Jeremy Rocha v. County of Tulare , 627 F. App'x 623 ( 2015 )

FILED
NOT FOR PUBLICATION DEC 17 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEREMY ROCHA, No. 13-17267
Plaintiff - Appellant, D.C. No. 1:13-cv-00796-LJO-GSA
v.
MEMORANDUM*
COUNTY OF TULARE, California, a
California General Law County and
GABRIEL MACIAS, a deputy of the
Tulare County Sheriffs Office,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted November 16, 2015
San Francisco, California
Before: KLEINFELD, WARDLAW, and PAEZ, Circuit Judges.
Jeremy Rocha appeals the dismissal with prejudice of his second amended
complaint (“SAC”) pursuant to Federal Rule of Civil Procedure 12(b)(6). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The district court did not err in dismissing Rocha’s 42 U.S.C. § 1983claims because Rocha failed to allege a violation of his federal constitutional or
statutory rights, a necessary predicate for § 1983 liability. See Leer v. Murphy, 844
F.2d 628, 632–33 (9th Cir. 1988). Rocha’s generalized allegations regarding the
manner of the search are factually insufficient to state a Fourth Amendment claim
for excessive force. See Cameron v. Craig, 713 F.3d 1012, 1021 (9th Cir. 2013);
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Similarly, the bare allegation
that defendants seized Rocha’s firearm during a warrant-backed search is
insufficient to state a Second Amendment violation. See D.C. v. Heller, 554 U.S.
570, 626–27 (2008). Because Rocha has not sufficiently alleged a constitutional
violation, his theory of municipal liability also fails. See Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 690–91 (1978).
2. Rocha’s allegations that defendants violated his rights under Title II of
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131, et seq., by
failing to accommodate his hearing impairment are also insufficient to state a
claim. Rocha does not allege facts suggesting that defendants were aware of his
hearing impairment and acted with deliberate indifference, both of which are
necessary for an award of monetary damages. See Duvall v. Cnty. of Kitsap, 260
F.3d 1124, 1138–39 (9th Cir. 2001), as amended on denial of reh'g (Oct. 11,
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2001). The district court did not err in dismissing Rocha’s direct ADA claim
against the County for failure to accommodate because Rocha has not alleged any
ADA violations for which the County may be held vicariously liable. See id. at
1141.
3. Nor did the district court err in dismissing Rocha’s claims under the Bane
Act, Cal. Civ. Code § 52.1, because interference with a statutory or constitutional
right is a necessary predicate for Bane Act liability. See Gillan v. City of San
Marino, 55 Cal. Rptr. 3d 158, 167 (Cal. Ct. App. 2007). Rocha’s possession of a
medical marijuana recommendation does not grant him an unlimited right to
possess and cultivate medical marijuana under California law. See People v. Kelly,
222 P.3d 186, 188 (Cal. 2010); People v. Wayman, 116 Cal. Rptr. 3d 833, 839
(Cal. Ct. App. 2010). Nor does it render the search and seizure violative of the
Fourth Amendment on the facts alleged. Without more, Rocha’s allegation that
defendants knew he possessed a medical marijuana recommendation does not
negate probable cause and render the search and seizure unreasonable under
California law. See People v. Clark, 178 Cal. Rptr. 3d 649, 656 (Cal. Ct. App.
2014), review denied (Dec. 17, 2014).
4. Because Rocha did not plead a violation of his constitutional or statutory
rights, the district court’s alternative holding that the doctrine of qualified immunity
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bars Rocha’s claims was not erroneous. See Ashcroft v. al-Kidd, 131 S. Ct. 2074,
2080 (2011).
5. The district court did not abuse its discretion by denying Rocha leave to
file a third amended complaint. The district court dismissed Rocha’s first amended
complaint (“FAC”) without prejudice, informed Rocha of the FAC’s deficiencies,
and granted him leave to file a SAC. The SAC, however, did not cure the identified
deficiencies, and Rocha pointed to no additional facts that could support his claims.
See Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1012 (9th Cir. 2011).
AFFIRMED.
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