Lincoln et al v. Chula Vista Police Department et al

Filing 37

ORDER granting in part and denying in part 33 Motion to Dismiss for Failure to State a Claim. Signed by District Judge William Q. Hayes on 09/25/2024. (All non-registered users served via U.S. Mail Service)(stn)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RICKY FADARA LINCOLN and
KATHERINE I. FREDERICKS,

Case No.: 22-cv-01569-WQH-BJC
ORDER

Plaintiffs,
v.

CHULA VISTA POLICE
DEPARTMENT, CITY OF
CHULA VISTA, and DOES 1100,
Defendants.
HAYES, Judge:

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The matter before the Court is the Motion to Dismiss Plaintiffs’ Third Amended

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Complaint and Claims Therein Under Rule 12(b)(6) (“Motion to Dismiss”) (ECF No. 33)

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filed by Defendants City of Chula Vista (“City”) and Chula Vista Police Department

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(“CVPD”).

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I.

BACKGROUND

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On May 9, 2022, Plaintiffs Ricky Fadara Lincoln and Katherine I. Fredericks filed a

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Complaint against Defendants CVPD, City, and Does 1–100 in the Superior Court of

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California, County of San Diego. (See Exh. 1 to Notice of Removal, ECF No. 1-2.) On

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October 12, 2022, Defendants removed the action to this Court pursuant to 28 U.S.C.

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§§ 1331, 1441. (ECF No. 1 at 3.)

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On November 1, 2022, Defendants filed a motion to dismiss. (ECF No. 5.) On March

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28, 2023, the Court granted the motion to dismiss and dismissed the Complaint without

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prejudice. (ECF No. 9.)

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On June 15, 2023, the Court granted Plaintiffs leave to amend. (ECF No. 18.) On

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June 22, 2023, Plaintiffs filed the Second Amended Complaint. (ECF No. 19.) On July 24,

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2023, Defendants filed a motion to dismiss. (ECF No. 20.) On October 2, 2023, the Court

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granted in part and denied in part the motion to dismiss, dismissing without prejudice the

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federal claims and declining supplemental jurisdiction over the state law claims.

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On January 2, 2024, the Court granted Plaintiffs leave to amend. (ECF No. 31.) On

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January 16, 2024, Plaintiffs filed the Third Amended Complaint (“TAC”), the operative

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complaint. (ECF No. 32.) On January 30, 2024, Defendants filed the Motion to Dismiss.

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(ECF No. 33.) On February 15, 2024, Plaintiffs filed a Response in opposition to the

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Motion to Dismiss. (ECF No. 34.) On February 23, 2024, Defendants filed a Reply in

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support of the Motion to Dismiss. (ECF No. 35.)

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II.

ALLEGATIONS IN THE THIRD AMENDED COMPLAINT

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On April 1, 2021, CVPD “police officers entered the plaintiffs’ home without a

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search warrant claiming that the search warrant was sealed. [CVPD] police officers used

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excessive force and unlawfully detained the plaintiffs. The [CVPD] police officers never

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sent a copy of the search warrant to plaintiffs.” (ECF No. 32 at 8.) Specifically, Plaintiff

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Katherine I. Fredericks was ordered out of the bathroom, where she was taking a bath, by

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“Doe 1 in [a] bulletproof vest, hand on his gun holster, and camera on his chest.” Id. at 5.

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Does 1–10 “ransacked the [P]laintiff[s’] home” while Plaintiffs sat in the living room with

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officers staring at them, and Plaintiffs were not permitted to eat, drink, or use the bathroom

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while “Plaintiffs had to wait for many hours in panic and fear.” Id. at 5, 8. Plaintiffs “asked

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for a search warrant and the police did not produce any [warrant].” Id. at 5. The CVPD

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officers “destroyed locks to suitcases,” “emptied the freezer containing meats and other
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food that was thrown on plaintiffs’ kitchen floor, while they took the freezer,” and the

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officers “left the house in ruin and disaster.” Id. at 6. The CVPD officers “took all the

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firearms” in the house and subsequently “refused to release those firearms to [Plaintiff]

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Ricky [Lincoln] even after he had been given approval for the release of those firearms by

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the Department of Justice.” Id. at 6-7. The CVPD “never sent a copy of the search warrant

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to Plaintiffs, and to this date [Plaintiffs] do not know all the personal properties that Does

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1 to 10 illegally took from their home.” Id. at 7.

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“[T]he abuse to which Plaintiffs were subjected was consistent with institutionalized

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practices of the [City] and [CVPD], which was known to and ratified by the [D]efendants

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… [who were] unreasonably indifferent to the police officer’s misconduct.” Id. at 8. City

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had “prior notice of the vicious propensities of the [D]efendants Does 1 to 10, but took no

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steps to train them, correct their abuse of authority, or to discharge their unlawful use of

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authority.” Id. at 9.

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Plaintiffs bring claims pursuant to 42 U.S.C. § 1983 against Defendants, who

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“deprived the Plaintiffs of rights secured to them by the constitution of the United States,

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including, but not limited to, their First Amendment right to freedom of expression, [their]

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Fifth and Fourteenth amendment rights to due process of law, including the right to be free

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from unjustified and excessive force by police, and their Eight Amendment right to be free

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from cruel and unusual punishment.” Id. at 10; see also id. at 4-5 (referencing the Fourth

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Amendment); id. at 6-7 (referencing the Second Amendment). Plaintiffs seek damages,

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costs, and attorney fees.

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III.

MOTION TO DISMISS

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A.

Legal Standard

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Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal for “failure

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to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In order to state

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a claim for relief, a pleading “must contain ... a short and plain statement of the claim

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showing that the pleader is entitled to relief.” Id. 8(a)(2). Dismissal under Rule 12(b)(6) “is

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proper only where there is no cognizable legal theory or an absence of sufficient facts
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alleged to support a cognizable legal theory.” Shroyer v. New Cingular Wireless Servs.,

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Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citation omitted).

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“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

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

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

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alleged.” Id. (citation omitted). However, “a plaintiff’s obligation to provide the ‘grounds’

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of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555

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(alteration in original) (quoting Fed. R. Civ. P. 8(a)). A court is not “required to accept as

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true allegations that are merely conclusory, unwarranted deductions of fact, or

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unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.

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2001). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual

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content, and reasonable inferences from that content, must be plausibly suggestive of a

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claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.

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2009) (citation omitted).

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B.

Discussion

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Defendants move to dismiss Plaintiffs’ TAC on the following grounds: Plaintiffs fail

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to properly allege a basis for municipal liability under 42 U.S.C. § 1983; Plaintiffs fail to

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state a valid claim under § 1983 for First, Second, Fourth, Fifth, Eighth, and Fourteenth

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Amendment violations; and Plaintiffs have not sufficiently asserted any claim against the

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Doe Defendants in their individual capacity.

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Plaintiffs contend in Response, as they allege in the TAC, that they “have a claim

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for relief based upon municipal liability, because defendants executed and exercised

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policies and customs which violated [P]laintiffs’ constitutional rights when they did not

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properly train, supervise and discipline the unlawful actions or report the unlawful conduct

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to the appropriate authorities, and failed to protect the Plaintiffs.” (ECF No. 34 at 2.)
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1.

Municipal Liability Under 42 U.S.C. § 1983

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Section 1983 “creates a private right of action against individuals who, acting under

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color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,

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263 F.3d 1070, 1074 (9th Cir. 2001); see 42 U.S.C. § 1983 (providing a cause of action

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against “[e]very person who, under color of any statute, ordinance, regulation, custom, or

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usage, of any State ... subjects, or causes to be subjected, any citizen ... to the deprivation

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of any rights, privileges, or immunities secured by the Constitution and laws....”). “The

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purpose of § 1983 is to deter state actors from using the badge of their authority to deprive

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individuals of their federally guaranteed rights and to provide relief to victims if such

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deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992). Section 1983 “is not itself a

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source of substantive rights, but merely provides a method for vindicating federal rights

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elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quotations and

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citations omitted). A government entity may not be held vicariously liable for the

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unconstitutional acts of its employees under a theory of respondeat superior in a § 1983

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claim. See AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 636 (9th Cir. 2012).

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“A government entity may not be held liable under 42 U.S.C. § 1983, unless a policy,

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practice, or custom of the entity can be shown to be a moving force behind a violation of

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constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011)

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(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). “Plaintiffs cannot allege

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a widespread practice or custom based on ‘isolated or sporadic incidents; [liability] must

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be founded upon practices of sufficient duration, frequency and consistency that the

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conduct has become a traditional method of carrying out policy.’” Sabra v. Maricopa Cnty.

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Cmty. Coll. Dist., 44 F.4th 867, 884 (9th Cir. 2022) (quoting Trevino v. Gates, 99 F.3d 911,

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918 (9th Cir. 1996)).

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The TAC alleges claims against CVPD, City, and Doe Defendants. The allegations

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in the TAC concerning a policy, practice, or custom are entirely conclusory. The

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nonconclusory allegations in the TAC concern a single search of Plaintiffs’ house. The

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TAC lacks nonconclusory allegations indicating that the alleged CVPD officer behaviors
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during this event were part of a “policy, practice, or custom” that was “so ‘persistent and

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widespread’ that it constitutes a ‘permanent and well settled city policy.’” Trevino, 99 F.3d

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at 918 (citation omitted). A custom alleged to support a claim for Monell liability “must be

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so ‘persistent’ that it constitutes ‘permanent and well settled city policy’” and liability

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cannot be “predicated on isolated or sporadic incidents.” Trevino, 99 F.3d at 918 (quoting

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Monell, 436 U.S. at 691). In considering Plaintiffs’ nonconclusory allegations, the TAC’s

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factual allegations consist of no more than “isolated or sporadic incidents.” Id.

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In “limited circumstances,” the failure to train municipal employees can serve as the

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basis for Monell liability under § 1983. Bd. of the Cty. Comm’rs v. Brown, 520 U.S. 397,

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407 (1997). The plaintiff must show that the city had a training policy that “amounts to

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deliberate indifference” to the rights of the persons with whom the untrained employees

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are likely to come into contact with and that the injury would have been avoided if the city

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properly trained its employees. Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir.

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2007) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001)). Plaintiffs

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have not adequately alleged in the TAC any training policy that “amounts to deliberate

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indifference.” Id. Nor have Plaintiffs adequately alleged in the TAC that the individual

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CVPD officers’ “conduct conformed to official policy, custom or practice.” Lee, 250 F.3d

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at 682–83 (quotations and citation omitted). Plaintiffs fail to assert nonconclusory

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allegations in the TAC that a CVPD and/or City policy, practice, or custom or failure to

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train was the moving force behind Plaintiffs’ alleged constitutional injury. The TAC alleges

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in conclusory fashion that the “Police Chief of the City of Chula Vista” was “responsible

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for the conduct of the Defendants and for their failure to take corrective action with respect

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to police personnel whose vicious actions and propensities were notorious, or failed to

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implement meaningful procedures to discourage lawless official conduct.” (ECF No. 32 at

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4.) These allegations are insufficient to plausibly allege that “a final policymaker had

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knowledge (actual or constructive)” of the alleged constitutional violations by the

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individual CVPD officers and “sanctioned” or ratified those actions. Sabra, 44 F.4th at

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885.
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The TAC’s allegations are insufficient to adequately allege a § 1983 claim for

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municipal liability against CVPD and City. The Motion to Dismiss the TAC’s claims

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against CVPD and City is granted.

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2.

Individual Defendant Liability Under 42 U.S.C. § 1983

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To state a claim against an individual defendant under § 1983, a plaintiff must show

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“(1) that a person acting under color of state law committed the conduct at issue, and

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(2) that the conduct deprived the claimant of some right, privilege, or immunity protected

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by the Constitution or laws of the United States.” Leer v. Murphy, 844 F.2d 628, 632–33

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(9th Cir. 1988) (citation omitted). A plaintiff bringing an individual capacity claim under

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§ 1983 must demonstrate that each defendant personally participated in the deprivation of

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his rights. See Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “A person deprives

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another ‘of a constitutional right, within the meaning of section 1983, if he does an

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affirmative act, participates in another’s affirmative acts, or omits to perform an act which

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he is legally required to do that causes the deprivation of which [the plaintiff complains].’”

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Leer, 844 F.2d at 633 (alteration in original) (emphasis omitted) (quoting Johnson v. Duffy,

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588 F.2d 740, 743 (9th Cir. 1978)).

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Plaintiffs allege § 1983 causes of action for violations of the First, Second, Fourth,
Fifth, and Fourteenth Amendments.
a. Fourth Amendment Claim Against the Individual Defendants

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Plaintiffs bring their Fourth Amendment claim for “unlawful detention and

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excessive force.” (ECF No. 32 at 4.) The Fourth Amendment prohibits unreasonable

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searches and seizures. U.S. Const. Amend. IV. “A detention can be unreasonable ‘either

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because the detention itself is improper or because it is carried out in an unreasonable

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manner.’” Davis v. United States, 854 F.3d 594, 599 (9th Cir. 2017) (quoting Franklin v.

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Foxworth, 31 F.3d 873, 876 (9th Cir. 1994)). The court “must determine reasonableness

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from the perspective of a reasonable officer on the scene.” Id. (quoting Graham, 490 U.S.

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at 396). “Under the Fourth Amendment, ‘a warrant to search for contraband founded on

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probable cause implicitly carries with it the limited authority to detain the occupants of the
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premises while a proper search is conducted.’” Id. (quoting Michigan v. Summers, 452 U.S.

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692, 705 (1981)). However, “special circumstances, or possibly a prolonged detention,

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might lead to a different conclusion in an unusual case.” Id. (quoting Michigan, 452 U.S.

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at 705 n.1). For example, “search-related detentions that are ‘unnecessarily painful [or]

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degrading’ and ‘lengthy detentions[ ] of the elderly, or of children, or of individuals

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suffering from a serious illness or disability raise additional concerns.’” Id. (quoting

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Foxworth, 31 F.3d at 876) (alterations in original). A seizure must be “‘carefully tailored’

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to the law enforcement interests that … justify detention while a search warrant is being

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executed.” Id. (quoting Meredith v. Erath, 342 F.3d 1057, 1062 (9th Cir. 2003)). “The

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presence of a search warrant serves a high function…, and that high function is not

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necessarily vindicated when some other document, somewhere says something about the

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objects of the search, but the contents of that document are neither known to the person

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whose home is being searched nor available for her inspection.” Groh v. Ramirez, 540 U.S.

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551, 558 (2004) (quotations and citation omitted). “[T]he destruction of property during a

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search does not necessarily violate the Fourth Amendment,” however, “unnecessarily

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destructive behavior, beyond that necessary to execute a warrant effectively, violates the

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Fourth Amendment.” Mena v. City of Simi Valley, 226 F.3d 1031, 1041 (9th Cir. 2000)

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(citations and quotations omitted).

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The TAC alleges that the CVPD officers who are alleged to be Doe Defendants

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searched the Plaintiffs’ home on April 1, 2021. The TAC alleges that these officers engaged

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in destructive behavior while conducting the search and detained Plaintiffs in their living

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room “for many hours” without allowing them “to eat, drink, or use the bathroom.” (ECF

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No. 32 at 5, 8.) The TAC alleges that the CVPD officers have retained Plaintiffs’ seized

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firearms even after “approval for the release of those firearms” had been given “by the

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Department of Justice.” Id. at 6-7. The TAC also alleges that Plaintiffs have never received

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a copy of the warrant authorizing the search or a return indicating what items were seized.

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It is an unresolved issue whether the Fourth Amendment requires a warrant to be served

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on the person whose premises is being searched. See United States v. Hector, 474 F.3d
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1150, 1154 (9th Cir. 2007); see also Sangster v. Los Angeles Sheriff’s Dep’t, No.

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2:21CV9573-DSF-JDE, 2022 WL 3701638, at *11 (C.D. Cal. July 11, 2022) (“[T]here

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currently might be a Fourth Amendment right to be presented with a search warrant at the

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time a home is searched.”) (quotation omitted) (collecting cases). Even if it is not a Fourth

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Amendment violation to withhold the warrant and return indefinitely, in the absence of any

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information about the contents of the search warrant and the purpose of the search, the

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Court cannot find that the alleged destructive behavior, lengthy detention, and retention of

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the seized firearms are reasonable as a matter of law.

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Accordingly, the Court finds that the TAC adequately alleges § 1983 claims for

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violation of the Fourth Amendment against the Doe Defendant police officers who

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conducted the search. However, the TAC alleges that “John Doe 3 was the duly appointed

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Chief of Police of the Chula Vista Police Department.” (ECF No. 32 at 2.) The TAC fails

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to adequately allege that the Chief of the CVPD had any personal involvement in the search

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or detention at issue. As discussed above, the TAC also fails to adequately allege that the

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Chief of the CVPD ratified the conduct of the officers who were involved or otherwise is

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plausibly liable under § 1983. Accordingly, the Motion to Dismiss Doe Defendant number

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3, the Chief of the CVPD, is granted.

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Defendants request that the Court dismiss all other Doe Defendants on the basis that

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the TAC fails to identify the Doe Defendants or adequately allege the involvement of each

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Doe Defendant. “Although ‘[a]s a general rule, the use of ‘John Doe’ to identify a

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defendant is not favored,’ in circumstances ‘where the identity of alleged defendants will

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not be known prior to the filing of a complaint ... the plaintiff should be given an

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opportunity through discovery to identify the unknown defendants, unless it is clear that

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discovery would not uncover the identities, or that the complaint would be dismissed on

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other grounds.’” Soo Park v. Thompson, 851 F.3d 910, 928 n.21 (9th Cir. 2017) (quoting

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Gillespie v. Civiletti, 629 F.2d 637, 642-43 (9th Cir. 1980)). Here, Plaintiffs have not yet

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been afforded the opportunity to conduct discovery to identify the police officers who

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conducted the search and took the actions alleged in the TAC. Accordingly, the Court finds
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that dismissing the claims against all Doe Defendants on this basis would be premature at

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this time. See id.; cf. Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999)

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(“Gillespie demonstrates that the district court erred in dismissing Wakefield’s complaint

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against Doe simply because Wakefield was not aware of Doe’s identity at the time he filed

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his complaint.”). However, Plaintiffs are cautioned that Plaintiffs are required to

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expeditiously identify the Doe Defendants and move to amend the TAC to properly name

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those Defendants and adequately allege the personal participation of each named

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Defendant in the alleged Fourth Amendment violations. The Court orders CVPD and City,

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and their counsel, to cooperate with all appropriate discovery requests from Plaintiffs

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aimed at identifying the Doe Defendants who are alleged to have been employed by CVPD

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and City.

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The Motion to Dismiss the Fourth Amendment claim against Doe Defendant number

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3, the Chief of the CVPD, is granted. The Motion to Dismiss the Fourth Amendment claim

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against the other Doe Defendants is denied.

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b. Second Amendment Claim Against the Individual Defendants

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The Second and Fourteenth Amendments protect the right of “law-abiding,

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responsible citizens” to possess a handgun inside and outside the home for the purpose of

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“immediate self-defense.” District of Columbia v. Heller, 554 U.S. 570, 635 (2008); see

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also New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 10 (2022). But “[l]ike

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most rights, the right secured by the Second Amendment is not unlimited” and is “not a

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right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever

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purpose.” Heller, 554 U.S. at 626. For example, the Second Amendment allows

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“prohibitions on the possession of firearms by felons and the mentally ill, or laws

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forbidding the carrying of firearms in sensitive places such as schools and government

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buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

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Id. at 627-28. “[S]everal federal courts have held that a plaintiff cannot pursue a Second

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Amendment claim about guns seized by officers who are executing a facially valid

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warrant.” DeMaria v. Yolo Cnty. Sheriff’s Off., No. 2:23-CV-01798-KJM-CSK, 2024 WL
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3821876, at *8 (E.D. Cal. Aug. 14, 2024) (collecting cases). However, at this stage in the

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proceedings, the Court has no basis for determining that the CVPD officers at issue were

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executing a facially valid search warrant during the events described in the TAC or whether

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that warrant authorized the seizure of firearms.1 Accordingly, at this stage in the

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proceedings, Defendant has failed to state an adequate basis for dismissing the Second

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Amendment claim against the Doe Defendants who allegedly seized Plaintiffs’ firearms

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and refused to return them even after “approval for the release of those firearms” had been

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given “by the Department of Justice.” (ECF No. 32 at 6-7.) The Motion to Dismiss the

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Second Amendment claims against the Doe Defendants who personally participated in the

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seizure and retention of Plaintiffs’ firearms is denied.

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c. First Amendment Claim

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The TAC contains a single conclusory reference to Defendants depriving Plaintiffs

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of “their First Amendment right to freedom of expression.” (ECF No. 32 at 10.) The TAC

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offers no allegations explaining the speech or other constitutionally protected activity at

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issue, no allegations that the Defendants’ actions would chill such speech or protected

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activity in an ordinary person, and no allegations that Plaintiffs’ protected activity was a

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motivating factor in Defendants’ conduct. Cf. Capp v. County of San Diego, 940 F.3d 1046,

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1053 (9th Cir. 2019) (“To state a First Amendment retaliation claim, a plaintiff must

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plausibly allege that (1) he was engaged in a constitutionally protected activity, (2) the

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defendant’s actions would chill a person of ordinary firmness from continuing to engage

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in the protected activity and (3) the protected activity was a substantial or motivating factor

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in the defendant’s conduct.”); Mendocino Env’t Ctr. v. Mendocino County, 192 F.3d 1283,

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1300 (9th Cir. 1999) (“In order to demonstrate a First Amendment violation, a plaintiff

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must provide evidence showing that by his actions the defendant deterred or chilled the

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Defendants request that the Court take judicial notice of an “Electronic Search Warrant Log” maintained
by the San Diego County Superior Court. (See ECF No. 33-4.) However, this document contains no
information about the contents of any search warrant.
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plaintiff’s political speech and such deterrence was a substantial or motivating factor in the

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defendant’s conduct.”). The Motion to Dismiss the First Amendment claim is granted.

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d. Fifth Amendment Claim

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Plaintiffs assert their Fifth Amendment claim pursuant to § 1983. Section 1983 is a

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statutory vehicle that allows plaintiffs to assert claims against state actors. By contrast, the

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Fifth Amendment is not a proper constitutional amendment through which to assert a due

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process claim against state actors. See Lee, 250 F.3d at 687 (“The Due Process Clause of

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the Fifth Amendment and the equal protection component thereof apply only to actions of

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the federal government—not to those of state or local governments.”); see also Bingue v.

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Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008) (holding that the defendant “is a local law

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enforcement official, and the Fifth Amendment’s due process clause only applies to the

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federal government”). Accordingly, the Motion to Dismiss the Fifth Amendment claim is

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granted.

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e. Eighth Amendment Claim

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The TAC contains two references to the Eighth Amendment, alleging in clonclusory

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fashion that Defendants violated Plaintiffs’ “Eight[h] Amendment right to be free from

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cruel and unusual punishment.” (ECF No. 32 at 10; see also id. at 5.) To the extent the

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TAC purports to assert a § 1983 claim for violation of the Eighth Amendment against any

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Defendant, “an Eighth Amendment claim … is reserved for ‘those convicted of crimes’

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and therefore would not apply to pre-trial detainees.” Hawkins v. Comparet-Cassani, 251

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F.3d 1230, 1238 (9th Cir. 2001) (quoting Whitley v. Albers, 475 U.S. 312, 318 (1986)).

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Plaintiffs have not alleged that they were prisoners convicted of a crime at the time of the

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alleged actions that form the basis of Plaintiffs’ § 1983 claims. Accordingly, the Motion to

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Dismiss the Eighth Amendment claim is granted.

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f. Fourteenth Amendment Claim

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The Fourteenth Amendment to the U.S. Constitution states:

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No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any

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person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.

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The TAC alleges that “[t]he herein above-described actions and omissions, Police Officers

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were engaged in under color of state authority by the Defendants, … deprived the Plaintiffs

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of … their Fourteenth Amendment rights to due process of law, including the right to be

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free from unjustified and excessive force by police.” (ECF No. 32 at 3.)

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“Where a particular Amendment provides an explicit textual source of constitutional

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protection against a particular sort of government behavior, that Amendment, not the more

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generalized notion of substantive due process, must be the guide for analyzing these

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claims.” County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (quotation omitted).

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“Because the Fourth Amendment provides an explicit textual source of constitutional

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protection against this sort of physically intrusive governmental conduct, that Amendment,

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not the more generalized notion of ‘substantive due process,’ must be the guide for

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analyzing these claims.” Graham, 490 U.S. at 395. As discussed above, the TAC states a

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plausible claim under the Fourth Amendment against the Doe Defendants who participated

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in the challenged searches and seizures. Likewise, Defendants have failed to state an

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adequate basis for dismissing the Second Amendment claim against the Doe Defendants

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who seized and retained Plaintiffs’ firearms. Because Plaintiffs’ claim “is ‘covered by’ the

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Fourth Amendment” and the Second Amendment, an additional “[s]ubstantive due process

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analysis is therefore inappropriate.” Lewis, 523 U.S. at 843. For this reason, the Motion to

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Dismiss the Fourteenth Amendment claim is granted.

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IV.

CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 33) is granted in

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part and denied in part. Plaintiffs’ claims against CVPD and City are dismissed without

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prejudice. Plaintiffs’ § 1983 claims against the Doe Defendants for violations of the First,

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Fifth, Eighth, and Fourteenth Amendments are dismissed without prejudice. Plaintiffs’ §

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1983 claims against Doe Defendant number 3, who is alleged to be the Chief of the CVPD,

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22-cv-01569-WQH-BJC

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is dismissed without prejudice. The Motion to Dismiss the Fourth Amendment and Second

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Amendment claims against the other Doe Defendants is denied.

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Plaintiffs shall expeditiously identify the Doe Defendants and move to amend the

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TAC to properly name those Defendants and adequately allege the personal participation

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of each named Defendant in the alleged Fourth Amendment and Second Amendment

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violations. CVPD and City, and their counsel, shall cooperate with all appropriate

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discovery requests from Plaintiffs aimed at identifying the Doe Defendants who are alleged

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to have been employed by CVPD and City. Plaintiffs are cautioned that if, after an

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opportunity to conduct discovery, Plaintiffs continue to fail to identify the Doe Defendants

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and adequately allege the personal participation of each named Defendant in the alleged

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legal violations, the TAC will be dismissed in its entirety. No later than sixty (60) days

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after the date this Order is filed, Plaintiffs shall either (a) file a motion for leave to amend

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the TAC, accompanied by a proposed amended complaint identifying the Doe Defendants,

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or (b) file a status report showing cause why Plaintiffs have failed to file a motion for leave

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to amend the TAC.

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Dated: September 25, 2024

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