Flatten v. Smith

EZEKIAL FLATTEN, et al., Plaintiffs, v. BRUCE SMITH, et al., Defendants.

No. 21-cv-07031-SI

United States District Court, N.D. California

April 29, 2022

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND RE: DKT. NOS 59, 60

SUSAN ILLSTON United States District Judge.

On April 28, 2022, the Court held a hearing on defendants' motion to dismiss the first amended complaint. For the reasons set forth below, the Court GRANTS the motion without leave to amend.

BACKGROUND

I. The Original Complaint

On August 9, 2021, plaintiffs Ezekial Flatten, William Knight Ann Marie Borges, and Chris Gurr filed this lawsuit against defendants Bruce Smith and Steven White in the Superior Court for the County of Mendocino. On September 10, 2021, Smith removed the case to this Court, asserting federal question jurisdiction.

The original complaint asserted a single cause of action under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (“RICO”), and alleged that Smith and White were members of:

[A] longstanding and continuing RICO conspiracy involving law enforcement officers in Mendocino County and surrounding jurisdictions conducting the affairs of an enterprise including the Mendocino County Sheriff's Department and the Mendocino County District Attorney's Office through a pattern of racketeering activity consisting of extortion to obtain marijuana, guns and cash from victims in possession of marijuana by unlawfully searching their residences, stopping, detaining Plaintiffs and hundreds of other victims, committing robbery obstruction of justice, money laundering, tax evasion, and structuring currency transactions to evade the currency transaction reporting requirement.

Compl. ¶ 5 (Dkt. No. 1). Smith was a Sergeant with the Mendocino County Sheriff's Office and assigned to head the County of Mendocino Marijuana Eradication Team (“COMMET”) from 2007 until January 2018, and White was employed by the California Department of Fish and Wildlife (“CDFW”) from 1996 until December 2020, and he supervised CDFW's Wetland Enforcement Team (“WET”). Id. ¶¶ 27-28. The complaint alleged that the other members of the RICO conspiracy include the Mendocino County District Attorney, David Eyster; former Mendocino County Sheriff, Bill Allman; former Mendocino County Undersheriff Randy Johnson, and two former Rohnert Park^[1] Police Officers, Jacy Tatum and Joseph Huffaker. The complaint alleged that “[f]rom 2007 through 2011, Defendant Smith worked with and mentored co-conspirator Tatum on a ‘task force' of which both were members or participants.” Id. ¶ 21. Allman was Sheriff from January 2007 until December 2019, and Johnson was Undersheriff from January 2007 until March 2018. Id. ¶¶ 30-31.

Most of the allegations of the complaint involved former Rohnert Park Police Officers Tatum and Huffaker, who were members of a Rohnert Park drug interdiction team. Id. ¶¶ 76-77, Ex. A. The complaint alleged that Tatum and Huffaker engaged in numerous acts of “highway robbery under the guise of drug interdiction” by conducting pretextual traffic stops of individuals who were driving on Highway 101 in Mendocino and Sonoma counties. Id. at ¶¶ 38-70. Sometimes Tatum and Huffaker would pose as agents from the Bureau of Alcohol, Tobacco and Firearms. Id. Tatum and Huffaker would search the vehicles for marijuana, seize marijuana they found under threat of arrest without reporting or checking the seized marijuana into evidence, and then sell the marijuana on the black market for their personal profit. Id.

Plaintiff Flatten was one of the people stopped by Huffaker and another individual on December 5, 2017, while Flatten was driving in Mendocino County with three pounds of marijuana in his vehicle; the complaint alleged that other individual was defendant Smith, although the complaint quoted from and attached an affidavit by an FBI special agent stating that the other individual was Tatum.^[2] Compl. ¶ 87 & Ex. A. Flatten reported the incident to the Mendocino County Sheriff's Office, the Mendocino County District Attorney, federal law enforcement agencies, and to the media. Compl. ¶¶ 16, 82. Flatten was interviewed by the FBI on December 11, 2017. Id. ¶ 16.

The complaint alleged that on January 30, 2018, alleged co-conspirator Undersheriff Randy Johnson telephoned Flatten in response to Flatten's certified mail complaint, telling Flatten “no crime was committed” and “we [Mendocino County law enforcement] will not investigate;” and (2) on February 5, 2018 alleged co-conspirator District Attorney David Eyster advised Flatten that the DA's office would not investigate Flatten's allegations. Id. (brackets in complaint). The complaint also alleged that after Flatten's complaints were reported by the media, alleged co-conspirator Mendocino County Sheriff Allman directed Tatum to issue a press release exonerating Mendocino County law enforcement with regard to Flatten's stop. Id. ¶ 83. According to the complaint, “Tatum's press release confused and conflated the details of the robbery of Flatten on December 5, 2017, with another similar cannabis robbery on December 18, 2017, in Mendocino County when 30 pounds of cannabis [were] stolen by Tatum and another officer from a different victim - also driving a white SUV.” Id. ¶ 15.^[3] “Following the bogus press release, an internal investigation was launched at the Rohnert Park Department of Public Safety. Shortly thereafter, co-conspirator Tatum resigned from the force, co-conspirator Huffaker was placed on administrative leave, and the Director of the Department announced his retirement.” Id. ¶ 84.

In November 2018, Flatten sued the City of Rohnert Park, Tatum, Huffaker, The Hopland Band of Pomo Indians, Steve Hobb, and Doe defendants, alleging numerous causes of action, including a claim under RICO, based on the December 5, 2017 incident. Id. ¶ 22; see Flatten v. City of Rohnert Park, et al., Case No. 3:18-cv-06964 HSG (N.D. Cal.).^[4] The original complaint in that case alleged that Huffaker and Steve Hobb, the Chief of Police for the Hopland Band of Pomo Indians, were the individuals who stopped Flatten on December 5, 2017.^[5] After Flatten filed his lawsuit against the City of Rohnert Park, Tatum and Huffaker, other individuals filed lawsuits in federal court alleging that they too had been stopped and victimized by Tatum and Huffaker. Compl. ¶ 22.

With regard to plaintiffs Knight, Borges and Gurr, the original complaint alleged that they received provisional permits to grow marijuana in Mendocino County pursuant to a Mendocino County cannabis cultivation permit program, and that sometime after they received their permits, law enforcement agents obtained and executed search warrants at their properties under the pretext that plaintiffs were illegally diverting water. In Knight's case, White and Smith were part of a team that confiscated marijuana and guns during the execution of a search warrant on September 21, 2017 at Knight's property in Ukiah, California. The complaint alleged, on information and belief, that although a Declaration of Destruction was signed by Watershed Enforcement Team member Ryan Stephenson, the seized marijuana “was not destroyed and that no reliable evidence exists to prove that it was. Rather, in furtherance of the racketeering conspiracy alleged herein, the marijuana was stolen and sold by Defendants and/or their co-conspirators.” Id. ¶ 115.^[6]

The complaint also alleged that on September 15, 2020, District Attorney Eyster “initiated criminal prosecution of [p]laintiff William Knight in violation of 18 U.S.C. § 1512(b)(1), ” and plaintiffs alleged on information and belief that Eyster intended to intimidate and threaten Knight “to influence, delay or prevent the testimony of William Knight in an official proceeding, ” namely the federal grand jury proceeding in the U.S. District Court for the Northern District of California that returned the indictment against Tatum and Huffaker. Id. ¶¶ 117-18. The state court criminal complaint against Knight alleges that Knight and another individual committed the crime of unlawful cultivation of marijuana with environmental violation in violation of Cal. Health & Safety Code § 11358(d)(3)(D) by cultivating six or more marijuana plants and unlawfully diverting or obstructing the natural flow of water. Smith's Request for Judicial Notice, Ex. G (Dkt. No. 59-3).

As to Borges and Gurr, the complaint alleged that on August 10, 2017, White, Smith, and other CDFW agents executed a search warrant at Borges' and Gurr's property in Ukiah, California, and confiscated marijuana and guns. Compl. ¶ 100.^[7] Borges and Gurr filed a federal lawsuit seeking, in part, the return of the seized marijuana and guns. Compl. ¶ 100; see Borges et al. v. County of Mendocino, C 20-4537 SI (N.D. Cal.). Plaintiffs alleged that “Defendant White now claims that he and defendant Smith put the plants into a dump truck at the COMMET office. According to defendant Smith the plants were later taken to an undisclosed location. There are no documents reflecting the chain of custody of the plants after they were seized.” Compl. ¶ 101.^[8]

Although the complaint alleged that the RICO conspiracy encompassed “hundreds” of other searches and seizures of “many tons of cannabis” by COMMET, the only other seizure specifically identified in the complaint involved “Old Kai”:

23. On December 22, 2017, “Old Kai, ” a legally licensed distributor of cannabis carrying 1, 875 pounds of cannabis from local farms in a van, was stopped by California Highway Patrol (“CHP”) officers in Ukiah - the Mendocino County seat of government. CHP called in COMMET supervised by Defendant Smith, which took possession of the 1, 875 pounds worth

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