The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION TO DISMISS Doc. # 7
This is an action for damages by plaintiff Tarlochan Sohal ("Plaintiff") against Defendants City of Merced Police Department and individual defendant Merced City Police Sergeant Rod Dash ("Dash") (collectively, "Defendants"). In the complaint, Plaintiff alleges that he suffered violation of his rights under the First and Fourteenth Amendments when he was arrested and items belonging to him were seized as a result of unlawful discrimination. In the instant motion, Defendants seek dismissal of all claims for relief asserted in the complaint. Federal subject matter jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The complaint in this action was filed on January 26, 2009. The complaint alleges that on May 5, 2008, Plaintiff and Ruth Alejo, a person with whom Plaintiff shares office space, became involved in a dispute. The dispute alarmed a third person, Sonia Alshami, who was also present in the office. Alshami placed a 911 call to the Merced Police Department. The complaint alleges that Merced City Police Officers responded and took Plaintiff into custody. The officers also seized a .40 caliber pistol, holster and ammunition from Plaintiff's desk. The complaint alleges the seized items have not been returned.
The police officers interviewed Alejo and Alshami. The complaint alleges that, while the interviews were going on, Officer Dash came on the scene and "called [Plaintiff] a 'raghead' in the context of telling the other officers to arrest [Plaintiff]; saying words to the effect that the other officers should 'before you cut that raghead loose, let me call his supervisor.'" Doc. # 1 at ¶ 10. The complaint alleges that the "Merced police officers placed [Plaintiff] under arrest for domestic violence and transported and booked him at the Merced County Sheriff's Office main jail . . . ." Doc. #1 at ¶ 11.
The complaint alleges that Officer Sannadan, one of the responding officers, made a tape recording of the interviews with Alshami, Alejo and Plaintiff at the scene. Plaintiff requested and received a copy of the tape recording made by Sannadan. Plaintiff alleges that the portion of the tape recording that should have contained the voice of Dash referring to Plaintiff as a "raghead" is missing or was not recorded on the copy made available to Plaintiff.
The complaint alleges five claims for relief. The first and second claims for relief are alleged against Officer Dash. The first claim alleges violation of California's Bane Act, Cal. Civ. Code § 52.1. The first claim for relief alleges Plaintiff was subjected to unreasonable seizure of his person based on his religion and ethnicity in violation of his Fourth and Fourteenth Amendment rights. The second claim alleges discrimination in violation of the Equal Protection clause of the Fourteenth Amendment in violation of 28 U.S.C. § 1983.
Plaintiff's third and fourth claims for relief both allege violations of 28 U.S.C. § 1983 based on Police Department's seizure of Plaintiff's pistol, ammunition and holster and refusal to return these items to Plaintiff. The third claim for relief alleges unreasonable seizure under the Fourth Amendment based on Police Department's failure to provide "adequate notice or an opportunity to retrieve his personal property and retaining and refusing to return [P]laintiff's personal property without a legitimate government interest . . . ." Doc. # 1 at ¶ 24. Plaintiff's fourth claim for relief alleges violation of Plaintiff's procedural due process rights under the Fourteenth Amendment.
Plaintiff's fifth and final claim is apparently alleged against Merced City Police Department for "intention alteration of legal record intended to be evidence" in violation of California Penal Code § 470.
Defendants filed the instant motion to dismiss on February 23, 2009. Plaintiff filed his opposition on March 19, 2008 and Defendants filed their reply on March 23, 2009. The matter was take under submission without oral argument as of March 30, 2009.
A complaint may be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure if it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). A Rule 12(b)(6) dismissal can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). In deciding a Rule 12(b)(6) motion, courts do not "assume the truth of legal conclusions merely because they are cast in the form of factual allegations."