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Coe v. City of San Diego

United States District Court, S.D. California

March 31, 2017

SUZANNE COE, Plaintiff,
v.
CITY OF SAN DIEGO, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS

          Hon. M. James Lorenz, United States District Judge

         Pending before the Court are Defendants' Motions to Dismiss Plaintiff's complaint for failure to state a claim. One motion was filed by the City of San Diego ("City"), and a nearly identical motion was filed by the individually named Defendants. Plaintiff opposed the motions, and Defendants replied. The Court decides this matter on the briefs without oral argument. See Civ. L. R. 7.1(d.1). For the reasons stated below, Defendants' motions are granted in part and denied in part.

         I. Background

         Plaintiff Suzanne Coe ("Coe") operates an adult entertainment business under the name of Red Eyed Jacks Sports Bar, Inc. dba Cheetah's ("Cheetah's") under a permit issued by the City pursuant to the San Diego Municipal Code ("SDMC").[1] This action arises from the City's revocation of Coe's permit.

         In San Diego, a police permit is required to operate an adult entertainment establishment. SDMC § 33.3603. Section 33.0103 confers authority on police officers to inspect adult entertainment establishments. As discussed in more detail in the orders issued in the related cases, Doe v. City of San Diego et al., S.D. Cal. case no. 14cv1941-L(AGS) (doc. no. 35), and Tanya A. et al. v. City of San Diego et al., S.D. Cal. case no. 14cv1942-L(AGS) (doc. no. 23), based on § 33.0103, on March 6, 2014, armed police officers wearing bullet proof vests raided Cheetahs. Several officers involved in the raid are Defendants in this action, namely Sergeant Kevin Moyna (“Moyna”), Officer Perry McCiver (“McCiver”), Lieutenant Dan Plein (“Plein”), and Captain Chuck Kaye (“Kaye”). The other named Defendant is Shelly Zimmerman (“Zimmerman”), the San Diego Chief of Police.

         During the raid, armed officers were posted at the doors to prevent the entertainers from leaving. At least one entertainer was performing on stage when the raid commenced, and was ordered to stop. The entertainers were ordered into dressing rooms. The officers photographed each entertainer in a nearly nude state claiming they had to document their tattoos. They threatened to arrest the entertainers who objected to detention or photographs. At least one fully dressed entertainer was ordered to change back into her undergarments for semi-nude photographs. This detention lasted approximately two hours.

         On March 8, 2014, and on several days over the following weeks, multiple entertainers and the manager of Cheetahs complained to the press that the officers had violated their constitutional rights during the raid. On March 24, 2014, nearly thirty entertainers filed a claim for damages for unlawful search and seizure, which the City ultimately rejected. On April 7, 2014, at Coe's direction, Cheetahs filed an action in this Court alleging violations of the First and Fourth Amendment rights of the United States Constitution, among other things. (Red Eyed Jacks Sports Bar Inc. dba Cheetah's Nightclub v. City of San Diego et al., S.D. Cal. case no. 14cv823-L(AGS).)

         Two days later, on April 9, 2014, McCiver sent Coe a letter alleging three regulatory violations from February 12, 2014.[2] On April 23, 2014, Coe and her counsel met with McCiver, Moyna, Plein, and Deputy City Attorney Paige Folkman. The officers made suggestions how Coe could remedy the alleged violations, which all parties agreed would take "some time." (Compl. ¶ 15.) Nevertheless, the police commenced undercover operations at Cheetahs the next day, April 24, 2014, as well as on May 2 and May 20, 2014. McCiver and Moyna also performed an inspection on May 7, 2017. In all four instances, the police officers filed internal reports alleging more regulatory violations.

         On June 9, 2014, McCiver sent Coe a Notice of Revocation of Nude Entertainment Business Permit, based on twelve alleged violations that occurred since the meeting on April 23. At a meeting with Coe approximately one year earlier, on May 2, 2013, Moyna informed Coe that the next disciplinary step for regulatory violations would be a 15-day suspension of her permit. After the revocation, Moyna stated that the decision to change the disciplinary action from suspension to revocation was based on “the totality of the circumstances.” At the time the revocation decision was made, the City was aware of the claims by the entertainers and Cheetahs.

         Under SDMC § 33.0403, any permit holder is “subject to regulatory action by the Chief of Police against his or her police permit” if he or she “[v]iolates or allows the violation of any section of this Article” or “[f]ails to take corrective action after timely written notice of an observed violation.” SDMC § 33.0403(a)(1), (4). Regulatory action includes issuance of verbal or written warnings or notice of violation, placing conditions on the permit, suspension, or revocation. See Id. § 33.0403(b). The “Chief of Police may take regulatory action consistent with the severity of the violation, or the frequency of violations.” Id. § 33.0403(d). Whenever regulatory action is taken against a police permit in the form of conditioning, suspending, or revoking the permit, the “Chief of Police shall send a notice to the permittee identifying the Code section(s) violated, describing the circumstances of the violation, and explaining the consequences of a failure to correct the violation, if appropriate.” Id. § 33.0404(a). However, once a permit has been revoked, it cannot be renewed, and any future new application may be denied. Id. §§33.0305, 33.0308.

         Coe appealed the permit revocation. The revocation was affirmed in an administrative hearing, and on petition for writ of mandamus to the San Diego County Superior Court. Her appeal is pending at the California Court of Appeal.

         On June 10, 2016, Coe filed the instant action alleging violation of 42 U.S.C. 1983 based on four claims: (1) retaliation for exercise of her First Amendment rights; (2) violation of her equal protection rights; (3) ratification of unconstitutional action by official with final policymaking authority; and (4) supervisor liability for acts of subordinates. She requests damages and an injunction preventing the City from taking adverse action against the permit. Defendants moved to dismiss under Rule 12(b)(6), arguing Coe lacks standing to assert retaliation, and insufficient factual allegations in support of the remaining three claims.

         II. Discussion

         A motion under Rule 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted where the complaint lacks a cognizable legal theory. Shroyer v. New Cingular Wireless Serv., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (internal quotation marks and citation omitted). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory, yet fails to plead essential facts under that theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).

         In reviewing a Rule 12(b)(6) motion, the Court must assume the truth of all factual allegations and construe them most favorably to the nonmoving party. Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997, 999 n.3 (9th Cir. 2006). Even if doubtful in fact, factual allegations are assumed to be true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “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 (internal quotation marks and citation omitted). On the other hand, legal conclusions need not be taken as true merely because they are couched as factual allegations. Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009).

         Generally, the Court does not “require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Nevertheless, 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. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Instead, the allegations “must be enough to raise a right to relief above the speculative level.” Id. Thus, “[t]o survive a motion to dismiss, a complaint must ...


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