United States District Court, N.D. California, San Jose Division
RAQUEL CHAVEZ; LUPITA CHAVEZ; RITO CHAVEZ; ESEQUIEL LOMBERA, Plaintiffs,
ROAHN WYNAR and DOES 1-100, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS RE: DKT. NO. 73
H. KOH UNITED STATES DISTRICT JUDGE.
the Court is Defendant Roahn Wynar's
(“Wynar”) motion to dismiss Plaintiffs'
second amended complaint. ECF No. 73. Having considered the
submissions of the parties, the relevant law, and the record
in this case, the Court GRANTS in part and DENIES in part
Wynar's motion to dismiss. Id.
Life Savers Concepts Association, Inc., Background
2012, Reverend Nigel Johnson founded an organization called
Life Savers Concepts Association, Inc. (“Life
Savers”). ECF No. 70 (“SAC”) ¶ 1. The
purpose of Life Savers was to assist low-income homeowners
throughout Northern California combat foreclosures during the
financial crisis. Id. Life Savers' business
model was to enter into membership agreements with
homeowners, whereby members transferred claims related to the
members' home loans to Life Savers. Id. ¶
3. Life Savers then brought suit against the lenders who
threatened to foreclose the members' properties.
Id. ¶ 6. Most members also transferred five
percent ownership interest in their homes to Life Savers.
Id. ¶ 3. Between March 2013 and December 2015,
Life Savers assigned all of its acquired rights to Larry
Brown (“Brown”). Id. ¶¶ 4, 5.
“Based on these assignments, Brown claims to hold a 5
percent ownership interest in each of the properties that
secured the home loans of the members.” Id.
¶ 5. The Office of the Monterey County District Attorney
and the FBI have investigated Life Savers for fraud since at
least 2014. Id. ¶¶ 7, 9. Plaintiffs in the
instant case-Lupita Chavez (“Lupita”), Rito
Chavez (“Rito”), Raquel Chavez
(“Raquel”), and Esequiel Lombera
(“Esequiel”)-are alleged to be employees of Life
Savers. Id. ¶¶ 24, 41-42.
The FBI's Execution of a Search Warrant
morning of July 11, 2017, at around 9:20 a.m., Wynar and
several other FBI agents executed a search warrant on Life
Savers' Sunnyvale, California offices. Id.
¶¶ 23, 25. Wynar knocked on the door to the Life
Savers offices. Id. ¶ 24. Three of the
Plaintiffs, Lupita, Rito, and Raquel, “who all reside
in the adjoining living quarters[, ] were dressing or still
in bed.” Id. Eventually, Raquel answered the
door. Id. Wynar and the FBI team entered the Life
Savers offices and attempted to open various office doors,
but the office doors were locked. Id. ¶ 25.
Wynar asked why the office doors were locked and who else was
present in the offices. Id. Raquel replied that the
office doors were locked because Life Savers did not open
until 11:00 a.m., and Raquel indicated that the three other
Plaintiffs were also present in the offices. Id.
Wynar asked Raquel why Raquel had been sleeping in the Life
Savers offices, and Raquel explained that each of the
Plaintiffs had resided in the offices for approximately three
years. Id. ¶ 26. Wynar was initially surprised
and alarmed when Raquel explained to Wynar that Plaintiffs
lived in the offices. Id. Raquel also informed Wynar
that one of the other Plaintiffs, Esequiel, “had
special needs and was mentally deficient, ” and that
Esequiel “was taking medication and under the care of a
doctor.” Id. ¶¶ 29, 30.
point during the conversation between Raquel and Wynar, 30
FBI agents entered the Life Savers offices with guns drawn.
Id. ¶ 27. Wynar produced “a folded piece
of paper from his pocket” and informed Raquel that the
FBI was there “to execute a search warrant for
documents and computers related to Life Savers.”
Id. Wynar told Raquel that Wynar would provide a
copy of the search warrant to Raquel later. Id.
Raquel called out for the other three Plaintiffs to emerge
from their rooms. Id. ¶ 32. Lupita emerged from
her room “not completely dressed and barefoot.”
Id. Lupita requested permission to return to her
room to retrieve her blouse and shoes, and Lupita was
initially instructed to wait. Id. “After some
time, ” Lupita was permitted to return to her room and
fully clothe herself in the presence of male FBI agent, who
accompanied Lupita to the room. Id. ¶ 33.
and the FBI agents trained weapons on Plaintiffs.
Id. ¶ 35. Wynar requested keys to the Life
Savers offices from Raquel, and Raquel delivered Wynar a set
of keys. Id. ¶ 34. Wynar then requested
handcuffs from another agent, who allegedly told Wynar that
handcuffs were not necessary but nonetheless complied with
Wynar's request. Id. Wynar handcuffed Rito and
Esequiel. Id. ¶¶ 36, 37. Rito alleges that
Wynar grabbed him “with excessive force, twisting his
hands and handcuffing him with his hands behind his back and
ordered him to face the wall.” Id. ¶ 37.
Similarly, Esequiel alleges that Wynar grabbed him
“with great force, pushed him against the wall with
force, twisted his arm, searched and handcuffed him with his
hands behind his back and ordered him to face the
wall.” Id. ¶ 36.
Rito and Esequiel were handcuffed, approximately 20 more FBI
agents entered the Life Savers offices. Id. Wynar
pointed a gun at Rito and Esequiel after Rito and Esequiel
were already handcuffed. Id. ¶ 92. This conduct
caused Rito and Esequiel to feel “that they were going
to be shot at any moment.” Id. ¶ 40. The
agents then began to perform a search of the Life Savers
offices. Id. ¶ 36. Rito and Esequiel allege
that their handcuffs “were tight.” Id.
¶ 38. Rito and Esequiel also allege that they
“were cramping, thirsty, and needed to use the
bathroom.” Id. ¶ 39.
prevented any of the Plaintiffs from leaving, kept Rito and
Esequiel handcuffed and facing the wall, and prevented the
Plaintiffs from using their cell phones or office phones.
Id. ¶ 42. At some point, Raquel asked whether
she could use the bathroom, and Wynar instructed her to wait.
Id. ¶ 46. Raquel repeated the request
approximately fifteen minutes later, and a third time
approximately an hour later. Id. Wynar permitted
Raquel to use the bathroom upon the third request.
Id. By that time, Rito and Esequiel had been
handcuffed for over 30 minutes. Id.
allege that the search concluded at around 10:00 a.m.,
approximately 20 minutes after the search began. Id.
¶¶ 43, 97. Rito and Esequiel remained handcuffed
for some unspecified period after the search concluded,
id. ¶ 47, but the two Plaintiffs' handcuffs
were eventually removed, id. ¶ 48. Wynar then
ordered the Plaintiffs to join Wynar and an IRS agent named
“Arlette” at the front desk of the Life Savers
offices. Id. Wynar instructed another FBI agent to
take identification from Rito, Lupita, and Esequiel.
Id. Wynar also informed Lupita that she still could
not use her cell phone. Id. ¶ 49.
and Esequiel were then questioned by Wynar and others.
Id. ¶¶ 50-54, 93. Eventually, Lupita,
Rito, and Esequiel “were instructed to leave.”
Id. ¶ 54. Rito was permitted to take
Raquel's cell phone. Id. ¶ 63. However,
Raquel herself “was prevented from leaving and told to
sit down.” Id. ¶ 54. Rito lingered nearby
and eventually checked on the status of Raquel, at which
point Wynar informed Rito that “there was nothing to be
worried about.” Id. ¶ 55. As Rito
departed from the Life Savers offices, Rito learned that five
Life Savers members “who were coming to the
office” had been questioned by FBI agents and told that
Life Savers was a scam. Id. ¶ 57.
was questioned by Wynar and Arlette concerning potential
fraud involving Life Savers. Id. ¶¶ 58-61.
Four other FBI agents accompanied Raquel, Wynar, and Arlette
in the room, and these agents held weapons. Id.
¶ 65. As the questioning of Raquel concluded, Rito
received a phone call from Brown on Raquel's cell phone.
Id. ¶ 63. Rito entered the room in which Raquel
was located and attempted to provide Raquel with the cell
phone. Id. Wynar became irate when Wynar learned
that Brown had contacted Rito. Id. Wynar explained
that the FBI “was doing this simultaneously at other
places, ” and Rito had not wanted Brown to learn of the
FBI's investigation. Id.
Wynar and other FBI agents departed, Wynar returned
Raquel's keys to Raquel. Id. ¶ 66. Wynar
also provided Raquel with copies of the search warrant and a
“Receipt for Property, ” which listed the items
that the agents had removed from the premises. Id.
As a result of the search, Rito became depressed and
“sought psychological treatment.” Id.
¶¶ 68-69. Additionally, Esequiel “was
hospitalized for several weeks” and suffered from PTSD
following the search. Id. ¶¶ 70-72.
April 15, 2018, Plaintiffs filed an initial complaint. ECF
No. 1. In addition to Wynar, Plaintiffs' complaint stated
causes of action against Alicia Cox (an investigator for the
Office of the Monterey County District Attorney) and the FBI.
Id. Further, the complaint included Life Savers
itself as a Plaintiff. Id. On August 27, 2018, the
FBI filed a motion to dismiss the complaint. ECF No. 24. On
October 12, 2018, Wynar also filed a motion to dismiss the
complaint. ECF No. 36. The Court held a case management
conference on October 17, 2018, and at the conference,
Plaintiffs moved to dismiss Alicia Cox without prejudice. ECF
No. 40. The Court granted Plaintiff's motion to dismiss
Alicia Cox. ECF No. 41.
October 17, 2018, the Court ordered Plaintiffs to either
oppose the motions to dismiss filed by Wynar and the FBI or
amend Plaintiffs' complaint by November 13, 2018.
Id. On November 16, 2018, Wynar and the FBI filed a
joint reply brief that noted that Plaintiffs had failed to
either oppose the motions to dismiss or amend the complaint
by the Court's November 13, 2018 deadline. ECF No. 42.
Later in the same day, November 16, 2018, the parties filed a
stipulation to extend the deadline for Plaintiffs to file an
amended complaint to November 16, 2018. ECF No. 43. The Court
granted the stipulation. ECF No. 45.
on November 16, 2018, Plaintiffs filed a first amended
complaint (“FAC”). ECF No. 44
(“FAC”). In the FAC, Plaintiffs no longer named
the FBI as a defendant, which left Wynar and the unidentified
Doe individuals as the only defendants. FAC ¶¶
December 6, 2018, Wynar filed a motion to dismiss the FAC.
ECF No. 47. On January 7, 2019, Plaintiffs filed an
opposition. ECF No. 53. On February 12, 2019, Wynar filed a
reply. ECF No. 59.
16, 2019, the Court granted in part and denied in part the
motion to dismiss the FAC. ECF No. 67. In the previous order,
the Court dismissed all of Life Savers' claims with
prejudice. Id. at 7-8, 12. The Court also dismissed
with prejudice Plaintiffs' official capacity claims and
Plaintiffs' Fourteenth Amendment claims. Id. at
7-8. The Court then analyzed Plaintiffs' Bivens
claims for violations of the Fourth and Fifth Amendments. The
Court dismissed without prejudice Plaintiffs' First
Amendment and Fifth Amendment Bivens claims.
Id. at 14-15. The Court also dismissed without
prejudice the Fourth Amendment Bivens claims of
Rito, Lupita, and Esequiel. Id. at 17. By contrast,
the Court denied without prejudice the motion to dismiss
Raquel's Fourth Amendment Bivens claim.
wake of the Court's order, on June 17, 2019, Plaintiffs
filed a second amended complaint (“SAC”). SAC. In
the SAC, Plaintiffs allege Fourth Amendment and Fifth
Amendment Bivens claims against Wynar. Id.
¶¶ 85-149. On July 15, 2019, Wynar filed the
instant motion to dismiss the SAC. ECF No. 73
(“Mot.”). On August 15, 2019, Plaintiffs opposed
the motion, ECF No. 76 (“Opp.”), and on August
29, 2019, Wynar replied, ECF No. 79 (“Reply”).
Court notes that, pursuant to the parties' stipulation to
extend the briefing deadlines, Plaintiffs' opposition was
due on August 14, 2019. ECF No. 75. However, Plaintiffs'
opposition was not filed until August 15, 2019. ECF Nos. 76,
76-1. The opposition was therefore untimely. Nonetheless, the
Court considers Plaintiffs' opposition for the purpose of
resolving the instant motion to dismiss.
Motion to Dismiss Under Federal Rule of Civil Procedure
8(a)(2) of the Federal Rules of Civil Procedure requires a
complaint to include “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” A complaint that fails to meet this standard
may be dismissed pursuant to Federal Rule of Civil Procedure
12(b)(6). The U.S. Supreme Court has held that Rule 8(a)
requires a plaintiff to plead “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “The plausibility
standard is not akin to a probability requirement, but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id. (internal quotation
marks omitted). For purposes of ruling on a Rule 12(b)(6)
motion, the Court “accept[s] factual allegations in the
complaint as true and construe[s] the pleadings in the light
most favorable to the nonmoving party.” Manzarek v.
St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031
(9th Cir. 2008).
Court, however, need not accept as true allegations
contradicted by judicially noticeable facts, see Shwarz
v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and
it “may look beyond the plaintiff's complaint to
matters of public record” without converting the Rule
12(b)(6) motion into a motion for summary judgment, Shaw
v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995). Nor
must the Court “assume the truth of legal conclusions
merely because they are cast in the form of factual
allegations.” Fayer v. Vaughn, 649 F.3d 1061,
1064 (9th Cir. 2011) (per curiam) (internal quotation marks
omitted). Mere “conclusory allegations of law and
unwarranted inferences are insufficient to defeat a motion to
dismiss.” Adams v. Johnson, 355 F.3d 1179,
1183 (9th Cir. 2004).
Leave to Amend
Court determines that a complaint should be dismissed, it
must then decide whether to grant leave to amend. Under Rule
15(a) of the Federal Rules of Civil Procedure, leave to amend
“shall be freely given when justice so requires,
” bearing in mind “the underlying purpose of Rule
15 to facilitate decisions on the merits, rather than on the
pleadings or technicalities.” Lopez v. Smith,
203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations
and internal quotation marks omitted). When dismissing a
complaint for failure to state a claim, “a district
court should grant leave to amend even if no request to amend
the pleading was made, unless it determines that the pleading
could not possibly be cured by the allegation of other
facts.” Id. at 1130 (internal quotation marks
omitted). Accordingly, leave to amend generally shall be
denied only if allowing amendment would unduly prejudice the
opposing party, cause undue delay, or be futile, or if the
moving party has acted in bad faith. Leadsinger, Inc. v.
BMG Music Publ'g, 512 F.3d 522, 532 (9th Cir. 2008).