Myers v. Brooks

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT

7 WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

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THURSTON MYERS,

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Plaintiff,

10 Case No. 2:18-cv-01043-RAJ

v.

11 ORDER GRANTING

DEFENDANTS’ MOTION FOR

SERGEANT THOMAS J. BROOKS,

12 SUMMARY JUDGMENT

SERGEANT JEFFREY MASON, JOHN &

13 JANE DOES 1 – 34; and the CITY OF

LYNNWOOD, a municipal corporation,

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Defendants.

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I. INTRODUCTION

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This matter is before the Court on Defendants’ motion for summary judgment

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(“Motion”). Dkt. # 26. For the reasons below, the Court GRANTS the Motion.

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II. BACKGROUND

20 Plaintiff Thurston Myers is a Lynnwood, Washington resident who brings claims

21 against the City of Lynnwood and two members of the Lynnwood Police Department,

22 Sergeant Thomas J. Brooks and Detective Jeffrey Mason. Dkt. # 32-1 at 4. At the time of

23 the events underlying the Complaint, Plaintiff claims to have had medical authorization to

24 grow and possess marijuana at his property under former Washington statute RCW

25 69.51A.085(d). Subject to certain conditions, qualifying patients under the statute could

26 create and participate in “collective gardens” to produce, process, transport, and deliver

27 marijuana for medical use. A collective garden could contain no more than ten patients at

any time; could contain not more than fifteen plants per patient up to a total of forty-five

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plants; and could not contain more than twenty-four ounces of useable marijuana per

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patient up to a total of seventy-two ounces of useable marijuana. RCW 69.51A.085(d) (eff.

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through July 1, 2016).

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On July 29, 2014, a Snohomish County judge found probable cause that the crime

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of unlawful manufacturing of a controlled substance was occurring at Plaintiff’s residence

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and issued a warrant. Dkt. # 29-1. The next day, detectives with the South Snohomish

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County Narcotics Task Force (the “Task Force”) served the warrant on Plaintiff and

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confiscated marijuana and other property in accordance with the warrant. Dkt. # 29-2. The

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Task Force located a growing operation in what appeared to be shipping containers,

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although Plaintiff refers to them as “container buildings.” See Dkt. # 33. Plaintiff told the

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Task Force that he was authorized to grow and keep a “collective garden” on his property.

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Dkt. # 29-2 at 3. Defendant Mason informed Plaintiff that there were only three people

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with valid medical authorization at the residence, that each card hold could possess fifteen

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marijuana plants, and that the remainder would be seized. Id. The Task Force seized

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approximately 395 marijuana plants from the shipping containers. Id. The Snohomish

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County Prosecuting Attorney’s Office subsequently charged Plaintiff with the crime of

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manufacturing a controlled substance. Dkt. # 31-1.

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Approximately one year later, Lynnwood Detective Paul Bryan applied for a search

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warrant for Plaintiff’s residence. The affidavit that he filed in support detailed facts of an

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on-going investigation into the marijuana grow on Plaintiff’s property. Of note, Bryan

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detailed Plaintiff’s past history of unlawful marijuana growing, electrical records for

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Plaintiff’s property showing excessive power consumption consistent with an unlawful

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marijuana growing operation, knowledge of fans and humming noises coming from

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Plaintiff’s shipping containers, and complaints from neighbors about the smell of

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marijuana coming from Plaintiff’s property. Dkt. # 28-1 at 6-8. On July 21, 2015, a

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Snohomish County judge found probable cause that the crime of unlawful manufacturing

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of a controlled substance was occurring at Plaintiff’s residence and authorized a search of

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Plaintiff’s “two-story split entry wood sided residence” and “shipping containers” located

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on the east side of the residence. Dkt. # 29-1. The warrant authorized the seizure of “[a]ll

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growing marijuana plants or those in excess of the medical cannabis provisions if a valid

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medical authorization exists”; it also authorized the seizure of “marijuana growing

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equipment,” “drug paraphernalia” and “any other items used to grow marijuana,” unless

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valid medical authorization existed. Dkt. # 29-1.

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On July 22, 2015, Defendants executed the warrant and provided a copy to Plaintiff.

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Dkt. # 28-2. As before, Plaintiff stated that he was entitled to grow a “collective garden”

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on his property, but this time claimed to have a provider license which permitted him to

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grow for multiple people at a time. Id. at 5. Defendants seized over 200 marijuana plants,

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shake marijuana totaling 275.2 pounds, growing equipment, lights, marijuana license

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documentation, and the two shipping containers. Id. Defendants left 45 marijuana plants

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which they believed Plaintiff was authorized to keep per state law. Id. Defendant Brooks

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took custody of Plaintiff and transported him to jail. Once at the jail, Plaintiff received a

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Notice of Seizure and Intended Forfeiture, which advised him of his right to a hearing

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regarding the seized property. Dkt. # 28-2; Dkt. # 31-2 at 41.

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Plaintiff claims that the seizure of the containers, or his “container buildings,” as

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well as his arrest violate the Fourth and Fourteenth Amendments. Dkt. # 1. Plaintiff also

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brings a claim against the City of Lynnwood (the “City”), alleging that municipal policy

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makers exhibited deliberate indifference to his constitutional rights and failed to provide

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adequate training on “collective garden” marijuana laws. Id.

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23 III. LEGAL STANDARD

24 Summary judgment is appropriate if there is no genuine dispute as to any material

25 fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

26 The moving party bears the initial burden of demonstrating the absence of a genuine issue

27 of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving

1 party will have the burden of proof at trial, it must affirmatively demonstrate that no

2 reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty

3 Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where the nonmoving party

4 will bear the burden of proof at trial, the moving party can prevail merely by pointing out

5 to the district court that there is an absence of evidence to support the non-moving party’s

6 case. Celotex Corp., 477 U.S. at 325. If the moving party meets the initial burden, the

7 opposing party must set forth specific facts showing that there is a genuine issue of fact for

8 trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

9 (1986). The court must view the evidence in the light most favorable to the nonmoving

10 party and draw all reasonable inferences in that party’s favor. Reeves v. Sanderson

11 Plumbing Prods., 530 U.S. 133, 150-51 (2000).

12 However, the court need not, and will not, “scour the record in search of a genuine

13 issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996); see also, White

14 v. McDonnel-Douglas Corp., 904 F.2d 456, 458 (8th Cir. 1990) (the court need not

15 “speculate on which portion of the record the nonmoving party relies, nor is it obliged to

16 wade through and search the entire record for some specific facts that might support the

17 nonmoving party’s claim”). The opposing party must present significant and probative

18 evidence to support its claim or defense. Intel Corp. v. Hartford Accident & Indem. Co.,

19 952 F.2d 1551, 1558 (9th Cir. 1991). Uncorroborated allegations and “self-serving

20 testimony” will not create a genuine issue of material fact. Villiarimo v. Aloha Island Air,

21 Inc., 281 F.3d 1054, 1061 (9th Cir. 2002); T.W. Elec. Serv. v. Pac Elec. Contractors Ass’n,

22 809 F. 2d 626, 630 (9th Cir. 1987).

23 IV. DISCUSSION

24 Plaintiff claims that Defendants breached the Fourth and Fourteenth Amendments

25 by unlawfully seizing the containers, or “container buildings” in his backyard as well as all

26 the contents connected to and contained within them. Dkt. # 1 at 9. In support of his claim,

27 Plaintiff argues that the “container buildings” are real property under Washington law and

1 that the search warrant relied upon did not authorize Defendants to seize real property.

2 Dkt. # 33 at 7-8.

3 I. Seizure of Plaintiff’s Property

4 A. Fourth Amendment Analysis

5 The Fourth Amendment, made applicable to the states by the Fourteenth

6 Amendment, prevents “general, exploratory searches and indiscriminate rummaging

7 through a person’s belongings.” United States v. Mann, 389 F.3d 869, 877 (9th Cir. 2004).

8 Accordingly, the Fourth Amendment requires law enforcement officers to obtain a warrant

9 that describes with particularity the place to be searched and the person or things to be

10 seized. United States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986). “While a search

11 warrant must describe items to be seized with particularity sufficient to prevent a general,

12 exploratory rummaging in a person’s belongings, it need only be reasonably specific, rather

13 than elaborately detailed.” United States v. Rude, 88 F.3d 1538, 1551 (9th Cir. 1996)

14 (internal quotation marks and citations omitted). When law enforcement officers act

15 unreasonably when executing a search warrant, they violate the Fourth Amendment. San

16 Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 974–75

17 (9th Cir. 2005) (explaining that an officer generally does not have the power to seize

18 anything not specified in the warrant, but retains discretion over the execution of the

19 search).

20 The warrant here found probable cause of unlawful manufacturing of a controlled

21 substance and authorized a search of Plaintiff’s residence. Dkt. # 31-8 (describing the

22 premises as a tan-colored “two-story split entry wood sided residence” and “shipping

23 containers” located on the east side of the residence). The warrant also authorized seizure

24 of “[a]ll growing marijuana plants or those in excess of the medical cannabis provisions if

25 a valid medical authorization exists”; it also authorized the seizure of “marijuana growing

26 equipment,” “drug paraphernalia” and “any other items used to grow marijuana,” unless

27 valid medical authorization existed. Dkt. # 29-1. The affidavit offered in support of the

1 warrant detailed Plaintiff’s past history of unlawful marijuana growing, electrical records

2 for Plaintiff’s property showing excessive power consumption consistent with an unlawful

3 marijuana growing operation, knowledge of fans and humming noises coming from

4 Plaintiff’s shipping containers, and complaints regarding the smell of marijuana coming

5 from Plaintiff’s property. Dkt. # 28-1 at 6-8. The Court finds that the search warrant

6 describes with sufficient particularity the premises to be searched and the items to be

7 seized. U.S. v. Mann, 389 F.3d 869, 878 (9th Cir. 2004).

8 In finding the search warrant valid, the Court turns to Plaintiff’s contention that

9 Defendants exceeded the scope of the warrant by seizing his “container buildings.” “A

10 warranted search is unreasonable if it exceeds in scope or intensity the terms of the

11 warrant.” United States v. Becker, 929 F.2d 442, 446 (9th Cir. 1991) (quoting United States

12 v. Penn, 647 F.2d 876, 882 n.7 (9th Cir. 1980) (en banc)). Plaintiff claims that he was

13 legally operating a collective garden, pursuant to RCW 69.51A.210 when Defendants

14 executed the warrant at his residence in July 2015. Dkt. # 33 at 9. This could not be the

15 case, however, as RCW 69.51A.210 did not become effective until July 1, 2016. The

16 Washington law in effect at the time, RCW 69.51A.085, states that “[a] collective garden

17 may contain no more than fifteen plants per patient up to a total of forty-five plants.”1 It

18 is undisputed that Defendants seized 275.2 pounds of “shake” marijuana and over 200

19 marijuana plants—well beyond what would have been permitted for a legal “collective

20 garden” under Washington law. Defendants did not act unreasonably in executing the

21 warrant by seizing the “containers buildings,” which, as a matter of Washington law, may

22 constitute drug paraphernalia. See Smith v. Mount, 726 P.2d 474, 478 (Wash. App. 1986)

23 (explaining that a 10 by 48 foot building structure with no windows, but equipped with

24 built-in fans, humidifiers and artificial growing lights was “drug paraphernalia” despite

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26 1 To the extent, Plaintiff attempts to create disputed issues via its expert witness, those

arguments will not be considered. The Court GRANTS Defendants’ motion to strike for

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the reasons stated therein. See Dkt. # 36.

1 being appurtenant to real property). This is true even viewing the facts in a light most

2 reasonable to Plaintiff. Reeves, 530 U.S. at 150-51. Accordingly, the Court GRANTS

3 Defendants’ Motion as to this cause of action.

4 B. Fourteenth Amendment Analysis

5 To the extent Plaintiff also alleges a due process claim, that too fails as a matter of

6 law. In Hudson v. Palmer, 468 U.S. 517 (1984), the United States Supreme Court held that

7 deprivations of property by a state employee do not constitute violations of the procedural

8 requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful

9 post-deprivation remedy for the loss is available. Hudson, 468 U.S. at 533. The important

10 inquiry is not whether Plaintiff took advantage of the post-deprivation remedy, but whether

11 the state offered such a remedy. Parratt v. Taylor, 451 U.S. 527 (1981). Here, even if

12 Defendants wrongly seized Plaintiff’s “shipping containers,” no liability would ensue if

13 the state offered a meaningful post-deprivation remedy. It is undisputed that the City

14 served Plaintiff with a Notice of Seizure and Intended Forfeiture, which advised him of his

15 right to a hearing regarding the seized property. Dkt. # 32-1. The Notice explained that

16 Plaintiff was required to notify the City of Lynnwood Police Department by certified mail

17 within 45 days of his claim to ownership or right to possession of the items taken, including

18 his containers. Id. Because a meaningful postdeprivation remedy was provided, the Court

19 GRANTS Defendants’ Motion as to this cause of action.

20 II. Seizure of Plaintiff (False Arrest)

21 To succeed on a Section 1983 claim based on false arrest, a plaintiff must show that

22 the defendant lacked probable cause for the arrest. Cabrera v. City of Huntington Park,

23 159 F.3d 374, 380 (9th Cir. 1998). “‘[P]robable cause’ to justify an arrest means facts and

24 circumstances within the officer’s knowledge that are sufficient to warrant a prudent

25 person, or one of reasonable caution, in believing . . . that the suspect has committed, is

26 committing, or is about to commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37

27 (1979). This standard is met when there is a “fair probability” that a crime has been

1 committed. United States v. Smith, 790 F.2d 789, 792 (9th Cir. 1986). “ “Probable cause

2 is an objective standard and the officer’s subjective intention in exercising his discretion to

3 arrest is immaterial in judging whether his actions were reasonable for Fourth Amendment

4 purposes.” John v. City of El Monte, 515 F.3d 936, 940 (9th Cir. 2008).

5 Plaintiff argues that the facts demonstrate a lack of probable cause because he was

6 legally operating a collective garden and he claims to have provided Defendants with

7 identification for each member of the collective gardens. Dkt. # 33. The Washington State

8 Supreme Court has opined that the relevant state law only provides an affirmative defense

9 for the medical use of cannabis. State v. Reis, 351 P.3d 127 (Wash. 2015). An affirmative

10 defense does not defeat probable cause. Id.; State v. Fry, 228 P.3d 1 (2010). As noted

11 above, Defendants possessed sufficient facts to believe that Plaintiff was unlawfully

12 manufacturing a controlled substance. Therefore, the Court GRANTS Defendants’

13 Motion as to the false arrest claim.

14 III. Qualified Immunity

15 Even if a constitutional violation occurred, the officers claim that they are entitled

16 to qualified immunity. Dkt. # 25 at 1. Government officials enjoy qualified immunity

17 from civil damages unless their conduct violates “clearly established statutory or

18 constitutional rights of which a reasonable person would have known.” Harlow v.

19 Fitzgerald, 457 U.S. 800, 818 (1982). In deciding whether qualified immunity applies, the

20 Court must determine: (1) whether the facts alleged show the defendant’s conduct violated

21 a constitutional right; and (2) whether that right was clearly established at the time of the

22 violation. Pearson v. Callahan, 555 U.S. 223, 230-32, 235-36 (2009) (courts may address

23 either prong first depending on the circumstances in the particular case).

24 The Court agrees with the Defendants that several reasons support finding qualified

25 immunity applies here. First, with respect to the alleged Fourth Amendment violation for

26 seizing Plaintiff’s “container buildings,” the officers acted pursuant to a valid warrant. See,

27 e.g., Barlow v. Ground, 943 F.2d 1132, 1139 (9th Cir. 1991) (“A police officer generally

1 has qualified immunity for conducting an unconstitutional search if he is acting on the basis

2 of a facially valid warrant.”). The warrant itself authorized the seizure of “[a]ll growing

3 marijuana plants or those in excess of the medical cannabis provisions if a valid medical

4 authorization exists” as well as “marijuana growing equipment,” “drug paraphernalia” and

5 “any other items used to grow marijuana,” unless valid medical authorization existed. Dkt.

6 # 29-1. It was clear that “container buildings” served no other purpose other than to grow

7 marijuana. See Dkt. # 27-2. Moreover, none of the facts show that Plaintiff had a clearly

8 established federal constitutional right violated by seizure of the “container buildings.”

9 And to the extent Plaintiff claims that Defendants violated state law in seizing his

10 marijuana, he has no recourse by way of the U.S. Constitution or a federally-created statute.

11 See Sweaney v. Ada County, Idaho, 119 F.3d 1385 (9th Cir. 1997).

12 As for Plaintiff’s claim of false arrest, the facts demonstrate probable cause to arrest

13 Plaintiff. Having seized 275.2 pounds of “shake” marijuana and over 200 marijuana plants,

14 well beyond the “collective garden” limit, Defendants possessed sufficient facts to believe

15 that Plaintiff was unlawfully manufacturing a controlled substance. As such, there is no

16 dispute as to whether Defendants’ conduct violated his Fourth Amendment right. It did

17 not. Accordingly, the Court GRANTS summary judgment on Defendant Officers’ claim

18 for qualified immunity.

19 IV. Monell claim

20 A municipality can be liable under section 1983 if an official policy, custom, or

21 practice directly caused the violation of an individual’s constitutional rights. Monell v.

22 Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). To succeed on a Monell

23 claim, a plaintiff must establish that (1) the law enforcement officers acted under color of

24 law; (2) the officers’ actions deprived the plaintiff if his/her rights as afforded by the

25 Constitution; and (3) the officers acted pursuant to an official policy or longstanding

26 practice or custom. Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992). Because no

27 constitutional violation occurred, Plaintiff’s Monell claim fails as a matter of law. Monell,

1 436 U.S. at 692.

2 But even assuming a constitutional violation, Plaintiff’s claim would still fail.

3 Specifically, he points to no government policy in support of a Monell claim. Absent a

4 formal governmental policy, a plaintiff must show a “longstanding practice or custom

5 which constitutes the standard operating procedure of the local government entity.”

6 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). He fails to do this as well. Instead,

7 Plaintiff argues that the Lynnwood City Council had been debating a ban on the use of

8 shipping containers as accessory building on residential lots and that Plaintiff’s property

9 was specifically discussed. Dkt. # 33 at 21-22. This fails to constitute a longstanding

10 practice and otherwise ignores the valid search warrant used to search and seize Plaintiff’s

11 property.

12 Plaintiff argues separately that the City is liable based on an alleged failure to

13 adequately train its officers on the differences between illegal narcotics trafficking and a

14 lawful marijuana “collective garden.” Id. at 24. To establish Monell liability on a theory

15 of failure to train, a plaintiff must not only show that the training was inadequate, but that

16 the city was deliberately indifferent to individuals’ constitutional rights. See City of Canton

17 v. Harris, 489 U.S. 378, 388 (1989). The fact that further training might have prevented

18 any violation is insufficient—instead, the choice not to train must be deliberate. See id. at

19 392. Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007) (alteration omitted)

20 (quoting Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001)). It may be

21 evidenced where “the need for more or different training is so obvious, and the inadequacy

22 [is] so likely to result in the violation of constitutional rights.” City of Canton, 489 U.S. at

23 390. There is nothing in the record to support this theory of liability, such as a pattern of

24 similar alleged constitutional violations or any evidence of the training received by the

25 City’s police officers.

26 Lastly, Plaintiff claims municipal liability is appropriate because the City’s Planning

27 Commission Director ratified a policy outlawing “container buildings” despite the fact that

1 the containers complied with State and local laws. Dkt. # 33. Liability under Monell may

2 follow where a policymaker approves a subordinate’s unconstitutional decision and the

3 basis for it. See Gillette v. Delmore, 979 F.2d 1342 (9th Cir. 1992). This theory of liability

4 as applied here has no merit. Plaintiff has not shown that the City’s Planning Commission

5 Director has any authority over the actions of the city’s police matters. See, e.g., Larez v.

6 City of Los Angeles, 946 F.2d 630 (9th Cir. 1991) (noting evidence that chief of police was

7 final decisionmaker for city’s police matters). In any case, Plaintiff’s “container buildings”

8 were seized pursuant to a warrant related to unlawful manufacturing of a controlled

9 substance, not because they were banned under a City ordinance. And as stated above,

10 Defendants did not act unconstitutionally in seizing the property.

11 For the reasons stated, Plaintiff’s Monell claim fails as a matter of law and

12 Defendants’ Motion is GRANTED as to this cause of action.

13 V. CONCLUSION

14 For the reasons stated above, the Court GRANTS the Motion. Dkt. # 26.

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DATED this 13th day of September, 2019.

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The Honorable Richard A. Jones

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United States District Judge

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