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Peterson v. Farrow

United States District Court, E.D. California

July 6, 2016

BRETT PETERSON, D.D.S.; B.O.L.T., an unincorporated association of motorcycle riders and enthusiasts; JOHN DALKE, an individual; MARK TEMPLE, an individual, Plaintiffs,
JOSEPH A. FARROW, Commissioner California Highway Patrol; MICHAEL GOOLD, in his official capacity as Chief of Police of the City of Rancho Cordova; SCOTT R. JONES, in his official capacity as the Sheriff of County of Sacramento; ROBERT DIMICELI a.k.a. ROBERT DI MICELI, Officer of the California Highway Patrol; STEPHEN CARROZZO, Rancho Cordova police officer and Deputy Sheriff; KAMALA HARRIS, in her official capacity as California Attorney General, Defendants.



         Plaintiffs Brett Peterson, B.O.L.T. (short for, "Bikers of Lesser Tolerance"), John Dalke, and Mark Temple sued the following Defendants-Sheriff of the County of Sacramento Scott R. Jones in his official capacity, Chief of Police of the City of Rancho Cordova Michael Goold in his official capacity, and Rancho Cordova Police Officer Stephen Carrozzo in his individual capacity (collectively, "Municipal Defendants"); California Highway Patrol Officer Robert Dimiceli in his individual capacity, and California Highway Patrol Commissioner Joseph A. Farrow in his official capacity (collectively, "State Defendants"); and California Attorney General Kamala Harris in her official capacity ("Defendant Harris")-under 42 U.S.C. § 1983 for alleged violations of the First, Second, Fourth, and Fourteenth Amendments to the United States Constitution.

         State Defendants move to dismiss and/or strike claims in Plaintiffs' Second Amended Complaint (SAC) (Doc. #44) under Federal Rules of Civil Procedure ("Rules") 8 and 12(b)(6), (Doc. #54). For the reasons stated below, State Defendants' motion is GRANTED in part and DENIED in part.[1]


         "Plaintiffs Peterson, Dalke, and Temple . . . are individuals with a class M1 motorcycle license who, at all times relevant herein, resided in the State of California." SAC ¶ 10. "Plaintiff B.O.L.T. is an unincorporated association of motorcycle riders and enthusiasts[, ]" "focusing on the unconstitutional enforcement [and constitutionality] of helmet laws . . . ." Id. ¶¶ 11, 13.

         Plaintiffs allege that "Defendants have an unwritten policy, custom[, ] and practice of allowing officers to stop motorcyclists and issue citations for substandard helmets based on visual criteria, and the officer's subjective opinion of whether the helmet would, if tested, conform to federal safety standards[, ]" Id. ¶ 44, "regardless of whether the officer has tangible and documentary evidence to believe that (i.) there has been a determination of non-compliance with [Federal Motor Vehicle Safety Standard (FMVSS)] 218[, 49 C.F.R. § 571.218 (2011), the federal standard establishing minimum performance requirements for motorcycle helmets], or (ii.) that the motorcyclist has knowledge that the helmet has been determined not to comply with FMVSS 218[, ]" Id. ¶ 46. Plaintiffs allege they "have been cited for wearing helmets that [D]efendants' officers considered to be in violation of the helmet law, " as a result of this unwritten policy, custom, and practice. Id. ¶ 47.

         On April 10, 2015, Plaintiffs brought this action against Defendants (Doc. #1) and on July 1, 2015, Plaintiffs filed their First Amended Complaint ("FAC, " Doc. #5). In response, Defendants filed motions to dismiss (Doc. ##13, 18) and the Court granted the motions under Rule 8, giving Plaintiffs leave to amend (Doc. #42). On March 3, 2016, Plaintiffs filed their SAC (Doc. #44). The SAC states nine causes of action brought under 42 U.S.C. § 1983 of which the first three claims are brought specifically against one or more of the State Defendants: (1) injunctive and declaratory relief against Defendant Farrow for Fourth Amendment violations; (2) damages against Dimiceli and Carrozzo for conspiracy and Fourth Amendment violations; and (3) damages against Dimiceli and Carrozzo for First Amendment violations. The Court now addresses the merits of State Defendants' motion to dismiss these three claims (Doc. #54).

         II. OPINION

         A. Judicial Notice

         State Defendants request that the Court take judicial notice (Doc. #56) of the following documents: Exhibit A-"California Highway Patrol (CHP) General Order 100.68, Chapter 4-3, also known as CHP's ‘Enforcement Policy', " id. at 2:4-7; Exhibit B-"[t]he contents of California Penal Code Sections cited in Attorney General Harris's Motion to Dismiss[, ]" id. at 2:8-9; and Exhibit C-"[t]he contents of three publicly available webpages:

         (a), posted on the Attorney General's website . . .;

         (b), posted on Plaintiff B.O.L.T.'s website; and

         (c), posted on Plaintiff B.O.L.T.'s website[, ]" id. at 2:10-15. Plaintiffs do not oppose State Defendants' request. Exhibit A is a judicially noticeable public record, and State Defendants' request for judicial notice is GRANTED. See United States v. Thornton, 511 F.3d 1221, 1229 n.5 (9th Cir. 2008) (taking judicial notice of a Bureau of Prisons policy statement). The documents in Exhibit B are part of the record in this case, and the request is DENIED as unnecessary. State Defendants' request for judicial notice of Exhibit C-publicly available webpages-is GRANTED "but not for the truth of [the webpages'] contents." Brodsky v. Yahoo! Inc., 630 F.Supp.2d 1104, 1111 (N.D. Cal. 2009); see also United States v. Kane, No. 2:12-cr-250-JAD-VCF, 2013 WL 5797619, *9 (D. Nev. Oct. 28, 2013) (citations omitted) ("When a court takes judicial notice of publications like websites and newspaper articles, the court merely notices what was in the public realm at the time, not whether the contents of those articles were in fact true.").

         B. Analysis

         1. Motion to Dismiss Under Rule 8

         State Defendants contend that all three claims against them in Plaintiffs' SAC should be dismissed for failure to abide by Rule 8(d)(1)'s requirement that "[e]ach allegation must be simple, concise, and direct." Fed.R.Civ.P. 8(d)(1). The Court disagrees and finds that the SAC meets the minimal requirements of Rule 8 by identifying which claims are being brought against which defendants. State Defendants' motion to dismiss under Rule 8 is therefore denied.

         2. Fourth Amendment Violations

         State Defendant Farrow seeks dismissal of Plaintiffs' first claim for relief-that he violated Plaintiffs' Fourth Amendment right to be free from unlawful seizure by effectuating an unlawful practice and policy amongst California Highway Patrol (CHP) in the stopping and citing of motorcyclists for suspected helmet law violations-under Rule 12(b)(6) for failure to state a viable claim.

         a. CHP&#39 ...

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