Summary
In Saunders, the plaintiff attached to her complaint a transcribed statement by the defendant that the plaintiff alleged to be inaccurate.
Summary of this case from Perez v. Leprino Foods Co.Opinion
No. CV-F-04-5924 REC LJO.
January 25, 2006
On Monday, December 19, 2005, the Court heard Defendants' Motion to Dismiss Plaintiff's First Amended Complaint (the "Motion"). Upon due consideration of the written and oral arguments of the parties and the record herein, the Court GRANTS the Motion in part and DENIES it in part as set forth herein.
I. Factual Background
Sharon Saunders ("Plaintiff") was involved in an organization called the "Constitutional Colleagues," which is an "educational organization based on the lawful principles of the Federal Constitution of the United States of America." 1st Am. Comp. ("FAC") at 5:15-18. On January 5, 1999, Fresno County Sheriff's Department law enforcement officers entered a meeting room at the Fashion Fair Mall where a meeting of the Constitutional Colleagues (hereinafter "CC") was taking place. The officers executed a search warrant and Plaintiff was arrested. Plaintiff's vehicle and residence in Clovis were also searched pursuant to a warrant. Plaintiff alleges that personal property was seized from her person, vehicle, and home.
This passage appears in the FAC entirely in capital letters, as does the majority of the FAC and Plaintiff's Opposition. The Court has reproduced all such passages in conventional form for easier reading. Defendants ask the court to order Plaintiff to "use lower-case font where appropriate." Mot. at 2:27-28 n. 1. Defendants do not cite, nor is the Court is aware of, any authority that prohibits the use of all capital letters. That said, and in the interest of clarity, the Court would ask Plaintiffs in the future to forebear from using all capital letters in their pleadings. See Bryan A. Garner, Legal Writing in Plain English 126 (2001) ("The problem with using all capitals is that individual characters lose their distinctive features: the strokes that go above and below a line of text. . . . Capital letters, by contrast, are designed to be uniform in size. And when they come in battalions, the eye must strain a little — or a lot — to make out words and sentences. . . .")
Plaintiff was taken into custody on a charge of violating California Penal Code section 327 ("Section 327"). Section 327 makes an endless chain scheme unlawful. An "endless chain" is defined as:
[A]ny scheme for the disposal or distribution of property whereby a participant pays a valuable consideration for the chance to receive compensation for introducing one or more additional persons into participation in the scheme or for the chance to receive compensation when a person introduced by the participant introduces a new participant. Compensation, as used in this section, does not mean or include payment based upon sales made to persons who are not participants in the scheme and who are not purchasing in order to participate in the scheme.
Cal. Pen. Code § 327. Endless chains are more commonly known as pyramid schemes. In addition to Plaintiff Sharon Saunders, three other people — Blaine William, Peter Plitt and Jerry Thorstad — were charged with violating Section 327.
On July 7, 2003, a preliminary hearing on the criminal charge was held in Fresno County Superior Court. Judge Nunez dismissed the charges as to all defendants, finding that there was no probable cause to believe that a crime had been committed.
II. Procedural Background
On July 2, 2004, Plaintiff and her husband Merlin Saunders filed their initial complaint alleging various causes of action under 42 U.S.C. section 1983 ("Section 1983") and various state law tort theories. The initial complaint named as defendants the City of Fresno, the County of Fresno (including the Board of Supervisors), members of the District Attorney's Office ("DA Defendants"), and members of the Fresno County Sheriff's Department ("Sheriff Defendants"). On May 3, 2005, the Court issued its Order Granting Defendants' Motion to Dismiss (Doc. 51), which dismissed all claims against the City of Fresno and the DA Defendants and the state claims against the Sheriff Defendants.
These defendants were District Attorney Edward Hunt, Deputy District Attorney Bob Ellis, and Deputy District Attorney John Savrnoch.
These defendants were Detective Cynthia Knight, Sheriff Richard Pierce, Detective Mark Chapman, Sergeant Dadian, Detective Earl Richardson, Detective Janice Rasmussen, Detective Ken Bowden, Deputy Dale Bauman, Deputy Mark Severson, Deputy Patrick Hanson, and Deputy Juan Espinoza.
On September 13, 2005, Plaintiff, proceeding pro se, filed her First Amended Complaint ("FAC") alleging four causes of action under Section 1983. The claims in the FAC are based on the the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, respectively. All claims are against the Sheriff Defendants and the County of Fresno (collectively "Defendants"). On September 28, 2005, Defendants filed this Motion.
III. Discussion
A. Legal Standard
Dismissal of a complaint pursuant to Rule 12(b)(6) is proper if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). In testing the sufficiency of a complaint against a Rule 12(b)(6) challenge, a court must "accept all material allegations in the complaint as true and construe them in the light most favorable to the plaintiff." N. Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 580 (9th Cir. 1983). The Court need not, however, "accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).
A complaint may be dismissed as a matter of law if there is a lack of a cognizable legal theory or if there are insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). The Court must determine whether or not it appears to a certainty under existing law that no relief can be granted under any set of facts that might be proved in support of a plaintiff's claims.De La Crux v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978), cert. denied, 441 U.S. 965, 99 S. Ct. 2416, 60 L. Ed. 2d 1072 (1979). The Court may consider the complaint itself along with any material properly considered as part of the complaint. Hal Roach Studios, Inc. v. Richard Feiner Co., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1989). Where a court considers documents beyond the face of the complaint in the context of a motion to dismiss for failure to state a claim, it should resolve any ambiguities in the nonmoving party's favor. Int'l Audiotext Network, Inc. v. ATT, 62 F.3d 69, 72 (2d Cir. 1995). Where the complaint fails to state a claim on which relief can be granted, leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a); Allen v. Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990).
B. Qualified Immunity
Defendants move the Court to dismiss all claims on the basis that qualified immunity precludes liability. Plaintiff argues that dismissal based on qualified immunity is inappropriate at this stage because it is an affirmative defense. A court can dismiss a complaint under Rule 12(b)(6) when an affirmative defense appears on the face of the complaint. Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir. 2001). Therefore, qualified immunity "`will be upheld on a 12(b)(6) motion only when the immunity is established on the face of the complaint.'" Id. (quotingHafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996)). Plaintiffs are not required to anticipate defenses and to "plead around all potential defenses." Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004). A plaintiff may however "plea[d] itself out of court" and be subject to a Rule 12(b)(6) motion if it admits all of the elements of an impenetrable defense. Id.
An official who violates a plaintiff's constitutional right is entitled to qualified immunity if the right was not "clearly established." Kennedy v. Ridgefield City, 411 F.3d 1134, 1141 (9th Cir. 2005) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001)). A right is clearly established where the "contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. (quoting Saucier, 533 U.S. at 201). To decide whether a right is clearly established, a court should focus on whether a reasonable official would recognize that his or her conduct violates that right under the circumstances and in light of the law that existed at that time.Id. at 1144. Even if a court decides that the right the official violated is clearly established, qualified immunity is available if the official made a reasonable mistake in applying the relevant legal doctrine. Id. at 1141-42.
Defendants argue that all of Plaintiff's claims should be dismissed because it was not "clearly settled" that the business scheme Plaintiff operated did not violate Section 327. Mot. at 5:4-5. The allegations of Plaintiff's FAC do not describe the business scheme in which Plaintiff engaged. Defendants support their qualified immunity argument with reference to the exhibits Plaintiff attached to the FAC, including Ms. Knight's Statement of Probable Cause (the "Knight Statement" or the "Statement") (FAC Ex. 1) and a transcript of criminal proceedings in the Fresno County Superior Court (FAC Ex. 7).
Defendants contend that "Knight's statement also establishes that [CC]'s scheme included a separate inducement for members of the public to join and to part with $125: the chance to receive compensation under the pyramid structure, when additional persons within the participant's `downline' also pay $125 to join." Mot. at 5:16-19. Defendants point to several portions of the Statement where Ms. Knight cites evidence that CC violated Section 327. Mot. at 5:21-28 n. 4. Defendant also cites Judge Nunez's statement that "[t]he evidence certainly has some hallmarks of a pyramid scheme." Mot. at 6:1-2 (quoting FAC Ex. 7). Defendants correctly contend that the Court can consider exhibits to the FAC in the context of a motion to dismiss for failure to state a claim. Hal Roach Studios, 896 F.2d at 1555 n. 19. On a motion to dismiss, the Court construes these documents in a light most favorable to Plaintiff. See Int'l Audiotext, 62 F.3d at 72.
Where a plaintiff attaches documents and relies on their contents to form the basis of a claim, dismissal is appropriate if the document negates the claim. Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 754 (7th Cir. 2002). InThompson, the employee plaintiff claimed that he was transferred and later removed from his position in retaliation for exercising First Amendment rights. Id. at 753. The employee attached to the complaint a document describing the duties of his position in order to support his claim that he was demoted when he was transferred. Id. at 754. The court considered the job description to dismiss the claim, holding that the employment actions were justified because, based solely on the court's reading of the attached description, employee's position was a "policymaking" position. Id. at 757-58. By attaching the job description to show a proposition necessary to his claim — that he was demoted — the employee thereby asserted that it was "true and correct" for the purpose of establishing the employer's decisive affirmative defense. Id. at 758.
The passages in the exhibits to the FAC that Defendants cite to support their qualified immunity claim are distinguishable from the exhibit in Thompson. Here, Plaintiff has not relied on the passages she attached to the FAC as a necessary part of her claims. Plaintiff is not required to plead facts that show that a qualified immunity defense fails. See Xechem, 372 F.3d at 901. Plaintiff does not rely on the Knight Statement in order to establish the nature of CC's business scheme. If Plaintiff had attached the Statement for the purpose of pleading details of the scheme, under Thompson the Statement would control over contrary allegations and could provide a basis for dismissal on the grounds of qualified immunity. In fact, Plaintiff disputes the evidence Ms. Knight relies on and the conclusions she makes. Because Plaintiff has not alleged the details of CC's conduct, or otherwise based her claims on the Statement, she is not bound to the Statement's details. Plaintiff can conceivably prove a set of facts that show that Ms. Knight's characterization of CC's conduct is incorrect and that qualified immunity does not apply.
Nor does Plaintiff rely on Judge Nunez's statement that the case against Plaintiff had "some hallmarks of a pyramid scheme." None of Plaintiff's claims require her to allege the manner in which the judge in the criminal matter characterized the case against her. Consequently, her attachment of a document containing that language does not amount to an assertion that the judge's characterization is true. Furthermore, the focus in a qualified immunity inquiry is based on how a reasonable official would construe Plaintiff's conduct. Judge Nunez's opinion regarding CC's scheme does not establish that no set of facts could establish that a reasonable official would come to a different conclusion.
The Court declines at this stage to infer from the documents Plaintiff attached to the FAC the nature of the CC business scheme. This is because the facts Defendants point to in those documents are not analogous to allegations in Plaintiff's FAC. Instead, they are statements of third parties, the contents of which Plaintiff disputes. Because the details of Plaintiff and CC's allegedly illegal conduct are not apparent from the FAC, the Court cannot determine whether Defendants' actions in response to that conduct were contrary to established law. Accordingly, none of Plaintiff's claims are subject to dismissal on the basis of qualified immunity. C. First Amendment
Because qualified immunity is not a ground to dismiss the FAC, the Court need not at this stage decide whether the doctrine of res judicata precludes Defendants from arguing that qualified immunity bars Plaintiff's claims.
Count One of Plaintiff's FAC claims that Defendants' actions "violated, denied and deprived Plaintiff Sharon Saunders her Federal Constitutional rights under the First Amendment of the Federal Constitution to freedom of assembly, freedom of association and freedom to contract. . . ." FAC at 30:19-25.
1. Freedom of Association
Defendants claim that Plaintiff fails to state a claim based on the right of expressive association under the three-part test set forth in Boy Scouts of America v. Dale, 530 U.S. 640 648-56, 120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000). In Dale, the Court's first step was to consider whether the group making the claim engaged in expressive association. Id. at 648. Second, the Court decided whether the alleged governmental action significantly affected the group's ability to advocate public or private viewpoints. Id. at 653. Finally, the Court balanced the governmental interest in the action against the burden on the associational expression to determine whether the burden was justified in light of the governmental interest. Id. at 656. To state a claim for violation of its expressive association rights, Plaintiff must satisfy all three prongs. See Dale, 530 U.S. at 656.
Defendants argue that Plaintiff cannot satisfy the second prong because she and CC were free to sell the tapes, so long as they did not use a pyramid-style compensation system. CC and Plaintiff, Defendants allege, were still free to "continue to associate, discuss the constitution and sell tapes." Mot. at 9:5-6. In support, Defendants cite the Knight Statement, which indicates that Defendants acted only "to preclude pyramid compensation, not the selling of tapes." Mot. at 9:3-5. The Court does not find allegations in the FAC that establish Plaintiffs engaged in pyramid-style compensation. Nor does the FAC establish that Defendants' adverse treatment of CC or Plaintiff would have ceased if Plaintiff had changed its compensation scheme. For the reasons discussed above, the Court will not accept as true Ms. Knight's statements attached to the FAC in deciding a motion to dismiss. See Thompson, 300 F.3d at 754.
Plaintiff alleges that Defendants "caused the permanent loss, and destruction of the lawful organization known as Constitutional Colleagues which Plaintiff was an active member of, which loss and destruction directly caused denial, deprivation, violation of said Plaintiffs 1st Amendment Federal Constitutional rights to freedom of assembly, freedom of association, and freedom to contract, . . . ." FAC at 26:12-21. Plaintiff claims Defendants were motivated not to prevent pyramid compensation, but rather to "cause the removal or termination of Fresno County Sheriffs Deputy Peter Plit," a co-defendant with Plaintiff in the criminal case in Fresno Superior Court. FAC at 27:10-17.
Plaintiff's claim seems to be that Defendants' wrongful actions not only harmed CC but caused it to cease to exist completely. Because CC was destroyed by Defendants' actions, Plaintiff and the group lost all ability to meet and advocate their viewpoints. Plaintiff alleges that, at a meeting on January 5, 1999, Defendants used "force of arms, verbal and physical threats and coercive intimidation" to arrest her and other members of CC and seize personal property. FAC at 5:8-6:7. Thus, on at least that occasion, Plaintiff was prevented from meeting with CC. Furthermore, Plaintiff claims that during the four-and-a-half years before the Fresno Superior Court dismissed the charges, she was "under custody of the court and was subject to constant and ongoing threat of being seized and arrested, and subject to ongoing searches at will of said Defendants, and discretion of the court. . . ." FAC at 22:4-10.
The Court interprets the FAC to allege that until the criminal court dismissed charges against Plaintiff, she was forbidden to meet with the CC and engage in the group's expressive activities. Viewing these allegations in the light most favorable to Plaintiff, Defendants' actions deprived her of her ability to express herself through the meetings with CC. See Healy v. James, 408 U.S. 169, 184, 92 S. Ct. 2338, 33 L. Ed. 2d 266 (1972) (placing burden on university to justify denying student club the right to meet on campus).
Defendants also argue that Plaintiff cannot satisfy the third prong because Defendants have an interest in the prevention of financial crimes and in enforcing the laws of the state. This argument presents no reason to dismiss Plaintiff's claim, at this stage, because the FAC does not establish that Plaintiff or CC have violated state law. Viewing the FAC and its attachments in the light most favorable to Plaintiff, Plaintiff has stated a claim for a violation of her rights of expressive association.
2. Freedom of Assembly
Defendants argue that Plaintiff does not state a claim for violation of her rights to freedom of assembly because Defendants acted only to prevent improper pyramid compensation. Defendants argue that Plaintiff and CC were free to meet for any purpose, provided they did not commit a crime. Defendants point out that the First Amendment only protects lawful, not illegal, assembly, citing in support De Jonge v. Oregon, 299 U.S. 353, 365, 57 S. Ct. 255, 81 L. Ed. 278 (1937).
Plaintiff's allegations do not merit dismissal on the basis Defendants proffer. Plaintiff does not merely allege that Defendants wrongfully prevented her and CC from engaging in pyramid compensation. To the contrary, Plaintiff alleges that Defendants were motivated by a desire to retaliate against Mr. Plit, not to enforce Section 327. FAC at 27:10-17. She alleges that Defendants therefore unconstitutionally targeted CC, a "lawful and legitimate" organization that was "lawfully selling a product." FAC at 19:22-28. Defendants allegedly destroyed CC through arrests, seizure of property, and the ongoing threat of arrest and seizure. FAC at 5:8-6:7, 22:4-10. At this stage, the Court will not accept as true statements in documents attached to the FAC on which Plaintiff does not rely to state a claim.Thompson, 300 F.3d at 754. The Knight Statement cannot establish that Defendants' actions were justified by law or that their actions toward CC would have ceased if the alleged pyramid compensation was absent. Viewing these allegations in the light most favorable to the Plaintiff, she has stated a claim for violation of her rights to freedom of assembly.
3. Freedom to Contract
Plaintiff claims that Defendants' activities violated her "rights under the First Amendment of the Federal Constitution to . . . freedom to contract. . . ." FAC at 30:21-25. The Court is unaware of any "freedom to contract" under the First Amendment. The Supreme Court formerly recognized an absolute right to freedom of contract under the Due Process Clause of the Fourteenth Amendment. See Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905); but see W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 391 (1937) ("The Constitution does not speak of freedom of contract."). The Contracts Clause of the United States Constitution provides that "no state shall enter into any . . . Law impairing the Obligation of Contracts." U.S. Const. Art. I, § 10. The threshold inquiry is "whether the state law has, in fact, operated as a substantial impairment of a contractual relationship." Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244, 98 S. Ct. 2716, 57 L. Ed. 2d 727 (1978). Plaintiff does not allege that any state law has affected a contractual obligation.
In her Opposition, Plaintiff characterized her "freedom to contract" argument as an argument that Defendants' actions amounted to an illegal restriction on commercial speech. Plaintiff contends that the inducement CC used to attract customers "is both a `commercial solicitation' and `contract'" protected by the First Amendment. Opp'n at 32:13-21. Plaintiff's erroneous characterization of her claim as one for violation of "freedom to contract" does not require dismissal of a claim for violation of her commercial speech rights. Haddock, 777 F.2d at 464 (holding that "a complaint should not be dismissed if it states a claim under any legal theory, even if the plaintiff erroneously relies on a different legal theory").
Restrictions on commercial speech are subject to intermediate scrutiny. Cent. Hudson Gas Elec. Corp. v. Pub. Serv. Comm. of N.Y., 447 U.S. 557, 566, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980). In Central Hudson, the Supreme Court developed a four-part analysis for commercial speech:
At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.Id.
It does not appear from the face of the FAC that Plaintiff's speech was unlawful. Nor is there any indication that Plaintiff's marketing scheme was misleading. Viewing the allegations of the FAC in a light most favorable to Plaintiff, the marketing activities connected to CC were protected by the First Amendment.
Plaintiff argues that Defendants prevented her from meeting with CC and from engaging in certain marketing activities. Defendants allegedly imposed a restriction on her speech by arresting her when she engaged in the protected speech at the CC meeting, by confiscating CC materials, and by threatening to arrest her or seize property if she were to engage in similar activities in the future. The government potentially has an interest in prohibiting certain harmful speech that, for example, comprises an illegal pyramid scheme, or that otherwise victimizes consumers. The face of the FAC does not reveal that Plaintiff's speech was in any way harmful. Thus, the Court cannot determine on this motion to dismiss that Defendants' actions against CC or Plaintiff served any important interest. Plaintiff has stated a claim for violation of her commercial speech rights.
Accordingly, Defendants' motion to dismiss is DENIED with respect to Plaintiff's Count One.
D. The County
In its Order Granting Defendants' Motion to Dismiss (Doc. 51), the Court held that municipalities may not be held liable for the unconstitutional acts of their employees absent a "direct causal link between a municipal policy or custom and the alleged constitutional deprivation." Monell v. Dep't of Soc. Serv. of N.Y., 436 U.S. 658, 691, 98 S. Ct. 2081, 56 L. Ed. 611 (1978). Plaintiff included "County of Fresno California" as a defendant in her FAC. FAC at 1:17. Defendants argue that the FAC fails to allege that the County of Fresno has engaged in conduct that satisfies Monell. In her Opposition, Plaintiff states, "As to the naming of the COUNTY OF FRESNO in the 1st Amended Complaint, this act was inadvertent on Plaintiff['s] part, and Plaintiff will request that the Court disregard and Strike out the Count[y's] Name from the Complaint." Opp'n at 5:26-6:4 Accordingly, all claims against the County of Fresno are DISMISSED WITH PREJUDICE.
The Court need not decide whether to dismiss the claims for punitive damages against County of Fresno, as all claims against it have been dismissed.
E. Delay of the Preliminary Hearing
Plaintiff claims that Defendants unreasonably delayed a preliminary hearing on the charge that she violated Section 327. The FAC does not contain any allegations specifying actions that the Defendants took to delay the preliminary hearing. Plaintiff merely states: "Defendants had a clear and known duty under the Federal Constitution under the 4th, 5th, 9th, and 14th Amendments thereto, to refrain from delaying the required preliminary hearing. . . . Said Defendants caused the delay in question, and are therefore liable. . . ." FAC at 22:25-23:8. At oral argument, in response to the Court's questioning, Plaintiff merely reiterated her claim that the delay was unreasonably long. She did not identify any action by the Defendants remaining in this action that caused the delay of Plaintiff's hearing.
The government has the duty to ensure a prompt inquiry into criminal charges. Barker v. Wingo, 407 U.S. 514, 527, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). The prosecutor, the court and its staff, and even defense counsel may bear the responsibility to expedite proceedings in criminal cases. Hodges v. United States, 408 F.2d 543, 552 (8th Cir. 1969); Rheuark v. Shaw, 547 F.2d 1257, 1258-59 (5th Cir. 1977) (reversing dismissal of a complaint seeking monetary and injunctive relief against stenographer and court reporter alleged to have failed to comply with plaintiff's request for a trial court transcript). Following the dismissal of the County of Fresno, all remaining Defendants appear to be members of the Fresno County Sheriff's Department. The Court is unaware of, and the Plaintiff fails to cite, any authority that creates an affirmative duty on the part of law enforcement officials to cause a preliminary hearing to occur expeditiously. Plaintiff does not allege any facts that indicate Defendants acted in a manner inconsistent with a speedy initial hearing.Cf. Doggett v. United States, 505 U.S. 647, 652-53, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992) (government investigators violated Sixth Amendment where for six years they "made no serious effort to test their progressively more questionable assumption that [defendant] was living abroad, and, had they done so, they could have found him within minutes").
Plaintiff has failed to plead facts that establish that Defendants caused a delay in Plaintiff's hearing. Accordingly, the FAC is DISMISSED to the extent it incorporates Plaintiff's claim for relief for "Unreasonable Delay from Arrest to Preliminary Hearing in Violation of the 4th Amendment of the Federal Constitution" (FAC at 21:17-23:8). Leave to file a second amended complaint is GRANTED.
It is unclear under which cause of action Plaintiff makes this claim. The best candidate is Count Two, which seeks recovery under the Fourth Amendment, because Plaintiff characterizes the delay as a violation of her Fourth Amendment rights. The text of Count Two, however, does not itself appear to state a claim for the delay of Plaintiff's hearing.
ACCORDINGLY:
1. All claims against Defendant County of Fresno are DISMISSED WITH PREJUDICE.
2. Plaintiff's claim for relief for "Unreasonable Delay from Arrest to Preliminary Hearing in Violation of the 4th Amendment of the Federal Constitution" is DISMISSED against all Defendants.
3. Defendants' motion to dismiss is DENIED with respect to all other claims.
4. Plaintiff shall file a second amended complaint within 30 days of the issuance of this order. Failure to comply will result in dismissal of the action.
IT IS SO ORDERED.