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Sterner v. San Diego Police Dep't

January 21, 2009

ROBERT FULTON STERNER, M.D., PLAINTIFF,
v.
SAN DIEGO POLICE DEPARTMENT; POLICE CHIEF WILLIAM LANDSDOWN; DETECTIVE KIMBER L. HAMMOND; DETECTIVE CONRADO DECASTRO; DETECTIVE SCHUYLER BOYCE; DETECTIVE MARK CARLSON; SAN DIEGO DISTRICT ATTORNEY'S OFFICE; DISTRICT ATTORNEY BO DUMANIS; DEPUTY DISTRICT ATTORNEY ATTO MOSLER; DOES 1-40, DEFENDANT.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS (Doc. No. 28)

Defendants move the Court for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). The present case involves an undercover investigation of plaintiff's medical practice related to his recommendations of medical marijuana to patients.*fn1 Plaintiff opposed and defendants filed a reply.

BACKGROUND

A. Factual Background

Plaintiff has practiced as a licensed physician in California for nearly twenty-five years. Defendants are the San Diego Police Department, various detectives of the S.D.P.D., the Office of the San Diego District Attorney, District Attorney Dumanis, and Deputy District Attorney Mosler.

In 2005, plaintiff alleges agents searched several medical cannabis cooperatives in the San Diego area. During the search, agents allegedly seized medical records of patient-members of the cooperatives, including written physician recommendations to medicinally use cannabis. Plaintiff alleges defendants initiated an undercover investigation based solely on the frequency plaintiff's name appeared among the seized recommendations.

Detectives from the San Diego Police Department initiated an undercover investigation of plaintiff. Detectives posed as patients, visited plaintiff's office, and sought recommendations to use marijuana for medical purposes. Detectives videotaped and audio-taped these visits.

Defendant Mosler forwarded the result of this undercover investigation -- including the audio and videotapes -- to the Medical Board of California ("MBC") to investigate whether plaintiff had violated the California Medical Practices Act. The MBC conducted an independent investigation and filed an "Accusation" charging plaintiff with negligence and engaging in fraud. According to defendants, the MBC proceeding is ongoing.

B. Procedural Background

On July 31, 2008, Plaintiff filed a complaint alleging defendants (1) violated his First Amendment rights; (2) violated due process and equal protection by conspiring to violate his rights ("§ 1985 claim"); and (3) failed to prevent the objectives of this alleged conspiracy ("§ 1986 claim"). He seeks damages, an injunction, and declaratory relief.

Defendants San Diego District Attorney's Office, District Attorney Dumanis, and Deputy District Attorney Mosler filed an answer on September 30, 2008. Defendants San Diego Police Department, Police Chief Landsown, Detective Hammond, Detective Decastro, Detective Boye, and Detective Carlson filed an answer on November 18, 2008.

On November 17, 2008, the District Attorney Office, Dumanis, and Mosler filed a motion for judgment on the pleadings and/or requesting a stay of proceedings until after MBC has completed its investigation. Defendants request the Court take judicial notice of the MBC Accusation. The remaining defendants filed a notice of joinder to the motion on November 24, 2008.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(c) provides, "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." Judgment on the pleadings is proper when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved. Fed.R.Civ.P. 12(c); Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1550 (9th Cir.1990).

"A judgment on the pleadings is properly granted when, taking all the allegations in the pleading as true, the moving parties are entitled to judgment as a matter of law." Smith v. National Steel & Shipbuilding Co., 125 F.3d 751, 753 (9th Cir.1997); George v. Pacific-CSC Work Furlough, 91 F.3d 1227, 1229 (9th Cir.1996) (citing Yanez v. United States, 63 F.3d 870, 872 (9th Cir.1995)).

DISCUSSION

A. The First Amendment Claim

Plaintiff alleges defendants initiated the investigation to retaliate against his advocacy of medical marijuana, a right he claims is protected by Conant v. Walters, 309 F.3d 629 (9th Cir. 2002). This claim incorporates both a claim of retaliatory investigation and a claim of retaliatory prosecution.

Defendants raise three issues with regard to the first amendment claims: (1) whether a retaliatory investigation can be the basis of a First Amendment claim; (2) whether defendant must allege a lack of probable cause to support a claim of retaliatory prosecution; and (3) whether defendants Mosler and Dumanis are entitled to qualified immunity. Before reaching these issues, the Court must discuss Conant.

a. Conant v. Walters

In Conant, the Ninth circuit upheld an injunction prohibiting the federal government from either revoking a physician's prescription license or conducting an investigation of a physician based solely on the physician's recommendation of medical marijuana. 309 F.3d at 636. In that case, a class of patients and physicians sought to enjoin enforcement of a federal policy to revoke prescription licenses of physicians who recommended marijuana to patients. Id. at 633. Conant upheld the injunction because a physician's candid discussion of the cost-benefit of medical marijuana with his patient is speech protected by the First Amendment. Id. at 636. The court found "punishing physicians for recommending medical marijuana was both content and viewpoint discrimination." Denny v. Drug Enforcement Admin., 508 F. Supp. 2d 815 (E.D. Cal. 2007) (discussing Conant). The court weighed the impact of ...


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