Conkey v. Reno

• Decision Date: 04 May 1995
• Docket Number: No. CV-N-94-14-ECR.,CV-N-94-14-ECR.
• Citation: 885 F. Supp. 1389
• Parties: David L. CONKEY, dba Alpha Chemical and Science, David Weller dba Terra Science, Carol Conkey, dba Alpha Chemical Supply, Barney Hopkins, Plaintiffs, v. Janet RENO, Attorney General of the United States, in her official capacity, Robert Bonner, Administrator, Drug Enforcement Administration, U.S. Department of Justice, in his official capacity, George Levigne, Special Agent, Drug Enforcement Administration, in his official capacity and individually, Greg Bratten, Special Agent, Drug Enforcement Administration, and Deputy Sheriff of Washoe County, Nevada, in his official capacity and individually, Paul George, Special Agent, Drug Enforcement Administration, in his official capacity and individually, Peter Johnson, Special Agent, Drug Enforcement Administration, in his official capacity and individually, John E. Coonce, Supervisory Special Agent, Drug Enforcement Administration, in his official capacity and individually, Maria Cartagena, Special Agent, Drug Enforcement Administration, in her official capacity and individually, Dorothy Nash Holmes, District Attorney for Washoe County, Nevada, in her official capacity and individually, Vincent G. Swinney, Sheriff of Washoe County, Nevada, in his official capacity and individually, Paul E. Donald, Hazardous Materials Specialist, District Health Dpt., Washoe County, Nevada, in his official capacity and individually, and Does 1-20, Defendants.
• Court: U.S. District Court — District of Nevada

885 F. Supp. 1389

David L. CONKEY, dba Alpha Chemical and Science, David Weller dba Terra Science, Carol Conkey, dba Alpha Chemical Supply, Barney Hopkins, Plaintiffs, v. Janet RENO, Attorney General of the United States, in her official capacity, Robert Bonner, Administrator, Drug Enforcement Administration, U.S. Department of Justice, in his official capacity, George Levigne, Special Agent, Drug Enforcement Administration, in his official capacity and individually, Greg Bratten, Special Agent, Drug Enforcement Administration, and Deputy Sheriff of Washoe County, Nevada, in his official capacity and individually, Paul George, Special Agent, Drug Enforcement Administration, in his official capacity and individually, Peter Johnson, Special Agent, Drug Enforcement Administration, in his official capacity and individually, John E. Coonce, Supervisory Special Agent, Drug Enforcement Administration, in his official capacity and individually, Maria Cartagena, Special Agent, Drug Enforcement Administration, in her official capacity and individually, Dorothy Nash Holmes, District Attorney for Washoe County, Nevada, in her official capacity and individually, Vincent G. Swinney, Sheriff of Washoe County, Nevada, in his official capacity and individually, Paul E. Donald, Hazardous Materials Specialist, District Health Dpt., Washoe County, Nevada, in his official capacity and individually, and Does 1-20, Defendants.

No. CV-N-94-14-ECR.

United States District Court, D. Nevada.

May 4, 1995.

COPYRIGHT MATERIAL OMITTED

Michael Paul Adams, Thomas Steel, Nanci L. Clarence, Stuart Buckley of Steel, Clarence & Buckley, San Francisco, CA, John Oakes, Don Gish, Reno, NV, for plaintiffs.

Melanie Foster, James I. Barnes, Deputy Dist. Attys., Reno, NV, for defendants Vincent G. Swinney, Sheriff of Washoe County, and Paul Donald.

Shirley Smith, Asst. U.S. Atty., Reno, NV, for remaining defendants.

ORDER

EDWARD C. REED, Jr., District Judge.

The federal officials/defendants, all represented by the United States Attorney, move the Court (Doc. # 54) to dismiss plaintiffs' second amended complaint. Although not specifically stated, the basis for the motion to dismiss is for lack of jurisdiction, failure to state a claim and qualified immunity. Plaintiffs oppose the motion to dismiss (Doc. # 58) and defendants reply (Doc. # 61).

STANDARDS FOR GRANTING MOTION TO DISMISS

A. Rule 12(b)(6) Failure to State a Claim

A court may grant a motion to dismiss for failure to state a claim on which relief can be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Western Reserve Oil & Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir.1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 773 (1986). A court may only look to the facts alleged in the complaint when deciding whether to grant a 12(b)(6) motion. Id. All material facts alleged in the complaint must be taken as true and construed in the light most favorable to the nonmoving party. Amfac Mortgage Corp. v. Arizona Mall of Tempe, 583 F.2d 426, 430 (9th Cir.1978).

B. Qualified Immunity

Qualified immunity protects government officials from civil liability for actions taken in the performance of discretionary functions when their actions do not violate clearly established statutory or constitutional rights of which a reasonable person should have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Plaintiffs allege the defendants violated certain of the plaintiffs' rights. The defendants assert qualified immunity. This brings the qualified immunity claim to issue and a two prong test is employed to determine whether the defendant official is entitled to immunity.

First, the plaintiff bears the initial burden of establishing that the rights allegedly violated were clearly established at the time of defendant's actions. Neely v. Feinstein, 50 F.3d 1502, 1506, 1508 (9th Cir.1995); Gasho v. United States, 39 F.3d 1420, 1438 (9th Cir.1994); Armendariz v. Penman, 31 F.3d 860, 869 (9th Cir.1994) reh'g en banc granted by, 41 F.3d 493 (1994); see Elder v. Holloway, 975 F.2d 1388, 1392 (9th Cir.1991) rev'd on other grounds ___ U.S. ___, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994) (outlining the extent of the plaintiff's "burden" of alleging a clearly established law).

If the plaintiff fails to carry this initial burden, the defendant is entitled to immunity. If the plaintiff carries this burden, the defendant is entitled to immunity only by demonstrating that a reasonable official in the defendant's position could have believed the challenged conduct did not violate a constitutional or statutory right. Neely, 50 F.3d at 1508; Gasho 39 F.3d at 1438; Armendariz, 31 F.3d at 869.

The only issue before the Court on a motion to dismiss is whether plaintiffs have alleged the violation of a clearly established federal right. The second prong, whether defendants could have believed the challenged conduct did not violate such rights is a factual question more properly addressed on motion for summary judgment.¹

DISCUSSION

A. Section 1983 Does not Apply to Actions Against Federal Officers

The federal defendants correctly assert that Section 1983 of Title 42 does not apply to actions against federal government officials acting under color of federal law. On this basis, they argue that § 1983 does not afford a basis for jurisdiction against these defendants. The Court agrees wholeheartedly with the federal defendants. However, this avails them nothing. The second amended complaint at ¶ 2, p. 3, ln. 10-11 and p. 19, ln. 1 clearly alleges a Bivens action against the federal defendants. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) allows actions for the violation of federal rights by federal officials to be brought on the same basis as a § 1983 action.

Defendants do not even attempt to contradict this assertion of jurisdiction in their reply.

The Court has jurisdiction over the claims alleged against the federal defendants under Bivens. The motion to dismiss on this basis is denied.

B. Declaratory Judgment

Defendants move to dismiss plaintiffs' claim for declaratory relief on the basis that it is meritless. The Court agrees although not necessarily for the reasons presented.

The complaint fails to indicate what in particular Mr. Conkey wishes to have the Court declare. Plaintiffs allege an actual controversy has arisen between them and defendants

whereby defendants assert the right, and plaintiffs deny such right, to retaliate against plaintiff DAVID CONKEY by prosecuting him for violation of NRS 453.554, 453.556 and 453.560, despite DAVID CONKEY's full compliance with federal law governing the chemical sales for which DAVID CONKEY is charged.

The failure to indicate what in particular plaintiffs seek by way of a declaratory judgment is in itself a failure to state a claim. Fed.R.Civ.P. 8(a)(3) (requiring a claim to include "a demand for judgment for the relief the pleader seeks." See also Dillard v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 961 F.2d 1148 (5th Cir.1992) cert. denied, Dillard v. Security Pacific Corp., ___ U.S. ___, 113 S.Ct. 1046, 122 L.Ed.2d 355 (1993) ("In order to obtain a permanent injunction or a declaratory judgment, a party must make his request for such relief in his pleadings." Citing Fed.R.Civ.P. 8(a)); Willett v. Wells, 469 F.Supp. 748 (C.D.Tenn.1977), aff'd, 595 F.2d 1227 (6th Cir.1979) (plaintiff required to include a short and plain statement of the claim showing she is entitled to the injunctive relief for which she prays).

Absent a specific recitation of the declaratory or injunctive relief sought, the Court and defendants are entirely unable to determine whether the complaint alleges sufficient facts to show that plaintiff is entitled to the requested relief.

The Court assumes that plaintiffs seek a declaration that Mr. Conkey is not susceptible to prosecution under NRS § 453.560 for selling or possessing hydriodic acid (HI) so long as he complies with federal laws regulating its sale. Nevertheless, the complaint suffers other defects.

First, the Court notes that only Mr. Conkey has standing to assert this claim. The complaint alleges only that defendants assert a right to prosecute Mr. Conkey. None of the other plaintiffs has standing to assert Mr. Conkey's rights; at least, no basis for third party standing is asserted.

Second, there is no allegation that compliance with federal law is in some manner a bar to prosecution for state law violations. So far as the Court is aware, federal drug laws regulating HI do not pre-empt state criminal laws to the extent they are not incompatible nor do they immunize persons who comply with federal regulatory laws. Certainly plaintiffs do not allege any such pre-emption, bar or immunity exists.

NRS § 453.560 prohibits the unlawful delivery, sale, possession or manufacture of "drug paraphernalia" when a person knows or reasonably should know that it will be used to manufacture, convert produce or prepare a controlled substance. NRS §§ 453.554 & 453.556 define the term "drug paraphernalia." NRS § 453.554 defines "drug paraphernalia" to include

all equipment, products and materials of any kind which are used, intended for use, or designed for use in ... manufacturing, compounding, converting, producing, preparing ... a controlled substance in violation of this chapter § 453.

Plaintiffs' complaint fails to allege the factual or legal basis upon which they deny any right of defendants to retaliate against Mr. Conkey be prosecuting him for violations of NRS § 453.560. Plaintiffs simply state that because Mr. Conkey has complied with federal laws regarding the sale of HI, he may not be prosecuted for violation of NRS § 453.560 based on his sale or possession of HI. However, plaintiffs never allege the source of this protection from prosecution for...