Morris et al v. City of Fresno et al, No. 1:2008cv01422 - Document 61 (E.D. Cal. 2010)

Court Description: MEMORANDUM DECISION and ORDER Re: Defendants' 42 Motion to Dimisss or, in The Alternative, Motion For a More Definite Statement signed by Judge Oliver W. Wanger on 1/14/2010. Any amended complaint is due within thirty (30) days of the electronic filing of this Memorandum Decision. (Esteves, C)

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1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 ROBERT MORRIS and MICHELLE MORRIS, 5 Plaintiffs, v. 6 7 FRESNO POLICE DEPARTMENT, OFFICERS CHRISTOPHER LONG, JEREMY DEMOSS, 8 08-CV-01422-OWW-GSA MEMORANDUM DECISION AND ORDER RE: DEFENDANTS MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR A MORE DEFINITE STATEMENT Defendants. 9 10 I. 11 12 13 14 15 16 17 18 19 Before the court 22 23 24 25 26 27 is a motion to dismiss or, in the alternative, a motion for a more definite statement, brought by defendants City of Fresno Police Department, Officer Christopher Long and Officer Jeremy DeMoss (collectively Defendants ). The motion is directed at the claims asserted by pro se plaintiffs Robert Morris and Michelle Morris in their Third Amended Complaint ( TAC ). Plaintiffs, who are proceeding in forma pauperis, oppose the motion. The following background facts are taken from the TAC (Doc. 37) and other documents on file in this case. 20 21 INTRODUCTION II. A. BACKGROUND Brief Procedural History Plaintiffs filed their initial complaint on September 23, 2008, and applied for and were granted the right to proceed in forma pauperis ( IFP ). Given their IFP status, the magistrate judge screened their initial complaint. See 28 U.S.C. § 1915(e)(2). The initial complaint contained claims for False Arrest and Imprisonment, Police Brutality, Violation of Right to Due 28 1 1 Process of Law, Conspiracy to Deprive Equal Protection of Laws, 2 Physical and Emotional Problems, and Officer Misconduct. 3 magistrate judge dismissed the complaint with leave to amend. (Doc. 4 15.) 5 Plaintiffs filed a first amended complaint The which the 6 magistrate judge screened and dismissed, again with leave to amend. 7 (Doc. 29.) 8 screened, 9 recommendations which recommended that certain claims proceed while Plaintiffs filed a second amended complaint, it was and magistrate 10 others, 11 In with response a named judge issued to the defendant findings magistrate (Brendan and dismissed. (Doc. 31.) 12 along the judge s Rhames), findings be and 13 recommendations, Plaintiffs filed a document entitled Objection To 14 Magistrate Judges Findings and Recommendation With Request For 15 Amendment To Complaint. 16 voluntarily 17 imprisonment claim. 18 municipal liability. dismiss In this submission Plaintiffs agreed to one claim, i.e., the false arrest and Plaintiffs also requested to add a claim for 19 In an order adopting the magistrate judge s findings and 20 recommendations, Plaintiffs request to add a claim for municipal 21 liability was construed as a motion to amend the complaint. 22 motion 23 consideration. 24 the false arrest and imprisonment claim, that claim was dismissed 25 without 26 recommendations to amend was referred to the magistrate This judge for In light of Plaintiffs voluntarily dismissal of prejudice and were the magistrate otherwise adopted. judge s (Doc. findings 35 at and 2.) 27 Subsequently, the magistrate judge granted Plaintiffs motion 28 to amend to add the municipal liability claim and Plaintiffs TAC 2 1 followed. (Doc. 36.) The magistrate judge reviewed the TAC and 2 concluded, in an order dated August 4, 2009, that Plaintiffs 3 appeared to state cognizable claims for relief. (Doc. 38.) 4 other things, that order stated service is appropriate for 5 Defendant Fresno Police Department. 6 B. Among Plaintiffs TAC Plaintiffs TAC names three defendants: the Fresno Police 7 8 Department, Officer Christopher Long, and Officer Jeremy DeMoss. 9 The beginning of the TAC reads: Plaintiffs Mr. & Mrs. Morris claim that their Constitutional rights were violated. Actions claimed under 42 U.S.C. § 1983, 4th Amendment, also under California State law. The District Court has jurisdiction over state claims alleging Municipal Liability, a Monell claim, when civil in nature. 10 11 12 13 (Doc. 37 at 1.) The remainder of the TAC consists of two sections: 14 one section contains Allegations by Plaintiff Mrs. Morris 15 followed by her request for relief, and another section contains 16 Allegations by Plaintiff Mr. Morris followed by his request for 17 relief. 18 In her allegations, Mrs. Morris asserts a claim for excessive 19 force against officer DeMoss. In his allegations, Mr. Morris asserts force 20 a claim for excessive against officer Long, a 21 defamation claim against officer Long, and a municipal liability 22 claim against the Fresno Police Department. Both plaintiffs 23 request unlimited and punitive damages. 24 1. Mrs. Morris s Allegations 25 a. Excessive Force 26 In her allegations, Mrs. Morris asserts a claim for Excessive 27 Force against officer DeMoss stemming 28 3 from an incident on 1 10/28/09. 2 assault and robbery, presumably by some third party. 3 Mrs. Morris hadn t broke no laws she was placed into handcuffs 4 for unknown reasons. 5 Officer 6 handle[d] her and then, for unknown reasons, drove her home: 7 8 9 10 11 12 According to the TAC, Mrs. Morris was a victim of an DeMoss Even though The TAC alleges that, without warning, snatched Plaintiff up off the curb, man- Officer DeMoss snatched Plaintiff up off the curb by grabbing her by the right elbow and lifting her straight up, quickly and unexpectant [sic]. Officer DeMoss gave no warning of what he was going to do. Plaintiff Mrs. Morris was man-handle[d] in such a way that so much Force was used in grabbing her elbow, that the Off[]icer left large bruses [sic] on the insides of Plaintiffs fore-arm and her bicep. Three to four inches in dameter [sic], Plaintiff wasn t arrested, but for unknown reasons taken to her residence, 1/2 block away and just dropped off, by Officer DeMoss. 13 (Doc. 37 at 2 (emphasis omitted).) Mrs. Morris contends that 14 Officer violation 15 Constitutional rights. (Id.) 16 17 2. DeMoss s actions were in of her federal Mr. Morris s Allegations a. Excessive Force 18 Mr. Morris asserts an Excessive Force claim against Officer 19 Long stemming from an undated incident where Mr. Morris had his 20 blood drawn. 21 used an arm-bar lock on Mr. Morris and used so much force that 22 [his] shoulder was disclocated[] and his ligament torn. Although 23 not clear, it appears Mr. Morris is alleging that Officer Long also 24 threatened to break Mr. Morris s arm: 25 During a blood draw of Mr. Morris, Officer Long Officer Long screamed at the Plaintiff telling the Plaintiff Mr. Morris, to move so that (LONG) could brake 26 27 28 4 1 [sic] the arm. [1] 2 (Doc. 37 at 3 (emphasis omitted).) Mr. Morris asserts that Officer 3 Long s actions were unnecessary because Mr. Morris was very 4 cooperative, calm, quiet and quite nice throughout the 5 encounter and he never refused. 6 Long s action violated his Federal Constitutional rights. (Id.) b. 7 Mr. Morris asserts that Officer Municipal Liability 8 Mr. Morris asserts a claim for Municipal Liability against 9 the Fresno Police Department based on its policy, custom and/or 10 practice regarding blood draws. 11 the Forced Blood-draw performed on him to this policy, custom, 12 and or/practice. c. 13 Mr. Morris apparently attributes Defamation 14 Finally, Mr. Morris asserts a claim for defamation based on 15 statements Officer Long made under oath on three occasions at a 16 DMV administrative hearing. 17 18 19 The TAC asserts: On 04/29/08, Officer Long stated the D.M.V. administ[r]ative hearing for the Plaintiff Mr. Morris. While under oath, clearly stated that Mrs. Morris was, placed under arrest for being drunk in public. That Officer DeMoss had taken Mrs. Morris to jail and that she was booked in. 20 21 [A]lso on 06/12/08, Officer Long once again stated to the D.M.V. hearing officer, while under oath. Mrs. Morris was taken into custody for violation PC647F. 22 23 Officer Long made these statements to the hearing Officer in attempt to discredit Mrs. Morris. 24 Officer DeMoss stated under oath on 09/10/08, at the D.M.V hearing, I transported her (Mrs. Morris) home. 25 (Doc. 37 at 3 (emphasis omitted).) At the end of the defamation 26 27 28 1 It is unclear whether the word brake should be break or perhaps brace. 5 1 claim, a single incomplete 2 California law. (Id. at 4.) 3 C. sentence reads: A violation of Summary Of Defendants Arguments 4 Defendants motion attacks all claims asserted in the TAC. 5 1. Motion To Dismiss 6 a. Excessive Force 7 Defendants move to dismiss both Mrs. Morris s and Mr. 8 Morris s excessive force claims, arguing that these claims are 9 insufficiently pled because the TAC does not allege that Officer 10 DeMoss or Long were acting under color of law at the time of the 11 alleged constitutional violations. b. 12 Municipal Liability 13 Defendants move to dismiss the § 1983 claim asserted against 14 the Fresno Police Department on the ground that it is not the 15 proper party to this claim. c. 16 17 Defamation Defendants move to dismiss the defamation claim on several 18 grounds. 19 federal defamation claim cognizable under § 1983, such a claim is 20 insufficiently pled. To the extent that Mr. Morris asserts a state 21 law defamation claim, Defendants argue that this claim fails 22 because: (i) the claim is based on statements that are protected by 23 an absolute privilege; and (ii) the TAC does not plead compliance 24 with the California Government Claims Act. 25 26 2. To the extent that Mr. Morris attempts to assert a Motion For A More Definite Statement a. Excessive Force 27 Defendants also move for a more definite statement of the § 28 1983 excessive force claims, arguing that it is unclear when the 6 1 alleged excessive force incidents occurred. According to 2 Defendants, this lack of clarity prevents them from conducting a 3 statute of limitations analysis. 4 As to Mrs. Morris s claim, Defendants note that she alleges, 5 in the TAC, that the excessive force incident with Officer DeMoss 6 occurred 7 10/28/09. As to Mr. Morris s claim, Defendants note that the TAC 8 does not specify when the blood draw incident with Officer Long 9 occurred. on 10/28/09. However, the TAC was filed before Apart from the lack of a specified date, Defendants 10 further argue that Mr. Morris s excessive force claim is otherwise 11 impermissibly vague. 12 b. Municipal Liability 13 Defendants move for a more definite statement of the municipal 14 liability claim, arguing that the basis of the Monell claim is 15 unclear. III. 16 17 18 A. STANDARDS OF DECISION Motion To Dismiss Dismissal under Rule 12(b)(6) is appropriate where the 19 complaint lacks sufficient facts to support a cognizable legal 20 theory. Balistreri v. Pacifica Police Dep t, 901 F.2d 696, 699 (9th 21 Cir. 1990). 22 12(b)(6) motion, the pleading does not need detailed factual 23 allegations but the [f]actual allegations must be enough to raise 24 a right to relief above the speculative level. Bell Atl. Corp. v. 25 Twombly, 550 U.S. 544, 555 (2007). 26 or a formulaic recitation of the elements of a cause of action 27 will not do. Id. 28 claim to relief that is plausible on its face. Id. at 570. To sufficiently state a claim to relief and survive a Mere labels and conclusions Rather, there must be enough facts to state a 7 In 1 other words, the complaint must contain sufficient factual matter, 2 accepted as true, to state a claim to relief that is plausible on 3 its face. Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 4 (2009) (internal quotation marks omitted). 5 summarized the governing standard, in light of Twombly and Iqbal, 6 as follows: In sum, for a complaint to survive a motion to 7 dismiss, 8 inferences from that content, must be plausibly suggestive of a 9 claim entitling the plaintiff to relief. Moss v. U.S. Secret 10 Serv., 572 F.3d 962, 969 (9th Cir. 2009) (internal quotation marks 11 omitted). the non-conclusory factual The Ninth Circuit has content, and reasonable 12 This standard, which is derived from Rule 8, applies to 13 pleadings drafted by attorneys as well as pro se litigants. See 14 Iqbal, 129 S. Ct. at 1953 ( Our decision in Twombly expounded the 15 pleading standard for all civil actions. (quoting 16 P. 1)); Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008) 17 (applying Twombly to pro se complaint); Wisdom v. Katz, 308 F. 18 App x 120, 121 (2009) (same). 19 sufficiency of a complaint drafted by a pro se litigant, the 20 pleading 21 stringent[ly] 22 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation 23 marks omitted). is to be than Nevertheless, when reviewing the liberally formal Fed. R. Civ. construed pleadings and viewed prepared by less attorneys. 24 In deciding whether to grant a motion to dismiss, the court 25 must accept as true all well-pleaded factual allegations in the 26 pleading under attack. Iqbal, 129 S. Ct. at 1950. 27 however, required to accept as true allegations that are merely 28 conclusory, unwarranted deductions 8 of fact, A court is not, or unreasonable 1 inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 2 (9th Cir. 2001); see, e.g., Doe I v. Wal-Mart Stores, Inc., 572 3 F.3d 677, 683 (9th Cir. 2009). 4 Apart from factual insufficiency, a complaint is also subject 5 to dismissal under Rule 12(b)(6) where it lacks a cognizable legal 6 theory, Balistreri, 901 F.2d at 699, or where the allegations on 7 their face show that relief is barred for some legal reason, 8 Jones v. Bock, 549 U.S. 199, 215 (2007). 9 B. Motion For A More Definite Statement 10 If a pleading fails to specify the allegations in a manner 11 that provides sufficient notice, a defendant can move for a more 12 definite 13 Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). 14 12(e), [a] party may move for a more definite statement of a 15 pleading when it is so vague or ambiguous that the party cannot 16 reasonably prepare a response. statement under Rule 12(e) before responding. Under Rule 17 A Rule 12(e) motion is proper only if the complaint is so 18 indefinite that the defendant cannot ascertain the nature of the 19 claim being asserted, i.e., so vague that the defendant cannot 20 begin to frame a response. See Famolare, Inc. v. Edison Bros. 21 Stores, Inc., 525 F.Supp. 940, 949 (E.D. Cal. 1981). 22 must be denied if the complaint is specific enough to notify 23 defendant 24 Bureerong v. Uvawas, 922 F. Supp. 1450, 1461 (C.D. Cal. 1996); see 25 also San Bernardino Pub. Employees Ass n v. Stout, 946 F. Supp. 26 790, 804 (C.D. Cal. 1996) ( A motion for a more definite statement 27 is used to attack unintelligibility, not mere lack of detail, and 28 a complaint is sufficient if it is specific enough to apprise the of the substance of the 9 claim being The motion asserted. See 1 defendant of the substance of the claim asserted against him or 2 her. ). IV. 3 4 A. DISCUSSION AND ANALYSIS Motion To Dismiss 5 1. 6 Section 1983 provides: 7 11 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 12 42 U.S.C. § 1983 (emphasis added). Section 1983 creates a federal 13 cause of action for deprivation, under color of state law, of 14 rights guaranteed by the United States Constitution or laws. 15 Bernardino Physicians Servs. Med. Group, Inc. v. County of San 16 Bernardino, 825 F.2d 1404, 1407 (9th Cir. 1987). 8 9 10 17 Excessive Force Claims San To state a claim under § 1983, a plaintiff must both (1) 18 allege the deprivation of a right secured by the federal 19 Constitution or statutory law, and (2) allege that the deprivation 20 was committed by a person acting under color of state law. 21 Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). With 22 respect to the latter requirement, [t]here is no rigid formula for 23 determining whether a person was acting under color of state law. 24 Id. at 1068. 25 state law requires that the defendant in a § 1983 action have 26 exercised power possessed by virtue of state law and made possible 27 only because the wrongdoer is clothed with the authority of state 28 law. West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United The traditional definition of acting under color of 10 1 States v. Classic, 313 U.S. 299, 326 (1941)). 2 Under color of state law means under pretense of law, and 3 [a] police officer s actions are under pretense of law only if 4 they are in some way related to the performance of his official 5 duties. Huffman v. County of Los Angeles, 147 F.3d 1054, 1058 (9th 6 Cir. 1998) (internal quotation marks omitted). 7 under color of state law must be related to the state authority 8 conferred on the actor, even though the actions are not actually 9 permitted by the authority. Dang Vang v. Vang Xiong X. Toyed, 944 10 F.2d 476, 480 (9th Cir. 1991) (internal quotation marks omitted). 11 A police officer acts under color of state law when the is 12 officer 13 performance of his or her official duties. McDade v. West, 223 14 F.3d 15 confrontations for personal reasons unrelated to law enforcement, 16 and do not purport[ ] or pretend[ ] to be officers, do not act 17 under color of law. Huffman, 147 F.3d at 1058 (alterations in 18 original) (internal quotation marks omitted). 1135, acting, 1140 purporting, (9th Cir. or 2000). pretending [A]ctions taken Officers to who act in engage the in 19 Merely because the person is a police officer does not mean 20 that everything he [or she] does is under color of state law. 21 Gritchen v. Collier, 254 F.3d 807, 812 (9th Cir. 2001). 22 whether a police officer is acting under color of state law turns 23 on the nature and circumstances of the officer s conduct and the 24 relationship of that conduct to the performance of his official 25 duties. Anderson, 451 F.3d at 1068. Rather, 26 To survive a Rule 12(b)(6) motion, the pleading must allege 27 facts suggesting that the defendants were acting under color of 28 state law at the time of the alleged constitutional violation. See 11 1 Gritchen, 254 F.3d at 812; Davis v. Cal. W. Sch. of Law, CA, No. 2 09-55187, 2009 WL 3415991, at *1 (9th Cir. Oct. 23, 2009). a. 3 Mrs. Morris s excessive force claim 4 As to Mrs. Morris s excessive force claim, the TAC fails to 5 allege facts sufficient to suggest that Officer DeMoss was acting 6 under color of law when he handcuffed her for unknown reasons, 7 snatched Plaintiff up off the curb, man-handle[d] her and drove 8 her home. 9 Missing from the TAC are any facts which would suggest that 10 this encounter was somehow related to Officer DeMoss s performance 11 of his duties as a police officer.2 12 explain the context in which Officer Demoss encountered Mrs. Morris 13 on the curb, what he was doing there, what Officer DeMoss was 14 wearing at the time of the incident (his uniform or plain clothes), 15 or whether he drove Mrs. Morris home in a police car or a civilian 16 vehicle. 17 officer, this fact alone does not mean that Officer DeMoss was 18 acting in his capacity as a police officer, or purporting or 19 pretending to act as a police officer, at the time he encountered 20 Mrs. Morris on the curb, snatched her up and allegedly used 21 excessive force on her. 22 Mrs. Morris was doing. 23 For example, the TAC does not While the TAC indicates that Officer DeMoss is a police The complaint does not describe what There are no facts in the TAC to suggest Office Demoss acted 24 under color of law. Accordingly, the excessive force claim is 25 insufficiently pled. Defendants motion to dismiss Mrs. Morris s 26 excessive force claim on this ground is GRANTED WITH LEAVE TO 27 28 2 The TAC does not even contain the conclusory statement that Officer DeMoss was acting under color of state law. 12 1 AMEND. b. 2 Mr. Morris s excessive force claim 3 Mr. Morris s claim is different. Liberally construed, the TAC 4 alleges facts sufficient to suggest that Officer Long was acting 5 under color of law at the time of the alleged excessive force used 6 on Mr. Morris. 7 The TAC alleges that Officer Long is a police officer who 8 allegedly used excessive force on Mr. Morris during a blood draw. 9 The TAC indicates that Officer Long testified at a DMV hearing 10 regarding this blood draw and also testified regarding the Fresno 11 Police Department s policy, custom and/or practice on blood draws. 12 Liberally construing the TAC, and drawing reasonable 13 inferences from its factual content, the TAC suggests that Officer 14 Long was acting in his capacity as a police officer at the time of 15 the alleged use of excessive force. 16 duties, police officers routinely conduct tests on individuals to 17 determine whether they are intoxicated. 18 instead of using a field-sobriety test or breathalyzer on Mr. 19 Morris, 20 presumably to determine whether Mr. Morris was intoxicated. 21 TAC suggests that Officer Long was acting as a police officer when 22 securing 23 excessive force occurred during the blood draw. 24 that the alleged excessive force was used in furtherance of, or in 25 connection with, the blood draw, but the force was unnecessary 26 because Mr. Morris was cooperative and did not refuse the draw. Officer a blood Long draw proceeded from Mr. As part of their official with The TAC indicates that a Morris forced-blood and when the draw, The alleged The TAC implies 27 The TAC contains enough facts to suggest that, at the time of 28 the alleged excessive force incident, Officer Long was acting under 13 1 color of law. Defendants motion to dismiss Mr. Morris s excessive 2 force claim on this ground is DENIED. 3 2. Municipal Liability 4 Defendants argue that the Fresno Police Department is not the 5 proper party to Plaintiffs § 1983 claim. See Stump v. Gates, 777 6 F. Supp. 808, 816 (D. Colo. 1991) ( Naming a municipal department 7 as a defendant is not an appropriate means of pleading a § 1983 8 action against a municipality. ); Vance v. County of Santa Clara, 9 928 F. Supp. 993, 995-96 (N.D. Cal. 1996) (same); see also United 10 States v. Kama, 394 F.3d 1236, 1239-40 (9th Cir. 2005) (Ferguson, 11 J., concurring) ( [M]unicipal police departments and bureaus are 12 generally not considered persons within the meaning of 42 U.S.C. 13 § 1983. ). 14 they intended to sue the City of Fresno, not the Fresno Police 15 Department. 16 Magistrate Judge dated July 9, 2009, may have dissuaded Plaintiffs 17 from suing the City and caused them to name the Police Department 18 instead. 19 to amend their complaint to name the City of Fresno as a defendant, 20 instead of the Fresno Police Department. At oral argument on the motion, Plaintiffs stated that It appears that, among others, an order issued by the In view of this confusion, Plaintiffs will be permitted 21 Municipalities, like the City of Fresno, are persons 22 under 42 U.S.C. § 1983 and thus may be liable for causing a 23 constitutional deprivation. Long v. County of Los Angeles, 442 24 F.3d 1178, 1185 (9th Cir. 2006). 25 cannot be liable for a constitutional violation on the basis of 26 respondeat superior. Monell v. Dep t of Soc. Servs., 436 U.S. 658, 27 691 (1978). 28 pursuant to official municipal policy of some nature caused a In a § 1983 case, a municipality Rather, a municipality is liable only when action 14 1 constitutional tort. Christie v. Iopa, 176 F.3d 1231, 1235 (9th 2 Cir. 1999) (quoting Monell, 436 U.S. at 691). The official 3 municipal policy 4 longstanding practice or custom. Id. (internal quotation marks 5 omitted). 6 For policy Monell be an purposes, of policies the city of a itself city s or a police 8 policies set by the [d]epartment and its Chief may be fairly said 9 to represent official [City] policy on police matters. Shaw v. 10 State of Cal. Dep t of Alcoholic Beverage Control, 788 F.2d 600, 11 610 (9th Cir. 1986) (internal quotation marks omitted) (second 12 alteration in original); cf. Brandon v. Holt, 469 U.S. 464, 472 13 (1985) (recognizing that the actions of city department officials 14 in their official capacity are equated with the actions of the 15 city itself ). 16 properly asserted against the City of Fresno. 18 policies the adopted department 3. the expressly 7 17 are can because the Accordingly, the Monell claim in the TAC is Defamation Claim a. Defamation Under § 1983 19 Defendants argue that, to the extent Mr. Morris attempts to 20 assert a federal law defamation claim under § 1983, this claim is 21 insufficiently pled. 22 To sustain a claim under § 1983 there must be an underlying 23 violation of the United States Constitution or federal law. A pure 24 state law violation is not enough. 25 claim is nothing more than an alleged violation of state law, it 26 cannot give rise to § 1983 liability. 27 however, in which defamation may be actionable under § 1983. 28 explained in Hart v. Parks, 450 F.3d 1059, 1069-70 (9th Cir. 2006) 15 If Mr. Morris s defamation There are situations, As 1 (emphasis omitted): Damage to reputation alone is not actionable under § 1983, Paul v. Davis, 424 U.S. 693, 711-12 (1976), although a § 1983 claim may lie if [the plaintiff] was stigmatized in connection with the denial of a more tangible interest. Id. at 701-02; see also Cooper v. Dupnik, 924 F.2d 1520, 1532 (9th Cir. 1991). This is known as the stigma-plus test, and can be satisfied in two ways. 2 3 4 5 6 11 First, the plaintiff must show that the injury to his reputation was inflicted in connection with the deprivation of a federally protected right. See, e.g., Gobel v. Maricopa County, 867 F.2d 1201, 1205 (9th Cir. 1989). Because police had probable cause to arrest him, Hart cannot show an injury to his reputation in connection with the deprivation of a federally protected right. Second, the plaintiff must show that the injury to reputation caused the denial of a federally protected right[.] 12 See also Herb Hallman Chevrolet, Inc. v. Nash-Holmes, 169 F.3d 636, 13 645 (9th Cir. 1999) (referring to it as a defamation-plus claim). 14 Mr. Morris s defamation claim is sparsely described. 15 Morris alleges defamation by Officer Long and he identifies some 16 statements Officer Long made under oath at a DMV hearing. 17 Long s statements under oath relate to Mrs. Morris. 7 8 9 10 Mr. Officer Mr. Morris does not sufficiently allege a defamation-plus 18 19 claim cognizable under § 1983. 20 injury to his reputation flowing from these statements, let alone 21 that 22 connection with the deprivation of a federally protected right or 23 caused the denial of a federally protected right. 24 the With injury respect to to his the Mr. Morris does not allege any reputation was defamation either claim, in inflicted in opposition, 25 Plaintiffs argue that plaintiff[s] will assert their right to the 26 1983 claim, because, Federal Court has jurisdiction over state 27 claims, when there [sic] [c]ivil in nature. Federal Courts may 28 exercise supplemental jurisdiction. (Doc. 52 at 3) (alteration in 16 1 original.) Plaintiffs argument refers to the defamation claim as 2 a state law claim[] over which supplemental jurisdiction can be 3 exercised. 4 defamation claim is asserted under state law. Plaintiffs Supplemental 5 argument jurisdiction actually refers to confirms a that federal the court s 6 jurisdiction over a state law claim when that claim is related to 7 a separate federal claim in the same case. 8 has supplemental jurisdiction over a state law claim, this does not 9 turn that state law claim into a federal claim. 10 Even if a federal court Plaintiffs suggestion to the contrary is erroneous. Neither the face of the TAC nor Plaintiffs argument in 11 12 opposition suggests 13 defamation-plus claim cognizable under § 1983. 14 extent 15 insufficiently pled and therefore DISMISSED WITH LEAVE TO AMEND.3 the b. 16 TAC attempts Mr. to Morris is assert asserting such a a federal However, to the claim, it is State law defamation claim i. 17 that Absolute Privilege California Civil Code § 47(b) provides that any publication 18 19 made in any judicial proceeding or in any other official 20 proceeding authorized by law is privileged. 21 applies to statements made in quasi-judicial proceedings, Wise v. 22 Thrifty Payless, Inc., 83 Cal. App. 4th 1296, 1303 (2000), and in This privilege 23 24 25 26 27 3 The magistrate judge s review of the pleadings did not address whether Plaintiffs have adequately pled a defamation-plus claim cognizable under § 1983. Quite understandably, the magistrate judge viewed the defamation claim as a state law defamation claim. The issue of whether a federal defamation-plus claim is adequately alleged was raised for the first time by Defendants in their motion to dismiss. 28 17 1 administrative proceedings, Ellenberger v. Espinosa, 30 Cal. App. 2 4th 943, 952 (1994), and is absolute, Lee v. Flick, 135 Cal. App. 3 4th 89, 98 (2005). 4 holds administrative and/or quasi-judicial proceedings. See Wise, 5 83 Cal. App. 4th at 1303; Molenda v. Dep t of Motor Vehicles, 172 6 Cal. App. 4th 974, 985 (2009). The California DMV is a public agency which 7 Mr. Morris s defamation claim is based on statements Officer 8 Long made at a D.M.V. administ[r]ative hearing, while he was 9 under oath on three separate occasions. These statements are 10 absolutely privileged under California Civil Code § 47(b) and 11 cannot form the basis of a state law defamation claim. To the 12 extent it 13 DISMISSED WITH PREJUDICE. the TAC asserts ii. 14 a state law defamation claim, is Government Claims Act Compliance Defendants argue that Mr. Morris s defamation claim is subject 15 16 to dismissal 17 Government Claims Act. See Cal. Gov t Code § 900 et seq. When a 18 claim timely 19 presentation of a claim under the Government Claims Act is not 20 merely a procedural requirement, it is an actual element of the 21 plaintiff s cause of action. Shirk v. Vista Unified Sch. Dist., 42 22 Cal. 4th 201, 209 (2007). 23 must allege facts demonstrating or excusing compliance with the 24 claim presentation requirement. 25 fail[s] to state facts sufficient to constitute a cause of action. 26 State v. Superior Court (Bodde), 32 Cal. 4th 1234, 1243 (2004); see 27 also Shirk, 42 Cal.4th at 209. 28 defamation claim is barred because it is based on statements that is because subject to he has the not alleged Government compliance Claims Act, with the the As such, in the complaint, the plaintiff Otherwise, his complaint ... Given that Mr. Morris s state law 18 1 are absolutely privileged under California Civil Code § 47(b), it 2 need not be determined whether his defamation claim is also subject 3 to dismissal for failing to allege facts demonstrating or excusing 4 compliance with the Government Claims Act. 5 B. 6 Motion For A More Definite Statement 1. Excessive Force Claims a 7 Mrs. Morris s Excessive Force Claim i. Date Of Incident 8 9 Defendants move for a more definite statement of Mrs. Morris s 10 excessive force claim on the ground that the date of her encounter 11 with Officer DeMoss is unclear, which makes it difficult for 12 Defendants 13 Defendants suggestion that Mrs. Morris is required to plead the 14 date of the incident with Officer DeMoss so that Defendants can 15 evaluate a statute of limitations defense is unpersuasive. to evaluate a statute of limitations defense. 16 The statute of limitations provides an affirmative defense, 17 and a plaintiff is not required to plead on the subject of an 18 affirmative defense or allege facts which assist the defendant in 19 making an affirmative defense. See United States v. McGee, 993 F.2d 20 184, 187 (9th Cir. 1993); Spindex Physical Therapy USA, Inc. v. 21 United Healthcare of Az., __ F. Supp. 2d. __, 2009 WL 1154128, at 22 * 8 (D. Ariz. Apr. 29, 2009); Neveu v. City of Fresno, 392 F. Supp. 23 2d 1159, 1169 (E.D. Cal. 2005). 24 show that his suit is time-barred or otherwise without merit, he 25 has pleaded himself out of court. But it does not follow from the 26 fact that a plaintiff can get into trouble by pleading more than he 27 is required to plead that he is required to plead that more. 28 Tregenza v. Great Am. Commc ns Co., 12 F.3d 717, 718 (7th Cir. If a plaintiff pleads facts that 19 1 1993) (citations omitted). 2 Mrs. Morris is not required to plead the date of her incident 3 with Officer DeMoss to assist Defendants with their statute of 4 limitations evaluation. 5 Mrs. Morris to plead the specific date of the incident. See Armer 6 v. OpenMarket, Inc., No. C08-1731RSL, 2009 WL 2475136, at *1 (W.D. 7 Wash. July 27, 2009); DeTemple v. Leica GeoSystemes, Inc., No. 08- 8 CV-281, 2009 WL 3617616, at *4 (E.D. Wis. Oct. 29, 2009). 9 is ascertainable in discovery. 10 11 Nor does Rule 8 impose an obligation on The date Nevertheless, the date Mrs. Morris has alleged 10/28/2009" - creates a problem. According to the face of the TAC, Officer DeMoss used 12 excessive force on Mrs. Morris on 10/28/09. 13 Mrs. Morris filed the TAC July 28, 2009, before October 28, 2009. 14 Mrs. Morris cannot assert a cognizable claim based on an incident 15 that could not have occurred before she filed her complaint, nor 16 can Defendants frame an intelligible response to a factually 17 impossible claim. 18 date alleged, 10/28/09, was a typographical error. 19 supposed to be October 28, 2007. Plaintiffs have offered to clear 20 up this typo. 21 22 Plaintiffs assert in their briefing that the The date is Defendants motion for a more definite statement is GRANTED WITH LEAVE TO AMEND to correct the typographical error. b. 23 Mr. Morris s Excessive Force Claim i. 24 25 This is impossible. Date of incident Defendants fault Mr. Morris for not pleading the date on which 26 Officer Long allegedly used excessive force against him. 27 Morris is not required to plead the date of his incident with 28 Officer Long to assist Defendants 20 with their statute Mr. of 1 limitations evaluation. Nor does Rule 8 impose an obligation on 2 Mr. Morris to plead the specific date of the incident. 3 Defendants motion for a more definite statement on the ground 4 that Mr. Morris failed to plead the date on which Officer Long 5 allegedly used excessive force is DENIED. ii. 6 7 Impermissibly vague claim Defendants also contend that Mr. Morris s excessive force 8 claim is impermissibly vague. Defendants argue that they cannot 9 determine, the from the face of TAC, whether Mr. Morris is 10 asserting (i) only an excessive force claim based on the force used 11 during the blood draw, which lead to injuries including a shoulder 12 dislocation and torn ligament, or (ii) whether Mr. Morris is also 13 separately 14 forcing him to submit to a blood test in the first instance. 15 Defendants are correct to note the distinction between such claims. 16 Even if it is proper, under the Fourth Amendment, for the 17 police to conduct a search or seizure of an individual, the search 18 or seizure can nonetheless violate the Fourth Amendment if the 19 police use excessive force in conducting [the] search or seizure. 20 United States v. Alverez-Tejeda, 491 F.3d 1013, 1017 (9th Cir. 21 2007); see also Schmerber v. California, 384 U.S. 757, 768 (1966) 22 ( [T]he Fourth Amendment s proper function is to constrain . . . 23 intrusions which are not justified in the circumstances, or which 24 are made in an improper manner. ). 25 proper for the police to conduct a blood test (a type of search), 26 excessive force used to carry out that blood test can violate the 27 Fourth Amendment. See Ellis v. City of San Diego, Cal., 176 F.3d 28 1183, 1191-92 (9th Cir. 1999) ( [W]arrantless compulsory blood challenging the constitutionality 21 of requiring or Accordingly, even if it is 1 tests are unreasonable unless supported by both probable cause and 2 exigent 3 criteria, it is still unreasonable if the degree of force employed 4 to carry it out is excessive ). 5 circumstances and even if the search meets these In certain situations, however, it may not be proper for the 6 police to conduct a blood test at all. 7 be unlawful, under the Fourth Amendment, for the police to compel 8 an individual to take a blood test regardless of the amount of 9 force used to carry it out. Nelson v. City of Irvine, 143 F.3d 1196 10 11 12 13 (9th Cir. 1998). More specifically, it may In pertinent part, the Nelson court stated: When an arrestee has agreed to submit to a breath or urine test which is available and of similar evidentiary value, the government s need for a blood test disappears. Under such circumstances, it is unreasonable to require a blood test and the Fourth Amendment is violated. 14 Id. at 1207. 15 that they cannot tell, from the face of the TAC, whether Mr. Morris 16 is making a claim, under Nelson, that the blood test was an 17 unreasonable search in violation of the Fourth Amendment because 18 Mr. Morris agreed to a breath or urine test and yet Officer Long 19 required him to submit to a blood test. 20 the TAC is unclear as to whether Mr. Morris is asserting such a 21 claim. 22 Quoting this language from Nelson, Defendants argue Defendants are correct; The TAC suggests that the Fresno Police Department had a 23 policy, custom or practice pursuant 24 individuals No choice but to have their personal blood drawn, and 25 this policy, custom or practice deprived ones right to hav[e] a 26 field-sobriety test or a Breath test. 27 alleging that Fresno Police Department had a policy, custom or 28 practice of forcing individuals, suspected of being intoxicated, to 22 to which officers give It appears Plaintiff is 1 submit to blood testing and that Mr. Morris s blood test was 2 carried out in conformity with this policy, custom or practice. On 3 the other hand, the TAC does not indicate whether Mr. Morris agreed 4 to a breath or urine test, or whether Officer Long offered such 5 tests and Mr. Morris declined. 6 that the blood draw was forced, he also alleges that he never 7 refused. While Mr. Morris appears to assert 8 It is reasonably clear from the face of the TAC that Mr. 9 Morris is asserting a Fourth Amendment excessive force claim based 10 on the force used during his blood test. Mr. Morris can assert 11 such a claim even if he is not challenging the propriety of 12 requiring or forcing him to submit to a blood test in the first 13 instance. 14 alleging a separate claim that, under Nelson, it was unreasonable 15 to require a blood test from him because he agreed to submit to a 16 breath or urine test which was available and of similar evidentiary 17 value. It is not clear, however, whether Mr. Morris is also 18 Defendants motion for a more definite statement on the ground 19 that Mr. Morris excessive force claim is impermissibly vague is 20 GRANTED. 21 on the basis that it was unreasonable to require him to submit to 22 a blood test because he agreed to submit to a breath or urine test 23 which was available and of similar evidentiary value, he needs to 24 allege such a claim. If Mr. Morris wishes to pursue a Fourth Amendment claim 25 2. 26 Defendants move for a more definite statement of the Monell 27 Municipal Liability Claim claim arguing that its basis is unclear. 28 23 1 For Monell purposes, a municipality s official policy can be 2 one of action or inaction. Long, 442 F.3d at 1185. 3 existence of an express municipal policy or a longstanding custom 4 or practice is not enough to establish liability. 5 plaintiff must establish the municipality s official policy was 6 the moving 7 suffered. Galen v. County of Los Angeles, 477 F.3d 652, 667 (9th 8 Cir. 2007) (internal quotation marks omitted) (emphasis added). 9 10 11 12 force behind the constitutional The mere To prevail, the violation . With respect to the Monell claim, the TAC alleges: [T]he actions taken against plaintiff Mr. Morris by the officer C.Long was ignored by the department, due to F.P.D. s deliberate policy, custom, and practice ... and that in itself was a moving force behind the constitutional violation[,] which the Plaintiff Mr. Morris suffered. 13 14 15 16 17 Plaintiff asserts that officer Christopher Long at the Fresno D.M.V. hearing on 06/12/08, clearly stated Mr. Morris never refused. When asked by counsel, Did you read him (plaintiff) the Admonition and record his answers? Officer Long replied, No, WE don t do refusals. Then counsel asked, It wasn t necessary in this case either, right. Off. C. Long answered No, I was able to get the blood. 18 19 Counsel asked officer Chris Long, . . . you don t mark the refusal box? (Long) No WE do Forced blood draw. Stating, No, WE give arguments. 20 21 22 23 24 25 26 27 Officer Long while under Oath has clearly expressed that the departments policy, custom, and practice is one imposed by their local government as a unit. Furthermore the departments [sic] choice to force without reading of the admonitions, and to deny ones rights to Due Process of the law, is one that through omissions (Off s) [sic] would likely result in a constitutional violation. Plaintiff contends that the department[ s] deliberate indifference is shown from the plaintiffs formal complaint to the F.P.D. Internal Affairs Unit (copies of complaint avil. [sic]). I.A. complaint filed on 10/29/07 and second time on 08/06/08. Officer Longs [sic] was tolerated for his actions and steps he took to get blood., as stated in F.P.D. I.A. letter received on 28 24 . . 1 04/30/08. RE: IA# 2007-0158, signed Sharon J. Shafer. Deputy Chief of Police, Investigative Service Division. 2 3 4 5 The letter states Failure to Document Force was Sustained meaning the allegation occurred. Also stating Excessive Force was Exonerated, meaning the conduct in question occurred, but the actions of the member(s) were within departments [sic] policy. 6 7 8 9 10 11 12 13 14 15 16 17 Plaintiff asserts that the departments [sic] I.A. letters are deliberately written in a standard format, which is directly mis-leading and deceptive, without morals or sensitivity for the complainee. This policy is expressed in I.A. letters as the last paragraphs. Plaintiff Mr. Morris clearly and directly informed both Mr. Dyer (Chief F.P.D.), and Mrs. Swearington about the issue at the City Hall Form on the issue of a I.P.A. Plaintiff was able to be the second speaker, and addressed the issue and his concerns personally. Also plaintiff address that his attempts for a response from either one of them had been unsuccessful. Plaintiff handed the Mayor the notarized/cert. letters and was told by the Mayor at the time Mr. Dyer would receive his from her. This the court can see as a Meeting of the minds. The Fresno Police Departments [sic] policy towards a blood draw, opposed to Forced blood draw and in the light of ones rights of a D.U.I. stop. A policy implemented by the department that s so deficient that the practice of not reading the admonitions, turning a blind eye to the right one has to be protected from physical abuse when the person(s) are compliant and doesn t resist. in its self [sic] a repudiation of ones (Plaintiff) Constitutional right. 18 19 20 21 Officer Christopher Longs own omissions clearly stated, qoute [sic], WE. With reference to the Police Department as a whole. Along with the Internal Affairs responses. Shows how the department supports the execution ones Constitutional rights which protects us, and the liberties which we are protected by. 22 23 24 25 26 27 Officer Christopher Longs omission stating that his understanding of their practice to be one that officers can take advantage of their right to collective evidence, such in this case. To make arguments, create a form of reason, to make the person have NO choice but to have their personal blood drawn. Depriving ones right to having a field sobrity [sic] test, or then the E-Pass test (Breath). Instead directly to a FORCED blood draw, to assert that force at free will. As the Internal Affairs letter said, it was within department policy, 28 25 1 2 3 4 5 6 7 tolerating, ignoring, and condoning. D.M.V. s report Admonitions , Pg. #13353cvc). 2 Confirmed by of 3 (Form Officers omissions, documentation, and the Plaintiffs personal knowledge supports the allegation listed above. The Fresno Police Departments [sic] practice of sharing an understanding that are arbitrary and unreasonable, with no substantial realation [sic] to the general welfare of the public. Which now the Plaintiff Mr. Morris has suffered injuries as the result of the Forced Blood-draw. The Plaintiff feels that the Fresno Police Department was not within the scope of the law, for the reasons listed Plaintiff seeks this claim. 8 9 (Doc. 37 at 4-7 (emphasis omitted).) Although this is borderline 10 unintelligible, the TAC tells Defendants that Mr. Morris alleges 11 that the forced blood draw was a department policy. 12 however, is unclear and confusing in certain respects. 13 The alleged Monell claim is based on a The TAC, Fresno Police 14 Department policy, custom or practice regarding forced blood draws. 15 Pursuant 16 individuals No choice but to have their personal blood drawn, and 17 this policy, custom or practice deprived ones right to hav[e] a 18 field-sobriety test or a Breath test. 19 the Fresno Police Department had a policy, custom or practice of 20 forcing individuals who are suspected of being intoxicated to 21 submit to compelled blood testing without prior admonitions and 22 that Mr. Morris s blood test was carried out in conformity with 23 this policy, custom or practice. to this policy, custom or practice, officers give Plaintiff alleges that 24 What is unclear in the TAC, however, is what underlying 25 constitutional violation was caused by this policy, practice or 26 custom. 27 custom or practice regarding blood draws was the moving force Mr. Morris s does not allege in the TAC that this policy, 28 26 1 behind Officer Long s use of excessive force. Without any 2 indication in the TAC as to what constitutional violation Mr. 3 Morris allegedly suffered as a result of the policy, custom or 4 practice regarding blood draws, the TAC does not provide Defendants 5 with adequate notice of the basis for the Monell claim. 6 Apart from this policy, custom or practice regarding blood 7 draws, it is unclear whether Mr. Morris claims that the Fresno 8 Police Department had a policy, custom or practice regarding 9 directly-misleading and deceptive internal affairs letters 10 drafted without morals or sensitivity for the complainee. 11 if it did, there is no identified constitutional violation Mr. 12 Morris allegedly suffered as a result of a such a policy, custom or 13 practice. Defendants motion for a more definite statement as to the 14 15 Even Monell claim is GRANTED WITH LEAVE TO AMEND. 16 To provide Defendants with sufficient notice as to the basis 17 for the Monell claim, the TAC must be amended to address what 18 constitutional violation allegedly occurred as a result of the 19 Fresno Police Department s policy, custom or practice regarding 20 blood draws. 21 C. 22 Ancillary Matters Previously, the magistrate judge recommended dismissal with 23 prejudice 24 Plaintiffs second amended complaint. 25 adopted, and the Fourteenth Amendment claim was dismissed with 26 prejudice. 27 of Plaintiffs Fourteenth Amendment claim pled in This recommendation was Defendants note that in Plaintiffs subsequently-filed TAC, in 28 27 1 the Monell claim, the TAC alludes to the fact that the Fresno 2 Police Department s policy, custom and/or practice involves denying 3 ones rights to Due Process of the law. (Doc. 37 at 4.) 4 Defendants 5 rehabilitate their Fourteenth Amendment claim by using the language 6 deny one s rights to Due Process of the law, and Defendants 7 correctly argue that Plaintiffs cannot make a furtive attempt to 8 pursue 9 prejudice. 10 suggest this claim that in Plaintiffs light of might its be previous attempting dismissal to with Plaintiffs previously pled Fourteenth Amendment claim was 11 dismissed with prejudice. 12 cannot reassert this claim, and their pleadings will not be so 13 construed. V. 14 15 16 Plaintiffs are admonished that they CONCLUSION For the reasons stated, Defendants motion is GRANTED in part and DENIED in part. 17 1. 18 Morris: 19 With respect to the excessive force claim alleged by Mrs. a. Defendants motion to dismiss is GRANTED on the 20 ground that the TAC does not sufficiently allege that Officer 21 DeMoss was acting under color of state law. 22 dismissed WITH LEAVE TO AMEND. 23 b. This claim is In light of the admitted typographical error in the 24 TAC with respect to the date of the alleged excessive force 25 10/28/09, Defendants motion for a more definite statement is 26 GRANTED WITH LEAVE TO AMEND. 27 to correct the typographical error. Plaintiffs are given leave to amend 28 28 1 2. 2 With respect to the excessive force claim alleged by Mr. Morris: a. 3 Defendants motion to dismiss is DENIED on the 4 ground that the TAC does not sufficiently allege that Officer Long 5 was acting under color of state law. b. 6 7 Defendants motion for a more definite statement of this claim is DENIED in part and GRANTED in part. i. 8 9 10 Defendants motion for a more definite statement on the ground that the TAC failed to plead the date on which Officer Long allegedly used excessive force is DENIED. ii. 11 Defendants motion for a more definite 12 statement on the ground that Mr. Morris s excessive force claim is 13 impermissibly vague is GRANTED. 14 Fourth Amendment claim under Nelson on the basis that it was 15 unreasonable to require him to submit to a blood test because he 16 agreed to submit to a breath or urine test which was available and 17 of similar evidentiary value, he needs to allege such a claim. 18 19 3. If Mr. Morris wishes to pursue a With respect to the Monell claim (i.e., the municipal liability claim): a. 20 Defendants motion to dismiss is GRANTED on the 21 ground that the Fresno Police Department is not the proper party to 22 Plaintiffs 23 DISMISSED. 24 Fresno as a defendant. 25 b. § 1983 claim. The Fresno Police Department is Plaintiffs are given leave to amend to name the City of Defendants motion for a more definite statement is 26 GRANTED on the ground that the basis for the Monell claim is 27 unclear. Leave to amend is given to allege what constitutional 28 29 1 violation allegedly occurred as a result of the Fresno Police 2 Department s policy, custom or practice regarding blood draws. 3 addition, if Mr. Morris wishes to assert a Monell claim based on 4 some other policy, custom or practice, he must allege what this 5 other 6 constitutional violation allegedly occurred as a result of this 7 policy, custom or practice. 8 policy, 4. custom or practice consists of, and In what With respect to the defamation claim: a. 9 that, Defendants motion to dismiss is GRANTED on the 10 ground 11 defamation-plus 12 insufficiently pled. 13 AMEND. b. 14 to the extent claim the TAC cognizable attempts under § to assert a 1983, it is Any such claim is DISMISSED WITH LEAVE TO Defendants motion to dismiss is GRANTED on the 15 ground that, to the extent the TAC asserts a state law defamation 16 claim, it is barred by the absolute privilege in California Civil 17 Code § 47(b). 18 claim, it is DISMISSED WITHOUT LEAVE TO AMEND. c. 19 To the extent the TAC asserts a state law defamation Defendants motion to dismiss on the ground that, to 20 the extent the TAC asserts a state law defamation claim, the TAC 21 fails to plead compliance with the Government Claims Act is DENIED 22 as moot. 23 Any amended complaint is due within thirty (30) days of the 24 electronic filing of this Memorandum 25 responsive pleading is due within twenty (20) days of notice of the 26 electronic filing of any such amended complaint. 27 Amended Complaint (Doc. 60), filed after the hearing on this 28 30 Decision. Defendants Plaintiffs 1 motion but before the issuance of this Memorandum Decision, is 2 ordered stricken. 3 Defendants shall submit a form of order consistent with this 4 Memorandum Decision within five (5) days following electronic 5 service of this decision. 6 IT IS SO ORDERED. 7 Dated: 9i274f January 14, 2010 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31

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