MEMORANDUM AND ORDER RE: MOTIONS TO DISMISS
Plaintiffs' First Amended Complaint ("FAC"), filed May 12, 2010, contains sixteen claims. The first through fifth claims are federal civil rights claims against the individual defendants under 42 U.S.C. § 1983, based upon alleged unlawful search and seizure, malicious prosecution, suppression of exculpatory evidence and loss of familial rights. The sixth claim seeks to impose liability against defendant County of Sacramento for the actions of its policymakers pursuant to Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). The seventh through eleventh claims seek to impose liability on the individual defendants pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971). The twelfth claim is for violations of the federal RICO statutes and RICO conspiracy. (18 U.S.C. §§ 1962(c) and (d). The thirteenth through sixteenth claims are state law civil rights, negligence, malicious prosecution and loss of consortium claims.
Presently before the court are defendants' motions to dismiss the sixth (Monell), seventh through eleventh (Bivens), twelfth (RICO), fourteenth (state law negligence) and fifteenth (state law malicious prosecution) claims, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
A. Sheriff John McGinness and the County of Sacramento
Defendants argue that Sheriff John McGinness and the County are entitled to Eleventh Amendment immunity, pursuant to McMillian v. Monroe County, 520 U.S. 781 (1997), because McGinness was acting as a policy maker for the state when setting the policies at issue in this case. In Brewster v. Shasta County, 275 F.3d 803 (9th Cir. 2001), the Ninth Circuit held that sheriffs in California act on behalf of the county, rather than the state, when investigating crimes, and therefore are not entitled to Eleventh Amendment immunity when sued under section 1983 for injuries allegedly caused by the execution of the sheriff's policies in connection with arrests and crime investigations.
Defendants argue that the California Supreme Court's decision in Venegas v. County of Los Angeles, 32 Cal4th 820 (2004) overrules Brewster. The decisions of the California Supreme Court are entitled to due deference. It is well established, however, that "the question of municipal liability under section 1983 is one of federal law." Streit v.County of Los Angeles, 236 F.3d 552, 560 (9th Cir. 2001) (concluding that even if California case law were "on all fours we would not be bound by [its] conclusion regarding section 1983 liability because such questions implicate federal, not state law"). On questions of federal law, this court is bound by the decisions of the Ninth Circuit. The Ninth Circuit has not departed from its analysis in Brewster since Venegas was decided.
District courts in this Circuit have uniformly since Venegas continued to follow Brewster. See Garcia v. City of Merced, 637 F. Supp. 2d 731, 759-60 (E.D. Cal. 2008); Brockmeier v. Solano County Sheriff's Dept., No. CIV-S-05-2090 MCE EFB PS, 2006 WL 3760276, at *10 (E.D. Cal. Dec. 18, 2006); Faulkner v. County of Kern, No. 1:04-CV-05964 OWWTAG, 2006 WL 1795107, at *16 (E.D. Cal. June 28, 2006); Brown v. County of Kern, No. 1:06-CV-00121-OWW-TAG, 2008 WL 544565, at *12 (E.D. Cal. Feb. 26, 2008); Vega v. County of Yolo, No. 2:09-CF-00574-MCE-KJM, 2009 WL 1992532, at *4 (E.D. Cal. July 8, 2009); Miller v. Butte County, No. 2:06-CV-0489 JAM KJM, 2008 WL 4287665, at *4 (E.D. Cal. Sept. 17, 2008); Byrd v. Teater, No. 1:06-cv-00900 OWW WMW, 2008 WL 495757, at *18-*21 (E.D. Cal. Feb. 21, 2008), rev'd on reconsideration on other grounds at 2008 WL 958194 (E.D. Cal. Apr. 8, 2008); Newman v. County of Ventura, No. CV 09-4160-JVS (RC), 2010 WL 1266719, at *5-*6 (C.D. Cal. Mar. 8, 2010), adopted by 2010 WL 1266725 (C.D. Cal. Mar. 26, 2010).
McNeely v. County of Sacramento, No. 2:05-CV-1401-MCEDAD, 2008 WL 489893, at *4 (E.D. Cal. Feb. 20, 2008), cited by defendants is distinguishable. That case concerned "conduct arising from simply detaining plaintiff in jail pending the outcome of ongoing criminal proceedings." Judge England expressly distinguished that situation from one where the sheriff's "administrative or investigative responsibilities are under scrutiny."
For the foregoing reasons, neither Sheriff John McGinness nor the County of Sacramento are entitled to Eleventh Amendment immunity for the conduct allegedly based upon his policies.
B. Defendants Ramos and Berry
Defendants argue that plaintiffs have not sufficiently pled that defendants Ramos and Berry were policymakers for the County. However, in paragraph 126 of the FAC, plaintiffs allege that "Defendant COUNTY OF SACRAMENTO, by and through its agents SCSD and Defendant McGINNESS, who had authority on behalf of the County to delegate such authority, delegated final policymaking authority to Defendants RAMOS and BERRY for the drug investigations assigned to the SAINT/HIDTA task force, including the investigation against Plaintiffs JOHN PRUITT and DARRYL BERG." That allegation is sufficient. See City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988) (plurality opinion) ("Authority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority .." (internal quotation marks omitted)).
Defendants Ramos and Berry are accordingly proper defendants to the Monell claim, and the claim against the County may properly be predicated upon conduct resulting from policies promulgated by them.
In Bivens, the Supreme Court established the right to sue federal officers for violation of a plaintiff's Fourth Amendment right to be free from unreasonable searches and seizures. Bivens does not apply to state officers acting under color of state law. At the hearing on the motion, defendants' counsel stipulated that the individual named defendants were all acting under color of state law at all times alleged in the FAC. Accordingly, defendants' motion ...