Lepp v. Yuba Cnty.

Decision Date11 March 2019
Docket NumberNo. 2:17-cv-1317-KJM-EFB PS,2:17-cv-1317-KJM-EFB PS
CourtU.S. District Court — Eastern District of California
PartiesREVEREND HEIDI LEPP, et al., Plaintiffs, v. YUBA COUNTY, et al., Defendants.

REVEREND HEIDI LEPP, et al., Plaintiffs,
v.
YUBA COUNTY, et al., Defendants.

No. 2:17-cv-1317-KJM-EFB PS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

March 11, 2019


ORDER AND FINDINGS AND RECOMMENDATIONS

Several motions are pending in this action, which are addressed herein.1

1. Defendant Brandon Olivera moves to strike plaintiffs Charles Lepp, Aaron O'Connor, and all unrepresented plaintiffs who did not sign the second amended complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(f). Olivera also moves to dismiss plaintiffs' second amended complaint for failure to state a claim pursuant to Rule 12(b)(6). ECF No. 68.

2. Defendant Lori Ajax moves to dismiss the second amended complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and for failure to state a claim pursuant to Rule 12(b)(6). ECF No. 69.

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3. Defendants County of Yuba, Jeremy Strange, Chris Monaco, John Vacek, and Brandon Spears move to dismiss the second amended complaint for failure to state a claim pursuant to Rule 12(b)(6). ECF No. 70.

4. Defendant Michael Vroman moves to plaintiffs' second amended complaint pursuant to Rule 12(b)(6). ECF No. 75.

5. Defendant Yolo County Sheriff's Department moves to dismiss the second amended complaint for failure to state a claim pursuant to Rule 12(b)(6). ECF No. 95.

6. Defendants Rick DiBasilio and the Calaveras County Sheriff's Department move to dismiss the second amended complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and for failure to state a claim pursuant to Rule 12(b)(6). ECF No. 98.

7. Plaintiffs move to vacate an order due to alleged fraud upon the court pursuant to Rule 60(d)(3). ECF No. 109.

8. Defendants Michael Vroman and Yolo County Sheriff's Department move to strike plaintiffs' supplemental complaint. ECF No. 111.

9. Defendant Yuba-Sutter Narcotic Enforcement Team ("Net-5") moves to set aside the clerk's entry of its default. ECF No. 128.

10. Also pending is the court's September 17, 2018 order directing plaintiffs to show cause why sanctions should not be imposed for failure to file oppositions or statements of non-opposition to defendants Michael Vroman and Yolo County Sheriff's Department motion to strike plaintiffs' supplemental complaint. ECF No. 118.

11. Lastly, plaintiffs are ordered to show cause why defendant Jeffery —the only defendant that has not appeared in this action—should not be dismissed for failure to effect service of process in the time prescribed by Rule 4(m).

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As discussed further below, the order to show cause (ECF No. 118) is discharged. Further, it is recommended that plaintiffs' Rule 60 motion be denied and that the pending motions to dismiss, the motion to strike the supplemental complaint, and defendant Net-5's motion to set aside default be granted.2

I. Order to Show Cause

In violation of Local Rule 230(c), plaintiffs failed to timely file either oppositions or statements of non-opposition to defendants Vroman and Yolo County Sheriff's Department's motion to strike plaintiffs' supplemental complaint. Accordingly, plaintiffs were ordered to file a response to the motion to strike and to show cause why sanctions should not be imposed for their violation of Local Rule 230(c).

In response, plaintiffs state that plaintiff Heidi Lepp was unable to prepare an opposition due to illness and that plaintiffs Charles Lepp and Aaron O'Connor depend on Ms. Lepp's "ability to use the computer to litigate this case." ECF No. 119. Given plaintiffs' pro se status and that they have now filed an opposition to the motion to strike (ECF No. 120), the order to show cause is discharged without imposition of sanctions.

II. Defendant Jeffery Reisig

Plaintiffs' second amended complaint, filed April 20, 2018, added defendant Jeffery Reisig as a defendant. Reisig has not appeared in this action, and there is no indication from the docket that plaintiffs completed service of process for him. Pursuant to Rule 4(m), a defendant must be served within 90 days after the complaint is filed. Fed. R. Civ. P. 4(m) (where a defendant is not timely served, "the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant . . . ."); Fed. R. Civ. P. 4(l)(1) (requiring that proof of service be made to the court). Accordingly, plaintiffs shall show cause why defendant Reisig should not be dismissed for failure to effect service of process within the time prescribed by Rule 4(m) and/or failure to prosecute their claims against him. See Fed. R. Civ. P. 41(b).

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III. Plaintiffs' Rule 60 Motion

Plaintiffs have filed a motion that purports to seek relief under Rule 60(d)(3). ECF No. 109. They request that the court vacate an unspecified order entered against them on the ground "that said judgment and order was procured through fraud on the court . . . ." ECF No. 109 at 2.

Apart from plaintiffs' failure to identify a specific order from which they seek Rule 60 relief, they fail to satisfy the standards for such a motion. Pursuant to Rule 60(b) a court may relieve a party from a final judgment or order if the moving party can show: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; or (6) any other reason that justifies relief. Fed. R. Civ. P. 60(b). Under Rule 60(d)(3), a judgment may be set aside for fraud on the court. Fed. R. Civ. P. 60(d)(3). "Fraud on the court" is "fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner." Alexander v. Robertson, 882 F.2d 421, 424 (9th Cir. 1989).

Because a final judgment has not been entered in this action, plaintiffs may not obtain relief under Rule 60(b)(3). Additionally, plaintiffs have failed to submit any evidence demonstrating fraud upon this court by any of the named defendants. Instead, plaintiffs merely proffer their unsupported conclusions that defendants have engaged in misconduct. By way of example, they argue that "defendants have prevented the judicial process from functioning 'in the usual manner.'" ECF No. 109 at 8. They further claim that defendants "are guilty of defiling the Courts by ignoring Federal and State law, Court rules, doctrines, and rules set by higher courts." Such conclusory statements are insufficient to demonstrate entitlement to relief, and therefore plaintiffs' Rule 60 motion must be denied.

IV. Second Amended Complaint

Like the prior complaint, the second amended complaint consists largely of disjointed and conclusory allegation that are difficult to follow. Liberally construed, the current complaint primarily concerns six separate events: (1) drug enforcement raids occurring in Yuba County in 2014; (2) four simultaneously executed drug raids, including a raid on Ms. Lepp's business,

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occurring in 2016; (3) alleged harassment by defendant Chris Monaco in 2017, (4) a 2017 incident during which two sheriff deputies were shot; (5) a 2017 raid conducted by the Calaveras County Sheriff's Department; and (6) Ms. Lepp's arrest in late 2017.

Plaintiffs allege that in September 2014, the Yuba County Sheriff's Department, Net-5, California Fish and Game, and an unidentified support team executed a search warrant at Ms. Lepp's home and an organization called "Sugarleaf Productions Industrial Hemp Research Facility and Patient Association." ECF No. 62 ¶ 33. During the search, Ms. Lepp was allegedly sexually abused and exploited, her property—including marijuana plants and "irreplaceable genetics, genotypes, and phenotypes"—were destroyed, and officers improperly searched her computer for emails and other documents. Id. ¶¶ 34, 35.

Plaintiffs also alleges that in September 2016, defendants Olivera, Vroman, the Yolo County Sheriff's Department, and Reisig simultaneously executed four raids, including a raid of Ms. Lepp's business which was a "100 % compliant non-profit collective[] permitted in County of Yolo." Id. ¶ 51. Ms. Lepp was present during the raid of her business, but was not arrested or charged with a crime. Id. Plaintiffs also claim that Ms. Lepp had "an interest in the success" of two of the other businesses that were raided. Id. They also appear to allege that defendant Vroman, a deputy district attorney for the County of Yolo (id. ¶ 17), and Jeffery Reisig, the Yolo County District Attorney (id. ¶ 22), obtained the four search warrants by "omitt[ing] critical information about the" raided businesses (id. ¶ 51).

Plaintiffs further allege that in 2017, defendant Monaco, a code enforcement officer, engaged in various types of harassing conduct. Id. ¶¶ 61-63. Monaco allegedly left a voicemail with defendant O'Connor concerning a complaint the County of Yuba received about marijuana being grown on property owned by the Yubud Church, a church headed by O'Connor. Id. ¶¶ 61, 62. Monaco also allegedly entered land adjacent to the church's property to obtain pictures and video footage of a greenhouse and the church's congregants cultivating marijuana. Id ¶ 61. Monaco also allegedly threatened one of the church's congregants and "unabashedly posted hateful and discriminating comments disparaging [plaintiffs'] churches and [their] sacred religious practices . . . ." Id. ¶ 63

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Plaintiffs further allege that in August 2017, two Yolo County sheriff deputies were shot on property owned by a third party. Id. ¶¶ 66, 67. Plaintiffs allegedly were not involved in the incident, nor did they know the individuals who shot the deputies. Id. Nevertheless, plaintiffs claim to have suffered great emotional distress as a result of the incident. Id. They further allege that the Yuba County Sheriff's Department "gave false and misleading information to the...

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