Sanwal et al v. County of Sacramento et al
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 6/24/2011 GRANTING 18 Motion to Dismiss. Defendants Sacramento County Sheriff's Department, County of Sacramento and Scott R. Jones are DISMISSED without prejudice. Plaintiffs are GRANTED leave to file First Amended Complaint w/in 45 days of date of this Order. (Marciel, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MOHINDER MIKE SANWAL and
KIRAN SANWAL, TRUSTEES OF
THE MOHINDER & KIRAN SANWAL
LIVING TRUST,
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Plaintiffs,
No. 2:11-cv-0187 JAM KJN PS
vs.
COUNTY OF SACRAMENTO;
SACRAMENTO COUNTY SHERIFF’S
DEPARTMENT, SHERIFF SCOTT R.
JONES; CONCORD POLICE
DEPARTMENT; SACRAMENTO POLICE
DEPARTMENT; CALIFORNIA HIGHWAY
PATROL; FEDERAL BUREAU OF
INVESTIGATION; FOLSOM POLICE
DEPARTMENT; and
DOES 1-100, INCLUSIVE,
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Defendants.
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ORDER
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Plaintiffs Mohinder Mike Sanwal and Kiran Sanwal, Trustees of the Mohinder &
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Kiran Sanwal Living Trust (the “plaintiffs”) filed their verified complaint on January 20, 2011.
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(Complaint (“Compl.”), Dkt. No. 1.) Defendants Sacramento County (“County”), the
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Sacramento County Sheriff’s Department (“Sheriff’s Department”) and Sheriff Scott R. Jones
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(“Sheriff Jones”) (collectively, the “County Defendants”) have moved to dismiss the complaint
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in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 18.) Plaintiffs
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failed to file any written opposition or statement of non-opposition to the pending motion.1
The matter came on for hearing on June 23, 2011.2 Plaintiffs Kiran Sanwal and
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Mohinder Mike Sanwal appeared in propria persona. Attorney Mark O’Dea appeared on behalf
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of the County Defendants. The undersigned has considered the briefs, oral arguments, and the
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appropriate portions of the record in this case and, for the reasons that follow, grants the County
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Defendants’ motion to dismiss.
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I.
BACKGROUND
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Plaintiffs are the alleged owners of an apartment complex located at 2410 Arden
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Way in Sacramento, California. (Compl. ¶¶ 1-2.) Plaintiffs allege four claims for relief, all of
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which arise from events at their apartment complex during a 70-hour hostage standoff, and which
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allegedly involved law enforcement personnel from various agencies. These claims are: (1)
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“Violation of Civil Rights Pursuant to Title 42 U.S.C. § 1983”; (2) “Violation of Civil Rights
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Pursuant to Title 42 U.S.C. § 1983”; (3) “Intentional Infliction of Severe Emotional Distress”;
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and (4) “Negligence per se – Criminal Trespass in Violation of Cal. Penal Code § 594.” (Compl.
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¶¶ 55-73.) Plaintiffs allege that the County and other county, state, and federal law enforcement
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agencies caused extensive and unnecessary property damage to their apartment complex during
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the standoff and caused severe emotional distress to plaintiffs. (Id.) Plaintiffs allege that the law
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enforcement agencies have not paid for the property damage. (Id. at ¶¶ 39-49.) Plaintiffs seek
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compensatory and punitive damages, plus costs of suit. (Id. at 11.)
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On June 16, 2011, plaintiffs filed a written request asking that the hearing set for June
23, 2011, be continued for approximately one month to permit them time to find an attorney.
(Dkt. No. 24.) The court denied the request (Dkt. No. 25) but, during the hearing, heard from
plaintiffs regarding the status of their legal representation in this action.
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This action proceeds before the undersigned pursuant to Eastern District of California
Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Plaintiffs have sworn that they are the
beneficial owners of the Trust that owns the subject property in this action, and plaintiffs are
proceeding without counsel on the Trust’s behalf. (Dkt. No. 21.)
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With respect to the County Defendants, the complaint alleges that “[d]efendant
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County of Sacramento is a municipal entity” and “a public entity authorized by law to establish
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certain departments responsible for enforcing the laws and protecting the welfare of the citizens
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and public employees of the City of Sacramento.” (Compl. ¶ 3.) The complaint also alleges that
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“[d]efendant Sacramento County Sheriff’s Department is . . . a public entity responsible for
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providing law enforcement for Defendant County of Sacramento, including supervising,
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operating, and managing the sheriff’s force.” (Id. ¶ 4.) The complaint alleges that “[d]efendant
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Scott R. Jones is Sheriff of Sacramento County, and as such, he is responsible for formulating,
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executing and administering Sacramento County’s laws, customs, practices, and policies at issue
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in this lawsuit; has enforced the challenged laws, customs and practices against Plaintiffs, and is
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in fact, presently enforcing the challenged laws, customs and practices against Plaintiffs.
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Defendant Scott R. Jones is sued in both his individual and official capacities.” (Id. ¶ 5.)
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The complaint also alleges that the Sheriff’s Department “had received at least
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several days’ notice that [the suspect] was in Sacramento County, thus they had ample
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opportunity to apprehend” the suspect outside of plaintiffs’ apartment complex and “without
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causing substantial damages to Plaintiffs’ property.” (Id. ¶ 19.) The Sheriff’s Department and
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“agents of” other law enforcement agencies allegedly “entered the Arden Way Apartment
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Complex to attempt to make contact and apprehend” the suspect on June 9, 2010. (Id. ¶ 20.)
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The complaint alleges that the suspect engaged in a “gun battle with Defendant Sacramento
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County Sheriff’s SWAT Team members” and was killed on June 11, 2010. (Id. ¶ 35.)
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The complaint broadly references all “defendants” who were onsite during the
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hostage standoff at issue (e.g., Compl. at ¶¶ 22-39), but does not clearly assert many factual
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allegations against specific individuals as employees or agents of the County. The complaint
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does allege, however, that “Plaintiffs were informed by then-Sheriff John McGuiness that all
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damage caused by the seemingly excessive force standoff would ‘be taken care of’ by the County
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of Sacramento. To date, plaintiffs have received no assistance from the County of Sacramento or
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any of its agencies in repairing damages or even the cleanup left in the aftermath of the standoff.”
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(Id. ¶ 39.) Plaintiffs also allege that they “made repeated attempts to contact various agencies,
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specifically, the Sacramento County Sheriff, to request a maintenance team to clean up the
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scene” and comply with County Health Inspection deadlines regarding the cleanup of blood, but
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that plaintiffs “received resistance” and “were forced to utilize” their own maintenance team and
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to contract with “outside maintenance crews.” (Id. ¶ 40.)
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The complaint also alleges that plaintiffs “filed notices of claims with the County
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of Sacramento” and that the County rejected the claims on July 20, 2010. (Id. ¶¶ 50-51.)
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II.
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LEGAL STANDARDS
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6)
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challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase
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Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the “notice pleading” standard
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of the Federal Rules of Civil Procedure, a plaintiff’s complaint must provide, in part, a “short and
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plain statement” of plaintiff’s claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see
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also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009), cert. denied, 130 S. Ct. 1053
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(2010). “A complaint may survive a motion to dismiss if, taking all well-pleaded factual
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allegations as true, it contains ‘enough facts to state a claim to relief that is plausible on its
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face.’” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v.
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Iqbal, 129 S. Ct. 1937, 1949 (2009)); accord Cafasso, U.S. ex rel. v. General Dynamics C4
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Systems, Inc., 637 F.3d 1047, 1055 n.6 (9th Cir. 2011) (clarifying that “plausibility” is part of the
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pleading standard under Iqbal). “‘A claim has facial plausibility when the plaintiff pleads factual
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content that allows the court to draw the reasonable inference that the defendant is liable for the
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misconduct alleged.’” Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th
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Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts all of the facts alleged in the
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complaint as true and construes them in the light most favorable to the plaintiff. Corrie v.
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Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). The court is “not, however, required to accept as
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true conclusory allegations that are contradicted by documents referred to in the complaint, and
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[the court does] not necessarily assume the truth of legal conclusions merely because they are
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cast in the form of factual allegations.” Paulsen, 559 F.3d at 1071 (citations and quotation marks
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omitted).
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The court must construe a pro se pleading liberally to determine if it states a claim
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and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an
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opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See
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Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); see also Balistreri v. Pacifica
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Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) (stating that “pro se pleadings are liberally
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construed, particularly where civil rights claims are involved”). In ruling on a motion to dismiss
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pursuant to Rule 12(b), the court “may generally consider only allegations contained in the
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pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.”
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Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and
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quotation marks omitted).
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Although the court may not consider a memorandum in opposition to a
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defendant’s motion to dismiss to determine the propriety of a Rule 12(b)(6) motion, see
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Schneider v. Cal. Dep’t of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), it may consider
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allegations raised in opposition papers in deciding whether to grant leave to amend, see, e.g.,
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Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003) (citing Orion Tire Corp. v. Goodyear
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Tire & Rubber Co., 268 F.3d 1133, 1137-38 (9th Cir. 2001)).
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III.
DISCUSSION
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1.
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Plaintiffs allege violations of their constitutional rights. Such claims may be
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Plaintiffs’ Section 1983 Claims
properly brought pursuant to 42 U.S.C. § 1983, which provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . , subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof
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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 . . . .
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Generally, with respect to individual defendants, “Section 1983 imposes civil
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liability upon an individual who under color of state law subjects or causes, any citizen of the
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United States to the deprivation of any rights, privileges or immunities secured by the
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Constitution and laws.” Franklin v. Fox, 312 F.3d 423, 444 (9th Cir. 2002) (citing 42 U.S.C.
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§ 1983). “To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a
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right secured by the Constitution or laws of the United States was violated, and (2) that the
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alleged violation was committed by a person acting under the color of State law.” Long v.
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County of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48
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(1988)).
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a.
Section 1983 Claims Against Sheriff Jones In His Personal Capacity
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The complaint alleges that “Defendant Scott R. Jones is sued in both his
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individual and official capacities.” (Compl. ¶ 5.) Personal-capacity suits seek to impose
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personal liability upon a government official for actions he takes under color of state law.
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Dittman v. California, 191 F.3d 1020, 1027 (9th Cir. 1999) (citing Kentucky v. Graham, 473
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U.S. 159, 165-66 (1985)). For Sheriff Jones to be personally liable under Section 1983, “it is
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enough to show that the official, acting under color of state law, caused the deprivation of a
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federal right.” Kentucky, 473 U.S. at 166; Hafer v. Melo, 502 U.S. 21, 25 (1991)
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(“Personal-capacity suits . . . seek to impose individual liability upon a government officer for
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actions taken under color of state law. Thus, [o]n the merits, to establish personal liability in a §
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1983 action, it is enough to show that the official, acting under color of state law, caused the
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deprivation of a federal right.”) (alterations in original) (internal quotation marks omitted).3
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More is required in an official-capacity action against Sheriff Jones (and thus the
County) however. A governmental entity is liable under § 1983 only when the entity itself is a
“moving force” behind the deprivation. Kentucky, 473 U.S. at 166. Thus, in an official-capacity
suit, the entity’s “policy or custom” must have played a part in the violation of federal law. Id.
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A plaintiff alleging a Section 1983 claim against individuals must allege how each
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individual defendant was personally involved in the deprivation of his civil rights. E.g., James v.
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Rowlands, 606 F.3d 646, 653 n.3 (9th Cir. 2010) (“Of course, § 1983 imposes liability on a
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defendant only if he or she personally participated in or directed a violation.”); Jones v. Williams,
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297 F.3d 930, 934 (9th Cir. 2002) (“In order for a person acting under color of state law to be
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liable under section 1983 there must be a showing of personal participation in the alleged rights
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deprivation . . . .”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (“A plaintiff must
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allege facts, not simply conclusions, that show that an individual was personally involved in the
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deprivation of his civil rights. Liability under § 1983 must be based on the personal involvement
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of the defendant.”).
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Here, the complaint makes a single broad reference to Sheriff Jones.4 (Compl. ¶
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5). But the complaint does not contain any factual allegations describing Sheriff Jones’ alleged
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conduct in connection with the hostage standoff, and thus contains no factual allegations
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describing how Sheriff Jones’ individual conduct might have violated plaintiffs’ constitutional
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rights. In other words, while plaintiffs allege that “[d]efendant Scott R. Jones is Sheriff of
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Sacramento County, and as such, he is responsible for formulating, executing and administering
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Sacramento County’s laws, customs, practices, and policies at issue in this lawsuit” (id.),
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plaintiffs do not allege how Sheriff Jones was personally involved in the alleged violations of
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rights, how he might have “personally participated in or directed a violation” thereof, let alone
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which practices and policies are actually at issue and how they harmed plaintiffs. See Barren, 152
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F.3d at 1194; James, 606 F.3d at 653 n.3.
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Accordingly, the complaint does not contain factual allegations sufficient to allege
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The complaint alleges that “[d]efendant Scott R. Jones is Sheriff of Sacramento
County, and as such, he is responsible for formulating, executing and administering Sacramento
County’s laws, customs, practices, and policies at issue in this lawsuit; has enforced the
challenged laws, customs and practices against Plaintiffs, and is in fact, presently enforcing the
challenged laws, customs and practices against Plaintiffs. Defendant Scott R. Jones is sued in
both his individual and official capacities.” (Id. ¶ 5.)
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any personal-capacity Section 1983 claims as against Sheriff Jones, as a plaintiff alleging a
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Section 1983 claim against individuals must allege how each individual defendant was personally
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involved in the deprivation of his civil rights. E.g., James, 606 F.3d at 653 n.3. Further, as
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currently drafted the complaint does not give Sheriff Jones fair notice of the claims against him or
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the factual bases therefor.5 The motion to dismiss the Section 1983 claims against Sheriff Jones
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in his personal capacity is granted, and the Section 1983 claims are dismissed as against him.
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However, such dismissal is without prejudice, and plaintiffs shall have the opportunity to amend
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their claims to correct the deficiencies described above. The complaint also fails to contain
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factual allegations sufficient to support a Section 1983 claim against Sheriff Jones in his official
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capacity, for the reasons discussed below.
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b.
Section 1983 Claims Against The County Entities And Sheriff Jones In His
Official Capacity
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The complaint alleges violations of 42 U.S.C. § 1983 (“Section 1983”) by the
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County Entity Defendants (i.e., the County and the Sheriff’s Department). (Compl. ¶¶ 55-61.)
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Municipalities may be liable under Section 1983, and police departments are, as a general matter,
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separately suable entities that may be liable for civil rights violations. See Karim-Panahi v. Los
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Angeles Police Dept., 839 F.2d 621, 624 n.2 (“Municipal police departments are ‘public entities’
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under California law and, hence, can be sued in federal court for alleged civil rights violations.”)
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(citing Shaw v. Cal. Dep’t of Alcoholic Beverage Control, 788 F.2d 600, 605 (9th Cir. 1986));
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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more
than “a formulaic recitation of the elements of a cause of action;” it must contain factual
allegations sufficient “to raise a right to relief above the speculative level.” Id. However,
“[s]pecific facts are not necessary; the statement [of facts] need only ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551
U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal
quotations omitted).
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accord Streit v. County of L.A., 236 F.3d 552, 565 (9th Cir. 2001). “Official-capacity suits, in
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contrast [to personal-capacity suits], ‘generally represent only another way of pleading an action
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against an entity of which an officer is an agent.’” Kentucky, 473 U.S. at 165-66 (citing Monell,
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436 U.S. at 690 n.55); accord Chew v. Gates, 27 F.3d 1432, 1446 n.15 (9th Cir. 1994); Neveu v.
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City of Fresno, 392 F. Supp. 2d 1159, 1171-72 (E.D. Cal. 2005) (citing Kentucky and other
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cases). “As long as the government entity receives notice and an opportunity to respond, an
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official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.
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[Citation.] It is not a suit against the official personally, for the real party in interest is the entity.”
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Kentucky, 473 U.S. at 165-66 (internal citations omitted).
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Relevant here, in Monell v. Department of Social Services, 436 U.S. 658, the
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Supreme Court limited municipal liability and held that “a municipality cannot be held liable
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solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable
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under § 1983 on a respondeat superior theory.” Id. at 691. Instead, “[l]ocal governing bodies . . .
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can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where . . . the
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action that is alleged to be unconstitutional implements or executes a policy statement, ordinance,
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regulation, or decision officially adopted and promulgated by that body’s officers.” Id. at 690
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(footnote omitted). The Court further stated that “it is when execution of a [local] government’s
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policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be
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said to represent official policy, inflicts the injury that the government as an entity is responsible
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under § 1983.” Id. at 693; see also Bd. of County Comm’rs of Bryan County, Okla. v. Brown,
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520 U.S. 397, 403 (1997) (“[W]e have required a plaintiff seeking to impose liability on a
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municipality under § 1983 to identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff’s
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injury.”).
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The Ninth Circuit Court of Appeals has held that in order to establish municipal
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liability under Section 1983, “the plaintiff must establish: (1) that he [or she] possessed a
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constitutional right of which he [or she] was deprived; (2) that the municipality had a policy; (3)
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that this policy amounts to deliberate indifference to the plaintiff’s constitutional right; and (4)
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that the policy was the moving force behind the constitutional violation.” Miranda v. City of
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Cornelius, 429 F.3d 858, 868 (9th Cir. 2005) (citation and quotation marks omitted, modification
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in original); see also Levine v. City of Alameda, 525 F.3d 903, 907 (9th Cir. 2008) (“To establish
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[municipal] liability, a plaintiff must establish that he was deprived of a constitutional right and
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that the city had a policy, practice, or custom which amounted to ‘deliberate indifference’ to the
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constitutional right and was the ‘moving force’ behind the constitutional violation.”) (citing Van
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Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996), cert. denied, 519 U.S. 1111 (1997)).
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With respect to the last element, “[t]here must be a direct causal link between a municipal policy
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or custom and the alleged constitutional deprivation.” Villegas v. Gilroy Garlic Festival Ass’n,
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541 F.3d 950, 957 (9th Cir. 2008) (en banc) (citation and quotation marks omitted). The Court of
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Appeals has recognized that in addition to showing that a constitutional violation resulted from an
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express municipal policy or custom, “[a] plaintiff may also establish municipal liability by
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demonstrating that (1) the constitutional tort was the result of a longstanding practice or custom
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which constitutes the standard operating procedure of the local government entity; (2) the
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tortfeasor was an official whose acts fairly represent official policy such that the challenged action
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constituted official policy; or (3) an official with final policy-making authority delegated that
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authority to, or ratified the decision of, a subordinate.” Price v. Sery, 513 F.3d 962, 966 (9th Cir.
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2008) (citation and quotation marks omitted).
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Here, plaintiffs’ complaint does not allege facts sufficient to state a Section 1983
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claim against the County Entity Defendants. There are some factual allegations specifically
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referencing the County Defendants (e.g., Compl. ¶¶ 19, 20, 35, 39, 40); but the vast majority of
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the complaint’s allegations reference all various law enforcement “defendants” collectively. (E.g.,
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id. ¶¶ 27-39, 55-61.) Even if the collective allegations against “defendants” were charitably
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construed as allegations against the County Defendants, however, the complaint fails to allege that
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the County Defendants6 — or, for that matter, any of the law enforcement defendants — had a
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particular custom or policy that was the moving force behind violation(s) of plaintiffs’
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constitutional rights.7 In other words, as the County Defendants’ moving papers correctly note
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(Dkt. No. 18 at 5-6), the complaint does not allege the existence of a County policy that amounted
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to deliberate indifference to plaintiffs’ constitutional rights. See Levine, 525 F.3d at 907.
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Likewise, the complaint does not allege any direct causal link between such County policy and the
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alleged constitutional deprivation. See id.; Villegas, 541 F.3d at 957. While a claim of municipal
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liability under Section 1983 may be sufficient to withstand a motion to dismiss “even if the claim
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is based on nothing more than a bare allegation that the individual officers’ conduct conformed to
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official policy, custom, or practice,” Karim-Panahi, 839 F.2d at 624, plaintiffs’ complaint stops
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short of making even this “bare” allegation. Here, the complaint does not contain even a “bare
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allegation” that the law enforcement officers involved in the hostage standoff acted pursuant to a
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custom or “policy.” See Karim-Panahi, 839 F.2d at 624; accord Del Conte v. San Francisco
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Police Dept., No. C 06-05030 JSW, 2009 WL 2871052, at *3 (N.D. Cal. Sept. 1, 2009)
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Aside from the sole reference to Sheriff Jones, the complaint also contains blanket
allegations against all “defendants” who were onsite during the hostage standoff at issue. (E.g.,
Compl. at ¶¶ 22-39.) The complaint also broadly states that at all times, all defendants were
acting under color of state law. (Id. ¶ 12 (“. . . all Defendants acted under color of authority
and/or state law. . . .”); ¶¶ 56-57 (“. . . Defendants acted under color of state law . . . .”).) It is
possible that plaintiffs intend these allegations to be directed to individual agents of County
Defendants whose identities are currently unknown. However, while plaintiffs purport to sue
100 “Doe” defendants in this case, at present there are no specific factual allegations actually
aimed at any “Doe” defendants — let alone “Doe” defendants affiliated with the County
Defendants. (See id. ¶ 11 (defining Does 1-100 as “employees of the various Defendant law
enforcement agencies”) but see ¶¶ 16-49 (failing to assert any factual allegations as against any
Doe defendants).)
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The complaint makes only one reference to the existence of “laws, customs, practices,
and policies.” (Compl. ¶ 5.) This sole reference, however, does not describe what are the
alleged laws, customs, practices, and policies. Instead, the allegation is that “Defendant Scott R.
Jones is the Sheriff of Sacramento County, and as such, he is responsible for formulating,
executing, and administering Sacramento County’s laws, customs, practices and policies at issue
in this lawsuit . . . .” (Id.) Identifying an individual who allegedly formed and administered
unidentified “policies” is not the same as identifying the policies at issue or, at a bare minimum,
alleging that certain acts were done pursuant to particular policies.
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(unpublished).
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Also, to the extent plaintiffs seek to premise the County’s liability on alleged
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tortious acts by Jones, see Price v. Sery, 513 F.3d at 966, plaintiffs fail to allege any particular
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actions by Jones that violated constitutional rights. Finally, as currently drafted, the complaint
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does not give the County Defendants fair notice of the factual bases supporting a Section 1983
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claim against them. Erickson, 551 U.S. at 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at
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555). It is possible that plaintiffs intend all of their allegations to be directed to individual County
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officers whose identities are currently unknown; however, while plaintiffs purport to sue 100
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“Doe” defendants in this case, at present there are no specific factual allegations actually aimed at
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any “Doe” defendants — let alone “Doe” defendants affiliated with the County. (See id. ¶ 11
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(defining Does 1-100 as “employees of the various Defendant law enforcement agencies”) but see
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¶¶ 16-49 (failing to assert any factual allegations as against any Doe defendants).) In any event,
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plaintiffs have not clearly described which allegations are directed at the County, and the County
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does not have fair notice of the factual bases for the Section 1983 claims asserted against it.
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Accordingly, the County Defendants’ motion to dismiss the Section 1983 claims is
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granted, and the Section 1983 claims are dismissed as against the County Defendants. However,
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because plaintiffs are proceeding without counsel and entitled to leniency with respect to their
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pleadings, this dismissal is without prejudice.8 Plaintiffs shall have the opportunity to amend their
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pleading to allege facts sufficient to support each element required to state a Section 1983 claim
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under the authorities described above. Such amendment should include identification of the
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County policy or policies alleged to have directly caused violation of plaintiffs’ constitutional
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rights, how the alleged violation occurred, and which specific constitutional right(s) were
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allegedly violated. If plaintiffs intend to allege that Sheriff Jones played a role in implementing
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E.g., King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“In civil rights cases, where the
plaintiff is pro se, we have an obligation to construe the pleadings liberally and to afford the
plaintiff the benefit of any doubt.”)
12
1
policies that violated plaintiffs’ rights, plaintiffs’ pleading amendments should describe that
2
alleged role and the policy or policies at issue. If plaintiffs intend to pursue Section 1983 claims
3
against County agents, such as Sheriff Jones, in their official capacities, plaintiffs’ pleading
4
amendments should include specific factual allegations describing the acts of those individual
5
defendants affiliated with the County, whether as named individuals or as individual “Doe”
6
defendants.
7
2.
8
Plaintiffs allege state law tort claims for “Intentional Infliction of Severe
9
10
Plaintiffs’ Common Law Tort Claims
Emotional Distress” (“IIED”) and for “Negligence Per Se - Criminal Trespass” against all
defendants, presumably including the County Defendants. (Compl. at ¶¶ 62-73.)
11
a.
Legal Elements of Negligence and Trespass
12
Plaintiffs frame their fourth claim for relief as a “Negligence Per Se” claim based
13
on “Criminal Trespass Pursuant to California Penal Code § 594,” however, “negligence per se” is
14
not an actionable “claim”9 and neither is “criminal” trespass. The plain text of California Penal
15
Code Section 594 does not provide a private right of action. However, complaints by pro se
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17
18
19
20
21
22
23
24
25
26
9
In California, negligence per se is “a presumption of negligence [that] arises from the
violation of a statute which was enacted to protect a class of persons of which the plaintiff is a
member against the type of harm which the plaintiff suffered as a result of the violation of the
statute.” People of California v. Kinder Morgan Energy Partners, L.P., 569 F. Supp. 2d 1073,
1087 (S.D. Cal. 2008) (citing cases). Negligence per se “is merely an evidentiary doctrine and
not an independent cause of action.” Id. (clarifying that negligence per se is simply a codified
evidentiary doctrine that does not establish tort liability). However, the facts giving rise to a
negligence claim – not a violation of the statute or regulation itself – are what entitle a plaintiff to
recover civil damages for negligence per se. Spencer v. DHI Mortg. Co., Ltd., 642 F. Supp. 2d
1153, 1161-62 (E.D. Cal. 2009) (“The negligence per se doctrine assists as evidence to prove
negligence . . . In such circumstances the plaintiff is not attempting to pursue a private cause of
action for violation of the statute; rather, he is pursuing a negligence action and is relying upon
the violation of a statute, ordinance, or regulation to establish part of that cause of action.”
(citations and internal quotation marks omitted); Basham v. Pac. Funding Group, No. 2:10-cv-96
WBS GGH, 2010 WL 2902368, at *2 (E.D. Cal. July 22, 2010) (unpublished) (“The negligence
per se doctrine does not establish a cause of action distinct from negligence.”). While the
allegations supporting an underlying negligence claim might support civil damages for
“negligence per se,” “negligence per se” is not an independent cause of action. See Spencer, 642
F. Supp. 2d at 1161-62.
13
1
litigants should be construed with a degree of leniency, see King, 814 F.2d at 567, and based on
2
the factual allegations within the complaint, it appears plaintiffs may have intended to assert a
3
claim for negligence rather than “negligence per se” and a claim for civil trespass and/or trespass
4
to chattels rather than “criminal trespass.”
5
As to a negligence claim, generally, “[t]o prevail on [a] negligence claim, plaintiffs
6
must show that [the defendant] owed them a legal duty, that it breached the duty, and that the
7
breach was a proximate or legal cause of their injuries.” Merrill v. Navegar, Inc., 26 Cal. 4th 465,
8
477 (2001); Mendoza v. City of Los Angeles, 66 Cal. App. 4th 1333, 1339 (1998) (To plead a
9
cause of action for negligence, a plaintiff must show “(1) a legal duty to use reasonable care; (2)
10
breach of that duty, and (3) proximate cause between the breach and (4) the plaintiff’s injury.” )
11
As to trespass, the essence of a claim for trespass is an “unauthorized entry” onto
12
the land of another. E.g., Church of Christ in Hollywood v. Superior Court, 99 Cal. App. 4th
13
1244 (2002). Also in California, a claim for trespass to chattels lies where an intentional
14
interference with the possession of personal property has proximately caused injury. E.g., Intel
15
Corp. v. Hamidi, 30 Cal. 4th 1342, 1350-51 (2003).
16
Accordingly, plaintiff’s claim for “Negligence Per Se - Criminal Trespass in
17
Violation of Cal. Penal Code § 594” is dismissed, but plaintiffs will have leave to amend their
18
pleading to state a claim for “negligence.” Such amendment should include factual allegations to
19
support each legal element of a negligence claim. Plaintiffs will also have leave to amend their
20
pleading to state a claim for civil trespass and/or trespass to chattels if they wish. Such
21
amendment should include factual allegations to support the legal elements of civil trespass and/or
22
trespass to chattels. Such amendments should also comply with the additional claims presentation
23
requirements discussed below.
24
b.
25
As noted above, the County is a public entity. See Cal. Gov’t Code § 811.2
26
Statute Authorizing Public Entity Liability
(“‘Public entity’ includes the state . . . a county, city, district, public authority, public agency, and
14
1
any other political subdivision or public corporation in the State.”); Karim-Panahi, 839 F.2d at
2
624 n.2 (“Municipal police departments are ‘public entities’ under California law . . . .”) The
3
California Tort Claims Act, which is also known as the California Tort Claims Act,10 immunizes
4
public entities from tort liability in all cases except those where liability is explicitly created by a
5
particular statute. Cal. Gov’t Code § 815(a).11
6
The Government Claims Act “evinces the California Legislature’s intent to channel
7
government liability into a statutory scheme, rather than embrace blanket sovereign immunity
8
from suit.” Liberal v. Estrada, 632 F.3d 1064, 1087 (9th Cir. 2011). In California, a
9
governmental entity can only be sued in tort pursuant to an authorizing statute or enactment. Van
10
Ort, 92 F.3d at 840; accord D.K. ex rel. G.M. v. Solano County Office of Educ., 667 F. Supp. 2d
11
1184, 1198 (E.D. Cal. 2009) (“To state a cause of action, every fact essential to the existence of
12
statutory liability must be pleaded with particularity, including the existence of a statutory duty. . .
13
. [Citations.] Since the duty of a governmental agency can only be created by statute, the statute
14
claimed to establish the duty must be identified.”) (internal citations omitted) (citing Cal. Gov’t
15
Code § 815; Lopez v. S. Cal. Rapid Transit Dist., 40 Cal.3d 780, 785 n. 2 (1985); Morris v. State
16
of California, 89 Cal. App. 3d 962, 964 (1979); Searcy v. Hemet Unified Sch. Dist., 177 Cal. App.
17
3d 792, 802 (1986)). Where a pleading “fail[s] to identify a statute creating liability” for a public
18
19
20
21
22
23
24
25
26
10
In 2007, the California Supreme Court adopted the practice of using the title
“Government Claims Act” instead of the more traditional “California Tort Claims Act” to
adequately capture the breadth of the statutory framework and to reduce confusion over issues
such as whether breach of contract claims fall within the statutory provisions. See City of
Stockton v. Superior Court, 42 Cal. 4th 730, 741-42 & ns.6-7 (2007).
11
The Senate Legislative Committee Comments to California Government Code Section
815 provide, in pertinent part, that “[t]his section abolishes all common law or judicially declared
forms of liability for public entities, except for such liability as may be required by the state or
federal constitution, e.g., inverse condemnation. In the absence of a constitutional requirement,
public entities may be held liable only if a statute (not including a charter provision, ordinance or
regulation) is found declaring them to be liable . . . the practical effect of this section is to
eliminate any common law governmental liability for damages arising out of torts. The use of the
word “tort” has been avoided, however, to prevent the imposition of liability by the courts by
reclassifying the act causing the injury.”
15
1
entity, claims against that public entity “must be dismissed with leave to amend.” D.K. ex rel.
2
G.M., 667 F. Supp. 2d at 1198 (citing Searcy, 177 Cal. App.3d at 802).
3
A governmental entity can be sued in tort based on a respondeat superior theory of
4
vicarious liability. Robinson v. Solano County, 278 F.3d 1007, 1016 (9th Cir. 2002); Young v.
5
City of Visalia, 687 F. Supp. 2d 1155, 1164 -65 (E.D. Cal. 2010) (citing cases). Specifically, a
6
“public entity is liable for injury proximately caused by an act or omission of an employee of the
7
public entity within the scope of his employment if the act or omission would, apart from this
8
section, have given rise to a cause of action against that employee or his personal representative.”
9
Cal. Gov’t Code § 815.2(a). Pursuant to this statute, in certain cases a public entity may be liable
10
under California Government Code Section 815.2(a) for injuries proximately caused by an act or
11
omission of an employee within the scope of the employee’s employment. E.g., Robinson, 278
12
F.3d at 1016 (9th Cir. 2002) (citing Cal. Gov’t Code § 815.2 and holding that, as to state law tort
13
claims, respondeat superior liability applies and the public entity employer is immune only
14
insofar as the public employee is immune). Similarly, while “[u]nder California law, a public
15
entity generally is immune from suit for injuries arising from acts or omissions of the entity or its
16
employees[,] California law creates an exception . . . in cases where the public entity is ‘under a
17
mandatory duty imposed by an enactment that is designed to protect against the risk of a particular
18
kind of injury,’ and the public entity is liable for causing that kind of injury while failing to
19
exercise reasonable diligence in discharging its duty.” Mendez v. County of San Bernardino, 540
20
F.3d 1109, 1123 (9th Cir. 2008) (citing Cal. Gov’t Code §§ 815(a); 815.6) (internal citation
21
omitted). Indeed, the Legislative Committee Comment to Section 815.2 states, “Under this
22
section, it will not be necessary in every case to identify the particular employee upon whose act
23
the liability of the public entity is predicated. All that will be necessary will be to show that some
24
employee of the public entity tortiously inflicted the injury in the scope of his employment under
25
circumstances where he would be personally liable.” The undersigned notes, however, that as
26
presently drafted the complaint does not reference Section 815.2 or any other statute upon which
16
1
public entity liability may be premised in this case. See D.K. ex rel. G.M., 667 F. Supp. 2d at
2
1198 (where a pleading “fail[s] to identify a statute creating liability” for a public entity, claims
3
against that public entity “must be dismissed with leave to amend.”)
4
Plaintiffs have not alleged which particular statute(s), if any, permit them to bring
5
state law tort claims against the County Defendants. Further, even if the complaint made proper
6
reference to an authorizing statute, plaintiffs’ practice of directing essentially every factual
7
allegation at all “defendants” obscures the factual bases of the claims directed against the County
8
Defendants. A pleading should give a defendant fair notice of the claims against him, as well as
9
the factual allegations serving as the basis therefor. Erickson, 551 U.S. at 93 (2007) (quoting Bell
10
Atlantic Corp., 550 U.S. at 555). Accordingly, the County Defendants’ motion to dismiss is
11
granted, and plaintiffs’ state law tort claims are dismissed as against the County Defendants.
12
However, such dismissal is without prejudice, and plaintiffs shall have the opportunity to amend
13
their complaint so as to specify which statute(s), if any, authorize their tort claims against the
14
County Defendants. Such amendment should also include clear statements of which factual
15
allegations are directed at the County Defendants and any Doe defendants affiliated with them.
16
c.
State Law Tort Claims Against Sheriff Jones
17
The complaint lacks any factual allegations describing Sheriff Jones’ acts or
18
involvement in the hostage standoff (or its aftermath) and how those alleged acts might support
19
any of the alleged state-law tort claims as against Sheriff Jones. Without supporting factual
20
allegations, the tort claims against Sheriff Jones are deficient. Accordingly, the motion to dismiss
21
is granted, and plaintiffs’ state law tort claims are dismissed as against Sheriff Jones. However,
22
such dismissal is without prejudice, and plaintiffs shall have the opportunity to amend their
23
complaint so as to include factual allegations directed at Sheriff Jones.
24
Accordingly, for the foregoing reasons IT IS HEREBY ORDERED that:
25
(1)
26
The County Defendants’ Motion to Dismiss (Dkt. No. 18) is granted; and
plaintiffs’ claims are dismissed without prejudice as against the County Defendants.
17
1
(2)
Plaintiffs are granted leave to file a First Amended Complaint within 45
2
days of the date of this order. This 45 day period shall give plaintiffs additional time to search for
3
an attorney to represent them in this action. If plaintiffs are able to find an attorney to represent
4
them in this action, the attorney shall file his or her appearance within 45 days of the date of this
5
order, and may request additional time to prepare an amended pleading. If plaintiffs are unable to
6
find an attorney within this period, and if plaintiffs wish to maintain this action and proceed
7
without counsel, plaintiffs themselves remain obligated to file the First Amended Complaint
8
within 45 days of the date of this order.12 A failure to do so may result in the dismissal of this
9
action.
10
11
IT IS SO ORDERED.
DATED: June 24, 2011
12
13
_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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12
Should plaintiffs wish to voluntarily dismiss their action rather than proceed without
counsel, as plaintiffs appeared to indicate during the hearing on June 23, 2011, plaintiffs are
directed to Federal Rule of Civil Procedure 41(a).
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