Walker, et al. v. Fresno Police Dept., et al., No. 1:2009cv01037 - Document 25 (E.D. Cal. 2010)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART 14 MOTION to DISMISS signed by Judge Oliver W. Wanger on 2/10/2010. (Sant Agata, S)
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1 UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF CALIFORNIA 3 4 5 6 7 8 SARLA M. WALKER, individually, as guardian ad litem for ANDRE HENRY, Jr., and as successor in interest of ANDRE HENRY, Sr., deceased, CRYSTAL HENRY, and ANDRE HENRY, Jr., as individuals and successors in interest, 9 ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS (Doc. 14) Plaintiffs, 10 11 1:09-CV-1037 OWW GSA v. FRESNO POLICE DEPARTMENT, et al., 12 Defendants. 13 14 I. INTRODUCTION 15 Plaintiffs, Sharla M. Walker, individually and as guardian 16 ad litem for Andre Henry, Jr. and successor in interest of Andre 17 Henry, Sr., deceased, Crystal Henry, and Andre Henry, Jr., as 18 19 individuals and successors in interest (hereinafter 20 “Plaintiffs”), initially filed this lawsuit in Fresno County 21 Superior Court on February 26, 2009. 22 at 3. 23 (“FPD”) and individual FPD Officers Martin and Godwin, removed 24 Original Complaint, Doc. 2, On June 12, 2009, Defendants, the Fresno Police Department the action pursuant to Title 28 United States Code, sections 1331 25 and 1441(b), because the complaint contains numerous federal 26 27 28 claims. See Doc. 2. On September 4, 2009, Plaintiffs’ filed a First Amended Complaint (“FAC”). Doc. 11. 1 1 Before the court for decision is Defendants’ motion to 2 dismiss the FAC pursuant to Federal Rule of Civil Procedure 3 12(b)(6). Doc. 15. Plaintiffs concede dismissal as to one 4 aspect of the complaint, but oppose as to all others. Doc. 19. 5 Defendants filed a reply. Doc. 20. Oral argument was heard 6 7 February 8, 2010. 8 9 II. BACKGROUND Plaintiffs allege that on or about January 10, 2008, 10 Defendants served a search warrant at Sharla Walker’s residence. 11 FAC ¶6. The Officers “detained and physically restrained” Andre 12 13 Henry, Sr., Sharla Walker’s son and the father of Andre Henry, Id. 14 Jr. and Crystal Henry. 15 detention, Andre Henry, Sr. “complained that he did not feel well 16 and requested emergency medical attention.” 17 providing medical attention, Plaintiffs allege that the defendant 18 It is alleged that during the Id. officers “mocked and ridiculed” Andre Henry, Sr. Instead of FAC ¶7. 19 Sharla Walker was contacted by family members about the 20 21 detention, her son’s alleged need for medical care, the denial of 22 his requests for care, and the officers’ mocking and ridicule. 23 FAC ¶7. 24 the defendant officers answered the phone without identifying 25 themselves and then hung up. 26 She attempted to reach her son on his cell phone, but FAC ¶8. Plaintiffs allege that the officers similarly thwarted Sharla Walker’s attempts to reach her 27 son on the home’s landline phone. 28 2 Id. Additionally, when calls 1 were made to the home’s landline phone, the Officers “sometimes 2 before hanging up ... falsely told the caller that they (the 3 officers) were Sharla M. Walker’s mother.” Id. 4 Plaintiffs allege that as a result of the defendant 5 officers’ “refusal to allow Andre Henry, Sr. access to emergency 6 7 8 medical services, Andre Henry, Sr. died.” FAC ¶9. The FAC sets forth four claims for relief. The first, 9 brought pursuant to Title 42 United States Code, section 1983 10 (“Section 1983”) by all Plaintiffs against all Defendants, 11 alleges that Andre Walker, Sr.’s death was “the result of the 12 deprivation of his 4th Amendment right to be free from 13 unreasonable seizure and excessive force.” FAC ¶12. Plaintiffs 14 15 16 17 18 19 20 also allege the death “constituted a violation of plaintiffs’ personal 14th Amendment substantive due process rights as the children and parent of Andre Henry, Sr.” FAC ¶13. The Second Claim for Relief, brought by Sharla Walker against all defendants pursuant to Section 1983 alleges that “the unreasonable conduct” of the defendant officers “in connection 21 with the telephone calls made” by Mrs. Walker constituted a 22 violation of her substantive due process rights to familial 23 24 25 association. FAC ¶16. The Third Claim for Relief, brought under Section 1983 by 26 all Plaintiffs against all defendants as a “survival action” 27 based on their status as “successors in interest,” alleges that 28 3 1 decedent’s demise “was the result of the deprivation of his 4th 2 Amendment right to be free from unreasonable seizure and 3 excessive force.” FAC ¶¶ 20, 22. 4 The Fourth Claim for Relief, a state law negligence claim 5 brought by Sharla Walker against all defendants, alleges that 6 7 defendant officers “negligently responded to and/or terminated 8 the telephone calls” she made, and that as a result she “suffered 9 panic and frustration, along with the severe and extreme 10 emotional distress and mental upset, anguish, pain and suffering 11 to be expected to naturally attend such panic and frustration.” 12 FAC ¶25. It is also alleged that Defendant City of Fresno is 13 vicariously liable for the alleged negligence of the defendant 14 15 16 officers. FAC ¶26. The Fifth Claim for Relief, a state law intentional 17 infliction of emotional distress claim brought by Sharla Walker 18 against all defendants, alleges that the conduct of the 19 individual defendants in terminating her phone calls was “extreme 20 and outrageous,” and was done with the intention of causing her 21 emotional distress,” or with reckless disregard of this 22 possibility. FAC ¶29. 23 24 25 26 III. STANDARD OF DECISION Dismissal under Federal Rule of Civil Procedure 12(b)(6) is appropriate where the complaint lacks sufficient facts to support 27 a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 28 4 1 901 F.2d 696, 699 (9th Cir. 1990). 2 to relief, the pleading “does not need detailed factual 3 To sufficiently state a claim allegations” but the “[f]actual allegations must be enough to 4 raise a right to relief above the speculative level.” Bell Atl. 5 Corp. v. Twombly, 550 U.S. 544, 555 (2007). Mere “labels and 6 7 conclusions” or a “formulaic recitation of the elements of a Id. Rather, there must be “enough 8 cause of action will not do.” 9 facts to state a claim to relief that is plausible on its face.” 10 Id. at 570. 11 complaint must contain sufficient factual matter, accepted as 12 In other words, “[t]o survive a motion to dismiss, a true, to state a claim to relief that is plausible on its face.” 13 Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949 (2009) 14 15 (internal quotation marks omitted). The Ninth Circuit has 16 summarized the governing standard, in light of Twombly and Iqbal, 17 as follows: “In sum, for a [pleading] to survive a motion to 18 dismiss, the non-conclusory factual content, and reasonable 19 inferences from that content, must be plausibly suggestive of a 20 claim entitling the plaintiff to relief.” Moss v. U.S. Secret 21 Serv., 572 F.3d 962, 969 (9th Cir. 2009) (internal quotation 22 marks omitted). 23 24 25 26 27 28 IV. DISCUSSION A. First Claim For Relief -- Substantive Due Process Claim Based on Death of Decedent. The Fourteenth Amendment to the United States Constitution prohibits a state from depriving any person of “life, liberty, or 5 1 property, without due process of law.” 2 assert a Fourteenth Amendment claim “based on the related 3 A family member may deprivation of their liberty interest arising out of their 4 relationship with [a decedent].” Moreland v. Las Vegas Metro. 5 Police Dept., 159 F.3d 365, 371 (9th Cir. 1998). “This 6 7 substantive due process claim may be asserted by both the parents 8 and children of a person killed by law enforcement officers.” 9 Id. 10 An allegation of failure to provide medical care to a person 11 arrested for a crime, though not yet convicted, is analyzed under 12 the due process clause of the Fourteenth Amendment. Lolli v. 13 County of Orange, 351 F.3d 410, 418-19 (9th Cir. 2003). In the 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ninth Circuit, such an individual is entitled to due process rights at least as great as the Eighth Amendment protections afforded convicted prisoners: Pretrial detainees, whether or not they have been declared unfit to proceed, have not been convicted of any crime. Therefore, constitutional questions regarding the conditions and circumstances of their confinement are properly addressed under the due process clause of the Fourteenth Amendment, rather than under the Eighth Amendment's protection against cruel and unusual punishment. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983); Bell v. Wolfish, 441 U.S. 520, 535 & n. 16 (1979); see also Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). In light of the Supreme Court’s observation that the due process rights of pretrial detainees are “at least as great as the Eighth Amendment protections available to a convicted prisoner,” Revere, 463 U.S. at 244, we have recognized that, even though the pretrial detainees' rights arise under the Due Process Clause, the guarantees of the Eighth Amendment provide a minimum standard of care for determining their rights, including the rights to medical and psychiatric care. Gibson, 290 F.3d at 1187; Carnell v. Grimm, 74 F.3d 6 977, 979 (9th Cir. 1996); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986). 1 2 Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1120 (9th Cir. 2003). 3 4 Presently, although Plaintiffs do not waive the right to 5 assert a higher standard of care at a later stage of the 6 litigation, Plaintiffs maintain that the FAC adequately states a 7 claim under the Eighth Amendment standard. 8 that standard, “persons in custody have the established right to 9 Doc. 19 at 4. Under not have officials remain deliberately indifferent to their 10 serious medical needs.” Gibson v. County of Washoe, 290 F.3d 11 1175, 1187 (9th Cir. 2002)(internal citation and quotation 12 13 omitted). Under the deliberate indifference standard, “a person 14 is liable for denying a prisoner needed medical care only if the 15 person knows of and disregards an excessive risk to inmate health 16 and safety.” 17 not enough that the person merely be aware of facts from which 18 Id. “In order to know of the excessive risk, it is the inference could be drawn that a substantial risk of serious 19 harm exists, [ ] he must also draw that inference.” Id. “If a 20 21 person should have been aware of the risk, but was not, then the 22 person has not violated the Eighth Amendment, no matter how 23 severe the risk.” 24 substantial risk of serious harm, a person may be liable for 25 neglecting a prisoner's serious medical needs on the basis of 26 Id. “But if a person is aware of a either his action or his inaction.” Id. 27 Defendants argue that there are no facts in the FAC 28 7 1 indicating deliberate indifference on the part of the individual 2 defendants. 3 Doc. 15 at 4. Therefore, they argue, “there is no indication that the individual defendants knew of the particular 4 risk involved” and/or “consciously disregarded the risk.” Id. 5 Plaintiffs cite Jett v. Penner, 439 F.3d 1091 (2006), which 6 7 8 9 10 11 12 13 14 15 16 17 explains: In the Ninth Circuit, the test for deliberate indifference consists of two parts. First, the plaintiff must show a “serious medical need” by demonstrating that failure to treat a prisoner’s condition could result in further significant injury or the unnecessary and wanton infliction of pain. Second, the plaintiff must show the defendant's response to the need was deliberately indifferent. This second prongdefendant's response to the need was deliberately indifferent-is satisfied by showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference. Indifference may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care. Yet, an inadvertent or negligent failure to provide adequate medical care alone does not state a claim under § 1983. 18 Id. at 1095 (internal citations and quotations omitted). 19 20 Here, the FAC alleges that, while being physically 21 restrained in his mother’s residence, Andre Henry, Sr. complained 22 of illness and requested emergency medical care. 23 FAC further alleges that Defendants ignored decedents request for 24 medical attention, as well as his family’s attempts to intercede, 25 FAC ¶6. The and that this failure to provide care to Mr. Henry, Sr. resulted 26 in his death. FAC ¶¶ 7-9. 27 28 Post-Iqbal, a deliberate indifference allegation will not 8 1 survive a 12(b)(6) motion if it contains only “threadbare 2 recitals of the elements of a cause of action, supported by mere 3 conclusory statements....” Latimer v. Kolender, 2009 WL 4156714, 4 *3 (C.D. Cal. Nov. 23, 2009) (quoting Iqbal, 129, S. Ct. at 5 1949). For example, in Brown v. Lewis, 2009 WL 1530681 (E.D. 6 7 Cal. Jun. 1, 2009), plaintiff alleged that he became ill during a 8 morning workout and complained to a medical technician “that he 9 had difficulty breathing, was light-headed and was unable to 10 stand.” 11 exhaustion and instructed him to cease strenuous activity and 12 Id. at *1. drink more water. The technician diagnosed him with heat Id. Plaintiff alleged that he had actually 13 suffered a heart attack, and claimed that the technician 14 15 16 demonstrated deliberate indifference to his serious medical needs in failing to diagnose and treat him for heart attack at that Id. This allegation was insufficient under Iqbal, because 17 time. 18 plaintiff “must show that [defendant] knew of or disregarded an 19 excessive risk to [plaintiff’s] health.” 20 Id. To do so, the complaint must contain more than “conclusory allegations to the 21 effect that defendant knew that [plaintiff] had a heart 22 attack.... [Plaintiff] must allege specific facts ‘plausibly 23 24 25 showing’ that defendant had the requisite mental state.” Id. Here, apart from alleging that decedent complained that he 26 was feeling ill and requested emergency medical care, Plaintiffs 27 do not allege any specific physical complaints or symptoms that 28 9 1 were explicitly described to or that should have been apparent to 2 either of the Officers to inform them of a serious medical need 3 that they ignored. This is insufficient under Iqbal. Plaintiff 4 has requested and shall be afforded an opportunity to amend. 5 Defendants’ motion to dismiss the Fourteenth Amendment claim 6 7 8 based upon allegedly insufficient medical care is GRANTED WITH LEAVE TO AMEND. 9 B. 10 Second Claim for Relief -- Plaintiff, Sharla Walker’s Fourteenth Amendment Loss of Familial Association Claim for Being Deprived of Phone Contact. 11 The Supreme Court has recognized that the right to intimate 12 familial relationships is protected by the Fourteenth Amendment. 13 14 See Roberts v. United States Jaycees, 468 U.S. 609, 617-18 15 (1984). 16 if he or she acted with “deliberate indifference” to the 17 plaintiff’s right of familial relationship and society. 18 Guess, 137 F.3d 1126, 1134 (9th Cir. 1998), abrogated by statute 19 However, an individual defendant can only be held liable Byrd v. on other grounds. 1 20 Application of the “deliberate indifference” standard to 21 22 Fourteenth Amendment familial association claims was reaffirmed 23 1 24 25 26 27 28 Defendants’ assertion that Byrd requires application of a “reckless disregard” standard is not directly supported by the text of that decision. Id. at 1134 (“To prove their Fourteenth Amendment claim, the Byrds had to prove that the Officers acted with deliberate indifference to the Byrds’ rights of familial relationship and society by using excessive force against [their son].”). However, the Ninth Circuit has subsequently interpreted the “deliberate indifference” test articulated in Byrd as synonymous with “reckless disregard.” See Perez v. City of Los Angeles, 98 Fed. Appx. 703, 706 (9th Cir. 2004) (Table). 10 1 in Lee v. City of Los Angeles, 250 F.3d 668 (2001), where the 2 Ninth Circuit found that plaintiffs stated a cause of action by 3 alleging “reckless, intentional and deliberate acts and omissions 4 of defendants,” constituting an “unwarranted interference” with 5 the rights of family members. Id. at 685-86. Under Iqbal, such 6 7 8 conclusory statements must be supported by plausible factual allegations. 9 Here, Defendants argue that decedent was being detained 10 pursuant to a search warrant, and “[t]he risk of harm to both the 11 police and the occupants is minimized if the officers routinely 12 exercise unquestioned command of the situation.” Michigan v. 13 Summers, 452 U.S. 692, 702-703 (1981). Therefore, their argument 14 15 16 17 continues, to limit possible unwarranted intrusion, it was reasonable for the officers to cut off incoming phone calls to the area being searched. 2 18 19 20 21 22 23 24 25 26 27 28 2 Defendants also argue that familial association cases emphasize the necessity of a permanent, physical loss of association, citing Pittsley v. Warish, 927 F.2d 3, 8 (1st Cir. 1991) and Tennenbaum v. Williams, 193 F.3d 581, 600-01 (2nd Cir. 1999). The First Circuit observed, that it has “never held that governmental action that affects the parental relationship only incidentally ... is susceptible to challenge for a violation of due process.” Ortiz v. Burgos, 807 F.2d 6, 8 (1st Cir. 1986). However, as noted in Trevino v. Lassen Municipal Utility District, 2008 WL 134063, *4 n.6 (E.D. Cal. Apr. 9, 2008): There is nothing in [the applicable Supreme Court and Ninth Circuit] cases that suggests that this cause of action is only available when the plaintiff has been completely deprived of the companionship of the family member, for example, through death or legal termination of the relationship. See Smith [v. City of Fontana], 818 F.2d 11 1 2 3 This is a close call. Was it reasonable for the Officers to answer the calls and then hang up? Why, if incoming calls were a security concern, did they answer them at all? However, it is 4 Plaintiffs’ burden, under Iqbal, to allege facts that plausibly 5 suggest any interference with familial association was 6 7 unwarranted. They have failed to do so. The motion to dismiss 8 is GRANTED WITH LEAVE TO AMEND to permit Plaintiffs an 9 opportunity to more clearly articulate the circumstances 10 surrounding the Officers’ conduct 11 12 13 14 C. Third Claim for Relief -- Fourth Amendment Survival Action. 1. Sharla Walker Lacks Standing to Bring this Claim. Plaintiffs concede that Sharla Walker, as decedent’s mother, 15 does not have standing to pursue a Fourth Amendment survivor 16 action. 17 may not be vicariously asserted.” 18 U.S. 165, 174 (1969). “Fourth Amendment rights are personal rights which ... Alderman v. United States, 394 However, the survivors of an individual 19 20 21 22 23 24 25 [1411,] 1418-19 [(9th Cir. 1987)] (characterizing the claim as the state's “interference with” family relations; also relying on Pierce v. Society of Sisters, 268 U.S. 510 (1925), which had held that parents' liberty rights were infringed upon by a state regulation that required children to be educated in public schools). Although the nature and irreversibility of the interference may be relevant to a factfinder’s determination of what damages may be appropriate, it does not appear dispositive for the question of whether the claim is cognizable. 26 27 28 (Emphasis added.) Although no familial association cases brought similar factual scenarios could be located, Trevino reasonably suggests that an allegation of temporary deprivation is not automatically barred 12 1 killed as a result of an officer’s excessive use of force may 2 assert a Fourth Amendment claim on that individual’s behalf under 3 Section 1983 if the relevant state’s law authorizes a survival 4 action. Smith v. City of Fontana, 818 F.2d 1411, 1416-1417 (9th 5 Cir. 1987). 6 7 In California, personal injury claims suffered during life 8 “survive” to a decedent’s estate for the purpose of recovering 9 damages awardable personally to the decedent had he or she lived. 10 Cal. Code Civ. Proc. § 377.20. 11 leaving a will, the person(s) who succeed to a cause of action 12 If decedent passed away without are defined in Sections 6401 and 6402 of the California Probate 13 Code. Cal. Code Civ. Proc. § 377.10. If a decedent does not have 14 15 16 a surviving spouse or domestic partner, the estate passes to “the issue of the decedent.” Cal. Prob. Code § 6402(a). “If there is 17 no surviving issue,” the estate passes “to the decedent's parent 18 or parents equally.” 19 20 Cal. Prob. Code § 6402(b). Here, it is undisputed that decedent is Sheila Walker’s son and that decedent has at least two living children. Defendants’ 21 motion to dismiss Sharla Walker’s survival claim is GRANTED on 22 this ground WITHOUT LEAVE TO AMEND. 23 24 25 26 2. Challenge to Remaining Fourth Amendment Survival Action. The Fourth Amendment provides that “(t)he right of the 27 people to be secure in their persons, houses, papers, and 28 effects, against unreasonable searches and seizures, shall not be 13 1 violated, and no Warrants shall issue, but upon probable cause, 2 supported by Oath or affirmation, and particularly describing the 3 place to be searched, and the persons or things to be seized.” 4 Defendants argue that Plaintiffs have failed to set forth any 5 facts in the FAC indicating that the decedent’s Fourth Amendment 6 7 8 rights were violated. Fourth Amendment claims of excessive force during pretrial 9 detention are evaluated under an objective reasonableness 10 standard. 11 in an excessive force case is an objective one: the question is 12 Lolli, 351 F.3d at 415 (“[T]he reasonableness inquiry whether the officers’ actions are objectively reasonable in light 13 of the facts and circumstances confronting them, without regard 14 15 16 to their underlying intent or motivation.”). Here, the FAC simply alleges that Defendants “detained and physically 17 restrained” decedent. 18 Plaintiffs explain that “[w]here, as here, there was no need for 19 force to detain Mr. Henry during execution of the search warrant, 20 FAC ¶6. In their opposition brief, the defendants’ use of any force (i.e., physical restraint) is 21 constitutionally unreasonable.” Doc. 19 at 4. But, Plaintiffs 22 ignore the circumstances. In executing a search warrant, police 23 24 officers may take reasonable action to secure the premises and to See 25 ensure their own safety and the efficacy of the search. 26 Muehler v. Mena, 544 U.S. 93, 98-100 (2005). This includes 27 detaining the occupants of the house being searched. 28 14 Michigan v. 1 Summers, 452 U.S. 692 (1981). 2 allege facts that plausibly suggest the force used was 3 unreasonable. Under Iqbal, Plaintiffs must They have failed to do so. 4 Defendants’ motion to dismiss the remaining fourth amendment 5 survival action is GRANTED on this ground WITH LEAVE TO AMEND. 6 7 8 9 D. Fourth Claim for Relief -- Negligence. The Fourth Claim for relief, brought by Sharla M. Walker against all Defendants, entitled “Negligence,” alleges that 10 Defendants’ acted “negligently” by the manner in which they 11 “responded to and/or terminated the telephone calls of Plaintiff 12 13 14 15 Sharla M. Walker. This amounts to an allegation of negligent infliction of emotional distress. FAC ¶24. “The law of negligent infliction of emotional distress in 16 California is typically analyzed ... by reference to two 17 ‘theories’ of recovery: the ‘bystander’ theory and the ‘direct 18 Burgess v. Superior Court, 2 Cal. 4th 1064, victim’ theory.” 19 1071 (1992). A “bystander” claim can only be maintained by “a 20 21 plaintiff [who] seeks to recover damages as a percipient witness 22 to the injury of another.” 23 a bystander claim. 24 25 26 Id. at 1072. The FAC does not assert “Direct victim” claims are analyzed according to the traditional elements of negligence. See id. at 1073. Generally, there is “no duty to avoid negligently causing emotional distress 27 to another...” Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 28 15 1 965, 984 (1993). 2 negligent infliction of emotional distress is as a claim for 3 The appropriate way to evaluate claims of “negligence, a cause of action in which a duty to the plaintiff 4 is an essential element.” Id. “That duty may be imposed by law, 5 be assumed by the defendant, or exist by virtue of a special 6 7 relationship.” Id. at 985. The lesson of these decisions is: unless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant's breach of some other legal duty and the emotional distress is proximately caused by that breach of duty. Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests. 8 9 10 11 12 13 Id. 14 15 16 Plaintiffs maintain that, under California law, all persons owe a general duty “to use due care to avoid injuring others,” 17 citing Neighbarger v. Irwin Industries, Inc., 8 Cal. 4th 532, 18 535-36 (1994), a case it n which two industrial firefighters 19 alleged they were burned by a petroleum fire that was negligently 20 caused by defendant’s employee. Plaintiffs’ argument continues: 21 22 23 24 25 26 27 28 Thus, when the defendant officers entered upon the affirmative course of conduct of answering the calls made by Mrs. Walker to the telephones of Mrs. Walker’s mother and son, they assumed a duty toward Mrs. Walker to act reasonably so as to avoid injury to Mrs. Walker. Instead of answering the calls properly by identifying themselves and then stating whether or not Mrs. Walker could speak with her mother or son, the defendant officers merely listened to Mrs. Walker’s frightened and frantic pleas to speak with her relatives and obtain aid for her ill son, and then either terminated 16 1 the call without saying anything or terminated the call after falsely identifying themselves as Mrs. Walker’s mother. 2 3 Doc. 19 at 6-7. 4 Indeed, all persons do owe a duty of care to ensure that 5 their acts do not cause physical harm to others. Neighbarger, 8 6 7 Cal. 4th 536. But, this general duty of care does not 8 automatically extend to the emotional well-being of individuals 9 not threatened with physical harm. 10 Activities, Inc., 69 Cal. App. 4th 652 (1999) (refusing to find 11 that operator of airline had a duty to avoid emotionally 12 See Lawson v. Management traumatizing bystanders who viewed plane crash, but were unhurt). 13 The FAC does not allege that Mrs. Walker was threatened with 14 15 16 17 physical injury or that a duty arises under any other body of law. Defendants’ motion to dismiss the negligent infliction of emotional distress claim is GRANTED WITH LEAVE TO AMEND. 18 E. Intentional Infliction of Emotional Distress. 19 Defendants moved to dismiss Plaintiff’s Fifth Claim for 20 21 Relief for Intentional Infliction of Emotional Distress, brought 22 by Sharla M. Walker against all defendants, on the ground that 23 the FAC fails to sufficiently allege the requisite “extreme and 24 outrageous conduct” necessary to maintain an IIED claim. 25 at 8. 26 Doc. 20 The “conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized 27 community.” Nally v. Grace Community Church of the Valley, 47 28 17 1 Cal. 3d 278, 300 (1988). 2 defendant’s conduct normally presents an issue of fact, a court 3 While the outrageousness of a may determine, in the first instance, as a matter of law, whether 4 the defendant’s conduct may reasonably be regarded as so extreme 5 and outrageous as to permit recovery. See Trerice v. Blue Cross 6 7 8 of California, 209 Cal. App. 3d 878, 883 (1989). Plaintiffs oppose dismissal on this ground, arguing that 9 Defendants’ conduct “toward Mrs. Walker was not only 10 unreasonable, it was sadistic and cruel.” 11 the test is not a subjective one. 12 Doc. 18 at 7. But, Here the facts are sparse and do not show animus or other any other basis for the officers to 13 do more than follow search warrant protocol. Plaintiffs must 14 15 16 17 18 19 clearly allege why the Officers’ behavior was “sadistic” or “cruel,” as opposed to a measure taken as part of the normal course of search warrant operations Defendants’ motion to dismiss the intentional infliction of emotional distress claim is GRANTED WITH LEAVE TO AMEND. 20 21 V. CONCLUSION 22 For the reasons set forth above, Defendants’ motion to 23 dismiss: 24 (1) 25 insufficient medical care is GRANTED WITH LEAVE TO AMEND; 26 (2) the Fourteenth Amendment claim based upon allegedly the Fourteenth Amendment claim based on loss of 27 familial association is GRANTED WITH LEAVE TO AMEND; 28 18 1 (3) Sharla M. Walker’s survival claim is GRANTED WITHOUT 2 LEAVE TO AMEND; 3 (4) the remaining fourth amendment survival action is 4 GRANTED WITH LEAVE TO AMEND; 5 (5) the negligent infliction of emotional distress claim is 6 7 GRANTED WITH LEAVE TO AMEND; the intentional infliction of emotional distress claim 8 (6) 9 is GRANTED WITH LEAVE TO AMEND. 10 11 12 SO ORDERED Dated: February 10, 2010 /s/ Oliver W. Wanger Oliver W. Wanger United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19
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