United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTIONS TO DISMISS
M. James Lorenz, United States District Judge
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.
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"). This action arises from the City's
revocation of Coe's permit.
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
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.
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).)
days later, on April 9, 2014, McCiver sent Coe a letter
alleging three regulatory violations from February 12,
2014. 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.
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
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.
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.
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.
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).
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).
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