ANTHONY W. ISHII, Senior District Judge.
Plaintiff Scott R. James ("Plaintiff") alleges a violation of the Equal Protection Clause of the Fourteenth Amendment under 42 U.S.C. § 1983 against Defendant Kimberly Granger ("Defendant"). This action arises from Defendant`s involvement in a search of Plaintiff`s home and the resulting criminal action, now dismissed. The Court considers Defendant`s Motion to Dismiss Plaintiff`s Second Amended Complaint ("SAC") filed March 13, 2014.
Plaintiff alleges that Defendant unlawfully exceeded the scope of her position as the attorney assigned to Plaintiff`s civil matter by ordering and directing a search of Plaintiff`s home and seizure of his firearms. Plaintiff was convicted of a misdemeanor in 1996 and the conviction was expunged in 2008. Doc. 22, 2:24-28. Plaintiff then passed a background check and purchased a firearm. Doc. 22, 3:2-3. In the same year he was denied the purchase of a firearm because the State believed he had been convicted of a misdemeanor crime of domestic violence ("MCDV") and, after appealing to government agencies, Plaintiff brought a suit of mandamus in the California State Court seeking judicial determination of his right to purchase firearms in February 2011. Doc. 22, 3:5-15. Defendant was the attorney representing the State in that action. Doc. 22, 3:16.
Plaintiff admitted in his deposition that he possessed firearms in his home. Doc. 22, 3:24-25. Defendant sought a warrant to search Plaintiff`s home, and, two months after it was issued, Defendant led State agents in a search of Plaintiff`s home in or about October 2011. Doc. 22, 4:9-17. Firearms were confiscated and Plaintiff was charged with the crime of unlawful possession of an assault weapon. Doc. 22, 4:24-26. Plaintiff alleges that Defendant`s actions were taken to gain an advantage in the underlying litigation, in which Plaintiff had a pending motion for summary judgment. Doc. 22, 4:8-11, 6:14-16.
At a hearing in the criminal matter in February 2013, it was revealed that the normal practice of the State of California toward those not currently under investigation for another crime who may not be permitted to possess firearms based on a potential prior MCDV is to notify the person by letter asking to have the weapons stored by a licensed third party during the pendency of the proceedings. Doc. 22, 5:10-18. Plaintiff alleges that Defendant intentionally singled him out for different treatment without basis; and, to his knowledge, no other similarly situated person has been subject to a search of their home and subsequent criminal prosecution. Doc. 22, 6:16-18, 7:23-27. The criminal matter was dropped and dismissed. Doc. 22, 5:12.
Plaintiff filed his original Complaint on June 26, 2013. Doc. 1. The parties stipulated to dismissal and amendment. Doc. 8. Plaintiff filed the First Amended Complaint ("FAC"), which the Court dismissed with leave to amend. Docs. 10; 20, 8:7-9. In that order, the Court noted that the FAC failed to allege facts sufficient to show that Defendant acted intentionally and that others were treated differently. Doc. 20, 6:10-12. Plaintiff filed the SAC on March 13, 2014. Doc. 22. The Court considers Defendant`s Motion to Dismiss, Plaintiff`s Opposition, and Defendant`s Reply under submission. Docs. 23, 26, 27, 28. Upon reconsideration of the allegations in the SAC, and for the following reasons, Defendant`s Motion will be denied.
Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory.
To avoid a Rule 12(b)(6) dismissal, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.
Alleging on information and belief that other unnamed individuals received opposite treatment is alone not enough to state a plausible claim for relief under a class-of-one Equal Protection theory.
Similarly, allegations of a "pattern and practice" lacking any factual support are not sufficient to state an Equal Protection claim-the allegations are nothing more than speculation and are insufficient to meet plaintiff's obligation to state the grounds for his claim.
To state a claim for a violation of the Equal Protection Clause as a "class of one," the plaintiff must allege facts to show: (1) that the defendant acted intentionally, (2) that the defendant treated the plaintiff differently than others similarly situated, and (3) that there was no rational basis for the differential treatment.
"The class of one plaintiff must show that the discriminatory treatment `was intentionally directed just at him, as opposed... to being an accident or random act.' [Citation.]"
The SAC adds allegations that Defendant acted intentionally as opposed to randomly in her having an active role in the search and the criminal prosecution. Doc. 22, 7:18-22. The SAC also makes several allegations as to Defendant`s ill-will towards Plaintiff and Defendant`s improper motive in taking the alleged actions. Plaintiff alleges that Defendant`s actions were wrong and that she acted in retaliation and for personal gain. Doc. 22, 6:15, 6:23-25, 7:5-8. Plaintiff also alleges that Defendant`s actions were intentional in that she took affirmative steps in her actions. Doc. 22, 7:18-22. The alleged ill-will may support an inference of motive driving the conduct, but is not sufficient to sustain a claim that Defendant intended to treat Plaintiff differently than others similarly situated.
However, Plaintiff also alleged that the State`s normal practice for those persons who may not be permitted to possess firearms because of a potential prior conviction of a MCDV, is to notify the person by letter and ask to have the weapons stored by a licensed third party pending the determination of the person`s status. Doc. 10, 5:10-16, Doc. 22, 5:13-18. This allegation of a normal practice is more than a speculative allegation lacking factual support. Plaintiff alleged that during an official proceeding in the criminal matter, the practice of the State of California was revealed during questioning. Doc. 22, 5:12-13. This indicates that a representative of the State spoke as to the State`s normal practice. Taking the allegations as true and in the light most favorable to Plaintiff, it is plausible that such a practice existed.
As to the "similarly situated" allegation, Plaintiff identifies those persons who may not be permitted to possess firearms because of a potential prior conviction of a misdemeanor crime of domestic violence as those who are similarly situated. Doc. 22, 5:13-16. He states, "On information and belief, no other person who has invited review of their right to possess a firearm under the Gun Control Act has been subject to a search of their home and subsequent prosecution." Doc. 22, 6:16-18.
If the State had a normal practice as alleged, it is plausible then that Defendant, as a State representative in mandamus cases against the State, was aware of the practice and, considering her alleged ill-will toward Plaintiff and underlying personal motives, intentionally treated Plaintiff in a manner inconsistent with that practice, whereas no other person had been treated in that way. Hence, Plaintiff has met his burden to allege that Defendant intended to treat Plaintiff differently than other individuals not currently under investigation for a crime who may not be permitted to own or possess firearms based on a prior MCDV.
While bare unsupported allegations of different treatment are insufficient to allege this element of the cause of action, Plaintiff has alleged sufficient facts to support the allegation that different treatment in fact was plausible. Other cases have insisted that the plaintiff provide specific instances of others similarly situated who were treated differently. However, the SAC sufficiently alleges that the State of California`s practice for a person in Plaintiff`s situation is to notify the individual by letter and ask to have the weapons stored by a licensed third party pending the individual`s status. Doc. 22, 5:13-18. Plaintiff also alleges that no such letter was delivered to him, nor any oral request made. Doc. 22, 5:19-20. These allegations taken as true and in a light most favorable to Plaintiff support a plausible claim that Plaintiff was treated differently than those similarly situated.
Further, unlike in
Plaintiff alleges that peace officers under investigation for domestic violence offenses (Plaintiff was investigated for the same) were reassigned to positions that did not require a firearm or dismissed, but not charged with a criminal investigation. Doc. 22:19-22. Assuming this additional allegation is true for the purpose of this motion, it is not probative or relevant to the present action because Plaintiff is not similarly situated to the peace officers. Peace officers who are required to carry a firearm for their position, and whose employer has a procedure in place for MCDV investigations, are not similarly situated to Plaintiff, an individual whose status regarding his possession of firearms is under determination by the California Superior Court. To illustrate using Plaintiff`s example, Plaintiff cannot be similarly situated to peace officers because the remedies mentioned cannot be applied to Plaintiff-the Superior Court could not have Plaintiff "reassigned to [a] non-firearm-carrying position" or "dismissed" from his employment.
Plaintiff alleged that there existed a normal practice to those in Plaintiff`s situation deviation from which never occurred, except as to Plaintiff. Hence, Plaintiff has met his burden to allege that Defendant treated him differently than others similarly situated.
A class of one claim requires plaintiff to show that there is no rational basis for the difference in treatment, not that there is no rational basis for the treatment itself.
Plaintiff alleges that there was no rational basis for singling him out for a search. Plaintiff asserts that he was cooperative and forthcoming in his admission of gun possession, which was the subject of the mandamus action. Doc. 22, 5:20-22. Plaintiff alleges that the different treatment that he suffered (from similarly situated possessors of firearms who may not be permitted to own or possess firearms because of an MCDV) was due to his filing of a petition for writ of mandamus. Plaintiff alleges that Defendant did not have a legitimate reason to conduct the search as opposed to sending a letter according to the State`s practice. The only reason that the search was conducted was to against Plaintiff for his filing a mandamus action and to gain an advantage in the summary judgment proceeding. Doc. 22, 6:4-16.
Taking the alleged facts as true in the light most favorable to Plaintiff, Plaintiff has met his burden to allege that there was no rational basis for the difference in treatment.
Prosecutors have absolute immunity under Section 1983 for a decision to initiate a criminal prosecution.
The Supreme Court has emphasized a functional approach for determining when public officials may claim absolute immunity under Section 1983, stating, "An official must be performing a duty functionally comparable to one for which officials were rendered immune at common law, and it is only the specific function performed, and not the role or title of the official, that is the touchstone of absolute immunity."
To determine whether a defendant is entitled to absolute immunity on a motion to dismiss, the court considers the facts as alleged in the complaint, and then applies the law to those alleged facts.
Based on the pleadings, taking them as true and construing them in a light most favorable to Plaintiff, the Court finds that Defendant has not met her burden to demonstrate entitlement to absolute immunity. Defendant`s brief discussion on absolute immunity does not indicate what makes this case so exceptional as to deviate from the standard afforded to government officials of qualified immunity. She only states that because Plaintiff admits that Defendant`s conduct was one done to ensure victory in the mandamus case, her actions are "based entirely on her official conduct as an attorney for the government." Doc. 23, 7:25-28. Her position as a government attorney does not alone qualify her for absolute immunity; the specific actions performed must be those necessary to the judicial process.
Plaintiff has alleged that Defendant`s actions were unconstitutional in intentionally singling him out for different treatment without a rational basis. He has also alleged that Defendant "side-stepped" the judicial process by acting beyond the scope of her duties as the attorney assigned to the mandamus action and leading a search and criminal prosecution. As in
Defendant`s actions, as alleged, are not analogous to the prosecutorial function, and are not necessary to or integrally related to the judicial process. Hence, the Court does not find that Defendant is entitled to absolute immunity at this stage.
To determine whether qualified immunity applies, the threshold question is whether, in the light most favorable to the party asserting injury, the facts show an officer`s conduct violated a constitutional right.
Government employees are not entitled to qualified immunity on judicial deception claims.
Here, Plaintiff has sufficiently alleged a constitutional violation. Defendant`s Motion frames the issue as whether or not Defendant "was reasonable in her belief that Plaintiff`s battery conviction is a MCDV thus precluding Plaintiff from owning, possessing or purchasing firearms." Doc. 23, 9:4-6. She asserts that she was. Doc. 23, 9:24-25. Plaintiff has framed the issue as whether "a reasonable attorney, similarly situated, would have believed that the United States Constitution allows for state actors to retaliate against civil litigants for having filed a suit in mandamus." Doc. 26, 8:15-17. The Court understands the constitutional violation at hand to be Defendant`s different treatment of Plaintiff, giving rise to a cause of action under the Equal Protection Clause. Defendant`s papers do not assert that the class-of-one principle of the Equal Protection Clause was unclear, but bases her claim to entitlement of qualified immunity on the factual claim of reasonableness of her actions based on the circumstances. Therefore, the reasonableness inquiry for purposes of finding qualified immunity would be whether or not a reasonable attorney in a mandamus action regarding Plaintiff`s right to possess firearms, would have believed, under the circumstances, that departing from the normal practice and obtaining a warrant to search and conducting a search of Plaintiff`s home was a constitutional violation.
As discussed, Plaintiff has alleged that there was a normal practice for individuals not under a criminal investigation at the time, but may not be able to possess firearms based on a prior MCDV. Plaintiff alleges that he was fully cooperative and forthcoming during the process, even admitting in his first filing that he possessed firearms. He alleged that he lawfully purchased the guns that in his possession and set forth the same in the mandamus pleadings. He alleged that Defendant conducted the search two months after obtaining a warrant under false pretenses. Taking theses allegation as true, qualified immunity is inapplicable to Defendant`s actions because she allegedly provided false and/or incomplete information when obtaining the warrant. It is also likely that a reasonable official would have understood the State`s normal practice. The Court construes the facts in the light most favorable to Plaintiff, and finds that a reasonable attorney would not have submitted false information to obtain a warrant and would have known that obtaining a warrant and conducting a search was different treatment in violation of Plaintiff`s constitutional rights.
Hence, Defendant has not demonstrated that she is entitled to qualified immunity at this stage.
For the foregoing reasons, Defendant`s Motion to Dismiss the Second Amended Complaint is hereby DENIED.
IT IS SO ORDERED.
