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Richard Riley; Pamela Riley; Victoria Bassett v. Modesto Irrigation District; Louis Maceira

July 23, 2011



Document #'s 27 and 29

This is a civil rights action for damages by plaintiffs Richard Riley, Pamela Riley and Victoria Bassett (collectively "Plaintiffs") against the Modesto Irrigation District ("MID") and individual MID employee Louis Maceira (collectively, the "MID Defendants"), unidentified officers of the Modesto Police Department (collectively the "Police Defendants") and the City of Modesto and the Modesto Police Department (the "Entity Defendants"). In a prior memorandum opinion and order filed on April 15, 2011, (the "April 15 Order") the court granted Plaintiffs' motion for leave to amend and dismissed the MID Defendants' then-pending motion to dismiss as moot. The April 15 Order deemed Plaintiffs' proposed First Amended Complaint, Doc. # 16, the operative complaint as of April 15, 2011. Currently before the court are motions to dismiss Plaintiffs' FAC by both the MID Defendants and the Police Defendants including both individual and Entity Defendants. For the reasons that follow the motions to dismiss will be granted in part and denied in part.


Plaintiffs' FAC alleges background facts that are essentially unchanged from those alleged in the original complaint. The court's April 15 Order set forth the factual background of this action as alleged in the original complaint as follows:

For purposes of the motions now before the court, the facts of this case are reasonably straightforward. Plaintiffs reside in a home in Modesto that receives electrical service from MID. On or about December 1, 2009, it came to the attention of MID employees that a larger-than-expected amount of electrical current was being delivered to Plaintiffs' residence and that a substantial amount of the current that was being delivered to the residence was not being metered. There allegedly arose a suspicion on the part of the MID Defendants that current was being "stolen," possibly or presumably for purposes of illegal indoor marijuana cultivation. MID reported the atypical consumption to Modesto Police who placed Plaintiffs' residence under surveillance at MID's "urging and request." Doc. #1 at 5:3. Plaintiffs allege that, although the surveillance revealed no evidence of wrongdoing, MID employee Maceira, on behalf of MID demanded "aggressive action" by Modesto Police Department ("MPD") on the belief that the atypical consumption of electricity at Plaintiffs' residence likely was caused by an indoor marijuana growing enterprise. Plaintiffs allege MID did not inform MPD that the excess consumption of electricity could be caused by faulty equipment, which could easily have been checked.

Plaintiffs allege that MID and MPD jointly decided to conducted a "narcotics raid" on Plaintiffs' residence. The "raid" was conducted pursuant to a search warrant on December 17, 2009. Plaintiffs allege that the only fact set forth to establish probable cause was the fact of larger-than-expected electrical consumption at the residence. Plaintiffs allege that the search was commenced while Plaintiffs Pamela Riley and Victoria Bassett were still asleep. Plaintiffs allege the MPD used essentially "SWAT" tactics; that the door was kicked in, the house ransacked and the two female residents were shackled and held incommunicado during the "raid." No contraband items were found. It was later determined that the excess electrical flow was caused by a malfunction in MID equipment.

Doc. # 26 at 2:2-25.

The most pronounced difference between the original complaint and the FAC is that the FAC gives substantially more attention to allegations connecting MID individual Defendant Louis Maceira ("Maceira") to the decision to search Plaintiffs' residence and to the decision not to investigate the abnormal flow of electrical power at Plaintiffs' residence by less intrusive means. In the FAC, Plaintiffs make clear that they lack sufficient information to clearly distinguish the actions of the MID Defendants and the MPD Defendants both with regard to who had authority to characterize the abnormal use of electricity at Plaintiffs' residence as probable cause for suspicion of illegal activity and with regard to the conduct of the search and seizure itself. Rather, Plaintiff alleges both MID and MPD Defendants were present at the time of the search of the residence and that both sets of Defendant decided to conduct the search and conducted the search as a "joint action effort." Plaintiff further alleges, albeit somewhat indirectly, that the MID Defendants, particularly Maciera, had a decisional role in determining whether a warranted search should be undertaken and how the search should be conducted.

As was the case with the original complaint, Plaintiff's FAC alleges unlawful search and seizure and conspiracy in the first claim for relief without specifying the legal basis for the claim. About midway through the first claim for relief, Plaintiffs allege that "MPD and MID violated federal constitutional rights of the [P]laintiffs by conducting a search and seizure of

[P]laintiffs' home without probable cause in violation of the Federal Civil Rights Law and specifically section 42 U.S.C. [§] 1983 of that law." Doc. # 16 at ¶31. Paragraph 32 of the FAC alleges that the "'Joint Action Effort'" "violated California state constitutional rights of the [P]laintiffs by conducting a search and seizure of claimants' home without probable cause to do so." Both the MID Defendants and the MPD Defendants, including the Entity Defendants (hereinafter collectively "Defendants") approach Plaintiffs' first claim for relief as though it was alleged pursuant to 42 U.S.C. § 1983. Plaintiffs' opposition to Defendants' motions to dismiss does not contend there is any other legal basis for the claim nor does Plaintiffs' opposition do anything to further clarify the legal basis of Plaintiff's first claim. For purposes of this analysis, the court will presume that Plaintiff's first claim for relief is alleged pursuant to 42 U.S.C. § 1983.

Plaintiff's second claim for relief alleges assault and battery and false imprisonment, presumably pursuant to California common law. Plaintiff's FAC generally alleges that Plaintiffs have fulfilled the requirements of the California Tort Claims Act and are entitled to proceed with their state law claims.

The MPD Defendants filed their motion to dismiss Plaintiff's FAC on April 19 , 2011; the MID Defendants filed their motion to dismiss on May 3, 2011. Plaintiff's opposition to the motion of the MPD Defendants to dismiss was filed on May 5, 2011; and the opposition to the MID Defendants' motion to dismiss was filed on May 27, 2011. The MID Defendants filed their Reply brief on May 11, 2011. Maciera and the MID Defendants filed their reply on June 3, 2011.


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 Iqbal, 129 S.Ct. at 1950).


I. Motion to Dismiss by City of Modesto and the ...

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