Johnson v. City of Atwater
| Decision Date | 14 June 2019 |
| Docket Number | Case No. 1:19 -cv-00237-DAD-SAB |
| Court | U.S. District Court — Eastern District of California |
| Parties | LORI JOHNSON, et al., Plaintiffs, v. CITY OF ATWATER, et al., Defendants. |
FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' COMPLAINT AND GRANTING PLAINTIFFS' MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
ORDER VACATING JUNE 18, 2019 HEARING
Currently before the Court is City of Atwater, Samuel Joseph, and Ken Lee's (collectively "Defendants") motion to dismiss Lori Johnson and Richard Johnson's (collectively "Plaintiffs") complaint and Plaintiffs' motion for leave to file a first amended complaint. The matters have been referred to the undersigned for the preparation of findings and recommendations.
The Court, having reviewed the record, finds these matters suitable for decision without oral argument. See Local Rule 230(g). Accordingly, the previously scheduled hearing set on June 19, 2019, will be vacated and the parties will not be required to appear at that time.
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Plaintiffs have been engaged in a longstanding and ongoing dispute with the City of Atwater regarding water service and have filed several actions against the city and various city officials. See Johnson v. City of Atwater ("Johnson I"), no. 1:16-cv-01636-AWI-SAB (E.D. Cal.); Johnson v. City of Atwater ("Johnson II"), no. 1:18-cv-00920-DAD-SAB (E.D. Cal.) On January 18, 2019, Plaintiffs filed this civil rights action in the Merced County Superior Court alleging unreasonable search and seizure in violation of the Fourth Amendment and interference with the right to petition the government in violation of the First Amendment and state law claims of unreasonable seizure of private property and malicious prosecution. On February 19, 2019, Defendants removed this matter to the Eastern District of California.
On March 11, 2019, Defendants filed a motion to dismiss Plaintiffs' complaint. Plaintiffs filed a motion to remand on May 18, 2019. On April 3, 2019, Defendants filed an opposition to Plaintiffs' motion to remand. The parties stipulated that Plaintiff would have an extension of time until May 9, 2019, to respond to the motion to dismiss.
On May 9, 2019, Plaintiffs filed a first amended complaint, a motion for leave to file an amended complaint, and a notice of withdrawal of their motion to remand. On May 13, 2019, the motion to dismiss and motion for leave to file an amended complaint were referred to the undersigned. An order was filed on May 14, 2019 directing Defendants to file a statement of opposition or statement of non-opposition to Plaintiffs' motion to amend. On May 15, 2019, Defendants filed a statement of opposition to Plaintiffs' motion to amend. On May 16, 2019, an order issued finding that Plaintiffs' had waived any opposition to the motion to dismiss and setting a briefing schedule for Plaintiffs' motion for leave to amend.
On June 4, 2019, Defendants' filed an opposition to Plaintiffs' motion for leave to amend. Plaintiffs did not file a reply to Defendant's opposition to the motion for leave to amend.
In their initial complaint, Plaintiffs allege they are husband and wife and, at all relevanttimes, resided at 1675 Drakeley Avenue in Atwater, California. (Compl. ¶¶ 1, 2, ECF No. 1-1 at 7-15; First Am. Compl. ("FAC") ¶¶ 1, 2, ECF No. 13.) Defendant Lee is a sworn peace officer with the City of Atwater; and Defendant Joseph was the acting police chief at all times relevant to the complaint. (Compl. ¶¶ 4, 5; FAC ¶¶ 4, 5.) In October 2017, Defendant Lee caused Plaintiffs' home to be searched. (Compl. ¶ 13; FAC ¶ 13.) On or about October 18, 2017, Plaintiffs' medical marijuana plants were seized from their property at 1675 Drakeley Avenue. (Compl. ¶¶ 28, 32.) Defendant Lee brought charges against Plaintiffs which proceeded through Merced Superior Court and were dismissed. (Compl. ¶ 14.) Plaintiffs have placed signs in their front yard expressing protest of the actions taken by the City which are visible to the public and the City has tried on numerous occasions to force Plaintiffs to remove the signs. (Compl. ¶ 15; FAC ¶ 15.)
Plaintiffs seek monetary damage alleging unlawful and unreasonable search of private property in violation of the Fourth Amendment; interference with free speech and the right to petition the government for redress in violation of the First Amendment; unreasonable and unlawful seizure of property in violation of California's Compassionate Use Act ("CUA") and the Medical Marijuana Program Act ("MMPA"); and malicious prosecution in violation of state law.
In their first amended complaint, Plaintiffs add the following additional allegations. On the afternoon of October 18, 2017, Defendant Lee obtained a search warrant for the property located at 1675 Drakeley Avenue in Atwater. (FAC ¶ 24.) The search warrant approved the seizure of "1) marijuana and items commonly associated with marijuana use; 2) indicia showing person in control of the property; 3) sales ledgers showing narcotics transactions; 4) to answer any phone calls or text messages; 5) evidence of a conspiracy; 6) financial records; 7) any lists or ledgers showing suppliers or customers; 8) evidence showing ownership of the premises; 9) any money or negotiable instruments; 10) property establishing the identity of persons in control of the premises or vehicles; 11) firearms; 12) evidence of theft of utilities; 13) evidence of ownership of property being searched; and, 14) personal property showing ownership." (FAC ¶ 25.)
Defendant Lee stated in the search warrant affidavit that on July 7, 2017 he observed a "makeshift greenhouse" on Plaintiff's property and saw approximately twelve marijuana plants in the ground inside the structure. (FAC ¶ 26.) Three months later, on October 16, 2017, Defendant Lee again observed the greenhouse over the south fence when he was at 1684 Elm. (FAC ¶ 26.) Two days later, an anonymous female complained that there was marijuana on the sidewalk near Plaintiff's house. (FAC ¶ 28.) Defendant Lee stated that Plaintiff Lori Johnson told him that she had a valid medical marijuana certificate. (Id.) Defendant Lee stated in the affidavit that twelve marijuana plants would be legal and that the plants he saw were in a greenhouse. (FAC ¶ 30.) The municipal code does not define outdoor growing. (FAC ¶ 31.)
Plaintiff Richard Johnson has had three criminal complaints filed against him in state court since November 30, 2016. (FAC ¶ 54.) All three of the cases have been dismissed on the court's own motion. (Id.) A fourth criminal complaint charging theft of utilities has not yet been resolved. (Id.)
Plaintiffs add a fifth cause of action alleging Monell liability. (FAC ¶¶ 71-78.) Plaintiffs allege that the City of Atwater and Defendant Joseph as a matter of custom, practice and policy, failed to supervise police officers to prevent, deter and punish unconstitutional searches and seizures of property. (FAC ¶ 72.) Plaintiffs assert that "Defendants" knew or should have known of the propensities of Defendant Lee to obtain search warrants under false pretenses and to criminalize medical marijuana use, but took no steps to correct his abuse of authority, supervise him, or discourage his unlawful use of authority. (FAC ¶ 73.) Plaintiffs contend that Defendants condoned and acquiesced, and ratified Defendant Lee's abusive behavior by refusing to retrain, discipline, or correct his behavior. (FAC ¶ 74.)
Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss on the grounds that a complaint "fail[s] to state a claim upon which relief can be granted." A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. Navarrov. Block, 250 F.3d 729, 732 (9th Cir. 2001). In deciding a motion to dismiss, "[a]ll allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party." Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The pleading standard under Rule 8 of the Federal Rules of Civil Procedure does not require " 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In assessing the sufficiency of a complaint, all well-pleaded factual allegations must be accepted as true. Iqbal, 556 U.S. at 678-79. However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. To avoid a dismissal under Rule 12(b)(6), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570.
In deciding whether a complaint states a claim, the Ninth Circuit has found that two principles apply. First, to be entitled to the presumption of truth the allegations in the complaint "may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Second, so that it is not unfair to require the defendant to be subjected to the expenses associated with discovery and continued litigation, the factual allegations of the complaint, which are taken as true, must plausibly suggest an entitlement to relief. Starr, 652 F.3d at 1216. "Dismissal is proper only where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory." Navarro, 250 F.3d at 732 (citing Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988)).
Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend their pleading once as a...
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