Yang v. Boudreaux

Decision Date07 September 2021
Docket Number1:21-cv-00148-BAM
CourtU.S. District Court — Eastern District of California
PartiesPHENG YANG, Plaintiff, v. Tulare County Sherriff MIKE BOUDREAUX in his Official Capacity, Tulare County Deputy Sherriff MATTHEW WILLIAMS in his Individual Capacity, Tulare County Deputy Sherriff HERNANDEZ in his Individual Capacity, Tulare County Deputy Sherriff VERENZUELA in his Individual Capacity, Tulare County Deputy Sherriff HENDERSON in his Individual Capacity, Tulare County Deputy Sherriff PUGH in his Individual Capacity, Tulare County Deputy Sherriff HOOD in his Individual Capacity, TULARE COUNTY, and DOES 1-15, inclusive, Defendants.



On February 4, 2021, Plaintiff Pheng Yang (Plaintiff) filed this action against Defendants Tulare County Sherriff Mike Boudreaux in his official capacity, Deputy Matthew Williams in his individual capacity, Deputy Hernandez in his individual capacity, Deputy Verenzuela in his individual capacity, Deputy Hernandez in his individual capacity, Deputy Pugh in his individual capacity, Deputy Hood in his individual capacity, and Tulare County (Defendants).[1] (Doc. No. 1.)

On April 20, 2021, Defendants moved to dismiss the complaint and Plaintiff responded with a first amended complaint. (Doc Nos 8, 16.) The first amended complaint (“FAC”) alleges eleven causes of action: (1) Amendments IV, XIV Violation (42 U.S.C. § 1983); (2) Amendment II Violation; (3) Denial of Equal Protection (Amend. XIV); (4) Conspiracy to Violate Civil Rights (42 U.S.C. § 1985) (5) Municipal Liability (Monell); (6) Violation of Bane & Ralph Acts; (7) False Arrest; (8) Conversion; (9) Negligence; (10) Intentional Infliction of Emotional Distress; and (11) Negligent Infliction of Emotional Distress. (Doc. No. 16.)

Defendants again moved to dismiss Plaintiff's claims asserted in the first amended complaint on June 14, 2021. (Doc. No. 7.) Plaintiff opposed the motion on June 25, 2021, and Defendants replied on July 7, 2021. (Doc. Nos. 20, 26.) On June 25, 2021, Plaintiff also filed a Request for Judicial Notice. (Doc. No. 21.) On July 1, 2021, Defendant also filed a Request for Judicial Notice. (Doc. No. 25.) The Court deemed this matter suitable for decision without oral argument pursuant to Local Rule 230(g).

Having considered the moving, opposition, and reply papers, and for the reasons set forth below, Defendants' motion to dismiss the first amended is HEREBY GRANTED.


This case arises out of the search and seizure of Plaintiff's large capacity magazines, and his subsequent arrest for violation of California Penal Code § 32310 and involves several claims for civil rights violations as a result of police conduct.

On April 14, 2019, a judge in the United States District Court for the Southern District of California issued an order enjoining enforcement of California Penal Code §32310.[3] (FAC ¶ 13.) The order expressly enjoined the enforcement of Penal Code § 32310[4] for persons who bought large-capacity magazines between March 29, 2019, at 2:24 p.m. PDT and April 5, 2019, at 5:00 p.m. PDT.[5] (FAC ¶ 13.) On April 25, 2019, Douglas Wormald, a program manager of the Command Center of the California Department of Justice's Bureau of Criminal Identification & Investigative Services swore and declared that on April 15, 2019, he notified the Tulare County Sherriff's Office (TCSO) of the order enjoining enforcement of Penal Code § 32310. (FAC ¶ 13.)

On or about January 22, 2020, Defendants Williams, Hernandez, Verenzuela, Henderson, Pugh, Hood, and Does of the TCSO, with the help of the California Department of Corrections and Rehabilitation, the Tulare County Probation Department, and certain investigators from the Tulare County District Attorney's Office, conducted multiple Parole and Probation compliance checks at Plaintiff's home. (FAC ¶ 15.A.) Defendants Williams, Hernandez, Verenzuela, Henderson, Pugh, Hood, and Does of the TCSO located Plaintiff's brother and co-tenant Smith Yang. (FAC ¶ 15.E.)

After questioning, Smith Yang notified the officers that his brother, Plaintiff, owned some firearms that were stored in Plaintiff's bedroom. (FAC ¶ 15.F.) Smith Yang did not give consent for the officers to search Plaintiff's bedroom. (FAC ¶ 25.F.) Defendants then conducted a warrantless search of Plaintiff's bedroom, finding two large capacity magazines (“LCMs”). (FAC ¶ 15.G.) After the search had been completed, Plaintiff returned home. (FAC ¶ 15.H.) Officers questioned Plaintiff about the LCMs, to which Plaintiff informed the officers he purchased them during “freedom week.” (FAC ¶¶ 15.I, 15.J.) Defendant Williams demanded proof of the seller's identity and a dated receipt, which Plaintiff could not provide. (FAC ¶ 15.K.) Plaintiff was then arrested and booked into the Tulare County Jail. (FAC ¶ 15.L.)

On March 3, 2020, Plaintiff was charged in a 1-count felony complaint for violating Penal Code § 32310(a). (FAC ¶ 15.N.) On June 25, 2020, Plaintiff's charge was dismissed pursuant to California Penal Code § 1382 and 1385. (FAC ¶ 15.O.) Following dismissal of the criminal case, Plaintiff successfully moved for a finding of factual innocence pursuant to California Penal Code § 851.8. (FAC ¶ 15.P, 16.)


A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is a challenge to the sufficiency of the allegations set forth in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A 12(b)(6) dismissal is proper where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In determining whether a complaint states a claim upon which relief may be granted, the Court accepts as true the allegations in the complaint, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader's favor. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).

Under Rule 8(a), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A plaintiff is required to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).

While Rule 8(a) does not require detailed factual allegations, “it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged[.] Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). In practice, “a complaint . . . must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.” Twombly, 550 U.S. at 562.

“Dismissal without leave to amend is proper if it is clear that the complaint could not be saved by amendment.” Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1051 (9th Cir. 2008). To the extent that the pleadings can be cured by the allegation of additional facts, the Court will afford the plaintiff leave to amend. Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted).


A. Judicial Notice

Rule 201(b) of the Federal Rules of Evidence provides that a court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. 201(b). A court may take judicial notice of its own records in other cases, as well as the records of an inferior court in other cases.” United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980); accord In re Korean Air Lines, Co., Ltd., 642 F.3d 685, 689 n.1 (9th Cir. 2011); United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004).

Both Plaintiff and Defendants have requested the Court take judicial notice of various documents, some of which the parties failed to attach to the first amended complaint and to the motion to dismiss. Both parties request documents from Plaintiff's underlying criminal case be judicially noticed: the preliminary hearing transcript (Doc. No. 21-1 Exh. A), criminal complaint filed against Plaintiff (Doc. No. 25 Exh. 2), order denying Plaintiff's demurrer and setting case for preliminary hearing (Doc. No. 25 Exh. 3), order following preliminary examination (Doc. No. 25 Exh. 4), minute order dismissing the criminal case (Doc. No. 21-1,...

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