The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER ON DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' SECOND AMENDED COMPLAINT
This is an action for damages by plaintiffs Tommy Allen, and his minor daughter, Brooke Allen (collectively, "Plaintiffs"), against Fresno City Police Officers Derik Kumagai and Valerie Dunn, and Fresno City Police Detective Robert Lincoln (collectively, the "City Defendants"); Fresno County Sheriff Deputies Christian Curtice, Jared Williamson and Romeo Grajeda (collectively, the "individual County Defendants"); and the County of Fresno ("County"). Previously, the court granted Defendants' motion to dismiss Plaintiffs' Second Amended Complaint ("SAC") as to all claims. The court's dismissal was appealed. The Ninth Circuit Court of appeal reversed this court's decision as to the dismissal of Plaintiffs' claims for violation of rights against unlawful arrest and search under the Fourth and Fifth Amendments. The court's dismissal was affirmed as to other claims alleged in the SAC. In the instant motions, Defendants seek dismissal of the remaining claims for unlawful arrest on the ground of qualified immunity, which was argued in Defendants' earlier motion to dismiss but not decided by the court. Federal question jurisdiction exists pursuant to 28 U.S.C., section 1331. Venue is proper in this court.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The following facts are drawn from Plaintiffs' SAC and are not contested for purposes of the instant motion to dismiss.
Plaintiff Tommy Allen ("Tommy") is a disabled resident of Fresno County who is authorized under California law to cultivate and possess marijuana for personal medical use. Brooke Allen ("Brooke") is the minor daughter of Tommy and at the time period relevant to this action was a student at Clovis East High School.
In 2003 Tommy Allen was "subjected to arrest and prosecution in the Fresno County Superior Court for his authorized use and cultivation of marijuana for personal medical purposes." Doc. # 53 at 3: 16 - 18. The SAC alleges the City Defendants only were responsible for Tommy Allen's arrest and for bringing a criminal complaint even though they were aware of Tommy Allen's status under California's Compassionate Use Act ("CUA"), California Health & Safety Code § 11362.5. The SAC further alleges that "[a]ll charges against plaintiff Tommy Allen were dismissed, and the search of his home was found to be illegal. The final, favorable resolution of his criminal case took place on October 21, 2004." Doc. # 53 at ¶ 9.
The SAC alleges a separate incident involving Brooke occurred on October 29, 2004, wherein Brooke was arrested at her school for possession and use of marijuana on school grounds and possession of marijuana for sale. Brooke's arrest was carried out by the County Defendants who also arrested Tommy Allen on a charge of providing his daughter with marijuana for sale. With respect to the Arrest of Brooke and Tommy Allen on October 29, 2004, by the County Defendants, paragraph 11 of the SAC alleges:
These allegations were patently contrived and false, and the involved officer knew at the time of these arrests that probable cause was lacking, based on the lack of then-existing evidentiary support. It has subsequently been repeatedly proven, by scientific evidence, that Brooke Allen did not use or ingest marijuana as alleged. It has also since been scientifically proven that the subject marijuana is not of the type that [P]laintiff Tommy Allen cultivates and uses for his personal medical use.
On January 1, 2008, Defendants moved to dismiss the SAC in its entirety as to all Defendants. On March 3, 2008, Defendants' motion to dismiss was granted and the SAC was dismissed as to all Defendants. Plaintiffs filed a notice of appeal on April 18, 2008. On October 23, 2009, the Ninth Circuit Court of Appeals filed a memorandum opinion affirming in part and reversing in part this court's grant of Defendants' motion to dismiss. The Ninth Circuit's opinion affirmed this court's dismissal of Plaintiff's SAC to the extent it asserted "claims against the individual City and County defendants for malicious prosecution and against the County of Fresno for discriminatory, selective, arbitrary, and retaliatory enforcement of laws. . . ." Doc. # 69 at 2. The Ninth Circuit's opinion also affirmed this court's dismissal of Plaintiffs' second claim for relief for declaratory judgment. Id.
The Ninth Circuit's opinion reversed this court's dismissal of Tommy and Brooke Allen's claims against the City and County individual Defendants for violation of their rights against unlawful arrest and unreasonable search and seizure under the Fourth Amendment. Specifically, the appellate court held that:
The district court, however, erred in concluding that the Allens failed to allege sufficient facts to support their Fourth Amendment claims for unlawful arrest and unlawful search and seizure. The complaint alleges that the City defendants who searched and arrested Tommy Allen lacked probable cause and knew at all pertinent times that he was authorized under state law to use marijuana for medicinal purposes, that the City defendants' search of Tommy Allen was later found unlawful, and that the County defendants who arrested Tommy and Brooke Allen lacked probable cause. This was enough to establish a plausible entitlement to relief as required under [Bell atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007)]. Although Allen cannot use § 1983 to vindicate his purported state-law right to use marijuana for medical purposes, the officers' knowledge of his medical authorization bay be relevant to whether they has probable cause to believe he had committed a crime.
Mandate as to the Ninth Circuit's order issued on November 16, 2009. The instant motion to dismiss by Defendants was filed on March 3, 2010. Plaintiffs' opposition was filed on March 22, 2010, and Defendants' reply was filed on March 25, 2010. The ...