II.
LEGAL STANDARD
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A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
15
Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R.
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Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court
17
must accept all factual allegations pleaded in the complaint as true and must construe
18
them and draw all reasonable inferences from them in favor of the nonmoving party.
19
Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). To avoid a
20
Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations,
21
rather, it must plead “enough facts to state a claim to relief that is plausible on its
22
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial
23
plausibility when the plaintiff pleads factual content that allows the court to draw the
24
reasonable inference that the defendant is liable for the misconduct alleged.”
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombley, 550 U.S. at 556).
26
“Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s
27
liability, it stops short of the line between possibility and plausibility of ‘entitlement
28
to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
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1
“[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to
2
relief’ requires more than labels and conclusions, and a formulaic recitation of the
3
elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (quoting
4
Papasan v. Allain, 478 U.S. 265, 286 (1986) (alteration in original). A court need
5
not accept “legal conclusions” as true. Iqbal, 556 U.S. at 678. Despite the deference
6
the court must pay to the plaintiff’s allegations, it is not proper for the court to assume
7
that “the [plaintiff] can prove facts that [he or she] has not alleged or that defendants
8
have violated the…laws in ways that have not been alleged.” Associated Gen.
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Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526
10
(1983).
11
Courts may not usually consider material outside the complaint when ruling
12
on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d
13
1542, 1555 n.19 (9th Cir. 1990). However, documents specifically identified in the
14
complaint whose authenticity is not questioned by parties may also be considered.
15
Fecht v. Price Co., 70 F.3d 1078, 1080 n.1 (9th Cir. 1995), superseded by statute on
16
other grounds as stated in Marksman Partners, L.P. v. Chantal Pharm. Corp., 927
17
F. Supp. 1297, 1309 (C.D. Cal. 1996).
18
Moreover, the court may consider the full text of those documents even when
19
the complaint quotes only selected portions. Id. It may also consider material
20
properly subject to judicial notice without converting the motion into one for
21
summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).
22
As a general rule, a court freely grants leave to amend a complaint which has
23
been dismissed. Fed. R. Civ. P. 15(a). However, leave to amend may be denied
24
when “the court determines that the allegation of other facts consistent with the
25
challenged pleading could not possibly cure the deficiency.” Schreiber Distrib. Co.
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v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986).
27
//
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//
–6–
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1
III.
ANALYSIS
Count One – Invalid Warrant v. Stevens
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A.
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Count One alleges that Stevens “made fraudulent statements in his warrant
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affidavit concerning the amount of marijuana on the subject property and the
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implications of California’s medical marijuana laws.” (FAC ¶ 35.) Stevens argues
6
this Count should be dismissed because of collateral estoppel or issue preclusion.
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(ECF No. 23.) Stevens attaches a minute order from the criminal state court
8
proceeding saying that the state court judge denied a Motion to Quash or Traverse
9
the Warrant filed pursuant to California Penal Code Section 1538.5(a)(1)(B)(i).
10
(ECF No. 23, Ex. A.)2
11
Stevens argues this minute order shows the validity of the search warrant was
12
already litigated in state court and should be given preclusive effect by this Court.
13
There are two problems with Stevens’ argument. First, this case poses a unique
14
situation where, because the charges were eventually dismissed, Plaintiffs were not
15
able to appeal the denial of the motion to traverse the warrant. Plaintiffs argue that
16
they thus were unable to have a full and fair litigation of the issue. A comparison of
17
Ayer v City of Richmond, 895 F.2d 1267 (9th Cir. 1990), with Heath v. Cast, 813
18
F.2d 254 (9th Cir. 1987), is helpful to the Court’s analysis.
19
In Heath, similarly to this case, the charges against a criminal defendant were
20
ultimately dismissed. During the motion to suppress hearing, the criminal court
21
found the officers had acted without probable cause in arresting the defendant. Thus,
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the evidence was suppressed and the charges dismissed.
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defendant then filed a civil action pursuant to 42 U.S.C. § 1983, the officers argued
24
that the issue had already been litigated in state court during the motion to suppress
When the criminal
25
26
27
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The Court will grant Stevens’ request to take judicial notice of this minute order pursuant to Rule
201 of the Federal Rules of Civil Procedure. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442
F.3d 741, 747 n.6 (9th Cir. 2006) (citing Burbank-Glendale-Pasadena Airport Auth. v. City of
Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998)) (noting a court may take judicial notice of court
filings and other matters of public record).
2
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1
hearing and, therefore, issue preclusion should apply. The Ninth Circuit found that
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a ruling on a motion to suppress is a “preliminary evidentiary determination and is
3
independent of the real question in the proceedings, that of the accused’s guilt.” 813
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F.2d at 258 (quoting People v. Gephart, 93 Cal. App. 3d 989, 1000 (1979)) (internal
5
quotation marks omitted). Thus, the court found granting the motion to suppress in
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state court could not act as issue preclusion in a civil rights case in federal court based
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on the same conduct.
8
The court in Ayers disagreed. Relying on the more recent California state case,
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McGowan v. City of San Diego, 208 Cal. App. 3d 890 (1989), the Court found that a
10
motion to suppress could constitute a final judgment. In Ayers, the criminal court
11
denied Ayer’s motion to suppress based on a false arrest. Ayer appealed this ruling,
12
and it was affirmed. Ayers pled guilty to the criminal charges, but filed an action
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under 42 U.S.C. § 1983 for false arrest. The court distinguished Heath because Ayers
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was able to appeal his criminal conviction, whereas Heath was not.
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Since the Plaintiffs in this case were not given the opportunity to appeal, the
16
facts in this case appear more akin to Heath than Ayers. However, the Court need
17
not reach this issue because ultimately the minute order presented by Stevens does
18
not show what issue was ultimately litigated and decided by the state court.
19
Collateral estoppel requires identity of issues. See Ayers, 895 F.2d at 1271. In order
20
for issue preclusion or collateral estoppel to apply, Stevens would have to show that
21
Plaintiffs raised the issue of his alleged false statements in the search warrant, the
22
issue was litigated and the Superior Court found against Plaintiffs on this issue. The
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brief minute order submitted by Stevens only reflects that a motion to quash was
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denied pursuant to California Penal Code Section 1538.5(a)(1)(B)(i). Subsection
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1538.5(a)(1)(B)(i) allows a judge to suppress evidence obtained as the result of a
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search warrant that is insufficient on its face.
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//
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//
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14cv2181
1
The minute order gives no indication as to what issues the trial court decided.
2
For all this Court knows, the Motion to Quash or Traverse the Warrant could have
3
been denied because it was untimely, the issue was being deferred until trial, or the
4
moving party failed to produce witnesses as ordered. Even if the criminal court
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reached the merits, it could just have found that the search warrant stated sufficient
6
probable cause without reaching any issue regarding false statements in the warrant.
7
Nothing in the minute order illuminates the issue raised or the reasons for the denial
8
of the motion.
9
Because Stevens’ Motion to Dismiss Count One fails to show that the same
10
issues raised in this lawsuit were fully litigated in the state court, his Motion to
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Dismiss must be DENIED.
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B.
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Count Two—Unreasonable Search v. All Defendants
1.
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Faw’s Claims
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Defendant Faw moves to dismiss Count Two by simply making the same
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arguments the Court denied in an earlier Order (ECF No. 21). For the reasons stated
17
in the Order denying Faw’s Motion to Dismiss Count Two of the original Complaint
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(ECF No. 17), his motion to dismiss this Count is DENIED.
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2.
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Paxton’s Claims
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Paxton argues the FAC fails to allege any facts that plausibly suggest he was
22
personally involved in the violation. However, the FAC alleges Paxton was one of
23
the officers who executed the search warrant at 5 a.m., “storming” the property in
24
military fatigues, SWAT-style with assault rifles drawn. (FAC ¶¶ 15–16.) Hence,
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the allegations are sufficient that he was personally involved and his Motion to
26
Dismiss on this ground is DENIED.
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//
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//
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14cv2181
3.
1
Monell Claims
2
This Court previously found Plaintiffs’ Monell claims in the original
3
Complaint were “insufficient to give fair notice” and did not enable Defendants to
4
defend themselves effectively. (ECF No. 17 at 30.) The original Complaint alleged
5
that the San Diego County Sheriff’s Office adopted or acquiesced in policies
6
governing “the conduct of investigations and execution of search warrants in regard
7
to marijuana offenses that cause police officers to conduct such investigations and
8
execute such warrants in violation of the Fourth and Fourteenth Amendments.”
9
(Compl. ¶ 38.)
10
The FAC now adds the allegation that these policies:
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direct law enforcement officials to treat each investigation or execution
of a search warrant related to the residential cultivation of marijuana as
though a violent group of heavily armed individuals is present and as
though there is no possibility that the individual residents could be
compliant with California law. Such policies, procedures and customs
authorize and direct the use of powerful tactical police gear, SWATstyle raid tactics and violent behavior.
12
13
14
15
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(FAC ¶ 42.) Although Defendants claim that these allegations are substantially the
17
same as the original Complaint and that the allegations fail to identify the specific
18
content of the municipal entity’s alleged policy or custom, this Court disagrees. To
19
state a claim under Monell v. Department of Social Services of New York, 436 U.S.
20
658 (1978), a plaintiff must allege either a policy, ordinance or regulation or a custom
21
“even though such a custom has not received formal approval through the body’s
22
official decision-making channels” that deprives the plaintiff of his constitutional
23
rights and causes injury. Id. at 690–91. Assuming the allegations in Plaintiffs’ FAC
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are true, as this Court must, the allegations are sufficiently specific to constitute a
25
cause of action under Monell, and therefore, Defendants’ Motions to Dismiss on this
26
ground are DENIED.
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//
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//
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14cv2181
1
C.
2
The Court previously ruled that Mrs. Little’s allegations of excessive force
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were insufficient based on the claims of (1) handcuffing causing her severe
4
discomfort, (2) leaving her in an air conditioned car despite knowing she was
5
recovering from pneumonia, (3) ordering her to remain seated in handcuffs near red
6
ants when she informed the officers she was severely allergic to red ants, (4) being
7
left outside wearing only short and a t-shirt despite her recent recovery from
8
pneumonia and (5) failing to allow her to use the restroom even though she informed
9
the officers she could not control her bladder because of radiation damage. (ECF No.
10
17.) However, the Court gave Plaintiffs leave to amend these allegations. (Id.)
Plaintiffs, in responding to Defendants’ Motions, argue that the following facts
11
12
Count Three—Excessive Force v. All Defendants
have been added to the FAC:
13
(1) The handcuffs caused Mrs. Little severe pain. She did not complain to the
14
officers because she had been told repeatedly to shut up, but her husband did
15
ask that her handcuffs be moved from back to front, and his requests were
16
ignored. (FAC ¶¶ 19–20.)
17
(2) Mrs. Little was left in the air conditioned car alone for approximately 30
18
minutes, and the temperature was around 50 degrees Fahrenheit.
19
Defendants were all in full uniform wearing heavy police gear to ensure their
20
warmth. (Id. ¶¶ 21, 25.)
21
(3) After she was removed from the car, she was seated outside in handcuffs
22
for approximately 45 minutes. (Id. ¶¶ 23, 25.)
The
23
Although Plaintiffs’ Responses in Opposition to the Motions to Dismiss do not argue
24
any new facts with respect to the allegations about the red ant exposure or the failure
25
to allow use of the restroom (ECF Nos. 25, 26, 27), it appears the FAC adds the
26
following facts:
27
//
28
//
– 11 –
14cv2181
1
(1) Mrs. Little was so allergic to red ants that it “can cause her to go into
2
anaphylactic shock for which she normally carries an EpiPen which she did
3
not have access to at that time” (Id. ¶ 24.)
4
(2) When sitting on the ant hill, Mrs. Little “began having a panic attack as she
5
was afraid the ants may get on her feet or that she might fall out of the chair
6
on to the anthill, either of which could have killed her.” (Id.)3
7
1.
8
Handcuffing
9
Although overly tight handcuffs can constitute excessive force, Wall v. County
10
of Orange, 364 F.3d 1107 (9th Cir. 2004), that does not appear to be the allegation
11
in this case. Instead, Mrs. Little asserts that, because she had arthritis, the handcuffs
12
caused her severe pain, and she was afraid to tell the officers she was in pain because
13
they had repeatedly told her to shut up. (FAC ¶¶ 19–20.) She alleges her husband
14
asked if her handcuffs could be moved from back to front but the officers refused.
15
(Id.) However, noticeably absent from the FAC are allegations that: (1) the handcuffs
16
were overly tight; (2) Mrs. Little told the officers that the handcuffs were hurting her;
17
(3) any obvious physical manifestation of her pain was apparent to the Defendants;
18
or (4) Mrs. Little was demonstrably injured as a result of the handcuffs. Therefore,
19
for the reasons stated in the Court’s original Order Granting the Motions to Dismiss
20
this Count (ECF No. 17), Defendants’ Motions to Dismiss on this ground are
21
GRANTED.
22
//
23
//
24
//
25
//
26
3
27
28
Although Plaintiffs’ redlined complaint claims that paragraph 26 of their FAC adds new facts
about Mrs. Little’s lack of access to a restroom, this paragraph appears to be a verbatim recitation
of paragraph 21 of the original Complaint. The Court will only address the new allegations and
relies on its previous Order for claims previously made in the earlier Complaint.
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14cv2181
2.
1
Air Conditioned Car and Confinement in Cold
Temperatures
2
3
Plaintiffs now add allegations that Mrs. Little was in the air conditioned car
4
for 30 minutes and that the temperature in the car was around 50 degrees Fahrenheit.
5
Plaintiffs then allege that Mrs. Little was removed from the car and handcuffed
6
outside for a period of 45 minutes, again in 50 degree temperatures. As pointed out
7
in Dillman v. Vasquez, No. 13-CV-00404 LJO SKO, 2015 WL 881574, at *9 (E.D.
8
Cal. Mar. 2, 2015), “the case law suggests that a brief (e.g., 30-minute-long)
9
confinement in a hot patrol car does not violate the Fourth Amendment” whereas
10
extended periods of confinement (e.g., four-hours-long) do. A similar analysis
11
applies to Plaintiffs’ allegations of confinement in the cold. The allegation that Mrs.
12
Little was confined for 30 minutes in a cold, air conditioned car are insufficient to
13
constitute excessive force. Similarly, the allegation that she was left outside for 45
14
minutes when the temperature was around 50 degrees Fahrenheit is simply
15
insufficient to constitute excessive force. Therefore, for the reasons stated in the
16
Court’s original Order Granting the Motions to Dismiss this Count (ECF No. 17),
17
Defendants’ Motions to Dismiss on this ground are GRANTED.
18
3.
19
Red Ants and Failure to Allow Access to Restroom
20
Plaintiffs fail to argue any new significant facts and simply argue that the
21
Court’s original Order improperly applies the case law. Therefore, the Court adopts
22
its original Order Granting the Motions to Dismiss (ECF No. 17) and GRANTS
23
Defendants’ Motions to Dismiss on this Ground.
24
25
D.
Count Four—Miranda Violation v. Stevens
26
In the fourth cause of action, Plaintiffs allege that they were forced to testify
27
against themselves in violation of their Fifth and Fourteenth Amendment rights when
28
Officer Stevens interrogated them without advising them first of their rights under
– 13 –
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1
Miranda v. Arizona. (FAC ¶ 53.) Plaintiffs allege they each gave statements to
2
Stevens which were later used against them at their criminal trial. (Id. ¶ 54.)
3
Stevens argues a mere failure to advise of Miranda rights is insufficient to
4
show that the Plaintiffs’ free will was overborne such that they were compelled or
5
coerced to make statements in any way. (ECF No. 23.) However, Stevens ignores
6
the fact that the FAC also realleges paragraphs 1–33 in Count Four, thus claiming
7
that the misrepresentations in the search warrant, the entry at 5 a.m. in SWAT
8
uniforms with assault rifles drawn, handcuffs that bothered Mrs. Little’s arthritis,
9
threats to remove the Bengal kittens, cold temperatures, proximity to red ants, and
10
failure to allow access to the restroom, coupled with the failure to advise of Miranda
11
rights, compelled and coerced the Plaintiffs to make statements that were later used
12
against them. The Court need not determine whether an absence of Miranda rights
13
alone would constitute a constitutional violation because in this case Plaintiffs allege
14
more than the absence of those warnings alone. These allegations, assuming they are
15
all true, are sufficient to allege a cause of action. Therefore, Defendants’ Motions to
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Dismiss this count are DENIED.
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E.
Count Six—Unreasonable Search v. Faw
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Defendant Faw moves to dismiss the sixth cause of action to the extent it is
20
being filed against him in his official capacity or against the DEA or the United
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States, as the Court lacks subject matter jurisdiction over such a suit. See generally
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Cato v. United States, 70 F.3d 1103 (9th Cir. 1995). Although the Plaintiffs respond
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that they are not alleging a cause of action against Faw in his official capacity, nor
24
are they making any claim against the United States or any agency of the United
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States, the FAC clearly state the Little are suing Faw “in both his individual and
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official capacity.” (FAC ¶ 9.) Hence, Faw’s Motion to Dismiss on this ground is
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GRANTED to the extent it is being filed against Faw in his official capacity but
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DENIED otherwise.
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14cv2181
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F.
Counts Five and Seven—Due Process Violations
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Plaintiffs voluntarily move to dismiss the Fifth and Seventh causes of action.
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(ECF No. 25.) Therefore, Defendants’ Motions to Dismiss these two causes of action
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are GRANTED.
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6
IV.
CONCLUSION
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The Court GRANTS IN PART AND DENIES IN PART Defendants’
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Motions to Dismiss. (ECF Nos. 21, 22, 23.) The Court GRANTS Defendants’
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Motions to Dismiss Counts Three, Five and Seven. Counts Five and Seven are
10
dismissed WITHOUT PREJUDICE. However, because this Court gave Plaintiffs
11
leave to amend with directions after dismissing Count Three in the original
12
Complaint, the Court finds allowing Plaintiffs further leave to amend this count
13
would be futile. Hence the Court dismisses Count Three WITH PREJUDICE.
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The Court DENIES Defendants’ Motions to Dismiss Counts One, Two, Four
15
and Six, except that the Motion to Dismiss Count Six is GRANTED to the extent it
16
seeks a claim against Agent Faw in his official capacity.
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IT IS SO ORDERED.
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DATED: May 26, 2016
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– 15 –
14cv2181
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