Raley v. Williams

• Decision Date: 07 March 2019
• Docket Number: No. 2:14-CV-2652-JAM-DMC,2:14-CV-2652-JAM-DMC
• Parties: STEPHEN RALEY, Plaintiff, v. BOB WILLIAMS, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

STEPHEN RALEY, Plaintiff, v. BOB WILLIAMS, et al., Defendants.

No. 2:14-CV-2652-JAM-DMC

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

March 7, 2019

FINDINGS AND RECOMMENDATIONS

Plaintiff, who is proceeding pro se, brings this civil action. Pending before the court is defendants' motion to dismiss (Doc. 22). The matter was heard before the undersigned in Redding, California, on March 6, 2019, at 10:00 a.m. Stephen Raley appeared pro se. Jonz Norine, Esq., appeared for defendants. After hearing arguments, the matter was submitted.

I. BACKGROUND

A. Procedural History

Plaintiff initiated this action by way of a complaint filed on November 13, 2014. Defendants responded with a motion to dismiss filed on April 9, 2018. In findings and recommendations issued on August 23, 2018, the court recommended dismissal of the action without leave to amend. See Doc. 17. The District Judge adopted the findings and

/ / / recommendations in part and modified the findings and recommendations in part and provided plaintiff an opportunity to amend. See Doc. 20.

1. Magistrate Judge's Findings and Recommendations

In the findings and recommendations, the court summarized plaintiff's allegations as follows:

Plaintiff filed this action against Tehama County officials, including the Board of Supervisors, each named individually as well as the Board itself, the County Counsel of Tehama County, the County Administrator, the Director of the Department of Environmental Health, the County Sheriff, an Enforcement Officer, the County Clerk, and the Code Enforcement Coordinator. The allegations in the complaint are difficult to decipher, but it appears plaintiff is a medical marijuana user who was growing marijuana plants on his property. The County enforcement officer cited plaintiff for growing too many plants, without proper fencing, and too close to the property line. Plaintiff was issued a notice to abate, as he was in violation of the County ordinance regulating marijuana grows. Plaintiff appealed the notice and received a hearing before the Board of Supervisors. He was then was fined for untimely abatement.

In his complaint, plaintiff alleges his due process rights were violated in regards to the notice of abatement and hearing procedures; his Equal Protection rights were violated as he was singled out for enforcement; the County ordinance is unlawful, unreasonable, and discriminatory; the excessive fines he was assessed were cruel and unusual punishment; his right to privacy was invaded by the enforcement officer trespassing on his property; the violation notice violated ex post facto laws because he was growing before the County passed the ordinance; he was deprived of his medication; and there were procedural violation as the appeal was heard by the Board of Supervisors.

Doc. 17, pgs. 1-2.

As to plaintiff's due process claim, the court held:

Although plaintiff's contentions are not stated succinctly and clearly, reading the complaint broadly as the court must, he alleges his due process rights were violated throughout the abatement process. Essentially, he alleges the Board of Supervisors relied upon a report by Enforcement Officer Rulofson, which contained false information. He also contends he was not given adequate notice as he was provided a copy of the report by Rulofson five minutes before the hearing.

"The Fourteenth Amendment places procedural constraints on the actions of government that work a deprivation of interests enjoying the stature of 'property' within the meaning of the Due Process Clause." Memphis Light Gas & Water Div. v. Craft, 436 U.S. 1, 9 (1978). "Property interests derive not from the Constitution but from existing rules or understandings that stem from an independent source such as state law...." Samson v. City of Bainbridge Island, 683 F.3d 1051, 1057 (9th Cir.2012); seeMemphis Light, 436 U.S. at 9; Lawson v. Umatilla County, 139 F.3d 690, 692 (9th Cir. Or.1998). However, "federal constitutional law determines whether that interest rises to the level of a legitimate claim of entitlementprotected by the Due Process Clause." Memphis Light, 436 U.S. at 9; Samson, 683 F.3d at 1057; Lawson, 139 F.3d at 692. That is, even though "state law creates a property interest, not all state-created rights rise to the level of a constitutionally protected interest." Brady v. Gebbie, 859 F.2d 1543, 1548 n. 3 (9th Cir.1988). If a person possess a protected property interest, then "some form of hearing is required before an individual is finally deprived of [that] property interest," because "the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333 (1976); United States v. Clifford Matley Family Trust, 354 F.3d 1154, 1161 (9th Cir.2004).

There is a fundamental problem with plaintiff's due process claim that the parties have not addressed. Plaintiff's claim in this case relate to the proceedings relating the abatement of his property, specifically marijuana. Cases in the Eastern District of California have dismissed federal due process claims where the property interest at issue was possession of marijuana. SeeStaffin v. County of Shasta, 2013 U.S. Dist. LEXIS 64625, 12-14, 2013 WL 1896812 (E.D. Cal. May 6, 2013); Schmidt v. County of Nev., 2011 U.S. Dist. LEXIS 78111, 2011 WL 2967786 (E.D. Cal. July 19, 2011). In both cases, no protected property interest was found for purposes of the Fourteenth Amendment. Seeid. In Schmidt, the court explained:

The Supreme Court has held that no person can have a legally protected interest in contraband per se. SeeUnited States v. Jeffers, 342 U.S. 48, 53, 72 S.Ct. 93, 96 L.Ed. 59 (1951); seealsoCooper v. City of Greenwood. Mississippi, 904 F.2d 302, 305 (5^th Cir.1990). . . . "An object is contraband per se if its possession, without more, constitutes a crime; or in other words, there is no legal purpose to which the object could be put." United States v. Harrell, 530 F.3d 1051, 1057 (9th Cir. 2008). Under the federal Controlled Substances Act ("CSA"), it is illegal for any private person to possess marijuana. 21 U.S.C. §§ 812(c), 841(a)(1), 844(a). Thus, under federal law, marijuana is contraband per se, which means no person can have a cognizable legal interest in it. SeeGonzales v. Raich, 545 U.S. 1, 27, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) ("The CSA designates marijuana as contraband for any purpose.").

"The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail." Id. at 29. While California's Compassionate Use Act provides narrow exceptions for marijuana use involving qualified patients and care givers, federal law dictates that marijuana is illegal for any purpose. Id. at 27. . . .

In this case, plaintiff cannot recover damages as a result of the confiscation or destruction of marijuana because he had no cognizable property interest in the marijuana. Plaintiff asserts a due process claim under the federal Constitution in federal court, where, underfederal law, marijuana is undisputably illegal and contraband per se.

Schmidt, 2011 U.S. Dist. LEXIS 78111 at *15-*17, 2011 WL 2967786;3 seealsoMarble v. Strecker, 2014 U.S. Dist. LEXIS 50770, *22 (D. Mont. Feb. 26, 2014) (citing Schmidt and holding that plaintiff did not have a "federal property interest" in marijuana or a state issued marijuana card because marijuana is contraband per se under federal law). Similarly, Staffin relied in part on Schmidt and explained:

Procedural due process, as required by the United States Constitution, protects only those matters that may be construed as liberty or property interests. Conejo Wellness Ctr., Inc. v. City of Agoura Hills, 214 Cal.App.4th 1534, 154 Cal.Rptr.3d 850 (2013) . . . (noting the differences between procedural due process under the United States and California Constitutions). However, no person can have a legally protected interest in contraband per se. Schmidt v. Cnty. of Nevada, 2011 WL 2967786, at *5-6 (E.D. Cal. July 19, 2011) (citations omitted). Therefore, because marijuana is contraband per se under federal law, as mentioned above, no person can have a cognizable legal interest in it. Id.

Staffin, 2013 U.S. Dist. LEXIS 64625 at *13, 2013 WL 1896812.

Thus, plaintiff's claims that his due process rights were violated in relation to his possession of marijuana fail in this court as a matter of law. The claim should therefore be dismissed, and no amendment can cure the defect.

Doc. 17, pgs. 5-8.

Regarding an apparent equal protection claim, the court stated:

Plaintiff's second federal claim appears to be an equal protection claim. He argues that he was singled out for enforcement of the marijuana ordinance. He contends that several neighbors are also in violation of the ordinance, and they have not been found to be in violation. Defendants argue "there is no such thing as an 'unfair and selective' code enforcement" citing state law. SeeCity & Cty. of San Francisco v. Burton, 201 Cal. App. 2d 749, 755 (1962).

* * *

Plaintiff argues in his opposition to the motion to dismiss that he was the only one targeted for abatement in his entire community of Rancho Tehama. He argues that other property in the immediate area are cultivating marijuana with larger grows that he had, with partial or no fences and clearly visible from the street. However, the other cultivations were not subject to abatement or enforcement issues. In essence, he contends he was targeted for selective enforcement.

/ / /

While plaintiff states in the complaint that he was unfairly singled out, other than his conclusory statements, he fails to allege facts demonstrating that the defendants failed to enforce the marijuana ordinances against similarly situated property owners, that he was intentionally targeted, and that such disparate treatment lacked a rational basis. In addition, the selective enforcement plaintiff is complaining about

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