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 ...