Robert Garber v. Mohammadi et al, No. 2:2010cv07144 - Document 95 (C.D. Cal. 2013)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS 76 by Judge Dean D. Pregerson: The Court Denies the Motion to Dismiss with respect to Plaintiffs Fourth Amendment excessive force claim against Officer Mohammadi. The court GRANTS the Mo tion to Dismiss with prejudice with respect to all of plaintiffs other claims against all defendants. Accordingly, Plaintiffs Request for Ruling on Defendants Motion to Dismiss 93 and Plaintiffs Request for the Second Time for Ruling on Defendants Motion to Dismiss 94 is hereby VACATED as moot. (lc). Modified on 8/6/2013 .(lc).
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Robert Garber v. Mohammadi et al Doc. 95 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ROBERT GARBER, 11 12 13 14 15 Plaintiff, vs. MOHAMMADI, #36506, et al., Defendants. ) ) ) ) ) ) ) ) ) ) Case No. CV 10-7144-DDP (RNBx) ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS [Dkt. No. 76.] 16 Presently before the court is Defendants City of Los Angeles, Los 17 Angeles Police Department, Hamed Mohammadi, and Amy Standage’s 18 Motion to Dismiss Plaintiff’s Complaint. Having considered the 19 parties’ submissions, the court adopts the following order. 20 21 PROCEEDINGS On September 29, 2010, plaintiff filed a pro se civil rights 22 action herein pursuant to 42 U.S.C. § 1983, after being granted 23 leave to proceed in forma pauperis. Named in the Complaint as 24 defendants were the City of Los Angeles (the “City”); the Los 25 Angeles Police Department (the “LAPD”); LAPD Officer Mohammadi 26 (“Mohammadi”), LAPD Sergeant Standage (“Standage”); and “Jane Doe,” 27 who was alleged to be “a private person.” (Complaint at 2-3.) 28 Plaintiff purported to be seeking compensatory and punitive 1 Dockets.Justia.com 1 damages. 2 Since plaintiff was proceeding in forma pauperis, the Court 3 screened the Complaint pursuant to 28 U.S.C. § 1915(e)(2). After 4 careful review and consideration of the allegations of the 5 Complaint under the relevant standards, the Court found that, 6 although its allegations arguably were sufficient to state a claim 7 against defendant Mohammadi pursuant to the Fourth Amendment for 8 the use of excessive force, its allegations were insufficient to 9 state any other federal civil rights claim on which relief might be 10 granted against Mohammadi, or any federal civil rights claim on 11 which relief might be granted against any of the other named 12 defendants. Accordingly, on October 28, 2010, the Court issued a 13 32-page Order Dismissing Complaint with Leave to Amend (“Order 14 Dismissing Complaint”). Plaintiff was ordered, if he still wished 15 to pursue this action, to file a First Amended Complaint within 16 thirty (30) days of the Court’s Order Dismissing Complaint, 17 remedying the deficiencies discussed therein. 18 On November 3, 2010, prior to the lapse of the 30-day period 19 for plaintiff to file a First Amended Complaint, defendants the 20 City, the LAPD, Mohammadi, and Standage filed an Answer to the 21 Complaint. In response, the Court issued a Minute Order on November 22 5, 2010, vacating its Order Dismissing Complaint, subject to the 23 following caveat. Since the Court had found that plaintiff’s 24 allegations were insufficient to state any federal civil rights 25 claim against defendant “Jane Doe,” and she had not filed an answer 26 to the Complaint, plaintiff’s claims against “Jane Doe” remained 27 dismissed with leave to amend. To date, plaintiff has not amended 28 his allegations against “Jane Doe.” 2 1 On November 15, 2010, plaintiff filed a Motion to Strike 2 defendants’ Answer (“MSA”) and a Motion for Judgment on the 3 Pleadings (“MJP”), to which defendants filed opposition on December 4 29, 2010. In a Report and Recommendation (“First R&R”) issued on 5 January 19, 2011, the Court recommended that both of plaintiff’s 6 motions be denied. The District Court adopted the recommendation 7 and denied plaintiff’s MSA and MJP on May 24, 2011. 8 Plaintiff filed a Motion for Summary Judgment on May 27, 2011, 9 which the court denied on November 8, 2011. 10 The court now considers Defendants’ Motion to Dismiss. After 11 careful review and consideration of the allegations of the 12 Complaint under the relevant standards, the Court finds for the 13 reasons discussed hereafter that, although its allegations arguably 14 are sufficient to state a claim against defendant Mohammadi 15 pursuant to the Fourth Amendment for the use of excessive force, 16 its allegations are insufficient to state any other federal civil 17 rights claim on which relief may be granted against Mohammadi, or 18 any federal civil rights claim on which relief may be granted 19 against any of other named defendants. 20 SUMMARY OF PLAINTIFF’S ALLEGATIONS AND CLAIMS 21 A. Factual allegations 22 On August 2, 2010, plaintiff was cited at Woodley Park for 23 parking his “trailer coach and van” in a “No Parking Zone.” 24 (Complaint at 4.) On August 7, 2010, plaintiff again parked his 25 trailer and van next to a fence at Woodley Park. 26 (Id.) Plaintiff noticed that a woman with several children was 27 watching him around 6:00 p.m. that evening. (Id. at 5.) 28 Approximately 30 minutes later, several LAPD officers arrived and 3 1 “ordered plaintiff to put his dog inside the trailer.” (Id.) 2 Plaintiff did so and asked the officers “what the problem was.” 3 Officer Mohammadi “twisted plaintiff’s left hand very violently to 4 plaintiff’s back, then the other arm[,] and handcuffed him very 5 painfully.” (Id. at 6.) Officer Mohammadi then asked for 6 plaintiff’s name and returned to his police car, presumably to 7 check his computer for plaintiff’s records. (Id.) Plaintiff was 8 informed that he “had been identified as the man who [had] 9 kidnapped a child at the park some half hour before.” (Id.) 10 Plaintiff told the officers that he had been sitting under the 11 shade of a tree all day and that people involved in filming a movie 12 nearby, as well as others at a dog-training event, had seen him 13 sitting “all the day long at the same location.” 14 (Id. at 7.) Two friends of plaintiff happened to pass by, and “plaintiff 15 shouted at them to approach and watch how the officers were abusing 16 him. Plaintiff also shouted at the dog-trainers and the movie 17 people to come and help him.” (Id. at 7.) Plaintiff’s friends 18 then told him that “the officers already knew that he was innocent 19 because they had received information that the child … had returned 20 to his family after getting lost.” 21 (Id.) Plaintiff’s handcuffs were “so excruciatingly tight they cut 22 into plaintiff’s wrists … causing bleeding.” (Id. at 7.) 23 Plaintiff “was protesting all that brutal treatment,” and Officer 24 Mohammadi “wrestled him to the ground, downed his right knee on 25 plaintiff’s jugular and the other knee on plaintiff’s rib-cage.” 26 (Id.) Another officer “immobilized plaintiff’s legs by kneeling on 27 them and placing a very tight strap around and securing his knees.” 28 (Id.) 4 1 Sergeant Standage then arrived, and plaintiff asked “her to 2 set him free.” 3 7-8.) Sergeant Standage replied, “Say please.” (Id. at Plaintiff refused, and Sergeant Standage told him that “he 4 was going to be committed to a mental hospital hold for three 5 days.” (Id. at 8.) Three officers “hoisted plaintiff up … and 6 pushed him sideways in their cruiser’s cramped back seat.” Officer 7 Mohammadi tightened the leg strap and kicked plaintiff’s feet into 8 the cruiser. 9 (Id.) Plaintiff’s passing friends took possession of his vehicles 10 and his dog. (Id. at 8.) Plaintiff was transported to the Olive 11 View Hospital Mental Health Unit. Once there, Officer Mohammadi 12 grabbed plaintiff’s shirt and tore it and some chest hair while 13 extracting plaintiff from the police car. (Id.) Plaintiff was 14 “dragged” by his left arm into the “mental ward” by Officer 15 Mohammadi. His legs were “paralyzed by lack of blood flow” after 16 being strapped for “three hours.” 17 (Id.) Dr. Gill interviewed plaintiff and asked questions about the 18 “previous incident at the park.” 19 speak to a supervisor. (Id. at 8.) Plaintiff asked to He spoke to Dr. Luzano at 11:00 p.m., and 20 plaintiff asked that the doctor contact a friend. Dr. Luzano did 21 so and then informed plaintiff that he was going to be released, 22 which he was at around midnight. 23 (Id. at 9.) Plaintiff attempted to obtain a copy of the police report 24 concerning the incident, but he was informed at the West Valley 25 LAPD station that no police report existed. He was provided with 26 a list of only three of the six officers that plaintiff recalled 27 being present. 28 (Id. at 9-10.) On August 20, 2010, “plaintiff became to know [sic] the 5 1 identity” of Officer Mohammadi. Plaintiff alleges that Officer 2 Mohammadi is a Muslim and that it was well-known that plaintiff is 3 an Israeli “national.” Accordingly, plaintiff alleges, Officer 4 Mohammadi’s “sardonic smile” after checking plaintiff’s records was 5 a “vengeful smile of a cowardly[] assassin.” 6 According to the copy of the (Id. at 11.) “Application for 72-Hour 7 Detention for Evaluation and Treatment” pursuant to Cal. Wel. & 8 Inst. Code § 5150 that plaintiff attached to his Complaint, Officer 9 Mohammadi believed that plaintiff was “a danger to others” based on 10 his “erratic behavior,” and the fact that “he sleeps in a park w/ 11 children around.” Plaintiff was called to the officer’s attention 12 when police received a radio call “for a kidnapping susp.[;] subt. 13 matched the exact description 14 (Complaint, Exh. 7 at 1.) 15 following: kidnapping susp.” Further, Officer Mohammadi noted the Susp. challenged offr to physical altercation. 17 Susp. has history of depression.” 19 this “Susp. appears to be delusional and has challenged PP 16 several times. 18 B. of (Id.) Plaintiff’s list of incidents and actions Plaintiff lists the following “unlawful arrests, jailings, 20 prosecutions, continuous harassments, retaliations, persecutions, 21 tickets, etc.” as being relevant to his allegations (see Complaint 22 at 4; Exh. 1 “Robert Garber’s ‘Criminal’ History”): 23 May 27, 1989: 24 February 23, 1996: 25 26 Arrest, case dismissed: Van Nuys Superior Court Case No. 6PN02097; October 7, 2003: Vehicle 27 28 LAPD detention: Booking No. 001427984; parking citation, dismissed: Malibu Court Case No. MA0191701; May 17, 2005: Assault against 6 plaintiff by private 1 individual, plaintiff was not arrested, 2 charges not filed against attacker: Case 3 RD#50917115; 4 August 30, 2005: Acquitted after trial: Superior Court Case 5 No. 5PN05498 (see Federal Case No. CV 06- 6 6232-DDP (RNB)); 7 November 6, 2006: Acquitted by jury of “the arresting 8 charges” of brandishing a weapon, but 9 convicted on two other counts: 10 Superior Court Case No. 6PY07114 (see 11 Federal Court Case No. CV 07-07254-DDP 12 (RNB)); 13 April 19, 2007: 14 15 Dismissed, parking citation 1041566105 and citation 3130444203; June 3, 2007: Arrested for living in trailer on street, 16 dismissed: LAPD citation 952203, Superior 17 Court Case No. 7PY06254 (see Federal Court 18 Case No. CV 08-03585-DDP (RNB)); 19 June 12, 2007: 20 21 Cited for drinking root-beer in public park, dismissed: citation 81011 June 19, 2007: 22 Dismissed after corrections to vehicle: LAPD citation 8685686; 23 July 12, 2007: “Reversed”: parking citation 1044517946; 24 July 18, 2008: Cited for living in trailer in street, 25 26 dismissed: LAPD citation 429455; August 4, 2008: General Services Dept. Police (not 27 defendants 28 and “put him to his knees” for an hour and herein) 7 handcuffed plaintiff 1 a half while investigating allegation of 2 dog 3 arrest or citation issued 4 Court Case No. CV 09-5657-DDP (RNB) 5 July 28, 2010: abuse Cited at for plaintiff’s living trailer, no (see Federal in trailer, arrest 6 threatened, arraigned September 13, 2010: Case 7 157274; 8 August 2, 2010: 9 Cited by General Services Dept. Police for parking in no parking zone, pending: citation 10 1078846952; 11 August 7, 2010: 12 September 8, 2010: Incident herein; 13 14 Won a small claims award against City: Case LAV 10V02114; and September 16, 2010: Cited by General Services Dept. Police 15 for parking parallel, pending: citation 16 1089295782. 17 C. Plaintiff’s claims 18 Plaintiff purports to state the following seven “causes of 19 action” in his Complaint and purports to allege each cause of 20 action against “all defendants,” including “Jane Doe.” (See 21 Complaint at 13-19.) 22 1. In his first cause of action entitled “Violation of Civil 23 Rights, for Deprivation of Civil Rights,” plaintiff cites the 24 First, Fourth, Fifth, Sixth, and Fourteenth Amendments, as well as 25 Monell v. New York City Dep’t of Social Services, 436 U.S. 658, 26 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Plaintiff alleges 27 therein that “Jane Doe,” with “gross negligence” and “deliberate 28 indifference,” “recklessly made a 911 call falsely ‘identifying’ 8 1 plaintiff” as having kidnapped her child. Plaintiff further 2 alleges that the other defendants acted “knowingly, with gross 3 negligence, maliciously, and in deliberate indifference” and 4 permitted a “pattern and practice, custom and usage” of: arresting 5 people without probable cause, filing false police reports, not 6 filing police reports, conducting deficient investigations and 7 supervision, and “brutality, bias and discrimination against 8 homeless, aliens, and, as in this case, religious discrimination.” 9 He also alleges a violation of his rights to “be confronted with 10 the witnesses against him [and] to have compulsory process for 11 obtaining witness [sic] in his favor under the Sixth Amendment.” 12 Plaintiff also alleges a “pattern and practice” of violations of 13 his “rights as an alien, a member of the homeless class and an 14 [I]sraeli national.” 15 2. (See Complaint at 13-14.) Plaintiff cites no legal basis for his second cause of 16 action entitled “Harassment, Retaliation for Deprivation of Civil 17 rights.” However, he claims therein that he was “deprived once 18 more of his liberty, liberty to travel and of being free from 19 mental oppression, by being subjected to continuous unlawful 20 actions/charges brought by the LAPD with the malicious intent to 21 oppress plaintiff.” Plaintiff alleges that the LAPD “has a long 22 history of institutional custom of harassing homeless people,” and 23 that the “custom” has been “allowed to go on by the Office of the 24 City Attorney” in particular with respect to plaintiff as 25 “retaliation of [sic] plaintiff’s several complaints to the State 26 Bar against deputies [sic] City Attorney [sic].” Plaintiff cites 27 his attached list of prior arrests and citations, the City 28 Attorney’s failure on other occasions to file charges against 9 1 people who had attacked plaintiff, and his allegation that LAPD 2 officers have a pattern of “nightly harassments of plaintiff by … 3 turning on their sirens only when passing by plaintiff’s trailer at 4 approximately 2 to 2:30 a.m.” 5 3. (See Complaint at 14-15.) In his third cause of action entitled “Discrimination, 6 for deprivation of Civil Rights,” plaintiff cites the First, 7 Fourth, Fifth, and Fourteenth Amendments. Plaintiff alleges 8 therein that the LAPD has a history of discrimination against 9 homeless people through “intimidation, excessive use of force, 10 killings, jailings, impoundment of vehicles.” Plaintiff further 11 alleges that he was subjected to discrimination “under the First 12 Amendment of [sic] freedom of religion” because Mohammadi “is a 13 [M]uslim, plaintiff an [I]sraeli national.” Plaintiff alleges that 14 he “is known everywhere as an [I]sraeli.” Plaintiff also alleges 15 that LAPD officers have “secret codes giving them confidential 16 information by just tapping their computers.” (See Complaint at 17 15-16.) 18 4. In his fourth cause of action entitled “Conspiracy, for 19 Deprivation of Civil Rights,” plaintiff cites the First, Fourth, 20 Fifth, and Fourteenth Amendments, as well as 42 U.S.C. §§ 1983, 21 1985(3), and 1986. Plaintiff alleges therein that defendants 22 conspired to “frame, arrest, imprison, and knowingly cause injuries 23 to plaintiff.” Plaintiff further alleges that the actions of 24 defendants violated his rights to “due process, liberty, and 25 privacy interests, and freedom of religion.” In addition, 26 plaintiff alleges that defendants acted “in furtherance of an 27 unlawful pattern and practice, custom and usage, and was therefore 28 [sic] a conspiracy under color of law in violation of plaintiff’s 10 1 constitutional rights.” 2 5. (See Complaint at 16-17.) In his fifth cause of action entitled “Unreasonable 3 Seizure, for Deprivation of Civil Rights,” plaintiff cites the 4 Fourth and Fourteenth Amendments. Plaintiff alleges therein that 5 “Jane Doe” recklessly and falsely identified plaintiff as the man 6 who kidnapped her child, and that her action caused plaintiff to be 7 “seized, arrested, and imprisoned.” He further alleges that 8 Officer Mohammadi and Sergeant Standage “should have released 9 plaintiff as soon as they were notified that Jane Doe’s child” had 10 returned, rather than “arresting him and trying to commit him.” He 11 also alleges that he was deprived of his right to “privacy,” due 12 process and liberty interests, and that defendants acted “without 13 any probable cause.” 14 6. In his (See Complaint at 17-18.) sixth cause of action entitled “Malicious 15 Prosecution for Deprivation of Civil Rights,” plaintiff cites the 16 First, Fourth, Fifth, Sixth, and Fourteenth Amendments, as well as 17 42 U.S.C. §§ 1983, 1985(3), and 1986. Plaintiff alleges therein 18 that defendants “initiated a malicious prosecution” against him, 19 and, therefore, defendants “are liable to plaintiff under 42 U.S.C. 20 §§ 1983, 1985(3), and 1986.” Plaintiff further alleges that the 21 fact that he was released from the hospital that same night upon a 22 finding that “there was no reason to commit him” constitutes “the 23 ‘good termination’ requirement of the malicious prosecution [sic].” 24 (See Complaint at 18-19.) 25 7. Plaintiff cites no legal basis for his seventh cause of 26 action entitled “Personal Injury, Excessive Use of Force, for 27 Deprivation of Civil Rights.” Plaintiff alleges therein that an 28 earlier arrest in 2005 resulted in plaintiff being diagnosed with 11 1 “major depression,” and that the LAPD is aware of this fact. 2 Plaintiff further alleges that Officer Mohammadi “directly used 3 excessive force” against plaintiff “knowing him to be innocent,” 4 and that plaintiff “sustained several blows to his head, neck, rib5 cage, legs, arms, and both hands.” Plaintiff also alleges that 6 Sergeant Standage “aided, abetted and directed” Officer Mohammadi 7 in deciding to commit plaintiff. (See Complaint at 19-20.) 8 9 DISCUSSION 10 A. Plaintiff’s allegations fail to comply with the pleading 11 requirements of Federal Rule of Civil Procedure 8. 12 Pursuant to Fed. R. Civ. P. 8(a), a complaint must contain “a 13 short and plain statement of the claim showing that the pleader is 14 entitled to relief.” Further, Rule 8(d)(1) provides: 15 allegation must be simple, concise, and direct.” “Each As the Supreme 16 Court has held, Rule 8(a) “requires a ‘showing,’ rather than a 17 blanket assertion, of entitlement to relief.” 18 at 556. Twombly, 550 U.S. Although the Court must construe a pro se plaintiff’s 19 pleadings liberally, plaintiff nonetheless must allege a minimum 20 factual and legal basis for each claim that is sufficient to give 21 each defendant fair notice of what plaintiff’s claims are and the 22 grounds upon which they rest. See, e.g., Brazil v. United States 23 Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. 24 Block, 932 F.2d 795, 798 (9th Cir. 1991). If plaintiff fails to 25 clearly and concisely set forth allegations sufficient to provide 26 defendants with notice of which defendant is being sued on which 27 theory and what relief is being sought against them, the complaint 28 fails to comply with Rule 8. See, e.g., McHenry v. Renne, 84 F.3d 12 1 1172, 1177-79 (9th Cir. 1996); Nevijel v. Northcoast Life Ins. Co., 2 651 F.2d 671, 674 (9th Cir. 1981). Moreover, failure to comply 3 with Rule 8(a) constitutes an independent basis for dismissal of a 4 complaint that applies even if the claims in a complaint are not 5 found to be wholly without merit. See McHenry, 84 F.3d at 1179; 6 Nevijel, 651 F.2d at 673. 7 Here, plaintiff’s Complaint fails to set forth a minimum 8 factual and legal basis for his claims that is sufficient to give 9 each defendant fair notice of the number of claims plaintiff is 10 purporting to raise against each defendant, the factual basis for 11 each claim, the legal basis for each claim, and which claims 12 plaintiff is purporting to raise against which defendant. 13 First, because plaintiff incorporates all of his factual 14 allegations and his preceding “causes of action” into each 15 subsequent cause of action, it is not clear to the Court what 16 federal civil rights claims plaintiff is purporting to raise 17 against which defendant(s). In addition, within most of his seven 18 causes of action, plaintiff cites numerous provisions of the 19 federal constitution, as well as federal law, as the bases for the 20 cause of action. 21 Further, plaintiff purports to raise each of his “causes of 22 action” against all defendants, although the factual references 23 within each “cause of action” clearly do not apply to all 24 defendants. For example, plaintiff’s seventh “cause of action” is 25 purportedly based on the “excessive use of force,” but the factual 26 allegations set forth in the Complaint regarding the use of force 27 appear to pertain only to individual defendant Mohammadi, and 28 clearly are not relevant to “Jane Doe,” whom plaintiff does not 13 1 allege to have been present during his encounter with the LAPD 2 officers. 3 In addition, the allegations in his seven separate “causes of 4 action” appear to the Court to be highly duplicative. It is 5 unclear to the Court if plaintiff’s intention is to raise multiple 6 claims under multiple legal theories based on the same factual 7 allegations, or if he is purporting to raise separate claims based 8 on other factual allegations that are not clearly set forth. 9 Moreover, the legal basis for many of plaintiff’s “causes of 10 action” are entirely unclear to the Court because plaintiff’s 11 citations frequently are inapplicable to the claim plaintiff 12 references in the title of that “cause of action.”1 13 Construing plaintiff’s allegations liberally and affording 14 plaintiff the benefit of any doubt, the Court finds that 15 plaintiff’s Complaint fails to allege sufficient “factual content 16 that allows the [C]ourt to draw the reasonable inference that 17 18 19 20 21 22 23 24 25 26 27 28 1 For example, the Court notes that the Sixth Amendment is applicable only in criminal prosecutions. See, e.g., Williams v. Gorton, 529 F.2d 668, 671 (9th Cir. 1976). The Complaint contains no factual allegations in support of any claim that defendants violated plaintiff’s Sixth Amendment rights in any criminal prosecution, and indeed it is inconceivable to the Court how LAPD officers, the City, or the LAPD could violate plaintiff’s Sixth Amendment rights. Further, to the extent that plaintiff is purporting to raise a claim pursuant to the Free Exercise Clause of the First Amendment (see Complaint at 14, 16), he sets forth no allegations pertaining to any burden placed by any defendant on plaintiff’s free exercise of his religion. Additionally, to the extent that plaintiff is purporting to allege a claim under the First Amendment for retaliation, his only possibly relevant allegation pertains to complaints he filed with the State Bar is in connection with the City Attorney’s Office (see id. at 5), and no factual allegations raise any inference that any Deputy City Attorney was involved in this incident, nor are any Deputy City Attorneys named as defendants herein. 14 1 [each] defendant is liable for the misconduct alleged.” Iqbal, 129 2 S. Ct. at 1949. 3 The Court therefore finds that the Complaint does not comply 4 with Rule 8 because (a) it does not contain a “short and plain 5 statement” of plaintiff’s claims showing that he is entitled to 6 relief, and (b) its allegations are insufficient to meet 7 plaintiff’s threshold requirement of providing each defendant with 8 notice of their allegedly wrongful acts. 9 B. Plaintiff’s allegations arguably are sufficient to state a 10 claim against Officer Mohammadi for the excessive use of force 11 pursuant to the Fourth Amendment, but are insufficient to 12 state any other Fourth Amendment claim. 13 1. Plaintiff’s allegations arguably are sufficient to state 14 an excessive force claim pursuant to the Fourth Amendment 15 against Officer Mohammadi, but are insufficient to state 16 an excessive force claim against Sergeant Standage. 17 The Fourth Amendment “guarantees citizens the ‘right to be 18 secure in their persons … against unreasonable … seizures.’” See 19 Graham v. Connor, 490 U.S. 386, 394, 109 S. Ct. 1865, 104 L. Ed. 2d 20 443 (1989) (alterations in original); see also Tennessee v. Garner, 21 471 U.S. 1, 7, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985); Robinson v. 22 Solano County, 278 F.3d 1007, 1009 (9th Cir. 2002) (en banc). Such 23 claims are “analyzed under the Fourth Amendment’s ‘objective 24 reasonableness standard.’” Saucier v. Katz, 533 U.S. 194, 204, 121 25 S. Ct. 2151, 150 L. Ed. 2d 272 (2001) (citing Graham, 490 U.S. at 26 388). But the “reasonableness” of an officer’s actions “must be 27 judged from the perspective of a reasonable officer on the scene, 28 rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. 15 1 at 396. The determination of whether an officer’s use of force was 2 “reasonable” under the Fourth Amendment “requires a careful 3 balancing of the nature and quality of the intrusion on the 4 individual’s Fourth Amendment interests against the countervailing 5 government interests at stake.” Graham, 490 U.S. at 396 (internal 6 quotations omitted); see also Deorle v. Rutherford, 272 F.3d 1272, 7 1279 (9th Cir. 2001) (as amended) (“the force which is applied must 8 be balanced against the need for that force”). Such an analysis 9 requires “careful attention to the facts and circumstances in each 10 particular case, including the severity of the crime at issue, 11 whether the suspect poses an immediate threat to the safety of the 12 officers or others, and whether he is actively resisting arrest or 13 attempting to evade arrest by flight.” Graham, 490 U.S. at 396; 14 see also Garner 471 U.S. at 8-9 (whether a seizure is reasonable 15 under the Fourth Amendment is judged by the “totality of the 16 circumstances”). Moreover, the Supreme Court has held that, in 17 determining whether the force used to affect a particular seizure 18 is “reasonable” under the Fourth Amendment, “the question is 19 whether the officers’ actions are ‘objectively reasonable’ in light 20 of the facts and circumstances confronting them, without regard to 21 their underlying intent or motivation.” 22 Graham, 490 U.S. at 397. Here, as set forth above, plaintiff has alleged that Officer 23 Mohammadi “twisted plaintiff’s left hand very violently to 24 plaintiff’s back, then the other arm[,] and handcuffed him very 25 painfully.” (Complaint at 6.) Further, plaintiff alleges that his 26 handcuffs were “so excruciatingly tight they cut into plaintiff’s 27 wrists … causing bleeding.” (Id. at 7.) When plaintiff protested 28 “all that brutal treatment,” Officer Mohammadi “wrestled him to the 16 1 ground, downed his right knee on plaintiff’s jugular and the other 2 knee on plaintiff’s rib-cage.” (Id.) Another officer “immobilized 3 plaintiff’s legs by kneeling on them and placing a very tight strap 4 around and securing his knees.” (Id.) Based on the severity of 5 the crime of which plaintiff was suspected, as well as the 6 inference of plaintiff’s active resistance reasonably drawn from 7 the factual allegations, it appears to the Court that, from the 8 perspective of a reasonable officer on the scene, plaintiff 9 reasonably could have posed an immediate threat to the safety of 10 the officers or others. Accordingly, the officers’ use of some 11 force was “reasonable” under the Fourth Amendment. However, 12 because plaintiff is proceeding pro se and the Court must construe 13 plaintiff’s factual allegations in the light most favorable to 14 plaintiff, it appears to the Court that plaintiff’s allegations 15 that Officer Mohammadi used more force than may have been 16 objectively reasonable under the totality of the circumstances 17 arguably are sufficient to state a Fourth Amendment claim against 18 Mohammadi that is plausible on its face. 19 With respect to Sergeant Standage, however, plaintiff sets 20 forth no factual allegations that Standage used any force against 21 plaintiff, or that she was present on the scene during the 22 application of any force by any other LAPD officer. To the 23 contrary, plaintiff alleges that Sergeant Standage arrived after 24 plaintiff had been immobilized on the ground and after the leg 25 strap had been applied. Plaintiff merely alleges that Sergeant 26 Standage refused his request to “set him free.” 27 8.) (Complaint at 7- Plaintiff then alleges that he was “hoisted” by three other 28 officers and “pushed” into the police car, and that Officer 17 1 Mohammadi “kicked plaintiff’s feet into the cruiser” while Standage 2 was present, but none of those alleged actions are objectively 3 unreasonable when judged under the totality of the circumstances 4 and from the perspective of a reasonable officer on the scene. 5 (See id. at 7-8.) Accordingly, the Court finds that the 6 allegations of the Complaint are insufficient to state a federal 7 civil rights claim against defendant Standage pursuant to the 8 Fourth Amendment arising from the excessive use of force. 9 2. Plaintiff’s allegations are insufficient to state a 10 Fourth 11 arising from plaintiff’s arrest or detention. 12 Amendment claim against any named defendant The Fourth Amendment accords the right to protection from 13 arrest without probable cause. See United States v. Watson, 423 14 U.S. 411, 417, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976). 15 Consequently, an officer violates a person’s constitutional rights 16 when he arrests a person without probable cause. See, e.g., Barry 17 v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990); McKenzie v. Lamb, 738 18 F.2d 1005, 1007 (9th Cir. 1984). “Probable cause exists where the 19 facts and circumstances within the officers' knowledge and of which 20 they had reasonably trustworthy information are sufficient in 21 themselves to warrant a man of reasonable caution in the belief 22 that an offense has been or is being committed by the person to be 23 arrested.” Dunaway v. New York, 442 U.S. 200, 208 n. 9, 99 S. Ct. 24 2248, 60 L. Ed. 2d 824 (1979); see also Michigan v. DeFillippo, 443 25 U.S. 31, 37, 99 S. Ct. 2627, 61 L. Ed.2d 343 (1979). “Probable 26 cause is an objective standard and the officer’s subjective 27 intention in exercising his discretion to arrest is immaterial in 28 judging whether his actions were reasonable.” 18 John v. City of El 1 Monte, 515 F.3d 936, 940 (9th Cir. 2008); United States v. Lopez, 2 482 F.3d 1067, 1072 (9th Cir.), cert. denied, 552 U.S. 936 (2007). 3 Additionally, the determination of whether probable cause existed 4 is based only on the information known to the officers at the time 5 of making an arrest. See Devenpeck v. Alford, 543 U.S. 146, 152, 6 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004) (“Whether probable cause 7 exists depends on the reasonable conclusion to be drawn from the 8 facts known to the arresting officer at the time of the arrest.”); 9 see also John, 515 F.3d at 942 (“the probable cause inquiry is an 10 objective one: whether the information [the officer] had when he 11 made the arrest could have led a reasonable officer to believe that 12 John had committed an offense”). 13 Here, accepting plaintiff’s allegations as true, LAPD officers 14 informed plaintiff that he had “been identified as the man who 15 kidnapped a child at the park some [one half] hour before,” and the 16 arresting officer noted that plaintiff “matched the exact 17 description of [the] kidnapping susp.” (Complaint at 6, 12A, Exh. 18 7 at 1.) Plaintiff admits to having spent the entire day in the 19 park. (Complaint at 4-5, 7.) Additionally, plaintiff alleges that 20 he shouted at two friends to “watch how the officers were abusing 21 him,” shouted at other unrelated individuals in the park to “come 22 and help him,” and “protested” the “brutal treatment” he received. 23 (Id. at 7.) According to the information recorded by Officer 24 Mohammadi on plaintiff’s Exhibit 7 (which plaintiff quoted in the 25 Complaint), the officer initiated the “Application for 72-Hour 26 Detention” because of plaintiff’s erratic behavior, the officer’s 27 belief that plaintiff was sleeping in the park where children 28 played, the fact that plaintiff appeared to be “delusional” and had 19 1 “challenged” an officer to a “physical altercation,” and 2 plaintiff’s admitted history of depression. (See Complaint at 12A, 3 Exh. 7 at 1.) Based on plaintiff’s own description of his conduct 4 and the rational inferences to be drawn therefrom, along with the 5 notes made by Officer Mohammadi on the Application for 72-Hour 6 Detention, the information known at the time by Officer Mohammadi 7 was sufficient for a reasonable officer initially to believe that 8 plaintiff may have committed the reported kidnapping and then to 9 “believe or entertain a strong 10 danger to others. suspicion” that plaintiff posed a Under California law, this reasonable belief 11 constitutes probable cause to initiate a detention pursuant to Cal. 12 Welf. & Inst. Code § 5150. See Heater v. Southwood Psychiatric 13 Center, 42 Cal. App. 4th 1068, 1080, 49 Cal. Rptr. 2d 880 (1996); 14 People v. Triplett, 144 Cal. App. 3d 283, 287-88, 192 Cal. Rptr. 15 537 (1983); see also Bias v. Moynihan, 508 F.3d 1212, 1220 (9th 16 Cir. 2007) (“Probable cause exists under [Cal. Welf. & Inst. Code] 17 section 5150 if facts are known to the officer ‘that would lead a 18 person of ordinary care and prudence to believe, or to entertain a 19 strong suspicion, that the person detained is mentally disordered 20 and is a danger to himself or herself.’”). To the extent that 21 plaintiff is purporting to allege that Officer Mohammadi detained 22 him based on plaintiff’s homeless status or because Mohammadi knew 23 at the time that plaintiff was of Israeli nationality, Mohammadi’s 24 subjective reasons are not relevant to the Court’s determination of 25 the existence of probable cause at the time that Officer Mohammadi 26 detained plaintiff for kidnapping or initiated the application for 27 a detention of plaintiff for evaluation and treatment pursuant to 28 Cal. Welf. & Inst. Code § 5150. 20 1 The Court therefore finds that the allegations of the 2 Complaint are insufficient to state a Fourth Amendment claim 3 against any of the named defendants arising from plaintiff’s arrest 4 or detention. 5 3. Defendant Mohammadi is not entitled to qualified immunity 6 at this stage of the proceedings 7 Defendant Mohammadi argues that he is entitled to qualified 8 immunity because there was probable cause for Plaintiff’s arrest, 9 even when the Complaint is construed in the light most favorable to 10 the Plaintiff. 11 In assessing a defendant’s qualified immunity defense, the 12 court first determines “whether the facts alleged in the complaint, 13 viewed in the light most favorable to Plaintiff[], demonstrate” 14 that the defendant’s conduct violated the plaintiff’s rights. Moss 15 v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009). “[T]he next 16 step is to determine whether the right at issue was clearly 17 established at the time of the violation.” Id. “[E]ven if the 18 violated right was clearly established, the Saucier [v. Katz, 533 19 U.S. 194, 200 (2001)] court recognized that it may be difficult for 20 a police officer fully to appreciate how the legal constraints 21 apply to the specific situation he or she faces. Under such a 22 circumstance, if the officer's mistake as to what the law requires 23 is reasonable, ... the officer is entitled to the immunity 24 defense.” Blankenhorn v. City of Orange, 485 F.3d 463, 471 (9th 25 Cir. 2007)(internal citations and quotation marks omitted). 26 Taking Plaintiff’s allegations as true, there is no evidence 27 that would justify handcuffing Plaintiff so tightly that they 28 caused bleeding, wrestling him to the ground and placing his knees 21 1 on Plaintiff’s jugular and rib cage, or placing a tight strap 2 around his knees. (Compl. at 7.) The court concludes that a 3 reasonable officer in Mohammadi’s position would have known that to 4 keep Plaintiff “in handcuffs that were so tight that they caused 5 [him] unnecessary pain violated [his] Fourth Amendment right to be 6 free from an unreasonable seizure.” 7 1057, 1063 (9th Cir. 2003). Meredith v. Erath, 342 F.3d See,e.g. Palmer v. Sanderson, 9 F.3d 8 1433, 1434-36 (9th Cir. 1993)(holding that an officer who, during 9 a traffic stop, jerked the plaintiff out of his car, handcuffed him 10 extremely tightly, forcefully shoved him into the back of a patrol 11 car, and refused to loosen his handcuffs was not entitled to 12 qualified immunity because no reasonable officer would have thought 13 this conduct was constitutional); Hansen v. Black, 885 F.2d 642, 14 645 (9th Cir. 1989)(holding that police officers used excessive 15 force when they roughly handcuffed plaintiff thereby injuring her 16 wrist and arm after she tried to prevent them from collecting 17 evidence and called one of the officers a “son of a bitch”). 18 Defendant Mohammadi declaration contesting 19 Plaintiff’s allegations regarding the use of force. (Mohammadi 20 Decl. ¶¶ 3, 8-9,13-14.) presents a However, at the stage of the motion to 21 dismiss, Plaintiff’s factual allegations must be accepted as true. 22 Defendant Mohammadi’s assertion that he had probable cause to 23 arrest Plaintiff does not go to the question of whether the force 24 he used in effectuating an otherwise lawful arrest was excessive. 25 Plaintiff has stated a claim against Defendant Mohammadi for 26 the use of excessive force. The court finds that Plaintiff’s right 27 to be free from excessive force, as alleged by Plaintiff, was 28 clearly established at the time of his arrest, whether or not there 22 1 was probable cause for such arrest. Therefore, the court finds 2 that Defendant Mohammadi is not entitled to qualified immunity. 3 D. Plaintiff’s allegations are insufficient to state any federal 4 civil 5 pursuant to the Fifth and Fourteenth Amendments. 6 1. 7 8 rights claim against any of the named defendants Plaintiff’s allegations are insufficient to state any claim under the Equal Protection Clause. “The Equal Protection Clause of the Fourteenth Amendment 9 commands that no State shall ‘deny to any person within its 10 jurisdiction the equal protection of the laws,’ which is 11 essentially a direction that all persons similarly situated should 12 be treated alike.” City of Cleburne v. Cleburne Living Center, 473 13 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985) (quoting 14 Plyler v. Doe, 457 U.S. 202, 216, 102 S. Ct. 2382, 72 L. Ed. 2d 786 15 (1982)). In order to state an equal protection claim based on the 16 allegedly selective enforcement of a law, plaintiff must “show that 17 the law is applied in a discriminatory manner or imposes different 18 burdens on different classes of people.” Freeman v. City of Santa 19 Ana, 68 F.3d 1180, 1187 (9th Cir. 1995). To do so, plaintiff must 20 “identify a ‘similarly situated’ class against which plaintiff’s 21 class can be compared.” Id. Then, if the alleged selective 22 enforcement “does not implicate a fundamental right or a suspect 23 classification, the plaintiff can establish a ‘class of one’ equal 24 protection claim by demonstrating that [he] ‘has been intentionally 25 treated differently from others similarly situated and that there 26 is no rational basis for the difference in treatment.’” Squaw 27 Valley Dev. Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004) 28 (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. 23 1 Ct. 1073, 145 L. Ed. 2d 1060 (2000) (recognizing an equal 2 protection violation where ordinance targeted a single individual 3 on basis that state action was arbitrary and irrational)); see also 4 Jackson v. Burke, 256 F.3d 93, 96 (2d Cir. 2001) (a class-of-one 5 plaintiff must show that the discriminatory treatment “was 6 intentionally directed just at him, as opposed … to being an 7 accident or a random act”). 8 Here, even construing plaintiff’s allegations liberally, he 9 altogether fails to allege the existence of any “similarly 10 situated” individual, let alone that he “has been intentionally 11 treated differently from others similarly situated and that there 12 is no rational basis for the difference in treatment.” Squaw 13 Valley Dev. Co., 375 F.3d at, 944. Moreover, “[h]omeless persons 14 are not a suspect class.” See Joel v. City of Orlando, 232 F.3d 15 1353, 1357 (11th Cir. 2000), cert. denied, 532 U.S. 978 (2001); 16 accord D’Aguanno v. Gallagher, 50 F.3d 877, 879 n. 2 (11th Cir. 17 1995) (noting that the homeless plaintiffs “do not constitute a 18 suspect class”); Kreimer v. Bureau of Police, 958 F.2d 1242, 1269 19 n. 36 (3rd Cir. 1992) (“as the homeless do not constitute a suspect 20 class, the rules need only survive the lowest standard of review 21 for equal protection purposes”); Davison v. City of Tuscon, 924 F. 22 Supp. 989, 994 (D. Ariz. 1996) (“no court has ever held the 23 homeless to be a suspect class”); Joyce v. City and County of San 24 Francisco, 846 F. Supp. 843, 859 (N.D. Cal. 1994) (noting that, 25 even if homeless plaintiff could “prove an intent to discriminate 26 against the homeless,” the challenged program might survive 27 constitutional scrutiny because it was not aimed at a suspect 28 24 1 classification).2 2 Therefore, to the extent that plaintiff is purporting to 3 allege that defendants singled him out as a suspect in the reported 4 kidnapping or decided to detain him because he is a homeless 5 person, he must demonstrate that he was “intentionally treated 6 differently from others similarly situated and that there is no 7 rational basis for the difference in treatment.” See Squaw Valley 8 Dev. Co., 375 F.3d at 944. As the Court informed plaintiff in 9 connection with one of plaintiff’s prior federal lawsuits (Case 10 No. CV 08-4208-DDP (RNB)), plaintiff’s allegations of “harassment” 11 by the police altogether fail to even give rise to a reasonable 12 inference that any LAPD officer intentionally arrested or ticketed 13 plaintiff because he was homeless and failed to arrest or ticket a 14 similarly-situated person who was not homeless. Rather, as noted 15 in the exhibits attached to plaintiff’s Complaint and as plaintiff 16 alleges he was informed during the incident, plaintiff matched the 17 “exact description” of a man who had been reported to the police as 18 having kidnapped a child in the park in which plaintiff admits he 19 had spent the entire day. (Complaint at 6, 12A, Exh. 7 at 1.) 20 Accordingly, even accepting as true the material facts as alleged 21 by plaintiff, the police had a rational basis to approach plaintiff 22 in connection with the reported kidnapping. 23 Similarly, plaintiff’s allegations that the LAPD have a 24 25 26 27 28 2 Although the Supreme Court has not directly answered this question, it has ruled that classifications based on wealth or housing are not “suspect.” See Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 457-58, 108 S. Ct. 2481, 101 L. Ed. 2d 399 (1988); Lindsey v. Normet, 405 U.S. 56, 73-74, 92 S. Ct. 862, 31 L. Ed. 2d 36 (1972). 25 1 “pattern and practice” of brutality, bias and discrimination 2 against homeless” (Complaint at 13), and that the “LAPD has a long 3 history of institutional custom of harassing homeless people” (id. 4 at 15) are not sufficient to state an Equal Protection claim. 5 Lacking any factual support, the allegations are nothing more than 6 speculation and are insufficient to meet plaintiff’s obligation to 7 state the grounds for his claim. See Twombly, 127 S. Ct. at 19648 65. Although detailed facts are not required, plaintiff’s 9 allegations must be sufficient to “give the defendant fair notice 10 of what the … claim is and the grounds upon which it rests.” See 11 Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 2200, 167 L. 12 Ed. 2d 1081 (2007) (alteration in original, internal quotation 13 marks omitted); see also Alvarez v. Hill, 518 F.3d 1152, 1157 (9th 14 Cir. 2008) (pro se plaintiff must allege “factual allegations 15 establishing a plausible 16 quotation marks omitted). entitlement to relief”) (internal Far from alleging facts that establish 17 the grounds for a plausible entitlement to relief, plaintiff merely 18 asserts that such a “history” and “pattern” exists. To the extent 19 that plaintiff may be purporting to base his allegations of a 20 “pattern” of “harassment” on his attached Exhibit 1, his list of 21 encounters with LAPD officers, a Malibu Sheriff’s Deputy, the Los 22 Angeles City Attorneys’ Office, and the General Services Department 23 Police (at least one of which resulted in plaintiff’s conviction 24 according to plaintiff’s own factual allegations) that have 25 occurred over a twenty-year time period raises no inference of any 26 practice of intentional discriminatory treatment by the LAPD 27 against the homeless. Not only does plaintiff’s list of incidents 28 include disparate actions by unrelated agencies, ranging from a 26 1 vehicle citation by a sheriff in Malibu in 1996, to an assault 2 against plaintiff by a private individual in 2005, to the most 3 recent incident in September 2010 in which “General Serv. Dpt. 4 Police” officers are alleged to have improperly cited plaintiff for 5 parking his “41 ft long vehicles parallel” and issued a warning 6 about a cracked windshield (see Plaintiff’s Exh. 1.), but all of 7 the incidents involve plaintiff. Accordingly, such a list of 8 disparate and unconnected incidents involving a variety of agencies 9 raises no inference that plaintiff was intentionally treated 10 differently by the LAPD or any named defendant because he was 11 homeless. 12 Further, to the extent that plaintiff is purporting to state 13 an Equal Protection claim based on his religion or his national 14 origin, plaintiff fails to set forth any facts to raise any 15 inference that any defendant intentionally discriminated against 16 him based on his membership in a protected class. See Monteiro v. 17 Tempe Union High Sch. Dist., 158 F.3d 1022, 1026 (9th Cir. 1998) 18 (“claims based on Equal Protection violations must plead 19 intentional unlawful discrimination or allege facts that are at 20 least susceptible of an inference of discriminatory intent”). 21 Plaintiff’s mere speculative allegation (even accepted as true) 22 that Officer Mohammadi is a Muslim, and his unsupported assertion 23 that Officer Mohammadi would have known of plaintiff’s religion or 24 national origin because “plaintiff is known everywhere as an 25 [I]sraeli,” or because the officer discovered these facts based on 26 information Mohammadi learned when checking his computer (see 27 Complaint at 11, 16), are insufficient to raise an inference that 28 any defendant acted with an intent to discriminate against 27 1 plaintiff based on the fact that plaintiff is of Israeli 2 nationality. 3 4 5 2. Plaintiff’s allegations also are insufficient to state any claim under the Due Process Clause. To the extent that plaintiff may be purporting to state a 6 separate substantive due process claim, it is unclear to the Court 7 what legal theory or factual basis such a claim may be premised 8 upon. (See Complaint ¶¶ 43 (right to “have due process of law and 9 the equality of the laws”), 45 (deprived of his “liberty”), 52 10 (homeless people are deprived of their right “to have proper due 11 process and the equality of the laws”), 56 (violated his “due 12 process, liberty, and privacy interests”), 63 (actions of defendant 13 abused his “due process and liberty interests”).) Rather, it 14 appears to the Court that any substantive due process claim that 15 plaintiff may be purporting to raise is foreclosed by his other 16 claims alleging the same violation(s). See, e.g., Graham, 490 U.S. 17 at 395 (“Because the Fourth Amendment provides an explicit textual 18 source of constitutional protection against [certain] … physically 19 intrusive governmental conduct, that Amendment, not the more 20 generalized notion of ‘substantive due process,’ must be the guide 21 for analyzing these claims.”); Hufford v. McEnaney, 249 F.3d 1142, 22 1151 (9th Cir. 2001) (“If, in a § 1983 suit, the plaintiff's claim 23 can be analyzed under an explicit textual source of rights in the 24 Constitution, a court should not resort to the more subjective 25 standard of substantive due process.” (internal citation omitted)). 26 Moreover to the extent that plaintiff may be purporting to state a 27 claim under the Fourteenth Amendment based on his allegations that 28 defendants falsely arrested plaintiff, plaintiff has no substantive 28 1 right under the Due Process Clause to be free from criminal arrest 2 or prosecution without probable cause. See Albright v. Oliver, 510 3 U.S. 266, 268, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994) (declining 4 to recognize a “substantive right under the Due Process Clause of 5 the Fourteenth Amendment to be free from criminal prosecution 6 except upon probable cause”). 7 3. 8 9 Plaintiff’s allegations are insufficient to state a federal civil rights claim for malicious prosecution. In order to prevail on a § 1983 claim of malicious 10 prosecution, plaintiff must show the defendants prosecuted him: (1) 11 with malice; (2) without probable cause; and (3) “for the purpose 12 of denying [him] 13 constitutional right.” equal protection or another specific See Awabdy v. City of Adelanto, 368 F.3d 14 1062, 1066 (9th Cir. 2004) (alteration in original) (quoting 15 Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir.1995)); 16 see also Lassiter v. City of Bremerton, 556 F.3d 1049, 1054-55 17 (9th Cir. 2009) (“[P]robable cause is an absolute defense to 18 malicious prosecution.”). Malicious prosecution claims may be 19 brought against any person who has “wrongfully caused the charges 20 to be filed.” Awabdy, 368 F.3d at 1066 (citing Galbraith v. County 21 of Santa Clara, 307 F.3d 1119, 1126-27 (9th Cir. 2002)). Plaintiff 22 must establish a termination of the underlying proceedings “in such 23 a manner as to indicate his innocence.” Awabdy, 368 F.3d at 1068. 24 Here, accepting plaintiff’s allegations as true, no criminal 25 charges were brought against plaintiff in connection with the 26 August 2010 incident in Woodley Park. To the extent that a cause 27 of action for malicious prosecution under § 1983 may be premised on 28 an officer’s initiation of a detention pursuant to Cal. Welf. & 29 1 Inst. Code § 5150, plaintiff has failed to show that defendants 2 detained him with malice and without probable cause, or for the 3 purpose of denying him any constitutional right. To the contrary, 4 as the Court found above, even accepting as true plaintiff’s 5 allegations and affording plaintiff the benefit of any doubt, as 6 alleged by plaintiff, the information available at the time of his 7 detention was sufficient for a reasonable officer to “believe or 8 entertain a strong 9 others. suspicion” that plaintiff posed a danger to Because this was sufficient to constitute probable cause 10 pursuant to Cal. Welf. & Inst. Code § 5150, plaintiff cannot show 11 that any defendant initiated his detention without probable cause. 12 Accordingly, plaintiff’s allegations are insufficient to state a 13 federal civil rights claim for malicious prosecution against any 14 defendant. 15 D. Plaintiff’s allegations are insufficient to state a claim for 16 relief based on any alleged “conspiracy.” 17 Plaintiff alleges that defendants conspired “to frame, arrest, 18 imprison and knowingly cause injuries to plaintiff” and that 19 defendants acted “in furtherance of an unlawful pattern and 20 practice, custom and usage, and was therefore [sic] a conspiracy 21 under color of law in violation of plaintiff’s constitutional 22 rights.” (Complaint at 17.) 23 1985(3), and 1986. 24 In order to Plaintiff cites 42 U.S.C. §§ 1983, (Id. at 17, 19.) state a claim for conspiracy under §1983, 25 plaintiff must “demonstrate the existence of an agreement or 26 meeting of the minds ‘to violate constitutional rights.’” Crowe v. 27 County of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) (quoting 28 Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1301 (9th 30 1 Cir. 1999)), petition for cert. filed (Sep. 16, 2010); see also 2 Hart v. Parks, 450 F.3d 1059, 1069 (9th Cir. 2006); Woodrum v. 3 Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989). “To be 4 liable, each participant in the conspiracy need not know the exact 5 details of the plan, but each participant must at least share the 6 common objective of the conspiracy.” Crowe, 608 F.3d at 440 7 (quoting United Steelworkers of Am., 865 F.2d at 1541). 8 Here, plaintiff’s bare allegation that defendants “conspired” 9 is altogether insufficient to raise even a plausible inference that 10 defendants “by some concerted action, intended to accomplish some 11 unlawful objective for the purpose of harming [plaintiff] which 12 results in damage.” Mendocino Envtl. Ctr., 192 F.3d at 1301. 13 Accordingly, the Court finds that the allegations in the Complaint 14 are insufficient to state a claim for conspiracy pursuant to § 1983 15 against any defendant. 16 Further, in order to state a conspiracy claim under 42 U.S.C. 17 § 1985(3), a plaintiff must allege: (1) the existence of a 18 conspiracy to deprive plaintiff of the equal protection of the 19 laws, (2) an act in furtherance of the conspiracy, and (3) a 20 resulting injury. See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 21 1141 (9th Cir. 2000). The complaint must contain facts describing 22 the overt acts that the defendants committed in furtherance of the 23 conspiracy; a mere allegation of the existence of a conspiracy is 24 insufficient to state a claim under § 1985. See Sever v. Alaska 25 Pulp Corp., 978 F.2d 1529, 1532 (9th Cir. 1992); Sanchez v. City of 26 Santa Ana, 936 F.2d 1027, 1039 (9th Cir. 1990), cert. denied, 502 27 U.S. 957 (1991); Karim-Panahi, 839 F.2d at 626. Additionally, the 28 complaint must allege that the conspiracy was the result of a 31 1 racial or class-based animus. See Griffin v. Breckenridge, 403 2 U.S. 88, 102, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971); Manistee 3 Town Center v. City of Glendale, 227 F.3d 1090, 1095 (9th Cir. 4 2000); Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 5 1987). Moreover, the absence of a showing of a deprivation of 6 plaintiff’s constitutional rights “precludes a § 1985 conspiracy 7 claim predicated on the same allegations.” Caldeira v. County of 8 Kauai, 866 F.2d 1175, 1182 (9th Cir), cert. denied, 493 U.S. 817 9 (1989). 10 Here, plaintiff’s bare allegation of the existence of a 11 conspiracy, even affording plaintiff the benefit of any doubt and 12 inferring that plaintiff intended to allege that Officer Mohammadi 13 and Sergeant Standage conspired against plaintiff based on his 14 Israeli nationality, also is insufficient to support any inference 15 (a) that a conspiracy existed between these defendants, or (b) that 16 the defendants’ alleged actions were taken in furtherance of any 17 such conspiracy. See Olsen v. Idaho State Bd. of Medicine, 363 18 F.3d 916, 929 (9th Cir. 2004) (affirming dismissal of § 1985 19 conspiracy claim where the plaintiff “failed to allege sufficiently 20 that the appellees conspired to violate her civil rights”). 21 Plaintiff fails to allege any facts giving rise to any plausible 22 inference of an agreement between these defendants, or among any 23 other LAPD officers, to violate his constitutional rights. 24 Finally, it follows from the insufficiency of plaintiff’s 25 allegations to state a conspiracy claim against the individual 26 defendants under 42 U.S.C. § 1985 that plaintiff’s allegations also 27 are insufficient to state a conspiracy claim against defendants 28 pursuant to 42 U.S.C. § 1986. See Karim-Panahi, 839 F.2d at 626; 32 1 see also, e.g., Sanchez, 936 F.2d at 1040; Trerice v. Pedersen, 769 2 F.2d 1398, 1403 (9th Cir. 1985) (“This Circuit has recently adopted 3 the broadly accepted principle that a cause of action is not 4 provided under 42 U.S.C. § 1986 absent a valid claim for relief 5 under § 1985.”). 6 E. Plaintiff’s allegations are insufficient to state a federal 7 civil rights claim against the City or the LAPD. 8 The Supreme Court has held that a local government entity such 9 as the City and the LAPD “may not be sued under § 1983 for an 10 injury inflicted solely by its employees or agents. Instead, it is 11 only when execution of a government’s policy or custom, whether 12 made by its lawmakers or by those whose edicts or acts may fairly 13 be said to represent official policy, inflicts the injury that the 14 government as an entity is responsible under § 1983.” Monell v. 15 New York City Dept. of Social Services, 436 U.S. 658, 694, 98 S. 16 Ct. 2018, 56 L. Ed. 2d 611 (1978). 17 Thus, the entity defendants may not be held liable for the 18 alleged actions of the officer defendants unless “the action that 19 is alleged to be unconstitutional implements or executes a policy 20 statement, ordinance, regulation, or decision officially adopted or 21 promulgated by that body’s officers,” or if the alleged 22 constitutional deprivation was “visited pursuant to a governmental 23 ‘custom’ even though such a custom has not received formal approval 24 through the body’s official decision-making channels.” Monell, 436 25 U.S. at 690-91; see also Redman v. County of San Diego, 942 F.2d 26 1435, 1443-44 (9th Cir. 1991). 27 Here, plaintiff has failed to identify any policy statements 28 of the entity defendants, or any City or LAPD regulations, or 33 1 officially adopted or promulgated decisions, the execution of which 2 by the officer defendants allegedly inflicted the injuries about 3 which he is complaining. 4 Instead, plaintiff alleges that defendants permitted a 5 “pattern and practice, custom and usage” of arresting people 6 without probable cause, filing false police reports, not filing 7 police reports, conducting deficient investigations and 8 supervision, and “brutality, bias and discrimination against 9 homeless, aliens, and, as in this case, religious discrimination” 10 (Complaint at 13-14); that the LAPD “has a long history of 11 institutional custom of harassing homeless people,” and that the 12 “custom” has been “allowed to go on by the Office of the City 13 Attorney” (id. at 15); and that the LAPD has a history of 14 discrimination against homeless people through “intimidation, 15 excessive use of force, killings, jailings, impoundment of 16 vehicles, etc.” (id.). 17 However, as the Supreme Court recently held, plaintiff’s 18 pleading obligation “requires more than labels and conclusions, and 19 a formulaic recitation of the elements of a cause of action will 20 not do.” Twombly, 550 U.S. at 555. Here, plaintiff merely alleges 21 that the LAPD has a “pattern and practice” of “brutality” against 22 the homeless and has “a long history of shameful discrimination 23 against homeless people that always include[s] intimidation, 24 excessive use of force,” [etc.] (Complaint at 13, 15.) However, 25 the Court notes that none of the factual allegations in plaintiff’s 26 Complaint, nor those in his attached list of his “Criminal 27 History,” include any other alleged incidents of the use of 28 excessive force by the LAPD. The only other incident that may 34 1 allegedly involve the excessive use of force is an incident from 2 August 4, 2008, during which “General Services Dept. police 3 officers” are alleged to have “handcuffed [plaintiff] and put him 4 to his knees” for an hour and a half. (Complaint, Exh. 1 at 2.) 5 This one other incident, which resulted from plaintiff’s encounter 6 with different law enforcement officers, does not constitute a 7 “pattern” or “long history” of “brutality” or the use of excessive 8 force. Moreover, plaintiff sets forth no factual allegations 9 concerning any alleged use of excessive force against any other 10 “homeless” individuals. Liability against the LAPD or the City may 11 not be premised on isolated or sporadic incidents by different 12 agencies of allegedly excessive force against plaintiff. See, 13 e.g., Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) 14 (“Liability for improper custom may not be predicated on isolated 15 or sporadic incidents; it must be founded upon practices of 16 sufficient duration, frequency and consistency that the conduct has 17 become a traditional method of carrying out policy.”); Thompson v. 18 Los Angeles, 885 F.2d 1439, 1443-44 (9th Cir. 1989) (“Consistent 19 with the commonly understood meaning of custom, proof of random 20 acts or isolated events are insufficient to establish custom.”), 21 overruled on other grounds, Bull v. City & County of San Francisco, 22 595 F.3d 964, 981 (9th Cir. 2010) (en banc). Further, plaintiff 23 does not specifically allege that Officer Mohammadi’s alleged use 24 of excessive force during the incident on August 2, 2010, was the 25 result of a “deliberate policy, custom, or practice” promulgated by 26 either the LAPD or the City. See, e.g., Rimac v. Duncan, 319 Fed. 27 Appx. 535, 537-38, 2009 WL 631616, at *2 (9th Cir. 2009) (now 28 citable for its persuasive value pursuant to Ninth Circuit Rule 3635 1 3) (finding that dismissal of plaintiff’s Monell claims was proper 2 where plaintiff did not adequately plead that his injuries resulted 3 from a municipal custom or policy); Galen v. County of Los Angeles, 4 477 F.3d 652, 667 (9th Cir. 2007) (noting that, to succeed on a 5 Monell claim, a plaintiff must establish that the entity “had a 6 deliberate policy, custom, or practice that was the moving force 7 behind the alleged constitutional violation he suffered” (internal 8 quotation marks omitted)). 9 Accordingly, the Court finds that plaintiff’s allegations in 10 support of his Monell claim(s) consist of nothing more than 11 isolated incidents combined with the kind of “formulaic recitation 12 of the elements of a cause of action” that the Supreme Court held 13 in Twombly was insufficient to state a claim because they do not 14 rise “above the speculative level.” 15 Twombly, 550 U.S. at 555.3 ****************** 16 For the reasons stated above, the court DENIES the Motion 17 18 3 The Court also notes that a Monell claim may not be 19 pursued in the absence of an underlying constitutional deprivation or injury. See City of Los Angeles v. Heller, 475 U.S. 796, 799, 20 106 S. Ct. 1571, 89 L. Ed. 2d 806 (1986) (“If a person has suffered 21 no constitutional injury at the hands of the individual police 22 23 24 25 26 27 28 officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.”); Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 957 (9th Cir. 2008) (“Because there is no constitutional violation, there can be no municipal liability.”); Fairley v. Luman, 281 F.3d 913, 916 (9th Cir.) (“Exoneration of [the officer] of the charge of excessive force precludes municipal liability for the alleged unconstitutional use of such force.”), cert. denied, 537 U.S. 1044 (2002). Here, the Court has found that, other than an arguable Fourth Amendment excessive force claim against Officer Mohammadi, plaintiff’s allegations are insufficient to state a federal civil rights claim for violation of his constitutional rights. 36 1 to Dismiss with respect to Plaintiff’s Fourth Amendment excessive 2 force claim against Officer Mohammadi. The court GRANTS the Motion 3 to Dismiss with prejudice with respect to all of plaintiff’s other 4 claims against all defendants. 5 Accordingly, Plaintiff’s Request for Ruling on Defendant’s 6 Motion to Dismiss (Dckt. No. 93) and Plaintiff’s Request for the 7 Second Time for Ruling on Defendant’s Motion to Dismiss (Dckt. No. 8 94) is hereby VACATED as moot. 9 10 IT IS SO ORDERED. 11 12 13 Dated: August 6, 2013 _____________________________ Hon. Dean D. Pregerson United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 37
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