Leubner v. Cnty. of Lake
| Decision Date | 15 February 2019 |
| Docket Number | Case No. 18-cv-05654-PJH |
| Parties | MILOS LEUBNER, Plaintiff, v. COUNTY OF LAKE, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
Before the court is defendants' motion to dismiss pro se plaintiff Milos Leubner's complaint. The matter is fully briefed and suitable for decision without oral argument. Accordingly, the hearing set for February 20, 2019, is VACATED. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby grants defendants' motion for the following reasons.
Plaintiff is a medical marijuana user and the primary caregiver for three members of his "collective." Compl. at ECF 12. On September 15, 2016, employees of the Lake County Sheriff's Department entered plaintiff's property and allegedly "arrested" plaintiff twice, once in his home and a second time about eight feet from his house. Id. at 2, 7. The Sheriff's Department employees seized and destroyed, inter alia, marijuana found onplaintiff's property. Id. at 9.
Plaintiff claims that that search and seizure was conducted without a warrant. Id. at 2-3. In actual fact, however, judicially noticeable documents show that a search warrant was issued by the Lake County Superior Court on September 13, 2016. Dkt. 15-1, Ex. A. That warrant authorized law enforcement to search plaintiff's property and seize, inter alia, marijuana and related instruments found therein. Id. After the Sheriff's Department executed that warrant, on October 5, 2016, the Superior Court received the Return To Search Warrant, which indicated, inter alia, that almost 70 pounds of marijuana had been destroyed. Id., Ex. B.
On September 19, 2016, Leubner was charged with three felonies under §§ 11358, 11359, and 11360(a) of the California Health and Safety Code, for the unlawful possession, cultivation, transportation, and selling of marijuana. Id., Ex. C. On May 16, 2017, pursuant to stipulation, "all items seized [were] forfeited by Milos Leubner, with the exception of any firearms" and the charges against Leubner were dismissed. Id., Ex. D (minutes to settlement conference).
Plaintiff's complaint stems directly from the above events and most specifically from the purportedly warrantless seizure and destruction of his marijuana. Plaintiff alleges two claims (based on multiple U.S. Constitutional Amendments) against at least three defendants: the County of Lake, Dennis Keithly, an employee of the Sheriff's Department, and Michael Penhall, an employee of Code Enforcement. Plaintiff's first cause of action alleges violations of the First Amendment, the Fourth Amendment, the Fifth Amendment, the Eighth Amendment, and the Ninth Amendment. Plaintiff's second cause of action alleges conspiracy to violate the Fourteenth Amendment. Adding confusion to the complaint, plaintiff appears to bring the second cause of action against additional defendants—Kathy Freedman and Jerri Driver—both of whom are not named earlier in the form complaint in the section designated for identifying each defendant and have not been served. The complaint's failure to allege each defendant's specific conduct exacerbates that confusion.
Based on the above claims and alleged conduct, plaintiff seeks bureaucratic changes within County of Lake and seeks to recover for "all expenses suffered . . . due to [the] total destruction of [the] collective's medical garden" and for harm suffered as a "consequence[ ] of the" search. Compl. at 14.
A motion to dismiss under Rule 12(b)(6) tests for the legal sufficiency of the claims alleged in the complaint. Ileto v. Glock, 349 F.3d 1191, 1199-1200 (9th Cir. 2003). Under the minimal notice pleading requirements of Federal Rule of Civil Procedure 8, which requires that a complaint include a "short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), a complaint may be dismissed under Rule 12(b)(6) if the plaintiff fails to state a cognizable legal theory, or has not alleged sufficient facts to support a cognizable legal theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013).
While the court must accept as true all the factual allegations in the complaint, legally conclusory statements, not supported by actual factual allegations, need not be accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). The complaint must proffer sufficient facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 558-59 (2007).
"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.' " Id. at 679. Where dismissal is warranted, it is generally without prejudice, unless it is clear the complaint cannot be saved by any amendment. Sparling v. Daou, 411 F.3d 1006, 1013 (9th Cir. 2005).
Review is generally limited to the contents of the complaint, although the court can also consider a document on which the complaint relies if the document is central to the claims asserted in the complaint, and no party questions the authenticity of the document. See Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). That is, the court may consider matters that are properly the subject of judicial notice, Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005); Lee v. City of L.A., 250 F.3d 668, 688-89 (9th Cir. 2001), and may also consider exhibits attached to the complaint, see Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989), and documents referenced extensively in the complaint and documents that form the basis of a the plaintiff's claims. See No. 84 Emp'r-Teamster Jt. Counsel Pension Trust Fund v. Am. W. Holding Corp., 320 F.3d 920, 925 n.2 (9th Cir. 2003).
Plaintiff asserts that defendants violated his constitutional rights but does not specify how the invoked Amendments alone provide a basis for relief. Defendants' motion construed the complaint as bringing claims under 42 U.S.C. § 1983. As plaintiff failed to oppose that construction, and because plaintiff complains of constitutional violations, the court also construes the complaint as bringing § 1983 claims.
"Section 1983 provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff's first cause of action alleges defendants violated the First, Fourth, Fifth, Eighth, and Ninth Amendments of the U.S. Constitution. For the reasons discussed below, the court finds that plaintiff first cause of action must be dismissed.
Plaintiff's appears to allege that defendants violated the First Amendment by conducting the search and seizure without allowing him to address the County of Lake Board of Supervisors in violation of County of Lake Ordinance No. 2997, Article 72 ("Ordinance 2997"). Compl. at 8-9.
That ordinance imposes several restrictions on the cultivation of marijuana within Lake County. Among other things, "the Ordinance [ ] provides that any violation of the Ordinance 'shall constitute a public nuisance and shall be subject to abatement as provided' by the Ordinance." Allen v. Cty. of Lake, No. 14-CV-03934-TEH, 2017 WL 363209, at *1 (N.D. Cal. Jan. 25, 2017) (discussing and quoting Article 72.7(a)). "The Ordinance requires that the property owner or occupants be provided notice of the abatement and given a five-business-day period to either comply with the Ordinance or to request a hearing before any abatement action is taken by the County." Id. (discussing Article 72.9-72.10). Article 72.9(d), titled "Hearing Procedure," provides that "[a] hearing . . . may be requested by filing a written request for a hearing with the Lake County Community Development Department within 5 business days of service of the Notice" and that the request "shall specify why marijuana being cultivated is not in violation of this Article and therefore should not be considered a public nuisance." Ordinance 2997, Article 72.9(d). Thus, at least under certain circumstances, Article 72.9 provides that a person cultivating marijuana in Lake County is entitled to receive a hearing prior to the County abating a purported nuisance under Article 72.
The complaint, however, does not allege that plaintiff ever complied with the requirements of Article 72.9(d). Thus, plaintiff's First Amendment claim cannot stand as currently pled because it is based on the denial of a hearing that plaintiff has not allegedhe qualified for or asked for.2 And the complaint does not contain any other allegations of speech or petitioning.
Moreover, Ordinance 2997 "allows the summary abatement of marijuana cultivation that violates a limited number of specific provisions within the Ordinance." Allen, 2017 WL 363209, at *1. For example, the County may summarily abate the nuisance if more than 6 mature or 12 immature plants are cultivated on parcels larger than one acre, or if unlawful indoor...
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