United States District Court, E.D. California
MEMORANDUM AND ORDER
MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE.
Robert Bennett ("Plaintiff") alleges his
constitutional rights were violated when local law
enforcement seized his dogs from his Shasta County property.
He thus brings this action against the County of Shasta
("County"), Sheriff Tom Bosenko
("Sherriff") in his official capacity, Officer
Mayra Morris ("Morris") in her official capacity,
Officer Colleen Ferrara ("Ferrara") in her official
capacity, and the Haven Humane Society ("Haven").
This Court granted the County's and Haven's Motions
for a More Definite Statement (ECF Nos. 14 and 15), and
Plaintiff then filed his First Amended Complaint
("FAC") (ECF No. 27). Presently before the Court
are Defendants' Motions to Procedure Dismiss the FAC (ECF
Nos. 29 and 30) pursuant to Federal Rule of Civil 12(b)(6).
For the following reasons, the Motions are GRANTED in their
has bred Shepadoodles at his property in Shasta County since
2006. In August 2011, Plaintiff started receiving nuisance
complaints regarding his dogs.
February 3, 2013, Ferrara found two dogs running in
Plaintiff's neighborhood without an owner present. She
believed them to be Plaintiff's and returned the animals
to his property with assistance from Morris, the
Sheriff's Animal Care and Enforcement Unit Manager. In
doing so, Plaintiff alleges both officers unlawfully entered
his property to investigate the living conditions of his
dogs. Morris and Ferrara repeated these acts the next day
despite his request that they leave. Over this two-day
period, Plaintiff claims he was cited for violating six
different animal ordinances, see e.g., Shasta, CA,
County Ordinances ch. 6.04 (1991), and California Penal Code
§ 597, titled "Cruelty to animals."
See FAC ¶¶ 27 and 28.
16, 2013, the County served Plaintiff with a search warrant
and seized all of his dogs. Plaintiff was cited for five
additional animal ordinances at that time and was charged
with violating Penal Code § 591, which criminalizes
tampering with telephone, cable or other electricity lines.
During the seizure that culminated in his arrest,, Plaintiff
claims a gun was pointed at his head, the arresting officer
used unreasonable force, and several verbal threats were made
requested a post-seizure administrative hearing to avoid
forfeiture of his dogs, pursuant to Penal Code section
597.1(j). The hearing lasted over a month and was conducted
by a "hearing officer." The officer required $3,
000 in improvements on Plaintiff's land to demonstrate
that he could "provide the necessary care for the"
dogs. See § 597.1(j). After Plaintiff allegedly
made improvements, he argues the County visited his property
and told him he "had done a great job, but would
‘like it' if he made some additional
improvements." FAC ¶ 57.
further alleges the entire post-seizure process was flawed
because the hearing officer was biased, the scope of the
hearing was improper, he was not allowed to subpoena
witnesses, no factual evidence was produced by the County,
and he did not have counsel throughout the proceedings. With
respect to bias, Plaintiff points to the fact that he was
excluded from a closed-door conversation between the officer
and the County. As to scope, he claims the hearing officer
failed to address whether the seizure of Plaintiff's
animals was proper when the officer remarked that such a
determination was "above his pay grade." FAC ¶
August 23, 2013, the "Results After Hearing"
stipulated that Plaintiff cover the costs incurred by the
County in housing the dogs at a rate of $15 each day for each
dog. Plaintiff asserts he was required to pay $3, 600 in lien
charges, and that the County demanded another $4, 000. In the
end, Plaintiff's dogs were not returned and his property
interest in the animals was deemed forfeited on December 22,
8, 2013, the same day Plaintiff's post-seizure hearing
began, he was charged "in violation of Section 597.1 of
the Penal Code." Pl.'s Opp. to Def.'s Mot. to
Dis; see also ECF No. 32-1. However, Plaintiff was
ultimately convicted of only Shasta County ordinances.
See ECF No. 29-3.
brings this lawsuit seeking a declaration that Penal Code
section 597.1 is void for vagueness, that the County
Defendants' conduct violated his Fourth Amendment rights,
and that Defendants violated his right to due process.
Plaintiff also seeks a minimum of $250, 000 related to the
loss of his dogs. He also brings a claim alleging that
Defendants conspired to interfere with his civil rights
pursuant to 42 U.S.C. § 1985. For their part, Defendants
challenge the legal sufficiency of the entirety of
Plaintiff's complaint. They argue that Plaintiff only has
standing to challenge one provision of Penal Code section
597.1 and that that provision is sufficiently clear for due
process purposes as a matter of law. They also contend that
Plaintiff has not alleged sufficient facts to support his
claims against the County and that Plaintiff's inability
to allege his membership in a suspect class dooms his §
motion to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6), all allegations of material
fact must be accepted as true and construed in the light most
favorable to the nonmoving party. Cahill v. Liberty Mut.
Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule
8(a)(2) "requires only ‘a short and plain
statement of the claim showing that the pleader is entitled
to relief' in order to ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.'" Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). A complaint attacked by a Rule 12(b)(6)
motion to dismiss does not require detailed factual
allegations. However, "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."
Id. (internal citations and quotations omitted). A
court is not required to accept as true a "legal
conclusion couched as a factual allegation."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555). "Factual allegations
must be enough to raise a right to relief above the
speculative level." Twombly, 550 U.S. at 555
(citing 5 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1216 (3d ed. 2004)
(stating that the pleading must contain something more than
"a statement of facts that merely creates a suspicion
[of] a legally cognizable right of action")).
"Rule 8(a)(2) . . . requires a showing, rather than a
blanket assertion, of entitlement to relief."
Twombly, 550 U.S. at 555 n.3 (internal citations and
quotations omitted). Thus, "[w]ithout some factual
allegation in the complaint, it is hard to see how a claimant
could satisfy the requirements of providing not only
‘fair notice' of the nature of the claim, but also
‘grounds' on which the claim rests."
Id. (citing Wright & Miller, supra, at 94,
95). A pleading must contain "only enough facts to state
a claim to relief that is plausible on its face."
Id. at 570. If the "plaintiffs . . . have not
nudged their claims across the line from conceivable to
plausible, their complaint must be dismissed."
Id. However, "[a] well-pleaded complaint may
proceed even if it strikes a savvy judge that actual proof of
those facts is improbable, and ‘that a recovery is very
remote and unlikely.'" Id. at 556 (quoting
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
granting a motion to dismiss a complaint must then decide
whether to grant leave to amend. Leave to amend should be
"freely given" where there is no "undue delay,
bad faith or dilatory motive on the part of the movant, . . .
undue prejudice to the opposing party by virtue of allowance
of the amendment, [or] futility of the amendment . . .
." Foman v. Davis, 371 U.S. 178, 182 (1962);
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d
1048, 1052 (9th Cir. 2003) (listing the Foman
factors as those to be considered when deciding whether to
grant leave to amend). Not all of these factors merit equal
weight. Rather, "the consideration of prejudice to the
opposing party . . . carries the greatest weight."
Id. (citing DCD Programs, Ltd. v. Leighton,
833 F.2d 183, 185 (9th Cir. 1987)). Dismissal without leave
to amend is proper only if it is clear that "the
complaint could not be saved by any amendment."
Intri-Plex Techs. v. Crest Group, Inc., 499 F.3d
1048, 1056 (9th Cir. 2007) (citing In re Daou Sys.,
Inc., 411 F.3d 1006, 1013 (9th Cir. 2005); Ascon
Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th
Cir.1989) ("Leave need not be granted where the
amendment of the complaint . . . constitutes an exercise in
futility . . . .")).
Motions are GRANTED as to all five of Plaintiffs' causes
of action. Initially, with respect to Plaintiff's First
Cause of Action, which seeks a judicial determination that
various Penal Code sections are vague as applied, Plaintiff
has standing to challenge only Penal Code section 597.1, and
despite Plaintiff's argument to the contrary, that
subsection is far from vague. Furthermore, the allegations
relevant to Plaintiff's Second, Third, and Fourth causes
of action fail to demonstrate municipal liability and must
therefore be dismissed. Plaintiff's Third Cause of Action
also fails to state a claim against Haven because the
allegations are insufficient to establish either that Haven
deprived him of due process or that Haven acted under color
of law. Finally, Plaintiff's Fifth Cause of Action under
42 U.S.C. § 1985 must be dismissed because Plaintiff
cannot show that he is a member of a suspect class.
The Only Provision of Penal Code section 597.1 That Plaintiff
Has Standing to Challenge is Neither Vague on its Face nor
Vague as Applied
challenge any law, a party must demonstrate "injury in
fact, causation, and a likelihood that a favorable decision
will redress [his] alleged injury." Carrico v. City
and County of San Francisco, 656 F.3d 1002, 1005 (9th
Cir 2011) (citing Lopez v. Candaele, 630 F.3d 775,
785 (9th Cir.2010)). Here, Plaintiff lacks standing to
challenge sections 597.1 (a), (g), or (h) because he was
never convicted of these provisions. See ECF Nos.
29-2 and 29-3. He was convicted of only Shasta County
ordinances, which are not in dispute here. See
Carrico, 656 F.3d at 1005.
did receive a post-seizure administrative hearing, pursuant
to sub-section (j), and thus has standing to challenge this
provision. Penal Code section 597.1(j) provides: "No
animal properly seized under this section or pursuant to a
search warrant shall be returned to its owner until the owner
can demonstrate to the satisfaction of the seizing agency or
hearing officer that the owner can and will provide the
necessary care for the animal." Plaintiff requests the
provision be deemed "void for vagueness, and at a
minimum, void for vagueness as applied." FAC ¶ 62;
see Schwartzmiller v. Gardner, 752 F.2d 1341, 1347
(9th Cir. 1984) (requiring a "facial" and "as
applied" analysis to be exclusive of each other).
will be deemed vague on its face if the challenging party can
demonstrate the text is "impermissibly vague in all its
applications." Castro v. Terhune, 712 F.3d
1304, 1310-11 (9th Cir. 2013) (citing Humanitarian Law
Project v. U.S. Treasury Dep't, 578 F.3d 1133, 1146
(9th Cir. 2009)) (internal quotation marks omitted). In
adjudicating a facial vagueness challenge, courts conduct a
disjunctive, two-part test. F.C.C. v. Fox Television
Stations, Inc., 132 S.Ct. 2307, 2317 (2012). First,
courts ask whether the statute in question provides
sufficient guidance to the parties that it regulates so that
they can understand "what is required of them [and] act
accordingly[.]" Id. (citing Grayned v. City