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`Case 2:16-cv-01110-TLN-DMC Document 37 Filed 09/01/21 Page 1 of 20
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`UNITED STATES DISTRICT COURT
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`EASTERN DISTRICT OF CALIFORNIA
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`JAMES MICHAEL BENNO, JACOB
`DANIEL BENNO, LOGAN WAYNE
`BENNO, MARCIA JONES, and
`RICHARD YOUNG,
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`
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`No. 2:16-cv-01110-TLN-DMC
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`Plaintiffs,
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`ORDER
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`v.
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`SHASTA COUNTY, CALIFORNIA;
`THOMAS BOSENKO; DALE
`FLETCHER; TOM BARNER; LESTER
`BAUGH; and DOES 1 to 10,
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`Defendants,
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`This matter is before the Court on Defendant Shasta County’s (the “County”) Motion to
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`Dismiss.1 (ECF No. 32.) Plaintiffs James Benno (“James Benno” or “Benno”), Jacob Benno,
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`Logan Benno, Marcia Jones, and Richard Young (collectively, “Plaintiffs”) opposed the motion.
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`(ECF No. 34.) The County filed a reply. (ECF No. 35.) For the reasons discussed herein, the
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`Court GRANTS the County’s Motion to Dismiss. (ECF No. 32.)
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`Plaintiffs additionally bring this action against Defendants Thomas Bosenko, Dale
`Fletcher, Tom Barner, and Lester Baugh. (See ECF No. 29-1 at 1, 3.) However, these individual
`Defendants are not represented by the same counsel as the County or represented in the instant
`motion to dismiss. The Court additionally notes these Defendants were never served process
`(despite the initiation of this lawsuit on May 20, 2016) and have never appeared in this action.
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`Case 2:16-cv-01110-TLN-DMC Document 37 Filed 09/01/21 Page 2 of 20
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`I.
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`FACTUAL AND PROCEDURAL BACKGROUND
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`This action is proceeding on Plaintiffs’ First Amended Complaint (“FAC”), which asserts
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`the County violated Plaintiff’s constitutional rights under the Fourth and Fourteenth Amendments
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`when it enacted various land use ordinances regulating marijuana cultivation and when it
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`conducted raids on Plaintiffs’ properties in Shasta County pursuant to “longstanding County
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`customs.” (See generally ECF No. 29-1.)
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`A.
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`Pre-Ordinance Allegations
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`James Benno “has been a vocal medical marijuana advocate in Shasta County” from 1997
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`to the present. (Id. at 7.) Benno alleges he began cultivating medical marijuana on his real
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`property in Shasta County, California in 1997, and then began “collectively cultivating . . . [it] for
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`himself and a group of patients” in 2004. (Id. at 5.) Former Plaintiffs Jessica Solano, Nicholas
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`Bolton, and Walter and Jerilyn Carney also began cultivating medical marijuana on property in
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`Shasta County in 2004 and 2009, respectively.2 (Id.) Plaintiffs allege no facts whatsoever to
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`describe the manner or conditions in which they cultivated the marijuana, but simply claim it was
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`done “pursuant to” the Compassionate Use Act of 1996 (the “CUA”), Cal. Health & Safety Code
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`§ 11362.5, and the Medical Marijuana Program (the “MMP”), Cal. Health & Safety Code §§
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`11362.7–11362.85. (See id.)
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`B.
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`2011 Ordinance
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`On December 13, 2011, the County enacted an ordinance permitting indoor and outdoor
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`cultivation of marijuana, subject to certain restrictions (“2011 Ordinance”). 3 (ECF No. 9 at 4–
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`When this action was initiated, Jessica Solano, Nicholas Bolton, Jerilyn Carney and
`Walter Carney (additional purported property owners who cultivated medical marijuana in Shasta
`County); Josh Hancock, Charles McIntosh, and Jessica Benno (residents of Shasta County);
`Dennis Peron (a San Francisco resident); and Brian Monterrozo (a resident of Dupont, Colorado)
`were also named Plaintiffs in this action. (See ECF No. 1 at 2–3, 5.) On January 14, 2021,
`however, these Plaintiffs filed a “Notice of Partial Dismissal” (ECF No. 30), in which they
`dismissed their claims as asserted against all Defendants and were dismissed from this action.
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`The Court previously granted Defendants’ request to judicially notice the at-issue Shasta
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`County Ordinances, No. SCC 2011-05 (2011) and No. SCC 2014-02 (2014) (ECF No. 9 at 4–14,
`16–28) and herein incorporates those documents as referenced by the instant motion. (See ECF
`No. 27 at 3 n.3 (citing Fed. R. Evid. 201(b)(2); Chew v. City & Cnty. of San Francisco, No. 13-
`CV-05286-MEJ, 2016 WL 631924, at *1 (N.D. Cal. Feb. 17, 2016), aff’d, 714 F. App’x 687 (9th
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`14.) Prior to the 2011 Ordinance, the County had no regulations specifically addressing the
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`cultivation of medical marijuana in Shasta County. (Id. at 4.)
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`The County’s intent in creating the 2011 Ordinance was to regulate medical marijuana
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`cultivation (as permitted under the CUA and MMP) and “to accommodate the needs of Qualified
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`Patients and their Primary Caregivers” while mitigating potential adverse effects on surrounding
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`areas and persons. (ECF No. 9 at 5–6.) To that end, the 2011 Ordinance incorporated definitions
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`set forth under several code sections, including the CUA and MMP, and restricted marijuana
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`cultivation to the legal residences of qualified patients and/or their primary caregivers.4 (ECF No.
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`9 at 8–9.) With respect to permitted cultivation sites, the Ordinance further set forth regulations
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`pertaining to the location and size of the cultivation site; type of property on which cultivation
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`was permitted; fencing and other structural and security requirements; and prohibitions of
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`cultivation sites located near certain premises (such as schools, public parks, child care centers,
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`churches, the property lines of neighboring private residences, and areas where the cultivation
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`would be visible to the public). (Id. at 9–12.) The 2011 Ordinance additionally cautioned that it
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`was “not [to] be construed to protect Qualified Patients, Primary Caregivers or any other person
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`from prosecution pursuant to any laws that may prohibit the Cultivation, sale, distribution,
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`possession and/or use of controlled substances, or to authorize conduct that is unlawful under
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`state or federal law,” and expressly noted the cultivation, sale, possession, distribution, and use of
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`marijuana remained unlawful under federal law. (Id. at 12.) Finally, the 2011 Ordinance
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`Cir. 2017); Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th
`Cir. 2006)).)
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`Definitions incorporated by the 2011 Ordinance include “Cultivation,” “Enforcing
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`Officer,” “Fence,” “Indoors,” “Legal Parcel,” “Marijuana,” “Medical Marijuana,” “Medical
`Marijuana Collective,” “Outdoors,” “Premises,” “Primary Caregiver,” and “Qualified Patient.”
`(See ECF No. 9 at 8–9.) As relevant here, a “Qualified Patient” is a person who has applied for
`and received a valid identification card for medical marijuana use, a person with a valid
`prescription in place, or a caretaker or guardian of someone with a serious medical condition who
`was prescribed medical marijuana. See Cal. Health & Safety Code § 11362.7. A “Primary
`Caregiver” is an individual designated by a qualified patient, who is responsible for the housing,
`health, or safety of that patient (such as a designated health care facility or family member). Id.
`An “Identification Card” is issued by the State Department of Public Health pursuant to the
`recommendation of a licensed physician. Id.
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`provided that any marijuana cultivation not in conformance with the Ordinance’s provisions
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`would be declared a public nuisance and abated “by any means available by law to prevent public
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`nuisances.” (Id. at 9.)
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`“[I]n reliance on the existence of the 2011 Ordinance,” James Benno purportedly
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`relocated in early 2013 to a property on Hopekay Lane in unincorporated Shasta County to
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`establish an outdoor marijuana cultivation. (ECF No. 29-1 at 5, 10.) Plaintiffs allege Benno
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`“expended significant money, time and labor” leasing property and preparing the site for outdoor
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`cultivation, “including, but not limited to: i) clearing all debris from the rented property[;] ii)
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`purchasing materials and constructing a 6 foot wood fence (100 x 150 ft) and affixing a 2 x 8
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`fiberglass barrier atop; iii) purchasing materials and constructing 4 x 4 wood pallets; iv)
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`purchasing and preparing planting pots; [and] v) relocating 100 yards of soil [Benno] prepared for
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`growing the medical marijuana plants.” (Id. at 10.)
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`Plaintiffs identify two raids executed in Shasta County after enactment of the 2011
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`Ordinance which they allege were performed without valid warrants:
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`1) In or around September 2013, unidentified employees of the Shasta County Sheriff’s
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`Department (“Sheriff’s Department”) and Code Enforcement ordered the removal of
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`approximately 68 medical marijuana plants from the Shasta County property on which
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`Jessica Solano and Nicholas Bolton were cultivating medical cannabis. (Id. at 3, 6.)
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`2) In or around September 2013, unidentified employees of the Sheriff’s Department and
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`Code Enforcement raided the Shasta County property on which Walter and Jerilyn
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`Carney were cultivating medical cannabis and destroyed approximately 96 medical
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`marijuana plants and unspecified personal property. Walter and Jerilyn Carney were
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`arrested by unidentified employees and held in jail for three days. (Id.)
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`C.
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`2014 Ordinance
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`On January 28, 2014, finding the provisions of the 2011 Ordinance to be “inadequate to
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`control the negative impacts of marijuana cultivation” and noting additional risks and adverse
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`impacts associated with marijuana cultivation, the County enacted a subsequent ordinance
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`amending the entirety of the 2011 Ordinance and the County Code section pertaining to
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`“accessory buildings and uses,” as well as portions of the County Code section regarding “special
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`uses” governing properties in Shasta County (“2014 Ordinance”).5 (ECF No. 9 at 16–28.)
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`Importantly, the 2014 Ordinance banned all outdoor marijuana cultivation and explicitly limited
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`cultivation to areas “within a detached residential accessory structure affixed to the real property
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`(a) that meets the definition of “Indoor,” or “Greenhouse,” (b) that is located on the same
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`Premises as the Residence of a Qualified Patient(s) or Primary Caregiver(s), and (c) that complies
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`with all of the provisions of the Shasta County Code relating to accessory structures . . . .” (Id. at
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`22.) As to indoor cultivation, the Ordinance set forth specific requirements regarding the location
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`of cultivation, screening and security structures, maximum permissible power output, water
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`sources, filtration and ventilation systems, and the number of marijuana plants pertaining to
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`permissible indoor cultivation. (Id. at 22–27.) Specifically, the 2014 Ordinance limited
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`cultivation to no more than 12 marijuana plants on any premises, “regardless of the number of
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`Qualified Patients or Primary Caregivers residing at the Premises or participating directly or
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`indirectly in the Cultivation.” (Id. at 23–24.) Finally, the 2014 Ordinance included a
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`misdemeanor penalty clause which provided that any person in violation of the Ordinance was
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`guilty of a misdemeanor. (Id. at 25.)
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`After enactment of the 2014 Ordinance, Plaintiffs identify two additional raids executed in
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`1) On May 20, 2014, unidentified employees of the Sheriff’s Department and Code
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`Enforcement raided James Benno’s property. During the raid, approximately 99
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`medical marijuana plants were seized/destroyed, approximately 100 yards of soil was
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`removed, and unspecified personal property was damaged and destroyed.
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`Unidentified employees arrested James Benno, Logan Benno, and Jacob Benno.
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`James and Logan Benno were held in jail for approximately 60 days and Jacob Benno
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`was held for approximately 45 days. (ECF No. 29-1 at 5, 7, 9.) Plaintiffs contend
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`The Ordinance also incorporated additional definitions from sections of the Shasta County
`and California Health and Safety Code such as “Greenhouse,” “Marijuana Plant,” and
`“Residential Accessory Building.” (See ECF No. 9 at 19–22.)
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`James Benno was specifically targeted for a raid on his property “as a result of his
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`medical marijuana advocacy and message.” (Id. at 7.)
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`2) On or around May 1, 2016, unidentified deputies from the Sheriff’s Department
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`entered the property of Josh Hancock without a warrant, but the FAC does not indicate
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`any further details. (Id. at 6.)
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`D.
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`Policy-Related Allegations
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`With respect to the raid on James Benno’s property, Plaintiffs contend unspecified
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`employees of the Sheriff’s Department “intentionally omitted facts [from the warrant affidavit]
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`that would indicate” the marijuana cultivation site was “in conformance with state and local law.”
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`(Id. at 7, 18.) No particular facts or circumstances are identified. Plaintiffs further maintain that
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`during the Benno raid, the Sheriff’s Department “failed and refused to make a genuine and fair
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`effort to determine” if the cultivation site was in conformance with state and local law. (Id. at 7–
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`8.) More specifically, Benno alleges the County employees failed or refused to consider his
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`medical marijuana patient written recommendations; contact any of the patients; test the
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`marijuana for THC, CBD or other cannabinoids to confirm its medicinal purposes, or otherwise
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`permit Benno to show his property constituted a “medical marijuana cultivation site”; research the
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`water or power usage of the property; inform Benno what code sections the site was in violation
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`of; or permit Benno an opportunity to cure them. (Id. at 8.) Plaintiffs broadly assert the Sheriff’s
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`Department acted the same way with respect to “the raids on other Plaintiffs,” such that the
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`purported actions constitute a standard operating procedure of the County, which began after the
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`1996 enactment of the CUA and has since resulted in over 100 improper raids. (Id. at 7–8.)
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`Finally, Plaintiffs contend “behaviors constituting excessive force” occurred. (See id. at
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`9.) Without identifying any particular Plaintiff or raid, the FAC generally asserts that in all of the
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`raids, officers “dressed in military-style uniforms[,] some of whom had automatic machine gun
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`type weapons,” physically attacked and pointed their weapons at unspecified Plaintiffs. (Id. at
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`19.) Plaintiffs allege they were unarmed, “did not pose any danger to [the] officers,” and did not
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`“attempt[] to escape or evade [the] officers.” (Id.) Rather, Plaintiffs allege they all “responded to
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`[the officers’] requests.” (Id.) As a result of these encounters, Plaintiffs purportedly sustained
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`Case 2:16-cv-01110-TLN-DMC Document 37 Filed 09/01/21 Page 7 of 20
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`“physical and mental injuries to limbs and other body parts as well as mental injuries including
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`Post Traumatic Stress Disorder, anxiety and other mental disorders.” (Id. at 19–20.) It is unclear
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`from the FAC which Plaintiff purportedly suffered what injury, or as a result of which alleged
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`conduct. As with the search and seizure allegations, Plaintiffs maintain the purported excessive
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`force behavior was part of a “longstanding practice or custom” of the County since the CUA was
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`enacted. (Id.)
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`E.
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`Procedural Posture
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`Plaintiffs initiated this action on May 20, 2016. (ECF No. 1.) The operative FAC asserts
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`three causes of action under 42 U.S.C. § 1983 (“§ 1983”) by all Plaintiffs against all Defendants
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`for: (1) warrantless search and seizure in violation of the Fourth Amendment; (2) excessive force
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`in violation of the Fourth Amendment; and (3) due process violation under the Fourteenth
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`Amendment.6 (ECF No. 29-1 at 17–22.)
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`On January 20, 2021, the County filed the instant motion to dismiss pursuant to Federal
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`Rule of Civil Procedure (“Rule”) 12(b)(6). (ECF No. 32.) On February 18, 2021, Plaintiffs filed
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`an opposition and on February 25, 2021, the County replied. (ECF Nos. 34, 35.)
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`II.
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`STANDARD OF LAW
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`A motion to dismiss for failure to state a claim upon which relief can be granted under
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`Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th
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`Cir. 2001). Rule 8(a) requires that a pleading contain “a short and plain statement of the claim
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`showing that the pleader is entitled to relief.” See Ashcroft v. Iqbal, 556 U.S. 662, 678–79
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`(2009). Under notice pleading in federal court, the complaint must “give the defendant fair notice
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`of what the claim . . . is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S.
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`544, 555 (2007) (internal quotations omitted). “This simplified notice pleading standard relies on
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`liberal discovery rules and summary judgment motions to define disputed facts and issues and to
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`dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).
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`The Court refers to Plaintiffs’ operative complaint as the “FAC,” as referenced by the
`parties, but notes Plaintiffs initially filed a First Amended Complaint on August 29, 2016 (ECF
`No. 6), which was stricken by the Court due to the disciplinary action taken against Plaintiffs’
`counsel resulting in his ineligibility to practice before this Court (see ECF No. 13).
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`On a motion to dismiss, the factual allegations of the complaint must be accepted as true.
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`Cruz v. Beto, 405 U.S. 319, 322 (1972). A court is bound to give the plaintiff the benefit of every
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`reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail
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`Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege
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`“‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to
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`relief.” Twombly, 550 U.S. at 570 (internal citation omitted).
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`Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of
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`factual allegations.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986).
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`While Rule 8(a) does not require detailed factual allegations, “it demands more than an
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`unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A
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`pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the
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`elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678
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`(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
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`statements, do not suffice.”). Thus, ‘[c]onclusory allegations of law and unwarranted inferences
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`are insufficient to defeat a motion to dismiss for failure to state a claim.” Adams v. Johnson, 355,
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`F.3d 1179, 1183 (9th Cir. 2004) (citations omitted). Moreover, it is inappropriate to assume the
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`plaintiff “can prove facts that it has not alleged or that the defendants have violated the . . . laws
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`in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State
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`Council of Carpenters, 459 U.S. 519, 526 (1983).
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`Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough
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`facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim
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`has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
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`reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
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`680. While the plausibility requirement is not akin to a probability requirement, it demands more
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`than “a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility
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`inquiry is “a context-specific task that requires the reviewing court to draw on its judicial
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`experience and common sense.” Id. at 679. Thus, only where a plaintiff fails to “nudge [his or
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`///
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`her] claims . . . across the line from conceivable to plausible[,]” is the complaint properly
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`dismissed. Id. at 680 (internal quotations omitted).
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`In ruling on a motion to dismiss, a court may only consider the complaint, any exhibits
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`thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201.
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`See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v.
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`Consumers Union of U.S., Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998); see also Daniels-
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`Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (the court need not accept as true
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`allegations that contradict matters properly subject to judicial notice).
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`If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to
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`amend even if no request to amend the pleading was made, unless it determines that the pleading
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`could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122,
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`1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995));
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`see also Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009) (“When a proposed amendment
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`would be futile, there is no need to prolong the litigation by permitting further amendment.”).
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`Although a district court should freely give leave to amend when justice so requires under Rule
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`15(a)(2), “the court’s discretion to deny such leave is ‘particularly broad’ where the plaintiff has
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`previously amended its complaint[.]” Ecological Rights Found. v. Pac. Gas & Elec. Co., 713
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`F.3d 502, 520 (9th Cir. 2013) (quoting Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th
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`Cir. 2004)).
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`III. ANALYSIS
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`To the extent Plaintiffs’ claims are asserted against the County (and the individual
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`Defendants in their official capacities), Plaintiffs purport to assert Monell claims. (See ECF No.
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`29-1 at 17–22); see also Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (suing a public
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`employee in his official capacity under § 1983 is equivalent to suing the entity itself). The
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`County moves to dismiss each of Plaintiffs’ claims under Rule 12(b)(6) on the basis that Plaintiffs
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`fail to adequately allege a County custom, practice, or policy that was the “moving force” of the
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`purported constitutional violations, as required under Monell. (ECF No. 32.) The Court will
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`address each of Plaintiffs’ claims in turn.
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`Case 2:16-cv-01110-TLN-DMC Document 37 Filed 09/01/21 Page 10 of 20
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`A.
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`Legal Standard for Monell Claim
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`A municipality may not be vicariously liable under § 1983 for an injury caused by its
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`employee or agent. Monell v. Dep’t of Soc. Services of City of New York, 436 U.S. 658, 694
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`(1978). However, a municipal entity can be liable in a § 1983 case premised on either: (1) an
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`official policy; (2) a “longstanding practice or custom which constitutes the standard operating
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`procedure of the local government entity”; (3) the act of an “official whose acts fairly represent
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`official policy such that the challenged action constituted official policy”; or (4) where “an
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`official with final policy-making authority delegated that authority to, or ratified the decision of, a
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`subordinate.” Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008) (quoting Ulrich v. City & Cnty. of
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`San Francisco, 308 F.3d 968, 984–85 (9th Cir. 2002)); see also Trevino v. Gates, 99 F.3d 911,
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`918 (9th Cir. 1996) (citing Monell, 436 U.S. at 691) (internal quotations omitted).
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`Where, as here, the plaintiff seeks to establish a Monell claim based on a longstanding
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`practice or custom, he must prove that: (1) he possessed a constitutional right of which he was
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`deprived; (2) the municipality had a longstanding practice or custom which amounted to a policy;
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`(3) this policy amounts to deliberate indifference to the plaintiff’s constitutional right; and (4) the
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`policy is the moving force behind the constitutional violation. See Dougherty v. City of Covina,
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`654 F.3d 892, 900 (9th Cir. 2011) (quoting Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130
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`F.3d 432, 438 (9th Cir. 1997)).
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`“The custom must be so ‘persistent and widespread’ that it constitutes a ‘permanent and
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`well settled city policy.’” Trevino, 99 F.3d at 918 (quoting Monell, 436 U.S. at 691). “Liability
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`for improper custom may not be predicated on isolated or sporadic incidents; it must be founded
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`upon practices of sufficient duration, frequency and consistency that the conduct has become a
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`traditional method of carrying out policy.” Id.; McDade v. West, 223 F.3d 1135, 1141 (9th Cir.
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`2000). Deliberate indifference exists when a municipality “fail[s] to investigate and discipline
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`employees in the face of widespread constitutional violations.” Hunter v. Cnty. of Sacramento,
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`652 F.3d 1225, 1234 n.8 (9th Cir. 2011). Thus, to establish deliberate indifference, the plaintiff
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`“must demonstrate a direct causal link between the municipal action and the deprivation of
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`federal rights.” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997).
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`Case 2:16-cv-01110-TLN-DMC Document 37 Filed 09/01/21 Page 11 of 20
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`Finally, a Monell claim “may not simply recite the elements of a cause of action, but must
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`contain sufficient allegations of underlying facts to give fair notice and to enable the opposing
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`party to defend itself effectively.” AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637
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`(9th Cir. 2012) (citing Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)).
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`To survive a motion to dismiss, a plaintiff must do more than allege
`that a Monell defendant “maintained or permitted an official policy,
`custom or practice of knowingly permitting the occurrence of the
`type of wrongs” alleged elsewhere in the complaint . . . Facts
`regarding the specific nature of the alleged policy, custom, or
`practice are required; merely stating the subject to which the policy
`relates (i.e. excessive force) is insufficient.
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`Cain v. City of Sacramento, No. 2:17-cv-00848-JAM-DB, 2017 WL 4410116, at *3 (E.D. Cal.
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`Oct. 4, 2017) (internal citation omitted).
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`B.
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`Violation of the Fourth Amendment — Search and Seizure (Claim One)
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`The County moves to dismiss Plaintiffs’ first claim for failure to allege the existence of a
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`County policy or custom or to show that the purported policy was the “moving force” behind the
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`alleged constitutional violations. (ECF No. 32 at 16–20.)
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`In opposition, Plaintiffs argue they sufficiently allege the “County had a longstanding
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`practice or custom . . . [of] intentionally omitting information from affidavits [to obtain warrants]
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`. . . that the subject marijuana cultivation sites were operating legally . . . [and] failing and
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`refusing to make a genuine and fair effort to determine if . . . a medical marijuana cultivation site
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`raided [was] in conformance with state and local law.” (ECF No. 34 at 6–7 (citing ECF No. 29-1
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`¶¶ 41–55).) Plaintiffs further contend this “longstanding practice or custom” began with the
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`“1996 voter approved [CUA]” and continued until at least the dates of the raids on Plaintiffs,
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`alleging “more than 100 raids [occurred] during this time” pursuant to the alleged custom. (Id. at
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`7–8.) The Court, however, is unpersuaded by Plaintiffs’ arguments.
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`As in Plaintiffs’ prior Complaint, the Monell allegations are largely conclusory. Cain,
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`2017 WL 4410116, at *3. Moreover, Plaintiffs’ claim that County employees intentionally omit
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`information from warrant affidavits does not “give fair notice . . . to enable the opposing party to
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`defend itself effectively.” AE ex rel. Hernandez, 666 F.3d at 637. Plaintiffs do not indicate what
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`“facts” were customarily omitted from warrant applications which would indicate all 100 or more
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`Case 2:16-cv-01110-TLN-DMC Document 37 Filed 09/01/21 Page 12 of 20
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`properties that were raided were actually “in conformance with state and local law” (ECF No. 29-
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`1 at 7) at the time of the raids. This is particularly problematic where Plaintiffs contend a singular
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`policy has been in place since the 1996 passage of the CUA, even though Shasta County
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`regulations governing marijuana cultivation drastically changed with the 2011 Ordinance and
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`again with the 2014 Ordinance. Plaintiffs’ contention that, while executing the warrants, the
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`Sheriff’s Department “failed and refused to make a genuine and fair effort to determine” if the
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`cultivation site was in conformance with state and local law (id. at 7–8) similarly lacks a factual
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`predicate and is therefore without merit. Moreover, Plaintiffs cite no legal authority in support of
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`their underlying premise that, subsequent to the issuance of a warrant, officers are required to
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`pause during execution of that warrant to essentially reexamine the validity of the bases for the
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`warrant.
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`Nor have Plaintiffs alleged any facts showing a “sufficient duration, frequency and
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`consistency” of conduct by the County to establish the existence of an official custom or policy.
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`Trevino, 99 F.3d at 918; McDade, 223 F.3d at 1141. To the contrary, the FAC appears to focus
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`solely on the details of the Benno raid, which is factually distinct from the other three raids
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`identified in the FAC, two of which occurred prior to the enactment of the 2014 Ordinance.
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`(Compare ECF No. 29-1 at 5 (post-2014 Ordinance raid of outdoor cultivation site resulting in
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`removal of 99 plants and the Bennos’ arrests) with id. at 6 (one post-2014 Ordinance warrantless
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`raid with no details whatsoever, and two pre-2014 Ordinance raids of properties of unspecified
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`cultivation site location: one resulting in destruction of plants and personal property, arrests, and
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`nuisance abatement tax assessed against property owners; the other resulting in removal of plants
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`but no arrests).) As such, the Court finds Plaintiffs have failed to allege the requisite facts
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`regarding the specific nature of the alleged policy, custom, or practice. Cain, 2017 WL 4410116,
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`at *3.
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`Furthermore, Plaintiffs fail to establish “the policy is the moving force behind the
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`constitutional violation.” Dougherty, 654 F.3d at 900. First, the FAC demonstrates the Benno
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`raid was an “isolated or sporadic” incident in which James Benno was targeted by the County due
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`to his zealous advocacy of medical marijuana patients’ rights. (See ECF No. 29-1 at 7); see also
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`Case 2:16-cv-01110-TLN-DMC Document 37 Filed 09/01/21 Page 13 of 20
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`Trevino, 99 F.3d at 918. Thus, the moving force for the Benno raid was the purported animus
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`towards Benno, not an established County custom or policy. Second, as discussed at greater
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`length with respect to Plaintiffs’ due proce