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Chester S. Garber; Betty C. Ting; Emilia C. Ting, M.D v. City of Clovis; Abby Spencer Sgt. Mcfadden; In Their Individual

January 30, 2012

CHESTER S. GARBER; BETTY C. TING; EMILIA C. TING, M.D.; EMILIA C. TING, M.D., INC.; GARBER T. SERVICES CO., INC.; AND GOLDEN VALLEY AERO, INC.,
PLAINTIFFS,
v.
CITY OF CLOVIS; ABBY SPENCER SGT. MCFADDEN; IN THEIR INDIVIDUAL
AND OFFICIAL CAPACITIES; AND DOES 1-75, INCLUSIVE, DEFENDANTS.



ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND DISMISSING COMPLAINT WITH LEAVE TO AMEND [Document #40]

BACKGROUND

This action stems from the search of Plaintiffs' residence on or about February 7, 2007, and the seizure of eight computers. Six of the computers contained medical records, which were the property of Plaintiffs Emilia C. Ting, M.D., Inc. and Emilia C. Ting, M.D. The search was conducted pursuant to a warrant that concerned Plaintiff Chester S. Garber's potential possession of child pornography. During the search, Plaintiffs Chester S. Garber and Betty Ting were present and told officers that the computers contained medical records, including the medical records of Plaintiffs Emilia Ting, Betty Ting, and Chester S. Garber, business records of Plaintiffs Chester S. Garber and Betty C. Ting, and photographs and business records of Plaintiffs Garber Services Co., Inc., and Golden Valley Aero, Inc. No criminal charges were filed against Plaintiff Chester S. Garber or any other Plaintiff.

On May 17, 2010, Plaintiffs filed an amended complaint pursuant to 42 U.S.C. § 1983. The first cause of action alleges Defendants Spencer and McFadden violated Plaintiffs right to be free from unlawful search and seizure in violation of Plaintiffs' Fourth and Fourteenth Amendment rights. The second cause of action alleges Defendant City of Clovis is liable because Defendants Spencer and McFadden's actions were the result of Defendant City of Clovis's negligent hiring, training, staffing, and supervising.

Defendants have filed a motion to dismiss the first amended complaint or, in the alternative, a motion for a more definite statement. Defendants contend that Plaintiffs have failed to adequately allege the violation of any constitutional right. Defendants contend that California Penal Code Section 1524 does not provide for 42 U.S.C. §1983 liability absent a constitutional violation. Defendants contend that HIPAA does not provide for Section 1983 liability. Defendants contend that the are entitled to qualified immunity. Defendants contend that the complaint fails to allege sufficient facts to support a cause of action against Defendants Matt McFadden, Jim Zulim, and City of Clovis. Defendants contend that collateral estoppel bars Plaintiffs from asserting that the complained of search was invalid.

Plaintiffs oppose Defendants' motion.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In reviewing a complaint under Rule 12(b)(6), all of the complaint's material allegations of fact are taken as true, and the facts are construed in the light most favorable to the non-moving party. Marceau v. Balckfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). The court must also assume that general allegations embrace the necessary, specific facts to support the claim. Smith v. Pacific Prop. and Dev. Corp., 358 F.3d 1097, 1106 (9th Cir. 2004). However, the court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Although they may provide the framework of a complaint, legal conclusions are not accepted as true and "[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). As the Supreme Court has explained:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, 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. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949.

The plausibility standard is not akin to a 'probability requirement,' but it asks more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of 'entitlement to relief.' . ..

Determining whether a complaint states a plausible claim for relief will . . . be a context specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not shown -- that the pleader is entitled to relief.

Iqbal, 129 S.Ct. at 1949-50. "In sum, for a complaint to survive a motion to dismiss, the nonconclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

ALLEGED FACTS*fn1

The complaint alleges that on or about February 7, 2007, officers of the Clovis Police Department under the command of Defendant Spencer entered Plaintiffs' residence in Fresno, California and seized eight computers, which contained Plaintiffs' personal and intellectual property.

The complaint alleges that Defendants' entry and subsequent search was pursuant to a search warrant secured on February 6, 2007. The warrant was based on Defendant Spencer's statement of probable cause. The statement of probable cause declared, in relevant part, that DVDs, allegedly made by Plaintiff Chester S. Garber, had been given to an adult waitress that Plaintiff Garber had befriended at a restaurant in Clovis. This waitress gave these DVDs to Defendant Spencer.

The complaint alleges that Defendant Spencer viewed the DVDs. In her statement, Defendant Spencer stated that she observed several images that were possibly child pornography and erotica. The complaint alleges Defendant Spencer asked for Defendant McFadden's assistance. The complaint alleges that they both viewed all of the DVDs' images, which included images of outdoor scenery and images of adult females. The complaint alleges that the two officers determined that they had seen one image that met the state and federal definitions of child pornography, 40 images of "child erotica,", one image that was "possibly" child pornography, and 24 images that were "possibly" child erotica.

The complaint alleges that Defendant Spencer's affidavit stated Defendant Spencer's conclusions were based on Defendant Spencer's experience as an officer, her Bachelor of Arts degree in Psychology, "being a female", and that she was familiar with the difference between minor and adult females. The complaint alleges that the affidavit contained statements about characteristics allegedly and generally found in people who produce, trade, distribute, or possess images/pictures of minors engaged in sexually explicit conduct. The complaint alleges Defendant Spencer did not provide the basis for this statement and did not state her background, training, and/or experience in the determination and prosecution of child pornography cases. The complaint alleges that Defendant Spencer's statement of probable cause did not draw any nexus between the characteristics that she described and any of the pictures that she and Defendant McFadden had viewed. The complaint alleges that Defendant Spencer did not state in her affidavit that any of the images were of minors engaged in sexually explicit conduct.

The complaint alleges that, at the time of the search, Plaintiffs Garber and Betty Ting were present. The complaint alleges that both Plaintiffs told Defendant Spencer that the computers being seized contained medical records of the individual patients of Plaintiff Emilia C. Ting, M.D., including the medical records of Plaintiffs Emilia Ting, Betty Ting and Chester S. Garber, that the computers contained business records of Plaintiffs Chester S. Garber and Betty C. Ting, and that the computers contained photographs and business records of Plaintiffs Garber Services Co., Inc. and Golden Valley Aero, Inc. The complaint alleges Defendant Spencer did not respond to these statements and seized all of the computers.

The complaint alleges that six of the eight computers contained medical records, which were the property of Plaintiff Emilia C. Ting, M.D., Inc. and Plaintiff, Emilia C. Ting, M.D. The medical records contained personally identifiable health information. The complaint alleges more than 1,000,000 of such items of personally identifiable health information were seized.

The complaint alleges that although Defendants were notified that the medical records of a physician who was not accused of any wrongdoing were being seized, Defendants ignored the requirements of California Penal Code § 1524 by seizing the records without the appointment of a special master.

The complaint alleges that on March 20, 2007, Plaintiffs filed an Ex-Parte Application for Recovery of Seized Property in the Fresno County Superior Court. The moving papers contained a declaration by attorney Roger Nuttall that he had viewed the four DVDs that served as the basis for the search warrant and that the DVDs depicted photos used in Plaintiff Garber's professional photography business. The complaint alleges Mr. Nuttall opined that the pictures did not appeal to the prurient interest based on contemporary community standards, did not lack serious literary or artistic value, and would not be characterized as child pornography.

The complaint alleges that the parties stipulated for the return of five computers, which the court approved on April 10, 2007. The five computers were returned to Plaintiffs on or about April 26, 2007. The complaint alleges that the Clovis Police Department made and has kept copies of the information contained on these five computers, including individual patient medical records. The complaint alleges that three computers remain in the custody of the Clovis Police Department.

The complaint alleges that on July 20, 2007, Plaintiff Garber filed a Motion to Suppress Evidence and Traverse Pursuant to California Penal Code Section 1538.5. The state court heard the motion on August 16, 2007 and denied Plaintiff Garber's motion on October 11, 2007.

The complaint alleges that on or about February 7, 2008, Defendant City of Clovis advised Plaintiffs' counsel that it would make copies of business records seized on February 7, 2007, and provide them to Plaintiffs by March 31, 2008. The complaint alleges that on or about April 25, 2008, Defendant City of Clovis advised Plaintiffs' counsel that the Department was having trouble completing that task. To expedite the process, Plaintiffs' counsel suggested that all items seized from the residence on February 7, 2007, be immediately returned. The Defendant City of Clovis agreed that this would be a viable option if Plaintiffs agreed that the Defendant City of Clovis could delete the files/images that Defendant City of Clovis alleged constituted child pornography. The complaint alleges that Plaintiffs would not agree to this condition because it has been their consistent position that none of the pictures constituted child pornography.

The complaint alleges Plaintiffs are informed and believe that Defendant City of Clovis referred the pictures to the United States Attorney's Office. The complaint alleges that over two years passed since the seizure, and no ...


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