The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER ON MOTIONS TO PURSUANT TO F.R.C.P. 12(b)(6) Doc. # 26
This is a civil rights action pursuant to 42 U.S.C. § 1983 by Plaintiff Tarlochan Sohal ("Plaintiff") against the City of Merced Police Department ("Department"), Merced City Police Sergeant Rod Dash ("Dash"), and Does 1 through 50 (collectively "Defendants"). In addition to seeking damages under federal civil rights law, Plaintiff's Second Amended Complaint ("SAC") seeks damages under state law and seeks declaratory judgment regarding certain items of personal property confiscated during Plaintiff's arrest and not returned. In the instant motion, Defendants seek dismissal of all claims alleged in the SAC and seek substitution of the City of Merced as proper party defendant in place of Department. Subject matter jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff's original complaint was filed on January 26, 2009, and was dismissed by order of the court on April 8, 2008. Plaintiff's First Amended Complaint ("FAC") was filed on April 29, 2009. On June 26, 2009, the court issued a memorandum opinion and order (the "June 26 Order") dismissing Plaintiff's due process claim for depravation of personal property and his claim for spoilation of evidence without leave to amend. The court granted leave to amend the remaining three claims in the FAC. Plaintiff's SAC was filed on July 10, 2009. The instant motion to dismiss was filed on July 27, 2009, Plaintiff's opposition was filed on July 27, 2009, and Defendants' reply was filed on August 31, 2009. The hearing on Defendants' motion to dismiss was vacated by order of the court and the matter was taken under submission as of September 8, 2009.
The basic facts alleged in Plaintiff's complaints have remained more or less constant throughout the successive complaints. As the court previously summarized from Plaintiff's original complaint:
[O]n 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.
Doc. # 15 at 1:27 -- 2:12.
In the SAC, Plaintiff alleges for the first time a claim for "unnecessary delay in releasing Plaintiff from custody," which is pled, apparently, pursuant to California common law. The remainder of Plaintiff's claims were alleged in past versions of the complaint. Plaintiff's second claim for relief is for violation of California's Bane Act, Cal. Civ. Code 52.1. Plaintiff's third claim for relief alleges violation of Plaintiff's equal protection rights under the Fourteenth Amendment in violation of 42 U.S.C § 1983 (hereinafter, Plaintiff's "Equal Protection claim").
Plaintiff's fourth claim for relief alleges violation of Plaintiff's right to due process under the Fourteenth Amendment in violation of 42 U.S.C. § 1983 (hereinafter, Plaintiff's "Due Process claim").
Plaintiff's SAC alleges additional facts not alleged in the original complaint that pertain to the alleged failure of Department to return Plaintiff's handgun and other items of personal property to Plaintiff. The SAC alleges Plaintiff went to the Department office and filed two forms for the return of his property as directed by the person in charge on or about May 6, 2008. Plaintiff alleges he has returned to Department on a weekly basis and has been denied the return of his property, particularly his handgun, on each occasion.
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure 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). To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must set forth factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Twombly"). While a court considering a motion to dismiss must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and must construe the pleading in the light most favorable to the party opposing the motion, and resolve factual disputes in the pleader's favor, Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969), the allegations must be factual in nature. See Twombly, 550 U.S. at 555 ("a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do"). The pleading standard set by Rule 8 of the Federal Rules of Civil Procedure "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ("Iqbal").
The Ninth Circuit follows the methodological approach set forth in Iqbal for the assessment of a plaintiff's complaint:
"[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."
Moss v. U.S. Secret Service, 572 F.3d 962, 970 (9th Cir. 2009) (quoting ...