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 PLAINTIFF'S FIRST AMENDED COMPLAINT
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"). On April 8, 2009, the court issued a memorandum opinion and order dismissing Plaintiff's complaint in its entirety. On April 29, 2009, Plaintiff filed a First Amended Complaint ("FAC") alleging civil rights claims for relief under the Fourth and Fourteenth Amendments and under California law. In the instant motion, Defendants seek to dismiss the FAC in its entirety as to all Defendants. Federal subject matter jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The original complaint in this action was filed on January 26, 2009. The court granted Defendants' motion to dismiss the original complaint by its order of April 8, 2009 (the "April 8 Order"). The FAC, which was filed on April 29, 2009, alleges facts not inconsistent with the factual background set forth in the Court's April 8 Order. The court will not reiterate the general background facts set forth in the April 8 Order but will focus on the factual allegations set forth in the FAC that provide some additional detail regarding Plaintiff's claims relating to the seizure of his handgun and ammunition and relating to defendant Dash's role in the events.
With regard to the handgun and ammunition, Plaintiff alleges in the FAC that he first requested the return of the items on or about May 6, 2008, by filling out the required forms and filing all required information. Plaintiff alleges that since filling out the request forms he has called or gone in person to the police station "at least once every two weeks" to no avail. Plaintiff alleges Defendants have failed to return the articles and have offered instead a series of varying excuses for the failure to return. Plaintiff does not allege he has filed any other claims or instituted any formal administrative proceedings.
With regard to the actions of defendant Dash, Plaintiff alleges: After the commencement of, but during the time, the events described in paragraphs 6 through 9 [describing the calling of the police by Alshami, the arrival of the police and the taking of Plaintiff into custody] were going on, Dash came on the scene. After speaking with the officers on the scene Dash 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" thereby delaying [Plaintiff's] release in prolonging his time spent in custody based solely on his ethnicity and/or religion.
Merced police officers, based on Dash's order, transported [Plaintiff] to the Merced County Sheriff's office Main jail in the city of Merced and booked [Plaintiff] at the Merced County Sheriff's Office Main jail in the city of Merced. Doc. # 16 at ¶¶ 14-15.
With regard to his claim for relief based on the alleged deletion of the "raghead" comment in the recording of the questioning that was provided, Plaintiff alleges:
[Plaintiff] obtained a copy of the recording of the incident that was made by Officer Samuel Sannadan and discovered that the portion of the tape wherein Dash called [Plaintiff] a raghead had not been provided. The words spoken by Dash had either been erased or the portion of the tape containing those words was not duplicated and given to [Plaintiff.]
The instant motion to dismiss the FAC was filed on May 18, 2009. Plaintiff's opposition was filed on June 3, 2009, and Defendants' reply was filed on June 15, 2009. The scheduled hearing date of June 22, 2009, was vacated and the court took the matter under submission as of that date.
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." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981).
I. Plaintiff's Fourth Claim for Relief -- Fourteenth Amendment Due Process
Plaintiff's original complaint alleged two claims arising out of the Police Department's failure to return Plaintiff's handgun and ammunition in spite of repeated requests; a Fourth Amendment unlawful seizure claim and a Fourteenth Amendment Due Process claim. The court's April 8 Order dismissed Plaintiff's Fourth Amendment claim on the ground the Fourth Amendment only protects against unreasonable searches and seizures in the first instance and does not protect against the harm Plaintiff alleges, which is the failure to return items that were lawfully seized in the first instance. Plaintiff's fourth claim for relief alleging Fourteenth Amendment Due Process violation was dismissed as alleged in the original complaint because Plaintiff's pleading failed to allege any description of the process provided by Defendants and how the process is constitutionally deficient.
Where the original complaint alleged two claims relating to the failure to return the handgun, holster and ammunition, the FAC alleges a single Fourteenth Amendment Due Process claim. Defendants' motion to dismiss Plaintiff's fourth claim for relief asserts three grounds. First, Defendants contend the claim should be dismissed for failure to plead facts with sufficient clarity in violation of Rule 8 of the Federal Rules of Civil Procedure. Second, Defendants contend Plaintiff's Due Process claim is defeated by the existence of an adequate state remedy to address his claimed losses. Third, Defendants contend Plaintiff's claim fails because he has failed to allege the elements of liability under Monell v. Dep't of Social Servs., 436 U.S. 658, 695 (1978). The court will discuss each in turn.
A. Plaintiff's Claim Meets Rule 8 Requirements
The court's April 8 Order dismissed Plaintiff's Fourteenth Amendment Claim because the claim failed to specify whether "the process available to [Plaintiff for return of his handgun, holster and ammunition] was somehow impeded by Defendant, whether the process is constitutionally flawed in some particular, or whether Plaintiff is merely contending that Merced County Police Department is misapplying the process [so as] to deny Plaintiff the return of his property." Doc. # 15 at 10:18-22. Plaintiff's FAC avoids some of the problems of the original complaint by alleging a single claim of Due Process violation instead of asserting two claims that ambiguously assert both Fourth and Fourteenth Amendment claims. Also, Plaintiff's fourth claim for relief is sufficiently pled, between what is alleged and what is not alleged, to determine the basic outline of the claimed Due Process depravation. Basically, Plaintiff alleges that his handgun, holster and ammunition were seized and held, that there is/was a procedure for claiming the seized items, that Plaintiff completed the requirements of the procedure, and that the items were not returned because of what is essentially garden-variety negligence and/or bureaucratic incompetence. See FAC, Doc. # 16 at ¶¶ 10 -- 12 (describing the process of filling out the property and gun release forms, returning the forms to the police, and the various reasons given why the property was not returned).
The court finds that Plaintiff has set forth his Fourteenth Amendment Due Process claim with sufficient facts and particularity to allow the court to address the merits of the claim. See Brewster v. Bd. of Educ., 149 F.3d 971, 983 ("'In order to state a claim under the fourteenth amendment, the complainant must allege facts showing not only that the State has deprived him of a . . . property interest but also that the state has done so without due process of the law'"). The court therefore declines Defendants' invitation to deny ...