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Thrasher v. County of San Diego

United States District Court, Ninth Circuit

August 29, 2013

STACY THRASHER, an individual, Plaintiff,
COUNTY OF SAN DIEGO, etc., et al., Defendants.


LARRY ALAN BURNS, District Judge.

In her complaint, Plaintiff Stacy Thrasher brings claims arising from a search of her home and an alleged campaign of harassment by police that followed it. She brings claims under 42 U.S.C. § 1983 for First and Fourth Amendment violations, as well as supplemental state-law claims. Thrasher is proceeding in forma pauperis. She was initially represented by counsel, but her attorney was granted leave to withdraw and she is now proceeding pro se.

Defendants moved to dismiss based on the statute of limitations, failure to exhaust administrative remedies, and failure to state a claim against the County of San Diego. Because Thrasher is proceeding in forma pauperis, the Court is required to dismiss her complaint, sua sponte, to the extent it fails to state a claim. 28 U.S.C. § 1915(e)(2)(B). Thrasher argues that the Court's screening order constitutes law of the case, so dismissal for failure to state a claim is unavailable at this point. But a required screening order is cumulative of, not a substitute for, any subsequent motion to dismiss. See Teahan v. Wilhelm, 481 F.Supp.2d 1115, 1119 (S.D.Cal. 2007). The statutory language emphasizes this; it requires the Court to dismiss the case "at any time" if the Court determines that the complaint fails to state a claim. See § 1915(e)(2).

When determining whether a complaint states a claim, the Court accepts all allegations of material fact in the complaint as true and construes them in the light most favorable to the non-moving party. Cedars-Sinai Medical Center v. National League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007) (citation omitted). A claim may be dismissed under Fed.R.Civ.P. 12(b)(6) if the running of the statute of limitations, or another defense (such as failure to exhaust administrative remedies) is apparent on the face of a complaint. Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010).

Thrasher's complaint alleges that her son Dalton, who lived with her, was on probation for petty theft, and on June 28, 2010 was again arrested for petty theft. Two of the Defendants, Deputies Martinez and Murphy, arrested him. On July 6, 2010, while Thrasher was at work. deputies including Martinez and Murphy executed a warrantless probation search on Thrasher's home, which lasted 40 minutes. The search was based on a tip they had received. Thrasher says they never searched the "garage or any other common sense place on Plaintiff's property" for some stolen property, but never says whether she knew what the property was. Thrasher alleges two of her other sons and a family friend were threatened by the officers. A lawyer acting on her behalf inquired into the search at the time, and told officers they had violated the scope of the probation search and should leave. Documentation of Thrasher's and her lawyer's correspondence is attached to the complaint. She claims this amounted to an unreasonable search and seizure, violating her Fourth Amendment rights.

She alleges sheriff's officers also engaged in a campaign of harassment after her lawyer sent them a letter asking for records documenting why they searched the house. Thrasher lives in a rural area with dirt roads that she says are private.[1] The alleged harassment consisted of police driving past her house, parking or stopping near her house, and on a few occasions shining spotlights on it at night as they drove past. Thrasher's correspondence documents her experiences with law enforcement officers and vehicles in the month after the search. (Docket no. 1-1 at 8-10.)

Defendants point out that the search took place on July 6, 2010 and Thrasher filed suit July 7, 2012, one day past the two-year statute of limitations.[2] Thrasher does not dispute that the statute of limitations for her claims is two years, but argues that the period of harassment makes the wrong done to her a continuing violation, and argues her claim did not accrue until August 4, when the alleged harassment apparently ended.

Whatever the merits of Thrasher's state-law claims, it is clear her federal cause of action accrued on July 6, 2010, and not later. Accrual of causes of action under § 1983 is determined by federal law, and the accrual date is the date on which a plaintiff can file suit and obtain relief. Wallace, 549 U.S. at 388. California law, which the Court applies to determine the accrual date of Thrasher's supplemental claims, is similar; a cause of action accrues on the date a plaintiff knew or had reason to know she has been injured. See K.J. v. Arcadia Unified School Dist., 172 Cal.App.4th 1229, 1236 (Cal.App. 2 Dist. 2009). As soon as Thrasher found out about the search, she "ha[d] reason to know of the injury that is the basis of [her] action." See RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1058 (9th Cir. 2002). Thus, under either federal law or state law, Thrasher's cause of action based on the search accrued on July 6, 2010 and she had two years after that date, i.e., July 6, 2012, to file suit.[3] The later events she alleges, while possibly related, do not amount to an injury for which § 1983 or state law provides any redress.

This case is analogous to DeGrassi v. City of Glendora, 207 F.3d 636 (9th Cir. 2000). There, the plaintiff alleged an initial First Amendment violation, followed by what she called a "campaign of harassment and intimidation." Id. at 644-45. The panel determined that the plaintiff's "allegations may show a long-standing state of animosity and hostility, marked by incidents of personal conflict between her and other City officials, but they do not establish a series of related wrongful acts." Id. In other words, a series of related hostile acts does not give rise to a "continuing wrong, " unless the related acts themselves are also wrongful; the mere fact that they are related is not enough.

Here, Thrasher has alleged twenty-two contacts with law enforcement officers in the month following the search. Three of those involved unidentified sheriff's officials merely driving past her house. Four involved unidentified sheriff's officials driving past and shining a spotlight on her house. Three involved them temporarily pulling into her driveway, and seven involved them parking on roads nearby. Two involved unidentified sheriff's officials following a different adult son, Roah, to or from home, and one involved arrests of other people at a raucous party where Roah was present, and where sheriff's deputies berated him for not cooperating and called him a drug dealer. An additional incident involved Thrasher finding a California Highway Patrol officer parked in her driveway, who said he was investigating an accident. The final incident involved Thrasher complaining to and disagreeing with a sheriff's department sergeant about her claim. The details Thrasher has alleged shows the sergeant was requesting documents related to her claim, and Thrasher thought he should not have been investigating it or calling her. Discounting the incident not involving the sheriff's department and the quarrel over documents, Thrasher has identified twenty instances of some kind of contact with sheriff's department officers.

Thrasher hasn't alleged what level of patrol by sheriff's officers is normal in her area, but for purposes of analyzing the complaint, the Court will assume it is significantly lower than twenty occasions per month. Nor has she alleged facts showing that the heightened surveillance was intended to intimidate her, and was not motivated by something else such as the fact that two of her sons were suspected of theft and drug dealing. See Lacey v. Maricopa Cnty., 693 F.3d 896, 916-17 (9th Cir. 2012) (en banc) (retaliation claim depends on showing that desire to chill plaintiff's speech was a but-for cause of the allegedly unlawful conduct). And, while Defendants correctly point out Thrasher never alleged who conducted the various acts of surveillance, the Court will assume, arguendo, for purposes of analysis it was some kind of concerted effort among Defendants. Even making these assumptions in Thrasher's favor, the fact remains that the alleged campaign of harassment does not amount to any actionable wrong.

To state a claim for retaliation in violation of the First Amendment, Thrasher must allege facts showing that Defendants engaged in conduct that "would chill or silence a person of ordinary firmness from future First Amendment activities." Lacey, 693 F.3d at 916. Law enforcement officials commonly engage in actions like those alleged here in the course of patrolling and carrying out their other duties, and no threats or coercion are ordinarily intended or implied. Increasing the frequency of such actions to the degree alleged in this case would not have the effect of coercing or intimidating a person of reasonable firmness.

Thrasher also cannot state a claim for any Fourth Amendment violation arising from any of the later alleged actions. The surveillance of or intrusions onto Thrasher's property are all covered by the "open fields" doctrine. They are far less intrusive than the searches that the Supreme Court in United States v. Dunn, 480 U.S. 294 (1987) and Oliver v. United States, 466 U.S. 170 (1984) held were covered by that doctrine.

Because the alleged harassment campaign is not actionable, it cannot count as part of a continuing wrong so as to ...

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