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`Case 2:18-cv-00083-TLN-JDP Document 31 Filed 02/11/21 Page 1 of 8
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`UNITED STATES DISTRICT COURT
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`EASTERN DISTRICT OF CALIFORNIA
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`RONALD EVANS,
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`No. 2:18-cv-00083-TLN-JDP
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`Plaintiff,
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`v.
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`ORDER
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`COUNTY OF TRINITY, a municipal
`corporation; COLLEEN MURRAY; and
`DOES 1-10,
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`Defendants.
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`This matter is before the Court on Defendants County of Trinity (“County”) and Colleen
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`Murray’s (“Murray”) (collectively, “Defendants”) Motion to Dismiss. (ECF No. 26.) Plaintiff
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`Ronald Evans (“Plaintiff”) opposed the motion. (ECF No. 27.) Defendants replied. (ECF No.
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`29.) For the reasons discussed herein, the Court GRANTS Defendants’ Motion to Dismiss.
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`I. FACTUAL AND PROCEDURAL BACKGROUND
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`Plaintiff was arrested after ten pounds of medical marijuana was found in his vehicle and
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`confiscated. (ECF No. 22 at 2.) Plaintiff pleaded guilty to a vehicle code violation in Trinity
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`County Superior Court. (Id. at 2.) On January 24, 2017, the state court found that Plaintiff
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`lawfully possessed the marijuana under California law and ordered the return of Plaintiff’s
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`marijuana. (Id. at 2.) Plaintiff subsequently presented the court order to a County evidence
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`technician, who told Plaintiff that the marijuana would not be returned to him. (Id. at 6.) Murray,
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`the Deputy District Attorney assigned to the case, also told Plaintiff that his marijuana would not
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`be returned. (Id.)
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`On January 15, 2018, Plaintiff initiated this action against Defendants, asserting two
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`causes of action pursuant to 42 U.S.C. § 1983 (“§ 1983”): (1) claims against the individual
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`Defendants for depriving Plaintiff of his property without due process of law in violation of the
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`Fourteenth Amendment, taking his property without compensation in violation of the Fifth
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`Amendment, and unreasonably seizing his property in violation of the Fourth Amendment;2 and
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`(2) a Monell claim against the County based on the underlying constitutional violations. (ECF
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`No. 1 at 6–7.)
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`On March 16, 2018, Defendants moved to dismiss the Complaint pursuant to Federal Rule
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`of Civil Procedure (“Rule”) 12(b)(6). (ECF No. 6.) On August 6, 2019, the Court dismissed the
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`Complaint with leave to amend. (ECF No. 21.)
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`On September 4, 2019, Plaintiff filed the operative First Amended Complaint (“FAC”).
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`(ECF No. 22.) On October 16, 2019, Defendants filed the instant Motion to Dismiss the FAC in
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`its entirety pursuant to Rule 12(b)(6). (ECF No. 26.)
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`The following recitation of facts is taken, sometimes verbatim, from Plaintiff’s First
`Amended Complaint. (ECF No. 22.)
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`Plaintiff combined all the underlying constitutional violations into one cause of action in
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`his Complaint.
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`II.
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`STANDARD OF LAW
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`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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`On a motion to dismiss, the factual allegations of the complaint must be accepted as
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`true. Cruz v. Beto, 405 U.S. 319, 322 (1972). A court must 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. “A claim has facial plausibility when the plaintiff pleads
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`factual content that allows the court to draw the reasonable inference that the defendant is liable
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`for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
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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.” United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir.
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`1986). 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
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`678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
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`statements, do not suffice.”). Moreover, it is inappropriate to assume the plaintiff “can prove
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`facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not
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`been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459
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`U.S. 519, 526 (1983).
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`/ / /
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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.” Iqbal, 556 U.S. at 697 (quoting
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`Twombly, 550 U.S. at 570). Only where a plaintiff fails to “nudge[ ] [his or her] claims . . . across
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`the line from conceivable to plausible[,]” is the complaint properly dismissed. Id. at 680. While
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`the plausibility requirement is not akin to a probability requirement, it demands more than “a
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`sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility inquiry is “a
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`context-specific task that requires the reviewing court to draw on its judicial experience and
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`common sense.” Id. at 679.
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`In ruling upon a motion to dismiss, the court may consider only the complaint, any
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`exhibits thereto, and matters which may be judicially noticed pursuant to Federal Rule of
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`Evidence 201. See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu
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`Motors Ltd. v. Consumers Union of United States, Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal.
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`1998).
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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, 1130
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`(9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 484, 497 (9th Cir. 1995)); see
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`also Gardner v. Marino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in
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`denying leave to amend when amendment would be futile). Although a district court should
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`freely give leave to amend when justice so requires under Rule 15(a)(2), “the court’s discretion to
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`deny such leave is ‘particularly broad’ where the plaintiff has previously amended its
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`complaint[.]” Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir.
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`2013) (quoting Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)).
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`III. ANALYSIS
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`A.
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`Fifth and Fourteenth Amendment Claims
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`In his FAC, Plaintiff asserts § 1983 claims against the individual Defendants for violating
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`the Takings Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth
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`Amendment.3 (ECF No. 22 at 9.) Defendants move to dismiss both claims on the basis that
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`Plaintiff has not identified a federally protected property interest.4 (See ECF. 26 at 5.)
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`Specifically, Defendants argue Plaintiff has “no cognizable federal property interest in marijuana
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`for any purpose.” (Id.) In opposition, Plaintiff contends that federal law does not preempt state
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`law in the field of marijuana regulation and that California state law protects Plaintiff’s
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`possession of marijuana. (See ECF No. 27 at 2–4.) The Court addresses the Fifth Amendment
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`claim first, then turns to the Fourteenth Amendment claim.
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`i.
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`Fifth Amendment Claim
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`The Takings Clause of the Fifth Amendment prohibits the government from taking
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`“private property . . . for public use, without just compensation.” U.S. Const. amend. V. To
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`assert a claim under the Takings Clause, “a plaintiff must first demonstrate that he possesses a
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`‘property interest’ that is constitutionally protected.” Schneider v. California Dep’t of Corr., 151
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`F.3d 1194, 1198 (9th Cir. 1998). State law, as well as federal law, can create a property interest.
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`See id. at 1200–01. However, although “state law creates a property interest, not all state-created
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`rights rise to the level of a constitutionally protected interest.” Brady v. Gebbie, 859 F.2d 1543,
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`1548 n.3 (9th Cir. 1988).
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`Plaintiff asserts Defendants violated the Fifth Amendment by taking Plaintiff’s marijuana
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`without compensation. (ECF No. 22 at 9.) Plaintiff argues that California state law protects his
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`possession of marijuana. (ECF No. 27 at 3–4.) However, even construing all reasonable
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`inferences in Plaintiff’s favor, Plaintiff fails to articulate how his state-defined right to possess
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`marijuana “rise[s] to the level of a constitutionally protected interest.” Indeed, despite Plaintiff’s
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`In the Complaint, Plaintiff explicitly brought a Fourth Amendment claim under § 1983.
`(ECF No. 1 at 6.) This claim was dismissed with leave to amend. (ECF No. 21.) In the FAC,
`Plaintiff does not explicitly reassert his Fourth Amendment claim. (See ECF No. 22.) Plaintiff
`only vaguely asserts that his right “[t]o be free from unreasonable seizures” was violated and
`provides no factual allegations to support this conclusion. (Id. at 8–9.) It also bears mentioning
`that neither party addresses a Fourth Amendment claim in their briefing on the instant motion.
`Therefore, it appears Plaintiff has withdrawn his Fourth Amendment claim.
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`Defendants raise several other grounds for dismissal. However, because the Court finds
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`that Plaintiff fails to state a claim for any of the alleged constitutional violations, the Court need
`not and does not address Defendants’ alternative arguments.
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`argument that marijuana no longer deserves Schedule I drug categorization (ECF No. 27 at 4–5),
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`marijuana remains illegal under federal law. See 21 C.F.R. § 1308.11(d)(23); see also Gonzales
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`v. Raich, 545 U.S. 1, 14–15 (2005). Additionally, courts within this district have clarified that
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`marijuana is contraband per se under federal law and thus no person can have a cognizable
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`federal legal interest in it. See, e.g., Barrios v. Cty. of Tulare, No. 1:13-CV-1665 AWI GSA,
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`2014 WL 2174746, at *5 (E.D. Cal. May 23, 2014); Schmidt v. Cty. of Nevada, No. 2:10-CV-
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`3022 FCD/EFB, 2011 WL 2967786, at *5 (E.D. Cal. July 19, 2011) (“Thus, under federal law,
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`marijuana is contraband per se, which means no person can have a cognizable legal interest in
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`it.”); see also Cook v. City of California, No. 1:16-CV-00429-DAD-JLT, 2016 WL 8730712, at
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`*5–6 (E.D. Cal. December 9, 2016) (“Plaintiff has failed to allege a cognizable property interest
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`in any medical marijuana plants and therefore has not stated a cognizable Takings Clause
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`claim.”).
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`Accordingly, Plaintiff cannot bring a Fifth Amendment claim regarding the alleged taking
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`of his marijuana without compensation. Because there is no cognizable federal property interest
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`in marijuana, it is not possible for Plaintiff to cure this deficiency through amendment.
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`Therefore, the Court DISMISSES Plaintiff’s Fifth Amendment claim without leave to amend.
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`ii.
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`Fourteenth Amendment Claim
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`Under the Fourteenth Amendment, “[n]o state shall . . . deprive any person of life, liberty,
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`or property, without due process of laws.” U.S. Const. amend. XIV. To establish a procedural or
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`substantive due process claim,5 a plaintiff must first show “a liberty or property interest protected
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`by the Constitution.” Wedges/Ledges of California, Inc. v. City of Phoenix., 24 F.3d 56, 62 (9th
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`Cir. 1994) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972)); Kraft v. Jacka, 872 F.2d
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`862, 866 (9th Cir. 1989)). Although state law creates property interests, see Little v. Gore, 148 F.
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`Supp. 3d 936, 955 (S.D. Cal. 2015) (quoting Samson v. City of Bainbridge Island, 683 F.3d 1051,
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`1057 (9th Cir. 2012), “federal constitutional law determines whether that interest rises to the level
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`Plaintiff does not specify whether his claim is for procedural or substantive due process.
`(See ECF No. 22.) However, for the reasons stated above, such a distinction is not necessary to
`resolve this issue.
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`of a legitimate claim of entitlement protected by the Due Process Clause.” Id. (quoting Memphis
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`Light Gas & Water Div. v. Craft, 436 U.S. 1, 9 (1978); Samson, 683 F.3d at 1057; Lawson v.
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`Umatilla County, 139 F.3d 690, 692 (9th Cir. 1998)).
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`Plaintiff’s Fourteenth Amendment claim fails for the same reason as his Fifth Amendment
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`claim because Plaintiff fails to establish that “federal constitutional law” elevates his property
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`interest in marijuana “to the level of a legitimate claim of entitlement protected by the Due
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`Process Clause.” Id. In Barrios v. County of Tulare, for example, a court in this district found
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`that “[a]lthough California may provide [plaintiff] with the right to possess medical marijuana,
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`federal law does not. Because marijuana is contraband under federal law, [plaintiff] had no
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`property interest in the marijuana that was protected by the Fourteenth Amendment due process
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`clause.” 2014 WL 2174746 at *5 (citations omitted). Furthermore, in Little v. Gore, a court
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`within the Southern District of California determined that “[w]ith respect to medical marijuana,
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`although California state law may create a property interest in the marijuana, California district
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`courts have found there is no property interest for purposes of the Fourteenth Amendment.” 148
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`F. Supp. 3d at 955 (citing Barrios, 2014 WL 2174746 at *4; Staffin v. Cty. of Shasta, No. 13:CV-
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`03315 JAM-CMK, 2013 WL 1896812, at *4–5 (E.D. Cal. May 6, 2013); Schmidt, 2011 WL
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`2967786, at *5–6).
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`Accordingly, Plaintiff cannot bring a Fourteenth Amendment Due Process claim. Because
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`there is no cognizable federal property interest in marijuana, it is not possible for Plaintiff to cure
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`this deficiency through amendment. In the concluding remarks of his opposition, Plaintiff asks
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`for leave to amend to add an Equal Protection claim. (See ECF No. 27 at 8.) Despite having
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`ample opportunity to raise an Equal Protection claim in the Complaint and FAC, Plaintiff waited
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`until the very end of his opposition to mention such a claim. Plaintiff fails to explain his delay. If
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`such a delay were not reason enough to deny leave to amend, the Court also notes that Plaintiff
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`has no cognizable property interest in marijuana and thus has no standing to bring an Equal
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`Protection claim. See Schmidt, 2011 WL 2967786 at *5–6 (dismissing a plaintiff’s Equal
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`Protection claim “because plaintiff had no property interest in the contraband, he suffered no
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`injury as a result of any alleged destruction of the marijuana”); see also Barnum Timber Co. v.
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`U.S. EPA, 633 F.3d 894, 897–98 (9th Cir. 2011) (stating that without harm to a legally protected
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`interest there is no injury-in-fact); Qwest Corp. v. City of Surprise, 434 F.3d 1176, 1180 (9th Cir.
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`2006) (finding that a plaintiff cannot sue in federal court when there is no injury-in-fact). In other
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`words, granting Plaintiff leave to amend his Fourteenth Amendment claim — whether as a Due
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`Process claim or Equal Protection claim — would be futile.
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` Therefore, the Court DISMISSES Plaintiff’s Fourteenth Amendment claim without
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`leave to amend.
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`B.
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`Monell Liability
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`Plaintiff also asserts a Monell claim against the County. (ECF No. 22 at 8–9.) To bring a
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`Monell claim against a municipality, a plaintiff must establish “the local government had a
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`deliberate policy, custom, or practice that was the ‘moving force’ behind the constitutional
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`violation [he] suffered.” Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir. 2007).
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`Here, Plaintiff has failed to establish any underlying constitutional violations. “[A]
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`municipality . . . [cannot] be held liable under § 1983 where no injury or constitutional violation
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`has occurred.” Jackson v. City of Bremerton, 268 F.3d 646, 653 (9th Cir. 2001). Plaintiff’s
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`opposition fails to address this fundamental deficiency. Accordingly, Plaintiff’s Monell claim is
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`DISMISSED without leave to amend.
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`IV. CONCLUSION
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`Based on the foregoing, the Court hereby GRANTS Defendants’ Motion to Dismiss
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`Plaintiff’s First Amended Complaint (ECF No. 26.) without leave to amend. The Clerk of Court
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`is directed to close the case.
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`IT IS SO ORDERED.
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`Dated: February 9, 2021
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` Troy L. Nunley
` United States District Judge
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