Burns et al v. City of Concord et al, No. 3:2014cv00535 - Document 67 (N.D. Cal. 2014)

Court Description: ORDER GRANTING 49 50 51 DEFENDANTS' MOTIONS TO DISMISS PLAINTIFFS' SECOND AMENDED COMPLAINT. Plaintiffs may file a Third Amended Complaint by November 21, 2014. Signed by Judge Laurel Beeler on 11/6/2014. (lblc2, COURT STAFF) (Filed on 11/6/2014)

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Burns et al v. City of Concord et al Doc. 67 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco Division JOHN BURNS, et al., 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 No. C 14-00535 LB Plaintiffs, ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT v. 13 CITY OF CONCORD, et al., 14 15 Defendants. _____________________________________/ 16 17 [Re: ECF Nos. 49, 50, 51] INTRODUCTION In this action, Plaintiffs John Burns, Tammy Burns, the Estate of Charles Burns, and Bobby 18 Lawrence have sued 21 Defendants, who can be broken up into three groups: (1) the City of 19 Concord, City of Concord Police Chief Guy Swanger, City of Concord Police Detectives Chris 20 Loercher and Tom Parodi1, and City of Concord Police Officers Mike Hansen, Steven White, Brad 21 Giacobazzi, Danny Smith, Eduardo Montero, Steven Price, Jason Passama, Paul Miovas, Matt Cain, 22 and Matthew Switzer (collectively, the “Concord Defendants”); (2) the City of Antioch, City of 23 Antioch Police Chief Allan Cantando2, and City of Antioch Police Officer James Stenger 24 (collectively, the “Antioch Defendants”); and (3) Contra Costa County, Contra Costa County 25 26 27 28 1 The court notes that Plaintiffs named City of Concord Detective James Nakayama as a defendant in their First Amended Complaint, but they have omitted him as a defendant in the Second Amended Complaint. 2 Erroneously sued as Allan Cantado. C 14-00535 LB ORDER Dockets.Justia.com 1 District Attorney Mark Peterson, Contra Costa County District Attorney’s Office employee Barry 2 Grove, and Contra Costa County Inspector John Conaty (collectively, the “Contra Costa 3 Defendants”). See generally Second Amended Complaint (“SAC”), ECF No. 48.3 Plaintiffs also 4 have sued Does 1-60, which includes an unnamed City of Concord Police Officer referred to as Doe 5 1. Plaintiffs bring claims under 42 U.S.C. § 1983 for violation of Plaintiffs’ Fourth and Fourteenth 6 Amendment rights and claims arising under state law. See id. ¶¶ 51-109. All three groups of 7 Defendants have moved to dismiss Plaintiffs’ Second Amended Complaint. See Antioch Motion, 8 ECF No. 49; Concord Motion, ECF No. 50; Contra Costa Motion, ECF No. 51. Pursuant to Civil 9 Local Rule 7-1(b), the court found this matter suitable for determination without oral argument and of the record in this case, the parties’ moving papers, and the applicable legal authority, the court 12 For the Northern District of California vacated the October 16, 2014 hearing. 10/10/2014 Clerk’s Notice, ECF No. 66. Upon consideration 11 UNITED STATES DISTRICT COURT 10 GRANTS Defendants’ motions to dismiss with leave to amend. 13 14 15 STATEMENT I. PLAINTIFFS’ ALLEGATIONS According to Plaintiffs’ Second Amended Complaint, on May 10, 2014, Charles Burns, who was 16 John Burns’s and Tammy Burns’s son, was shot and killed in Antioch, California by officers of the 17 Concord police department. SAC ¶¶ 3, 9, 33-34; but see id. ¶ 32 (alleging that the “defendant Police 18 Officers,” rather than the officers from the Concord Police Department only, shot Charles Burns). 19 Essentially, their story is as follows. 20 On May 10, 2014, thirteen Concord police officers, acting with the permission of the City of 21 Antioch and with the knowledge of Contra Costa County Deputy District Attorney Kevin Bell (who 22 is not a Defendant to this action), planned “a surveillance and undercover operation with the intent 23 of arresting and harming Charles Burns.” Id. ¶¶ 33, 74(d). Essentially, Plaintiffs allege that Charles 24 Burns and Mr. Lawrence went to Wal-Mart to buy a “stereo harness” and a Mother’s Day card. Id. ¶ 25 33. They were in Mr. Lawrence’s car, and Mr. Lawrence was driving. Id. “Inexplicably,” an 26 27 3 28 Citations are to the Electronic Case File (“ECF”) with pin cites to the ECF-generated page numbers at the top of the document. C 14-00535 LB ORDER 2 1 undercover Concord police officer drove an unmarked vehicle in a threatening manner toward Mr. 2 Lawrence’s vehicle to block its movement. Id. Mr. Lawrence and Charles Burns did not know that 3 the vehicle was being driven by a police officer, and the officer made no attempt to identify himself 4 as such. Id. Not knowing the situation and perceiving danger, Mr. Lawrence drove down the street 5 to safety. Id. As he did, the another undercover vehicle driven by an undercover officer rammed the 6 car. Id. Mr. Lawrence tried to avoid the vehicle and continue down the path towards safety when 7 his vehicle was then rammed by another unmarked vehicle driven by another undercover officer. Id. 8 As he rounded Barcelona Circle in Antioch, one of the unmarked officer in an unmarked car 9 continued to ram him from the rear. Id. At no time did any of the officers take any action to identify was not until Mr. Lawrence reached the stop sign at the end of the circle that, for the first time, 12 For the Northern District of California themselves or the vehicles they were diving as associated in any way with a police agency. Id. It 11 UNITED STATES DISTRICT COURT 10 “there was identification that the assailants were police officers.” When that happened, Mr. 13 Lawrence stopped the vehicle, which was then rammed again by the undercover officer driving 14 behind Mr. Lawrence. Id. Mr. Lawrence held his hands up and outside the driver’s side window in 15 plain view of the officers, thus surrendering to them. Id. 16 Charles Burns, the passenger, got out of the car and jogged slow approximately 20 feet to the 17 middle of the road, where he then stopped at the direction of the police officers. Id. He was not 18 armed, carried no weapon or anything that could be construed as a weapon, took no aggressive 19 action, and instead yielded to the officers, cowered his shoulders, and put his hands up. Id. Three 20 Concord police officers lined up in firing squad fashion. They were flanked by two additional 21 Concord Police officers, Chris Loercher and unnamed officer. Id. “Multiple officers unloaded their 22 weapons on the defenseless [Mr.] Burns with full intent to shoot him.” Id. Officers Loercher and 23 the unnamed officer admitted to shooting Mr. Burns. Id. The Concord police officers continued to 24 shoot him even though he was “laying lifeless or near lifeless on the ground,” including shooting a 25 bullent through the top of his skull and through his brain. Id. Concord police officer Matthew 26 Switzer then released a K-9 dog to further maim Charles Burns’s body. Id. Finally, another 27 Concord police officer walked over to Charles Burns’s body, stood over it, and fired an additional 28 two rounds into it “out of pure malice and spite.” Id. C 14-00535 LB ORDER 3 1 While all of this was happening to Charles Burns, Concord police officers pulled Mr. Lawrence into a fence where he was held down, “roughed up,” and ridiculed despite not resisting them. Id. ¶ 4 35. Then he was arrested without legal cause and taken to the Antioch police station “where 5 Concord and Antioch officers, and representatives from the Contra Costa County District Attorney’s 6 Office held him without legal justification and against his will, and subjected him to aggressive and 7 unwarranted harassment in an effort to elicit false and misleading information from him. Id. 8 Concord Police Detective Parodi, Antioch Police Officer Stenger, and Contra Costa County 9 Inspector Conaty screamed at and intimidated Mr. Lawrence, who was under age 20, in an attempt 10 to get him to provide a statement that “would conceal the true unlawful and heinous conduct of the 11 officers and cast blame on [Mr.] Lawrence and [Charles] Burns.” Id. Mr. Lawrence “was subjected 12 For the Northern District of California out of his car, physically and verbally threatened him, dragged him across the street, and shoved him 3 UNITED STATES DISTRICT COURT 2 to hours of unlawful and disturbing interrogation and ultimately released after having to post bail.” 13 Id. During this interrogation, Concord Police Detective Parodi, Antioch Police Officer Stenger, and 14 Contra Costa County Inspector Conaty recorded the interview with a digital recording device, but 15 they stopped and started the recording several times during the course of the interview. “By doing 16 so, they fabricated a statement that contains information out of ocntext by poiecing together different 17 portions of the recording, in order to produce a statement that would attempt to justify the conduc tof 18 the offending officers.” Id. “They then produced a falsified written investigative report in order to 19 cover-up the illegal conduct of their fellow law ‘enforcement’ personnel.” Id. 20 “The officers at the Antioch Police Department along with the Concord Police Offices and the 21 Contra Costa District Attorney’s office then undertook to fabricate information related to the 22 shooting to protect the officers involved and to conceal their illegal conduct. Id. ¶ 37. The 23 allegations that follow in the complaint specify the following about the alleged conspiracy to (1) 24 protect the Concord police officers who were involved in the shooting of Mr. Burns, (2) delay the 25 subsequent investigation of the shooting, and (3) conceal the facts surrounding the events under a 26 “shroud of secrecy.” See id. ¶¶ 37-44. Specifically: 27 28 • The Concord police officers, along with the Contra Costa County District Attorney’s Office and officers of the Antioch Police Department, “did not follow proper and reasonable police C 14-00535 LB ORDER 4 1 practices in obtaining statements and preserving evidence related to the shooting” of Charles 2 Burns and “purposely did not video record all interviews in order to conceal the truth and to 3 conceal their illegal tactics in eliciting information.” Id. ¶ 37; see also id. ¶ 78. 4 • Representatives from the Antioch Police Department and the Contra Costa District Attorney’s 5 Office were involved with the illegal prolonged detention of Lawrence and the Lawrence 6 arrest, and they actively participated in the cover-up. At all times, offices from each agency 7 and the district attorney’s office engaged in the unlawful conduct personally and at other 8 times tood by and watched and did not intervene despite a duty to do so. Id. ¶ 37. 9 • “[S]everal Concord Police Officers acted in concert with the Antioch Police Department, the Criminalist District to secure the scene and Charles Burns’[s] body in an effort to conceal 12 For the Northern District of California Contra Costa County District Attorney’s Office and the Contra Costa County Sheriff’s 11 UNITED STATES DISTRICT COURT 10 their unlawful and malicious conduct.” Id. ¶ 38. 13 • 14 15 Defendants made no effort to provide emergencyaid to Charles Burns or to contact any third party emergency aid provider prior to his death. Id. ¶ 39. • “[I]n an effort to corroborate the fabricatedinformation that [Charles] Burns was reaching for 16 his waistline,” “one or more officers planted non-prescribed pills on [Charles] Burns[’s] body 17 so that they would be found during the autopsy.” Id. ¶ 80. 18 • “Shortly after the killing, [Contra Costa County District Attorney’s Office employee Barry 19 Grove], the representative of the District Attorney’s [O]ffice (the District Attorney Point 20 Man)[,] showed up on scene[,] and one by one the [Concord police officers] entered and 21 exited the vehicle where [Mr. Grove] was seated[,] and the groundwork was laid for 22 fabricating the story for public consumption and concealing the truth regarding the killing of 23 Charles Burns.” Id. ¶ 39. 24 • Concord Police Detective Parodi, Antioch Poli e Officer Stenger, and Contra Costa County c 25 Inspector Conaty, along with “other defendants,” “placed the involved officers in the comfort 26 and solace of hotel rooms while they determined the information known to others and then 27 sought . . . to fabricate the events of the evening” through their interrogation of Mr. Lawrence. 28 Id. ¶ 40. C 14-00535 LB ORDER 5 1 • Concord Police Detective Parodi, Antioch Po Officer Stenger, Contra Costa County lice 2 Inspector Conaty, and Contra Costa County District Attorney’s Office employee Grove 3 “coach[ed] the officers to provide statements consistent with a theory exculpating the officers 4 from their willful killing of Charles Burns,” “rehearsed their statements[,] and then recorded 5 the statements in a manner to optimize a fabricated version of events.” Id.; see also id. ¶¶ 75- 6 77, 79. 7 • Contra Costa County Deputy District AttorneyKevin Bell, who was a passenger in Concord engaged in the cover-up by agreeing to and providing” a false statement about the shooting 10 and “which failed to contradict the officers[’] rendition of events, in particular the locations 11 [Charles] Burns[’s] hands and the manner of the shooting and deployment of the K-9.” Id. ¶ 12 For the Northern District of California Police Office Hansen’s vehicle at the time Charles Burns was killed, “assisted the officers 9 UNITED STATES DISTRICT COURT 8 74(f). 13 • 14 The Concord Police Department has at no time since Charles Burns’s death “sought to gain information inculpating the officers in wrongful conduct or search[ed] for the truth.” Id. ¶ 41. 15 16 • A “shroud of secrecy” has surrounded the case and investigation. Concord and Antioch 17 police officers “took several months to carry out the coordinated effort to complete their 18 reports, and [they] did so as a concerted action with representatives from the Contra Costa 19 County District Attorney’s Office.” Id. ¶ 42. 20 • “Having knowledge that involving a neutral third party investigative agency would expose 21 the misconduct of the officers,” the Concord Police Department and the Contra Costa District 22 Attorney’s Office continued “their concerted effort to conceal the misconduct” by refusing to 23 “turn this investigation over to a neutral third party.” Id. ¶ 44. 24 25 26 27 28 Plaintiffs allege that Defendants’ concerted effort was made possible by “a County Wide law enforcement policy called the ‘LEIFI Protocol.’” Id. ¶ 43. Plaintiffs allege that The “Protocol” was conceived as a means for deploying multiple law enforcement agencies and resources to conduct a swift, efficient[,] and transparent investigation involving police officer misconduct. However[,] in reality the “Protocol” has provided the law enforcement community in Contra Costa County with a powerful tool for covering up police misconduct. The supervisors in the law enforcement C 14-00535 LB ORDER 6 1 2 3 4 5 6 7 8 9 10 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 community, including Chief Swanger, Chief Conta[n]do[,] and District Attorney Peterson have adopted and continue to employ the “Protocol” knowing that it would serve as a means for their subordinates to work together to conceal police misconduct and despite being aware that the “Protocol” has been abused in such a manner. Swanger, Conta[n]do[,] and Peterson were likewise aware that the “Protocol” was in fact being used in the same illegal and abusive manner in this case and despite this knowledge allowed the abusive and illegal conduct to occur. The “Protocol” is a façade. The [“P]rotocol[”] gives the appearance of propriety by having several agencies involved in an investigation on what is supposed to appear as a checks and balances between the various agencies. However[,] in reality the “Protocol” is utilized in Contra Costa County as a means for establishing conspiratorial and concerted effort by law enforcement agencies to protect one another when officers unlawfully harm and kill citizens. This policy is consistent with a long standing practice by law enforcement agencies with the support of the [Contra Costa County] District Attorney’s Office of unconstitutional conduct permeating their activities under the disposition that the “Ends Justifies the Means.” This concerted effort in this instance was further facilitated by the fact that the [Contra Costa County] District Attorney, Mark Peterson, received substantial donations and support from the Concord Police Department during his campaign for the District Attorney position. In fact[,] the Concord Police Department was the only Police Department in Contra Costa County that endorsed his campaign for District Attorney. As a result[,] he directed his office to take[] steps to facilitate the cover-up of the Concord Police Officer[s’] misconduct in this case, and ignored requests by Plaintiffs to turn the investigation over to an independent law enforcement agency. 13 14 Id. ¶ 43. Plaintiffs further allege that “[Contra Costa County] District Attorney Mark Peterson, 15 Chief Swanger[,] and Chief Conta[n]do have personally authorized and maintained the existence of 16 the ‘Protocol’ for covering up police misconduct in general and specifically in this case by their 17 actions and omissions” and by their “failure to step in and hold the wrong-doers accountable for the 18 misconduct that occurred in this case.” Id. ¶ 74(b). 19 Plaintiffs also allege that the City of Concord (and Chief Swanger), the City of Antioch (and 20 Chief Contando), and Contra Costa County (and District Attorney Peterson) maintained policies and 21 customs exhibiting deliberate indifference to the constitutional rights of individuals subjected to 22 excessive force and other misconduct. See id. ¶¶ 87-121. As for the City of Concord, Plaintiffs 23 allege that “[i]t was the policy and/or custom of the City of Concord to inadequately supervise and 24 train its police officers, including the defendant Officers, thereby failing to adequately discourage 25 further constitutional violations on the part of its police officers.” Id. ¶ 90. Specifically, the City of 26 Concord “did not require appropriate in-service training or re-training of officers” “who were known 27 to have engaged in police misconduct involving excessive force and false arrest” or “on issues of use 28 of force, use of lethal force, arrest procedures, execution of warrants, and other related duties.” Id. C 14-00535 LB ORDER 7 1 ¶¶ 90-91. Plaintiffs allege that the City of Concord “had prior knowledge of the propensity of the 2 Individual Officers in this case to engage in unlawful acts in violation of persons[’] constitutional 3 rights” but continued to employ them nevertheless. Id. ¶ 92. “[O]fficers engaged in undercover 4 work as part of the Special Investigations Bureau” (“SIB”) (such as City of Concord Police 5 Detective Loercher and City of Concord Police Officers Hansen, White, Giacobazzi, and Smith, see 6 id. ¶ 9), “are given free reign to engage in unconstitutional conduct which is tolerated and authorized 7 within the department.” Id. ¶ 93; see also id. ¶ 95. Lastly, Plaintiffs allege that Chief Swanger, who 8 “is a policy maker for the City of Concord,” “authorized, directed, and ratified the actions of the 9 Individual defendant Officers” (presumably the Concord Officer Defendants). Id. ¶ 94. and/or custom” of the Antioch Police Department to inadequately supervise and train its officers, 12 For the Northern District of California As for the City of Antioch and Contra Costa County, Plaintiffs allege that “[i]t was the policy 11 UNITED STATES DISTRICT COURT 10 and of the Contra Costa County District Attorney’s Office to inadequately supervise and train its 13 investigators, “regarding proper and lawful police misconduct investigations, and to instruct them to 14 assist local law enforcement in concealing misconduct, thereby failing to adequately discourage 15 further constitutional violations on the part of its investigators.” Id. ¶¶ 102, 114. Specifically, the 16 Antioch Police Department and the Contra Costa County District Attorney’s Office “did not require 17 appropriate in-service training or re-training of officers on the subject matter of lawful and proper 18 police misconduct investigations” or “on issues of use of force, use of lethal force, arrest procedures, 19 execution of warrants, and other related duties for which they would ordinarily be called upon to 20 conduct investigations.” Id. ¶¶ 102-03, 114-15. Plaintiffs allege that the Antioch Police Department 21 and the Contra Costa County District Attorney’s Office “had prior knowledge of the propensity of 22 the Concord Police Department and Concord Police Officers” (in the case of both the Antioch Police 23 Department and the Contra Costa County District Attorney’s Office), and of “the Antioch Police 24 Department and Antioch Police Officers” (in the case of the Antioch Police Department) “to engage 25 in unlawful acts in violation of persons[’] constitutional rights, particularly with regard to excessive 26 force, and yet took no disciplinary action, nor any other action to prevent further constitutional 27 violations.” Id. ¶¶ 104, 116. Instead, the Antioch Police Department and the Contra Costa County 28 District Attorney’s Office “allow[ed] them to engage in the alleged conduct unfettered by lawful C 14-00535 LB ORDER 8 1 limitations that should have been placed on them.” Id. ¶¶ 104, 116. With respect to Contra Costa 2 County, Plaintiffs allege that “there is a long history of tolerating the infringements of citizens[’] 3 constitutional rights by law enforcement agencies, supported by the District Attorney’s Office,” like 4 “special investigations units such as . . . East NET, CNet, and other undercover narcotics 5 investigation units similar to the SIB unit in this case.” Id. ¶ 105. Finally, Plaintiffs allege that 6 Chief Contando, who “is a policy maker for the City of Antioch,” “authorized, directed[,] and 7 ratified the actions of the Antioch Police Officers and the Concord Police Officers acting within his 8 jurisdiction.” Id. ¶ 117. They also allege that Contra Costa County District Attorney Peterson, who 9 “is a policy maker for the County of Contra Costa,” “authorized, directed[,] and ratified the actions of the District Attorney’s Office Investigators.” Id. ¶ 106. 11 II. PROCEDURAL HISTORY 12 For the Northern District of California UNITED STATES DISTRICT COURT 10 Plaintiffs instituted this action on February 4, 2014, see Complaint, ECF No. 1, and thereafter 13 filed a First Amended Complaint as a matter of right, see FAC, ECF No. 11. Upon Defendants’ 14 motions, the court dismissed the First Amended Complaint without prejudice because it did not 15 comport with the notice pleading standings under Rule 8(a), as it did not clearly specify which 16 Plaintiffs bring which claims against which Defendants. See 7/22/2014 Order, ECF No. 46 at 5-8. 17 Plaintiffs thereafter timely filed their Second Amended Complaint. See SAC, ECF No. 48. In it, 18 they bring twelve claims, which are summarized in the chart below: 19 20 21 22 23 24 25 No. Claim Brought By Brought Against 1 The title says 42 U.S.C. § 1983, and the paragraphs mention the violation of “Plaintiff’s” 4th Amendment rights to be free from unlawful seizure and excessive force and “Plaintiff’s” 14th Amendment rights not be deprived of life and liberty without due process of law, to familial association, and to the provision of emergency medical care. Estate of Charles Burns The title says “Concord Officer Defendants,” which Plaintiffs defined as including Detective Loercher (but not Detective Parodi), Officers Hansen, White, Giocabazzi, Smith, Montero, Price, Passama, Miovas, Cain, and Switzer, and Doe 1. 26 27 28 C 14-00535 LB ORDER 9 1 2 The title says 42 U.S.C. § 1983, and the paragraphs mention the conspiracy to violate “Plaintiff’s” 4th Amendment rights to be free from unlawful seizure and excessive force and “Plaintiff’s” 14th Amendment rights not be deprived of life and liberty without due process of law, to familial association, and to the provision of emergency medical care.” Estate of Charles Burns The title says “Concord Officer Defendants,” which Plaintiffs defined as including Detective Loercher (but not Detective Parodi), Officers Hansen, White, Giocabazzi, Smith, Montero, Price, Passama, Miovas, Cain, and Switzer, and Doe 1. 3 The title says 42 U.S.C. § 1983, and the paragraphs mention the violation of “Mr. Lawrence’s 4th amendment and 14th amendment rights by means of illegal detention, prolonged unjustified detention, unlawful arrest, and false imprisonment.” Bobby Lawrence All Defendants 4 The title says 42 U.S.C. § 1983. and the paragraphs mention the violation of John Burns’s and Tammy Burns’s 14th Amendment rights to familial association John Burns; Tammy Burns The title says “Concord Officer Defendants,” which Plaintiffs defined as including Detective Loercher (but not Detective Parodi), Officers Hansen, White, Giocabazzi, Smith, Montero, Price, Passama, Miovas, Cain, and Switzer, and Doe 1. 5 The title says “Conspiracy to Violate Civil Rights—42 U.S.C. § 1983,” and the paragraphs mention the violation of John Burns’s, Tammy Burns’s, and Bobby Lawrence’s rights to “access to the criminal justice system and the rights, privileges, and benefits associated with the Victims Bill of Rights,” Cal. Const., Art. I, Sec. 28. John Burns; Tammy Burns; Bobby Lawrence All Defendants 6 The title says 42 U.S.C. § 1983 and mentions Monell v. Department of Soc. Servs., 463 U.S. 658 (1978). All Plaintiffs City of Concord; Chief Swanger 7 The title says 42 U.S.C. § 1983 and mentions Monell v. Department of Soc. Servs., 463 U.S. 658 (1978). All Plaintiffs County of Contra Costa; District Attorney Peterson 8 The title says 42 U.S.C. § 1983 and mentions Monell v. Department of Soc. Servs., 463 U.S. 658 (1978). All Plaintiffs City of Antioch; Chief Contando 2 3 4 5 6 7 8 9 10 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C 14-00535 LB ORDER 10 1 9 Intentional Infliction of Emotional Distress John Burns; Tammy Burns; Estate of Charles Burns All Defendants 10 Negligent Infliction of Emotional Distress John Burns; Tammy Burns; Estate of Charles Burns All Defendants 11 Battery Estate of Charles Burns The title says “Concord Officer Defendants,” which Plaintiffs defined as including Detective Loercher (but not Detective Parodi), Officers Hansen, White, Giocabazzi, Smith, Montero, Price, Passama, Miovas, Cain, and Switzer, and Doe 1. 12 The title says violation of California Constitutional rights and the paragraphs mention the violation of “the right to have a lawful investigation into crimes in which they are victims” under Cal. Const., Art. I, Sec. 28. John Burns; Tammy Burns; Bobby Lawrence All Defendants 2 3 4 5 6 7 8 9 10 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 14 15 16 The Concord Defendants, Antioch Defendants, and Contra Costa Defendants each filed motions 17 to dismiss the Second Amended Complaint. See Antioch Motion, ECF No. 49; Concord Motion, 18 ECF No. 50; Contra Costa Motion, ECF No. 51. Plaintiffs filed oppositions to the motions, and 19 Defendants filed replies. See Opposition to Antioch Motion, ECF No. 58; Antioch Reply, ECF No. 20 63; Opposition to Concord Motion, ECF No. 60; Concord Reply, ECF No. 61; Opposition to Contra 21 Costa Motion, ECF No. 64; Contra Costa Reply, ECF No. 65. 22 23 ANALYSIS I. LEGAL STANDARD 24 Federal Rule of Civil Procedure 8(a) requires that a complaint contain a “short and plain 25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 26 complaint must therefore provide a defendant with “fair notice” of the claims against it and the 27 grounds for relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation and 28 citation omitted). C 14-00535 LB ORDER 11 1 A court may dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) when it does 2 not contain enough facts to state a claim to relief that is plausible on its face. See Twombly, 550 3 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 4 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 5 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “The plausibility standard is not akin to a 6 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 7 unlawfully.” Id. (quoting Twombly, 550 U.S. at 557.). “While a complaint attacked by a Rule 8 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to 9 provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (internal 12 For the Northern District of California formulaic recitation of the elements of a cause of action will not do. Factual allegations must be 11 UNITED STATES DISTRICT COURT 10 citations and parentheticals omitted). 13 In considering a motion to dismiss, a court must accept all of the plaintiff's allegations as true 14 and construe them in the light most favorable to the plaintiff. See id. at 550; Erickson v. Pardus, 551 15 U.S. 89, 93-94 (2007); Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th Cir. 2007). 16 If the court dismisses the complaint, it should grant leave to amend even if no request to amend 17 is made “unless it determines that the pleading could not possibly be cured by the allegation of other 18 facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Cook, Perkiss and Liehe, Inc. 19 v. Northern California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990)). But when a party 20 repeatedly fails to cure deficiencies, the court may order dismissal without leave to amend. See 21 Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (affirming dismissal with prejudice where 22 district court had instructed pro se plaintiff regarding deficiencies in prior order dismissing claim 23 with leave to amend). 24 II. DISCUSSION 25 A. Claim One 26 Claim One is brought by the Estate of Charles Burns against the “Concord Officer Defendants,” 27 which Plaintiffs define as including Detective Loercher (but not Detective Parodi), Officers Hansen, 28 White, Giocabazzi, Smith, Montero, Price, Passama, Miovas, Cain, and Switzer, and Doe 1. The C 14-00535 LB ORDER 12 1 Estate of Charles Burns brings the claim under 42 U.S.C. § 1983 for the violation of the Estate of 2 Charles Burns’s 4th Amendment rights to be free from unlawful seizure and excessive force and the 3 Estate of Charles Burns’s 14th Amendment rights not be deprived of life and liberty without due 4 process of law, to familial association, and to the provision of emergency medical care. 5 The Concord Defendants move to dismiss the claim on three grounds: (1) Ms. Burns has not 6 shown that she has standing to standing to assert any survival actions on behalf of the Estate of 7 Charles Burns; (2) the Estate of Charles Burns cannot bring an excessive force claim for violations 8 of both Charles Burns’s Fourth Amendment right to be free from an unlawful seizure and his 9 Fourteenth Amendment substantive due process rights; and (3) the Estate of Charles Burns lacks standing to assert a Fourteenth Amendment claim based on the deprivation of familial association. 11 As for the Concord Defendants’ first argument, allegations of the unlawful death of a decedent 12 For the Northern District of California UNITED STATES DISTRICT COURT 10 may state a valid claim under 42 U.S.C. § 1983 for violation of the decedent’s or decedent’s 13 survivors’ substantive constitutional rights. See Smith v. City of Fontana, 818 F.2d 1411, 1414-15 14 (9th Cir.), cert. denied, 484 U.S. 935 (1987); see, e.g., Conn v. City of Reno, 591 F.3d 1081, 1094 15 (9th Cir. 2010) (§ 1983 action claiming deliberate indifference to serious medical needs brought by 16 children of pre-trial detainee who committed suicide), reinstated as modified by 658 F.3d 897 (9th 17 Cir. 2011). For example, “[i]n § 1983 actions, . . . the survivors of an individual killed as a result of 18 an officer’s excessive use of force may assert a Fourth Amendment claim on that individual’s behalf 19 if the relevant state’s law authorizes a survival action. The party seeking to bring a survival action 20 bears the burden of demonstrating that a particular state’s law authorizes a survival action and that 21 the plaintiff meets that state’s requirements for bringing a survival action.”4 Moreland v. Las Vegas 22 23 24 25 26 27 28 4 The survival of civil rights actions under § 1983 upon the death of either the plaintiff or the defendant is an area not specifically covered by federal law. See Robertson v. Wegmann, 436 U.S. 584, 589 (1978). The legislative intent of § 1983 is clearly to protect not only against violent injury which cripples, however, but also that which kills. See Brazier v. Cherry, 293 F.2d 401, 404 (5th Cir.), cert. denied, 368 U.S. 921 (1961); see also id. at 419 (describing § 1983’s precursor as “a remedy for wrongs, arsons and murders done . . . what we offer to the man whose house has been burned, as a remedy; to the woman whose husband has been murdered, as a remedy; to the children whose father has been killed, as a remedy”). When federal laws “are deficient in the provisions necessary to furnish suitable remedies,” federal courts must turn to the common law as modified and C 14-00535 LB ORDER 13 1 Metro. Police Dep’t, 159 F.3d 365, 369 (9th Cir. 1998) (internal citation omitted); see Smith, 818 2 F.2d at 1416; cf. Guyton v. Phillips, 606 F.2d 248, 250-51 (9th Cir. 1979) (claim of post-death 3 conspiracy to cover up cause of death not cognizable), cert. denied, 445 U.S. 916 (1980); Cartwright 4 v. City of Concord, 618 F. Supp. 722, 730 (N.D. Cal. 1985) (alleged inadequacy of investigation 5 following decedent’s suicide not cognizable), aff’d, 856 F.2d 1437 (9th Cir. 1988). 6 Under California’s survival statute, “a cause of action for or against a person is not lost by reason 7 of the person’s death,” whether the loss or damage occurs simultaneously with or after the death. 8 Cal. Civ. Proc. Code § 377.20(a)-(b).5 Such action may be commenced by the decedent’s successor 9 in interest or personal representative. See Cal. Civ. Proc. Code § 377.30; Byrd v. Guess, 137 F.3d (9th Cir. 2006) (“Where there is no personal representative for the estate, the decedent’s ‘successor 12 For the Northern District of California 1126, 1131 (9th Cir. 1998); see also Tatum v. City & County of San Francisco, 441 F.3d 1090, 1094 11 UNITED STATES DISTRICT COURT 10 in interest’ may prosecute the survival action if the person purporting to act as successor in interest 13 satisfies the requirements of California law . . . .”) (citing Cal. Code Civ. Proc. §§ 377.30, 377.32); 14 Smith, 818 F.2d at 1416 (Fourth Amendment claim of excessive force resulting in decedent’s death 15 survives decedent’s death and can be maintained by administratrix of estate); Guyton, 532 F. Supp. 16 at 1164 (same). California Code of Civil Procedure section 377.11 defines “decedent’s successor in 17 interest” as “the beneficiary of the decedent’s estate or other successor in interest who succeeds to a 18 cause of action or to a particular item of the property that is the subject of a cause of action.” The 19 plaintiff has the burden of alleging and proving that he or she has standing to sue in a representative 20 capacity or as a successor in interest. See Byrd, 137 F.3d at 1131; Rose v. City of Los Angeles, 814 21 F. Supp. 878, 882 (C.D. Cal. 1993) (same); see also Moreland, 159 F.3d at 369-70 (where state law 22 limited parties who could bring cause of action, Fourth Amendment claims by relatives who did not 23 allege they were personal representatives of decedent dismissed). 24 25 26 27 28 changed by the constitution and statutes of the forum state. See 42 U.S.C. § 1988; Robertson, 436 U.S. at 588; Brazier, 293 F.2d at 405-06. 5 California Code of Civil Procedure sections 377.20, 377.22, 377.34 and 377.42 replace California Probate Code section 573, repealed in 1992, which was the survival statute relied upon in Smith, 818 F.2d at 1416, and Guyton, 532 F. Supp. at 1164. C 14-00535 LB ORDER 14 Complaint alleges that Ms. Burns is the “personal representative” of the Estate of Charles Burns. 3 SAC, ECF No. 48 ¶¶ 7, 50. In their opposition, Plaintiffs say that labeling her a “personal 4 representative,” rather than a “successor in interest,” is a “mere clerical error.” But one man’s 5 clerical error is another man’s pleading insufficiency. Plaintiffs also point out that, along with the 6 original complaint, Ms. Burns filed a declaration pursuant to California Code of Civil Procedure §§ 7 377.30 and 377.32 that states that she is Charles Burns’s “successor in interest” as defined by 8 California Code of Civil Procedure § 377.11. See Tammy Burns Declaration, ECF No. 6. This 9 statement may be true, but it is not alleged in the Second Amended Complaint. Accordingly, as it 10 stands now, the court finds that Ms. Burns has not met her burden to allege that she has standing to 11 sue as a successor in interest. The court thus dismisses the claim with leave to amend to show 12 For the Northern District of California The court agrees that Ms. Burns has not met her burden in this regard. The Second Amended 2 UNITED STATES DISTRICT COURT 1 standing to sue as a successor in interest. That being said, assuming that Ms. Burns cures the 13 standing problem, the Second Amended Complaint sufficiently alleges a Fourth Amendment claim. 14 The Concord Defendants next argue that the Estate of Charles Burns cannot bring an excessive 15 force claim for violations of both Charles Burns’s Fourth Amendment right to be free from an 16 unlawful seizure and his Fourteenth Amendment substantive due process rights. See SAC, ECF No. 17 48 ¶ 54(a), (b). They are correct. To the extent that the Estate of Charles Burns brings a substantive 18 due process claim against the Concord Defendants for their alleged excessive force, the claim must 19 be dismissed with prejudice. See Graham v. Connor, 490 U.S. 386, 395 (1989) (“[A]ll claims that 20 law enforcement officers have used excessive force—deadly or not—in the course of an arrest, 21 investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth 22 Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ 23 approach.”); see also Albright v. Oliver, 510 U.S. 266, 273 (1994) (“Where a particular Amendment 24 provides an explicit textual source of constitutional protection against a particular sort of 25 government behavior, that Amendment, not the more generalized notion of ‘substantive due 26 process,’ must be the guide for analyzing these claims.”) (internal quotation marks omitted). 27 Plaintiffs contend in their opposition that the first claim “pleads far beyond just the use of 28 excessive force” by the Concord Defendants. Opposition, ECF No. 60 at 15. They say that their C 14-00535 LB ORDER 15 facilitated the execution[-]style murder of a citizen of this country, and have and still continue to 3 cover up, fabricate, and conceal the facts surrounding” that murder. Id. But as the Concord 4 Defendants point out, Plaintiffs provide no authority to support such a claim by the Estate of Charles 5 Burns. See Reply, ECF No. 62 at 3. All of the opinions cited by Plaintiffs involved substantive due 6 process claims brought by the parents or children of a person killed by law enforcement; they did not 7 involve claims brought by the estate of the person killed. See County of Sacramento v. Lewis, 523 8 U.S. 833 (1998); Porter v. Osborne, 546 F.3d 1131 (9th Cir. 2008); Moreland v. Las Vegas Metro. 9 Police Dep’t, 159 F.3d 365 (9th Cir. 1998); Curnow v. Ridgecrest Police, 952 F.2d 321 (9th Cir. 10 1991). They also involved claims familial deprivation (Porter; Moreland; Curnow) or deliberate 11 indifference (Lewis); they did not involve claims about an attempt to cover up an excessive force 12 For the Northern District of California claim encompasses “[w]hat occurred in this case,” namely “that multiple government agencies 2 UNITED STATES DISTRICT COURT 1 violation. Plaintiffs’ argument and authority, then, do not change the court’s decision. 13 Plaintiffs also contend that the Estate of Charles Burns also brings a procedural due process 14 claim, not just a substantive due process one. See Opposition, ECF No. 60 at 17. They say that the 15 Concord Defendants’ “conduct in concealing the wrongful actions of the Concord Police 16 Department was authorized conduct pursuant to the LEIFI protocol.” Id. This and other “county- 17 wide policies led by the [Contra Costa County] District Attorney’s [O]ffice violated procedural due 18 process rights of Plaintiffs.” Id. 19 “A section 1983 claim based upon procedural due process . . . has three elements: (1) a liberty or 20 property interest protected by the Constitution; (2) a deprivation of the interest by the government; 21 (3) lack of process.” Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). To the 22 extent that the first claim even can be read to include a violation of the Estate of Charles Burns’s 23 procedural due process rights, the court finds that it must be dismissed without prejudice. Plaintiffs 24 allege no facts to show that Charles Burns was entitled to a particular procedure that he did not 25 receive, and they cite no authority to support such a claim by the Estate of Charles Burns. All of the 26 opinions cited by Plaintiffs were completely different from this case. See Zinermon v. Burch, 494 27 U.S. 113 (1990) (plaintiff challenged the voluntariness of his admission to a state-run mental 28 hospital); Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) (plaintiff challenged his former C 14-00535 LB ORDER 16 1 employers’ compliance with labor laws); Zimmerman v. City of Oakland, 255 F.3d 734 (9th Cir. 2 2001) (plaintiff challenged the seizure of his property). Moreover, Plaintiffs’ allegations that the 3 LEIFI Protocol allowed Defendants’ to cover up the Concord police officers’ actions are more 4 properly analyzed under Plaintiffs’ conspiracy or Monell claims. 5 Finally, the Concord Defendants argue that the Estate of Charles Burns lacks standing to assert a 6 Fourteenth Amendment claim based on the deprivation of familial association. In their opposition, 7 Plaintiffs concede this point. Accordingly, to the extent that the Estate of Charles Burns brings a 8 Fourteenth Amendment claim against the Concord Defendants based on the deprivation of familial 9 association, the claim must be dismissed with prejudice. B. Claim Two 11 Claim Two is brought by the Estate of Charles Burns against the “Concord Officer Defendants” 12 For the Northern District of California UNITED STATES DISTRICT COURT 10 (defined as described when discussing Claim One). The Estate of Charles Burns brings the claim 13 under 42 U.S.C. § 1983 for conspiracy to violate the Estate of Charles Burns’s 4th Amendment 14 rights to be free from unlawful seizure and excessive force and the Estate of Charles Burns’s 14th 15 Amendment rights not be deprived of life and liberty without due process of law, to familial 16 association, and to the provision of emergency medical care. 17 The Concord Defendants argue that the claim fails because Plaintiffs do not sufficiently allege 18 allegations to support a conspiracy. “To establish liability for a conspiracy in a § 1983 case, a 19 plaintiff must ‘demonstrate the existence of an agreement or meeting of the minds’ to violate 20 constitutional rights.” Crowe v. County of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) (quoting 21 Mendocino Envtl. Ctr., 192 F.3d at 1301). “Such an agreement need not be overt, and may be 22 inferred on the basis of circumstantial evidence such as the actions of the defendants.” Id. (quoting 23 Mendocino Envtl. Ctr., 192 F.3d at 1301) (quotation marks omitted). “Whether defendants were 24 involved in an unlawful conspiracy is generally a factual issue . . . .” Mendocino Envtl. Ctr., 192 25 F.3d at 1301–02 (citation omitted). Nevertheless, “the plaintiff must state specific facts to support 26 the existence of the claimed conspiracy.” Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 27 1989) (citing Coverdell v. Dep’t of Soc. and Health Servs., 834 F.2d 758, 769 (9th Cir. 1987)); see 28 also Maceachern v. City of Manhattan Beach, 623 F. Supp. 2d 1092, 1110 (C.D. Cal. 2009). “To be C 14-00535 LB ORDER 17 1 liable, each participant in the conspiracy need not know the exact details of the plan, but each 2 participant must at least share the common objective of the conspiracy.” Id. (quoting United 3 Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1541 (9th Cir. 1989) (en banc)) 4 (quotation marks omitted). In addition, a plaintiff must show that an “actual deprivation of his 5 constitutional rights resulted from the alleged conspiracy.” Hart v. Parks, 450 F.3d 1059, 1071–72 6 (9th Cir. 2006) (quoting Woodrum v. Woodward County., 866 F.2d 1121, 1126 (9th Cir. 1989)) 7 (quotation marks omitted). 8 9 Here, the court agrees with the Concord Defendants that Plaintiffs have not sufficiently alleged facts to support the existence of an agreement. As recounted above, Plaintiffs allege that on May 10, the knowledge of Contra Costa County Deputy District Attorney Kevin Bell (who is not a Defendant 12 For the Northern District of California 2014, thirteen Concord police officers, acting with the permission of the City of Antioch and with 11 UNITED STATES DISTRICT COURT 10 to this action), planned “a surveillance and undercover operation with the intent of arresting and 13 harming Charles Burns.” SAC, ECF No. 48 ¶¶ 33, 74(d). But this allegation is conclusory, and 14 aside from it, there are no facts to support the allegation that Defendants intended to harm Charles 15 Burns when they planned the operation. Plaintiffs say in their opposition that the “Concord Police 16 Department went in with the mentality that they would harm and use any and all force necessary to 17 detain [Charles] Burns,” Opposition, ECF No. 60 at 20, but this, too, merely concludes that they 18 wanted to do harm. Plaintiffs also say that the Concord Defendants “engaged in premeditated 19 surveillance prior to swarming upon [Mr.] Lawrence and [Charles] Burns in unmarked vehicles,” 20 and “were in radio communications with each other prior to engaging [Mr.] Lawrence and [Charles] 21 Burns and were aware of the actions of their fellow officers,” id., but as the Concord Defendants 22 point out in their reply, this simply shows a tactical law enforcement operation, not an intent to do 23 harm. Although the agreement need not be overt, and may be inferred on the basis of circumstantial 24 evidence such as the actions of the defendants, Plaintiffs have not shown anything aside from 25 conclusory allegations. This is not enough. Accordingly, Claim Two must be dismissed without 26 prejudice. 27 C. Claim Three 28 Claim Three is brought by Mr. Lawrence against all Defendants. Mr. Lawrence brings the claim C 14-00535 LB ORDER 18 1 under 42 U.S.C. § 1983 for the violation of his “4th amendment and 14th amendment rights by 2 means of illegal detention, prolonged unjustified detention, unlawful arrest, and false 3 imprisonment.” 4 The Concord Defendants do not move to dismiss this claim, but the Antioch Defendants and the 5 Contra Costa County Defendants do, and they make several arguments each. The Antioch 6 Defendants first argue that Mr. Lawrence’s Fourteenth Amendment substantive due process claim is 7 duplicative of his Fourth Amendment claim because both are based on Defendants’ allegedly illegal 8 seizure of him. The court agrees. To the extent that Mr. Lawrence brings a substantive due process 9 claim against the Antioch Defendants for their alleged illegal seizure of him, the claim must be Porter, Moreland, and Curnow—are distinguishable, as the court explained when discussing Claim 12 For the Northern District of California dismissed with prejudice. See Graham, 490 U.S. at 395. The authorities cited by Plaintiff—Lewis, 11 UNITED STATES DISTRICT COURT 10 One. 13 Plaintiffs contend in their opposition that Mr. Lawrence also brings a procedural due process 14 claim, not just a substantive due process one. See Opposition, ECF No. 58 at 14. They say that “the 15 actions taken by the Antioch Police Department, which were implemented and followed by Chief 16 Conta[n]do and Officer Stenger pursuant to Department policies and county-wide policies led by the 17 [Contra Costa County] District Attorney’s [O]ffice violated procedural due process rights of 18 Plaintiffs.” Id. To the extent that the third claim even can be read to include a violation of Mr. 19 Lawrence’s procedural due process rights, the court finds that it must be dismissed without 20 prejudice. As the Antioch Defendants note, Plaintiffs allege no facts to show that Mr. Lawrence was 21 entitled to any particular procedure that he did not receive. The allegations surrounding Mr. 22 Lawrence’s arrest and subsequent questioning show only that he was arrested and taken to the 23 Antioch police station “where Concord and Antioch officers, and representatives from the Contra 24 Costa County District Attorney’s Office held him without legal justification and against his will, and 25 subjected him to aggressive and unwarranted harassment in an effort to elicit false and misleading 26 information from him.” Id. During this time, Antioch Police Officer Stenger and others screamed at 27 and intimidated Mr. Lawrence, and he “was subjected to hours of unlawful and disturbing 28 interrogation and ultimately released after having to post bail.” Id. They also “fabricated a C 14-00535 LB ORDER 19 1 statement” from Mr. Lawrence by starting and stopping a digital recording device several times and 2 then splicing together separate pieces of information out of their original context. Id. ¶ 36. Mr. 3 Lawrence’s contention that he was arrested and held without legal justification support a Fourth 4 Amendment claim, not a procedural due process one, and his contention that he was yelled at during 5 an aggressive interrogation do not support a procedural due process claim. And all of the opinions 6 cited by Plaintiffs were completely different from the context here. See Zinermon v. Burch, 494 7 U.S. 113 (1990) (plaintiff challenged the voluntariness of his admission to a state-run mental 8 hospital); Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) (plaintiff challenged his former 9 employers’ compliance with labor laws); Zimmerman v. City of Oakland, 255 F.3d 734 (9th Cir. 10 2001) (plaintiff challenged the seizure of his property). The Antioch Defendants next argue that Mr. Lawrence’s claim must be dismissed insofar as he 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 brings it against Chief Contando, who is sued in his official capacity only. See SAC, ECF No. 48 ¶ 13 25. One district court has recently summarized the law in this area: 14 15 Official-capacity suits “generally represent only another way of pleading an action against an entity of which an officer is an agent.” Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The U.S. Supreme Court has further explained: 16 Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law . . . . Official-capacity suits, in contrast, “generally represent only another way of pleading an action against an entity of which an officer is an agent.” . . . As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. 17 18 19 20 21 22 23 24 25 26 27 28 Kentucky v. Graham, 473 U.S. 159, 165-166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (citations omitted). An official capacity action is not against the public employee personally, “for the real party in interest is the entity.” Graham, 473 U.S. at 166, 105 S.Ct. 3099, 87 L.Ed.2d 114. “An official capacity suit against a municipal officer is equivalent to a suit against the entity.” Center for Bio–Ethical Reform, Inc. v. Los Angeles County Sheriff, 533 F.3d 780, 799 (9th Cir. 2008). Local government officials sued in their official capacities are “persons” under section 1983 in cases where a local government would be suable in its own name. Monell, 436 U.S. at 690, n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611. “For this reason, when both an officer and the local government entity are named in a lawsuit and the officer is named in official capacity only, the officer is a redundant defendant and may be dismissed.” Luke v. Abbott, 954 F. Supp. 202, 203 (C.D. Cal.1997) (citing Vance, 928 F. Supp. at 996). “Section 1983 claims against government officials in C 14-00535 LB ORDER 20 1 2 3 4 their official capacities are really suits against the governmental employer because the employer must pay any damages awarded.” Butler v. Elle, 281 F.3d 1014, 1023 (9th Cir.2002). “[I]t is no longer necessary or proper to name as a defendant a particular local government officer acting in official capacity.” Luke, 954 F. Supp. at 204. As the district court in Luke, 954 F. Supp. at 204, explained: 5 A plaintiff cannot elect which of the defendant formats to use. If both are named, it is proper upon request for the Court to dismiss the official-capacity officer, leaving the local government entity as the correct defendant. If only the official-capacity officer is named, it would be proper for the Court upon request to dismiss the officer and substitute instead the local government entity as the correct defendant. 6 7 8 Arres v. City of Fresno, No. CV F 10–1628 LJO SMS, 2011 WL 284971, at *5-6 (E.D. Cal. Jan. 26, 10 2011) (dismissing claims against government officials who were named in their official capacities in 11 light of the claims against the entities they worked for). 12 For the Northern District of California UNITED STATES DISTRICT COURT 9 Here, Mr. Lawrence has sued both the City of Antioch and Chief Contando in his official 13 capacity. Because Chief Contando is redundant, the court dismisses with prejudice Mr. Lawrence’s 14 claim insofar as he brings it against Chief Contando in his official capacity.6 15 The Antioch Defendants next argue that the City of Antioch must be dismissed from this claim 16 because it can be sued for constitutional violations under Monell only, and Plaintiffs already are 17 suing the City of Antioch under Monell in Claim Eight. They are right. It is black-letter law that a 18 city is not liable under respondeat superior simply because its employees commit a tort. See 19 Monell, 436 U.S. at 691. Instead, as Plaintiffs themselves acknowledge, see Opposition, ECF No. 20 58 at 14-15, municipalities may be held liable for Section 1983 violations only when (1) an official 21 policy causes a constitutional tort, (2) a local government has a policy of deliberate inaction that 22 amounts to a failure to protect constitutional rights, or (3) a municipality’s failure to train its 23 employees amounts to an intentional indifference to the rights of persons with whom those 24 25 26 27 28 6 Plaintiffs do not contest that they indeed do allege this. Instead, they argue that their claim is proper because they alleged that Chief Contando “acted on behalf of the City of Antioch, individually and in concert with other defendants named and unnamed herein.” Opposition, ECF No. 58 at 16 (citing SAC, ECF No. 48 ¶ 26). This allegation has nothing to do with whether Chief Contando was sued in his official capacity, his personal capacity, or both. Plainly, the Second Amended Complaint alleges that Chief Contando was sued in his official capacity only. C 14-00535 LB ORDER 21 1 employees are likely to come in contact. See, e.g., id.; City of Canton v. Harris, 489 U.S. 378, 388- 2 89 (1989); Oviatt v. Pearce, 954 F.2d 1470, 1473-74 (9th Cir. 1992); Lee v. City of Los Angeles, 250 3 F.3d 668, 681-83 (9th Cir. 2001). Here, Plaintiffs—including Mr. Lawrence—bring a Monell claim 4 against the City of Antioch (and Chief Contando) in Claim 8, so reading Claim 3 to include a Monell 5 claim against the City of Antioch in this claim is not necessary. Claim 3 also does not contain any 6 Monell-like allegations (i.e., something about a policy, etc.), while Claim 8 does. Accordingly, the 7 court concludes that the City of Antioch must be dismissed with prejudice from Claim 3. Costa County should be dismissed from the claim because, like the City of Antioch, it can be liable 10 for constitutional violations under Monell, and it already has been named in a separate Monell claim 11 brought by Plaintiffs (Claim Seven). The court agrees and dismisses with prejudice Contra Costa 12 For the Northern District of California The Contra Costa Defendants also make a couple of arguments. They first argue that Contra 9 UNITED STATES DISTRICT COURT 8 County from this claim for the same reasons as it dismissed the City of Antioch. 13 Next, the Contra Costa County Defendants point out that (non-Monell) liability under § 1983 14 requires an individual defendant to have personally participated in the alleged constitutional 15 violation. Indeed, as one district court has explained: 16 17 18 19 20 21 22 23 24 25 26 27 28 “Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States.” Leer v. Murphy, 844 F.2d 628, 632–633 (9th Cir.1988). “Section 1983 creates a cause of action based on personal liability and predicated upon fault; thus, liability does not attach unless the individual defendant caused or participated in a constitutional deprivation.” Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996), cert. denied, 520 U.S. 1230, 117 S.Ct. 1822, 137 L.Ed.2d 1030 (1997); see Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“Liability under section 1983 arises only upon a showing of personal participation by the defendant.”). “The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused the constitutional deprivation.” Leer, 844 F.2d at 633. A plaintiff cannot hold an officer liable “because of his membership in a group without a showing of individual participation in the unlawful conduct.” Jones v. Williams, 297 F.3d 930, 935 (9th Cir. 2002) (citing Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996)). A plaintiff must “establish the ‘integral participation’ of the officers in the alleged constitutional violation.” Jones, 297 F.3d at 935. “‘[I]ntegral participation’ does not require that each officer’s actions themselves rise to the level of a constitutional violation.” Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir. 2004). Integral participation requires “some fundamental involvement in the conduct that allegedly caused the violation.” Blankenhorn, 485 F.3d at 481, n.12. Hillblom v. County of Fresno, 539 F. Supp. 2d 1192, 1205-06 (E.D. Cal. 2008). C 14-00535 LB ORDER 22 1 The Contra Costa County Defendants say that, according to Plaintiffs’ allegations, of the three 2 individual Contra Costa Defendants (District Attorney Peterson, District Attorney’s Office employee 3 Grove, and Inspector Conaty), only Inspector Conaty had any personal involvement with Mr. 4 Lawrence, the only Plaintiff bringing this claim. They then argue that Inspector Conaty’s alleged 5 conduct—screaming at and intimidating Mr. Lawrence in an attempt to get him to provide a 6 statement that “would conceal the true unlawful and heinous conduct of the officers and cast blame 7 on [Mr.] Lawrence and [Charles] Burns,” and “fabricat[ing] a statement” from Mr. Lawrence by 8 starting and stopping a digital recording device several times and then splicing together separate 9 pieces of information out of their original context to produce a “falsified written investigative an alleged “illegal detention, prolonged unjustified detention, unlawful arrest, and false 12 For the Northern District of California report” that supported the “cover-up” of Charles Burns’s killing—does not support a claim based on 11 UNITED STATES DISTRICT COURT 10 imprisonment,” which is what Mr. Lawrence’s claim is based upon. Inspector Conaty, they say, was 13 not involved with the arrest and detention of Mr. Lawrence; that was done by the Concord 14 Defendants and the Antioch Defendants. Inspector Conaty, on the other hand, simply interrogated 15 Mr. Lawrence (albeit in a manner that Mr. Lawrence did not like) while he was being detained. 16 The court agrees with the Antioch Defendants that Plaintiffs have not alleged that District 17 Attorney Peterson and District Attorney’s Office employee Grove were personally involved with the 18 arrest and detention of Mr. Lawrence and that Inspector Conaty’s interrogation of him does not 19 support the claim brought by Mr. Lawrence. In their opposition, Plaintiffs highlight their allegation 20 that Mr. Grove “showed up on scene and one by one the [Concord police officers] entered and exited 21 the vehicle where [Mr. Grove] was seated and the groundwork was laid for fabricating the story for 22 public consumption and concealing the truth regarding the killing of Charles Burns” SAC, ECF No. 23 48 ¶ 39, but that allegation does not bear upon Mr. Lawrence. Plaintiffs also say that Contra Costa 24 County Deputy District Attorney Kevin Bell was involved in the arrest of Mr. Lawrence. See 25 Opposition, ECF No. 64 at 12-13. Plaintiffs did allege this, see SAC, ECF No. 48 at ¶¶ 33, 74, but 26 Mr. Bell is not a defendant to this claim (or this action), so it is irrelevant. Thus, the court concludes 27 that Claim Three must be dismissed without prejudice as to District Attorney Peterson, District 28 C 14-00535 LB ORDER 23 1 Attorney’s Office employee Grove, and Inspector Conaty.7 See Shallowhorn v. Molina, 572 Fed. 2 Appx. 545, 546 (9th Cir. May 15, 2014) (“The district court properly dismissed Shallowhorn’s 3 claims against Warden Hedgpeth because Shallowhorn failed to allege Hedgpeth’s personal 4 involvement with any constitutional violation.”) (citing Barren v. Harrington, 152 F.3d 1193, 1194 5 (9th Cir. 1998) (“Liability under § 1983 must be based on the personal involvement of the 6 defendant.”)). To the extent not addressed above, the remainder of Claim Three survives. 7 D. Claim Four 8 Claim Four is brought by John Burns and Tammy Burns against the “Concord Officer 9 Defendants” (defined as described when discussing Claim One). They bring this claim under 42 U.S.C. § 1983 for the violation of their 14th Amendment rights to familial association. The Concord 11 Defendants do not move to dismiss this claim. It thus survives. 12 For the Northern District of California UNITED STATES DISTRICT COURT 10 E. Claim Five 13 Claim Five is brought by John Burns, Tammy Burns, and Mr. Lawrence against all Defendants. 14 They bring this claim under 42 U.S.C. § 1983 for conspiracy to violate John Burns’s, Tammy 15 Burns’s, and Bobby Lawrence’s rights to “access to the criminal justice system and the rights, 16 privileges, and benefits associated with the Victims Bill of Rights,” Cal. Const., Art. I, Sec. 28. All 17 Defendants, through their separate motions, contend that this claim fails because it does not seek to 18 vindicate a federal right. They are correct. 19 42 U.S.C. § 1983 provides a cause of action for the deprivation of “rights, privileges, or 20 immunities secured by the Constitution or laws of the United States” by any person acting “under 21 color of any statute, ordinance, regulation, custom, or usage.” Gomez v. Toledo, 446 U.S. 635, 639 22 (1980). Section 1983 is not itself a source for substantive rights, but rather a method for vindicating 23 federal rights conferred elsewhere. See Graham, 490 U.S. at 393-394 (1989). To state a claim 24 under § 1983, a plaintiff must allege: (1) the conduct complained of was committed by a person 25 acting under color of state law; and (2) the conduct violated a right secured by the Constitution or 26 27 28 7 In light of this dismissal, the court does not reach the Contra Costa County Defendants’ argument that District Attorney Peterson, District Attorney’s Office employee Grove, and Inspector Conaty are entitled to qualified immunity. See Motion, ECF No. 51 at 12-14. C 14-00535 LB ORDER 24 1 laws of the United States. See West v. Atkins, 487 U.S. 42, 48 (1988). Through Claim Five, John 2 Burns, Tammy Burns, and Mr. Lawrence seek to vindicate rights secured by the California 3 Constitution, namely their rights to “access to the criminal justice system and the rights, privileges, 4 and benefits associated with the Victims Bill of Rights,” Cal. Const., Art. I, Sec. 28. They concede 5 that they do not “explicitly” identify any federal right in Claim Five. See Opposition to Antioch 6 Motion, ECF No. 58 at 19-20, 7 The court is not willing to consider a § 1983 claim that does not allege a violation of a federal 8 right, see West, 487 U.S. at 48, and Plaintiffs’ statements in their opposition briefs do no suffice. 9 Indeed, in their oppositions, they refer to their “federal right to seek civil redress in a 42 U.S.[C. § ] without dispute.” Opposition to Antioch Motion, ECF No. 58 at 20. They also say that they “were 12 For the Northern District of California 1983 action by unfettered access to non-fabricated information by government investigation is 11 UNITED STATES DISTRICT COURT 10 denied access to court to seek justice in the criminal courts against the officers and individuals for 13 Defendant[s’] illegal actions” and were “denied the ability to seek restitution against Defendants for 14 their illegal actions,” and that Defendants violated their “rights to access the courts and to seek 15 criminal justice and civil restitution as victims of a crime.” Opposition to Concord Motion, ECF No. 16 60 at 21-22. This is hardly a clear expression of a federal right, and the court is not convinced that 17 all of them even exist. To the extent that John Burns, Tammy Burns, and Mr. Lawrence seek to 18 vindicate a federal right of access to courts, they need to allege it. See, e.g., Christopher v. Harbury, 19 536 U.S. 403, 415 (2002) (discussing the “unsettled . . . basis of the constitutional right of access to 20 courts”); Chappel v. Rich, 340 F.3d 1279, 1282-83 (11th Cir. 2002) (interference with the right of 21 court access by state agents who intentionally conceal the true facts about a crime may be actionable 22 as a deprivation of constitutional rights under 42 U.S.C. §§ 1983 and 1985); Ryland v. Shapiro, 708 23 F.2d 967, 972 (5th Cir. 1983) (allegation “that agents of the state intentionally engaged in conduct 24 that interfered with [the plaintiffs’] exercise of their constitutionally protected right to institute a 25 wrongful death suit” offered a valid theory of recovery); Bell v. City of Milwaukee, 746 F.2d 1205, 26 1261 (7th Cir. 1984) (“a conspiracy to cover up a killing, thereby obstructing legitimate efforts to 27 vindicate the killing through judicial redress, interferes with the due process right of access to 28 courts”). To the extent they seek to vindicate a federal right “to seek criminal justice” or to a certain C 14-00535 LB ORDER 25 1 kind of investigation or prosecution done, there is no such right. See Nelson v. Skehan, 386 Fed. 2 Appx. 783, 786 (10th Cir. 2010) (“Nelson has no constitutional right to have the Skehans and Trout 3 prosecuted.”) (citing Doyle v. Okla. Bar Ass’n, 998 F.2d 1559, 1566–67 (10th Cir. 1993)); Flores v. 4 Satz, 137 F.3d 1276, 1278 (11th Cir. 1998) (“That the prosecution did not investigate properly or 5 prosecute expeditiously the charges against him does not violate clearly established constitutional 6 rights.”). Accordingly, the court must dismiss without prejudice Claim Five. 7 F. Claim Six 8 Claim Six is brought by all Plaintiffs against the City of Concord and Chief Swanger. Plaintiffs 9 bring this claim under 42 U.S.C. § 1983 and Monell. The Concord Defendants do not move to G. Claims Seven and Eight 12 For the Northern District of California dismiss this claim. It thus survives. 11 UNITED STATES DISTRICT COURT 10 Claim Seven is brought by all Plaintiffs against the County of Contra Costa and District Attorney 13 Peterson, and Claim Eight is brought by all Plaintiffs against the City of Antioch and Chief 14 Contando. Plaintiffs bring this claim under 42 U.S.C. § 1983 and Monell. 15 As an initial matter, District Attorney Peterson has been sued in both his official and his 16 individual capacities, see SAC, ECF No. 48 ¶¶ 17, and Chief Contando has been sued in his official 17 capacity only, see id. ¶ 25. As discussed earlier, because it is redundant to sue both the County of 18 Contra Costa and District Attorney Peterson in his official capacity, and the City of Antioch and 19 Chief Contando in his official capacity, the court dismisses with prejudice Claims Seven and Eight 20 to the extent they are brought against District Attorney Peterson and Chief Contando in their official 21 capacities. 22 Theoretically, District Attorney Peterson (and Chief Contando, if he was sued in his individual 23 capacity) could be sued under § 1983 in his individual capacity for so-called supervisory liability. 24 “A defendant may be held liable as a supervisor under § 1983 if there exists either (1) his or her 25 personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between 26 the supervisor’s wrongful conduct and the constitutional violation.” Starr v. Baca, 652 F.3d 1202, 27 1207 (9th Cir. 2011) (internal quotation marks and citation omitted). “A supervisor can be liable in 28 his individual capacity for his own culpable action or inaction in the training, supervision, or control C 14-00535 LB ORDER 26 1 of his subordinates; for his acquiescence in the constitutional deprivation; or for conduct that 2 showed a reckless or callous indifference to the rights of others.” Id. at 1208 (quoting Watkins v. 3 City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998)). To adequately plead such a claim, 4 “allegations in a complaint . . . may not simply recite the elements of a cause of action, but must 5 contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party 6 to defend itself effectively.” Id. at 1216. These factual allegations “must plausibly suggest an 7 entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the 8 expense of discovery and continued litigation.” Id. 9 The problem here is that Claim Seven is, as its title confirms, a Monell claim. And a Monell County, 731 F.2d 1379, 1382 (9th Cir. 1984) (“Monell does not concern liability of individuals 12 For the Northern District of California claim may be brought only against a municipality, not an individual. See Guillory v. Orange 11 UNITED STATES DISTRICT COURT 10 acting under color of state law.”). Thus, to the extent that Plaintiffs bring their Monell claim against 13 District Attorney Peterson in his individual capacity, the claim is dismissed with prejudice. See 14 Smith v. County of Santa Cruz, No.: 13–CV–00595 LHK, 2014 WL 3615492, at *11 (July 22, 2014) 15 (dismissing with prejudice plaintiff’s Monell claim against individual defendants).8 16 This leaves the County of Contra Costa and the City of Antioch. As is well-known, local 17 governments are “persons” subject to liability under 42 U.S.C. § 1983 where official policy or 18 custom causes a constitutional tort. See Monell, 436 U.S. at 690. A municipality, however, may not 19 be held vicariously liable for the unconstitutional acts of its employees under the theory of 20 respondeat superior. See Bd. of County Comm’rs v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 21 U.S. at 691; Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995). To impose municipal 22 liability under § 1983 for a violation of constitutional rights, a plaintiff must show that: (1) the 23 plaintiff possessed a constitutional right of which he or she was deprived; (2) the municipality had a 24 policy; (3) this policy amounts to deliberate indifference to the plaintiff’s constitutional rights; and 25 26 27 28 8 Should Plaintiffs bring a separate supervisory liability claim against an individual in an amended complaint, they must include adequate allegations. The Ninth Circuit recently suggested that a plaintiff’s high-level allegations are insufficient to support a supervisory liability claim under § 1983. See Henry A. v. Willden, 678 F.3d 991, 1004 (9th Cir. 2012). C 14-00535 LB ORDER 27 1 (4) the policy is the moving force behind the constitutional violation. See Plumeau v. School Dist. # 2 40 County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997). 3 Liability based on a municipal policy may be satisfied in one of three ways: (1) by alleging and formal governmental policy or longstanding practice or custom that is the customary operating 6 procedure of the local government entity; (2) by establishing that the individual who committed the 7 constitutional tort was an official with final policymaking authority, and that the challenged action 8 itself was an act of official governmental policy which was the result of a deliberate choice made 9 from among various alternatives; or (3) by proving that an official with final policymaking authority 10 either delegated policymaking authority to a subordinate or ratified a subordinate’s unconstitutional 11 decision or action and the basis for it. See Fuller, 47 F.3d at 1534; Gillette v. Delmore, 979 F.2d 12 For the Northern District of California showing that a city or county employee committed the alleged constitutional violation under a 5 UNITED STATES DISTRICT COURT 4 1342, 1346-47 (9th Cir. 1992). 13 “In limited circumstances, a local government’s decision not to train certain employees about 14 their legal duty to avoid violating citizens’ rights may rise to the level of an official government 15 policy for purposes of § 1983.” Connick v. Thompson, 563 U.S. ----, 131 S.Ct. 1350, 1359 (2011). 16 “A municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on 17 a failure to train.” Id. (citing Oklahoma City v. Tuttle, 471 U.S. 808, 822–823 (1985) (plurality 18 opinion) (“[A] ‘policy’ of ‘inadequate training’ ” is “far more nebulous, and a good deal further 19 removed from the constitutional violation, than was the policy in Monell ”)). “To satisfy the statute, 20 a municipality’s failure to train its employees in a relevant respect must amount to ‘deliberate 21 indifference to the rights of persons with whom the [untrained employees] come into contact.’” Id. 22 (quoting City of Canton, 489 U.S. at 388). Only then “can such a shortcoming be properly thought 23 of as a city ‘policy or custom’ that is actionable under § 1983.” City of Canton, 489 U.S. at 389; see 24 Connick, 131 S.Ct. at 1359-60. 25 “‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor 26 disregarded a known or obvious consequence of his action.” Board of Comm’rs of Bryan County. v. 27 Brown, 520 U.S. 397, 410 (1997). “Thus, when city policymakers are on actual or constructive 28 notice that a particular omission in their training program causes city employees to violate citizens’ C 14-00535 LB ORDER 28 1 constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to 2 retain that program.” Connick, 131 S.Ct. at 1360 (citing Bryan Cty., 520 U.S. at 407). “The city’s 3 ‘policy of inaction’ in light of notice that its program will cause constitutional violations ‘is the 4 functional equivalent of a decision by the city itself to violate the Constitution.’” Id. (quoting City 5 of Canton, 489 U.S. at 395 (O’Connor, J., concurring in part and dissenting in part)). “A less 6 stringent standard of fault for a failure-to-train claim ‘would result in de facto respondeat superior 7 liability on municipalities . . . .’” Id. (quoting City of Canton, 489 U.S. at 392); see also Pembaur v. 8 Cincinnati, 475 U.S. 469, 483 (1986) (opinion of Brennan, J.) (“[M]unicipal liability under § 1983 9 attaches where—and only where—a deliberate choice to follow a course of action is made from constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate 12 For the Northern District of California among various alternatives by [the relevant] officials . . . .”). Thus, “[a] pattern of similar 11 UNITED STATES DISTRICT COURT 10 indifference for purposes of failure to train.” Connick, 131 S.Ct. at 1360 (quoting Bryan County, 13 520 U.S. at 409). “Policymakers’ ‘continued adherence to an approach that they know or should 14 know has failed to prevent tortious conduct by employees may establish the conscious disregard for 15 the consequences of their action—the deliberate indifference—necessary to trigger municipal 16 liability.’” Id. (quoting Bryan County, 520 U.S. at 407 (internal quotation marks omitted)). 17 “Without notice that a course of training is deficient in a particular respect, decisionmakers can 18 hardly be said to have deliberately chosen a training program that will cause violations of 19 constitutional rights.” Id. 20 For their Monell claims, Plaintiffs try to establish Contra Costa County’s and the City of 21 Antioch’s liability in a few different ways. First, Plaintiffs allege that they are liable because their 22 employees committed the alleged constitutional violations under a formal governmental policy or 23 longstanding practice or custom that is their customary operating procedures. Specifically, Plaintiffs 24 allege that Contra Costa County and the City of Antioch instructed their investigators and officers, 25 respectively, “to assist local law enforcement in concealing misconduct.” SAC, ECF No. 48 ¶¶ 102, 26 114. Although it is not explicitly mentioned in the paragraphs in Claims Seven and Eight, Plaintiffs 27 presumably refer to the LEIFI Protocol, which they described as “a powerful tool for covering up 28 police misconduct” that “serve[s] as a means for [the Contra Costa County investigators and the City C 14-00535 LB ORDER 29 1 of Antioch police officers] to work together to conceal police misconduct.” Id. ¶ 43; see also id. ¶ 2 73(c). But aside from these conclusory statements, Plaintiffs do not ever really allege what the 3 LEIFI Protocol is. They allege that it was “conceived as a means for deploying multiple law 4 enforcement agencies and resources to conduct a swift, efficient[,] and transparent investigation 5 involving police officer misconduct,” id., but this does not explain how the LEIFI Protocol works 6 (or is supposed to work) or how it would allow Contra Costa County or the City of Antioch to 7 conceal police misconduct. Without explaining what the LEIFI Protocol is or does, Plaintiffs cannot 8 sufficiently allege how it is “the moving force” behind the alleged cover-up. In other words, as it is 9 now described, the court cannot see how or why the LEIFI Protocol allowed Contra Costa County or 10 the City of Antioch to conceal police misconduct. Second, Plaintiffs allege that Contra Costa County and the City of Antioch are liable because 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 they failed to adequately supervise and train their investigators and officers, respectively, “regarding 13 proper and lawful police misconduct investigations.” SAC, ECF No. 48 ¶¶ 102, 114. As mentioned 14 above, a failure to train may, in limited circumstances, rise to the level of an official government 15 policy for purposes of a § 1983 claim. Here, Plaintiffs allege that the Contra Costa County District 16 Attorney’s Office and the Antioch Police Department “did not require appropriate in-service training 17 or re-training of officers on the subject matter of lawful and proper police misconduct 18 investigations” or “on issues of use of force, use of lethal force, arrest procedures, execution of 19 warrants, and other related duties for which they would ordinarily be called upon to conduct 20 investigations,” even though they “had prior knowledge of the propensity of the Concord Police 21 Department and Concord Police Officers to engage in unlawful acts in violation of persons[’] 22 constitutional rights, particularly with regard to excessive force, and yet took no disciplinary action, 23 nor any other action to prevent further constitutional violations.” Id. ¶¶ 102-04, 114-16. 24 There are a few problems with this. First, Plaintiffs’ allegations that the Contra Costa County 25 District Attorney’s Office and the City of Antioch failed to train their own investigators and officers 26 because of the Concord Police Officers,’ rather than the Contra Costa County District Attorney’s 27 Office investigators’ or the Antioch Police Officers,’ propensity to use excessive force, do not 28 support a claim against the Contra Costa County District Attorney’s Office and the City of Antioch. C 14-00535 LB ORDER 30 1 The Contra Costa County District Attorney’s Office and the City of Antioch are not responsible for 2 training the Concord Police Officers, and there are no allegations that Contra Costa County District 3 Attorney’s Office investigators or Antioch Police Officers, as opposed to Concord Police Officers, 4 used excessive force. 5 Second, Plaintiffs’ allegations that the Contra Costa County District Attorney’s Office and the police misconduct investigation are not sufficient, either, because Plaintiffs allege no facts (as 8 opposed to conclusions) that the Contra Costa County District Attorney’s Office and the City of 9 Antioch were deliberately indifferent to the constitutional rights of citizens. They do not allege facts 10 to show that either entity was on notice that its “policy of inaction” caused constitutional violations, 11 nor do they allege facts to show that there was a “pattern of similar constitutional violations by 12 For the Northern District of California City of Antioch failed to train their investigators and officers, respectively, about how to conduct a 7 UNITED STATES DISTRICT COURT 6 untrained employees,” even though the allegation of such facts is “ordinarily necessary” to proceed 13 on a failure-to-train theory. See Connick, 131 S.Ct. at 1360. Indeed, a single incident cannot sustain 14 a failure to train except in the “rare” circumstance that “the unconstitutional consequences of failing 15 to train could be so patently obvious that a city could be liable under § 1983 without proof of a pre- 16 existing pattern of violations.” Id. at 1361 (noting that the City of Canton court hypothesized that a 17 failure to train claim could be shown where the municipality “arms its police force with firearms and 18 deploys the armed officers into the public to capture fleeing felons without training the officers in 19 the constitutional limitation on the use of deadly force.”). Simply put, Plaintiffs do not allege facts 20 to show that the Contra Costa County District Attorney’s Office and the City of Antioch knew that 21 their investigators and officers were violating the constitutional rights of citizens while conducting 22 police misconduct investigations, but did not to train them anyway. Plaintiffs’ allegation that, at 23 least with respect to Contra Costa County, “there is a long history of tolerating the infringements of 24 citizens[’] constitutional rights by law enforcement agencies, supported by the District Attorney’s 25 Office,” like “special investigations units such as . . . East NET, CNet, and other undercover 26 narcotics investigation units similar to the SIB unit in this case,” id. ¶ 105, is too vague and generic 27 to suffice. 28 Third, Plaintiffs allege that Contra Costa County and the City of Antioch are liable because C 14-00535 LB ORDER 31 1 officials with final policymaking authority, namely District Attorney Peterson and Chief Contando, 2 “authorized, directed[,] and ratified” their subordinates’ unconstitutional decisions or actions and the 3 bases for them. SAC, ECF No. 48 ¶¶ 106, 117. Plaintiffs provide no other details about District 4 Attorney Peterson’s and Chief Contando’s alleged authorization, direction, or ratification within the 5 paragraphs of Claims Seven and Eight. And to the extent that Plaintiffs’ claim is based upon 6 District Attorney Peterson’s and Chief Contando’s “personal[] authoriz[ation] and maint[enance]” of 7 the LEIFI Protocol, id. ¶ 74(b), because (as discussed above) Plaintiffs fail to explain how or why 8 the LEIFI Protocol allowed Contra Costa County or the City of Antioch to conceal police 9 misconduct, this allegation also fails to support these claims. H. Claim Nine 12 For the Northern District of California Accordingly, the court dismisses without prejudice Claims Seven and Eight. 11 UNITED STATES DISTRICT COURT 10 Claim Nine is brought by John Burns, Tammy Burns, and the Estate of Charles Burns 13 against all Defendants for intentional infliction of emotional distress. In California, “[a] cause of 14 action for intentional infliction of emotional distress exists when there is (1) extreme and outrageous 15 conduct by the defendant with the intention of causing, or reckless disregard of the probability of 16 causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) 17 actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” 18 Kelley v. Conco Companies, 196 Cal. App. 4th 191, 215 (2011). “A defendant’s conduct is 19 outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized 20 community.” Id. (internal quotation marks omitted). 21 Defendants are correct that John Burns and Tammy Burns’s claim fails because Plaintiffs do not 22 allege that Defendants directed their conduct at either of them. See Copeland v. County of Alameda, 23 No. 12–cv–04286–JST, 2014 WL 1266198, at *3 (citing Christensen v. Superior Court, 54 Cal. 3d 24 868, 906 (1991) (holding that plaintiffs lacked “standing to sue for intentional infliction of emotional 25 distress” because they “have not alleged that the conduct of any of the defendants was directed 26 primarily at them, was calculated to cause them severe emotional distress, or was done with 27 knowledge of their presence and of a substantial certainty that they would suffer severe emotional 28 injury”). In their oppositions, Plaintiffs says that Defendants’ alleged cover-up of their illegal C 14-00535 LB ORDER 32 1 actions have caused emotional distress to John Burns and Tammy Burns, but this is not the issue. 2 The issue is whether Defendants directed their conduct toward John Burns and Tammy Burns, and 3 Plaintiffs do not allege that they did anywhere in the Second Amended Complaint. 4 Defendants also are correct that the Estate of Charles Burns cannot assert an intentional the person who suffered them. See id. (citing Berkley v. Dowds, 152 Cal. App. 4th 518, 530 (Cal. 7 Ct. App. 2007) (holding that a complaint failed to state a claim for intentional infliction of emotional 8 distress because emotional distress damages do not survive a person's death)); see also Cal. Code 9 Civ. P. § 377.34 (providing that “[i]n an action or proceeding by a decedent's personal representative 10 or successor in interest on the decedent's cause of action, the damages recoverable are limited to the 11 loss or damage that the decedent sustained or incurred before death, including any penalties or 12 For the Northern District of California infliction of emotional distress claim because emotional distress damages do not survive the death of 6 UNITED STATES DISTRICT COURT 5 punitive or exemplary damages that the decedent would have been entitled to recover had the 13 decedent lived, and do not include damages for pain, suffering, or disfigurement ”) (emphasis 14 added). 15 16 17 18 19 20 21 22 23 As for the City of Antioch’s and Contra Costa County’s arguments regarding statutory immunity, one district court has explained the relevant legal landscape: California holds public entities responsible for the tortious acts of its employees under the doctrine of vicarious liability, and it grants immunity to public entities only where the public employee would also be immune. See Tien Van Nguyen v. City of Union City, C–13–01753–DMR, 2013 WL 3014136 (N.D. Cal. June 17, 2013) (citing Cal. Gov. Code § 815.2; Robinson v. Solano Cnty., 278 F.3d 1007, 1016 (9th Cir. 2002)). However, public entities cannot be held directly liable unless a specific statutory basis exists. See Herrera v. City of Sacramento, 2:13–CV–00456 JAM–AC, 2013 WL 3992497, at *7 (E.D. Cal. Aug. 2, 2013) (citing Zelig v. County of Los Angeles, 27 Cal. 4th 1112, 1127 (2002)) (“there is a clear distinction between holding a public entity vicariously liable for the acts of their employees and holding it directly liable”). “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care. . . .” Herrera, 2013 WL 3992497, at *7 (quoting Eastburn v. Regional Fire Prot. Auth., 31 Cal. 4th 1175, 1183 (2003)). 24 25 Mathews v. City of Oakland Police Dep’t, No. 12-cv-03235-JCS, 2013 WL 6057689, at *22 (N.D. 26 Cal. Nov. 14, 2013). Here, the City of Antioch and Contra Costa County argue that Plaintiffs have 27 not identified a specific statutory basis for John Burns, Tammy Burns, and the Estate of Charles 28 Burns’s intentional infliction of emotional distress claim, so the City of Antioch and Contra Costa C 14-00535 LB ORDER 33 1 County cannot be directly liable. They are right. But as Plaintiffs point out, they theoretically could 2 be vicariously liable for the acts of their employees. The problem with this is that Plaintiffs have 3 failed to sufficiently allege a claim for intentional infliction of emotional distress against any 4 individual defendant, and they have not alleged facts to support vicarious liability. 5 6 Accordingly, the court dismisses Claim Nine without prejudice as to John Burns and Tammy Burns and with prejudice as to the Estate of Charles Burns.9 7 I. Claim Ten 8 Claim Ten is brought by John Burns, Tammy Burns, and the Estate of Charles Burns against all 9 Defendants for negligent infliction of emotional distress. Negligent infliction of emotional distress 129 (1993). Accordingly, to establish a claim for negligent infliction of emotional distress, plaintiff 12 For the Northern District of California is a form of the tort of negligence. Huggins v. Longs Drug Stores California, Inc., 6 Cal.4th 124, 11 UNITED STATES DISTRICT COURT 10 must allege each of the following elements of negligence: (1) duty, (2) breach of duty, (3) causation, 13 and (4) damages. Id.; see Burgess v. Superior Court, 2 Cal. 4th 1064, 1072 (1992) (elements for 14 negligent infliction of emotional distress include (1) defendant engaged in negligent conduct 15 involving usual issues of duty and breach, (2) plaintiff suffered serious emotional distress, and (3) 16 defendant’s conduct was a substantial factor in causing the emotional distress suffered by plaintiff). 17 A duty to the plaintiff may be “imposed by law, be assumed by the defendant, or exist by virtue 18 of a special relationship.” Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 985 (1993) (citing 19 Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc., 48 Cal. 3d 583, 590 (1989)). The California 20 Supreme Court has made clear that there is no duty to avoid negligently causing emotional distress 21 to another. Id. at 984. 22 [U]nless 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 23 24 25 9 26 27 28 Because the court has given Plaintiffs another opportunity to allege and clarify their intentional infliction of emotional distress claim—and therefore the conduct alleged to form the basis of the claim may change—the court does not reach the Contra Costa Defendants’ argument that prosecutorial immunity bars the claim against them. The Contra Costa Defendants may make this argument again should Plaintiffs’ re-allege their claim against them. C 14-00535 LB ORDER 34 duty must threaten physical injury, not simply damage to property or financial interests. 1 2 3 Id. at 985. Therefore, a plaintiff must either allege a duty owed the plaintiff regarding his the 4 emotional condition or allege that his emotional distress arises out of defendant’s breach of some 5 other legal duty. See Brahmana v. Lembo, No. C–09–00106 RMW, 2010 WL 290490, at *2 (N.D. 6 Cal. Jan. 15, 2010). 7 In their Second Amended Complaint, Plaintiffs simply allege that “Defendants had a duty of 8 reasonable care toward Plaintiffs John Burns, Tammy Burns, and decedent Charles Burns.” SAC, 9 ECF No. 48 ¶ 127. In their oppositions, Plaintiffs clarify that they believe that Defendants had a in their use of deadly force.” See, e.g., Opposition to Concord Motion, ECF No. 60 at 25. The only 12 For the Northern District of California duty to use reasonable care “during their investigation before and after their use of deadly force, and 11 UNITED STATES DISTRICT COURT 10 authority they cite for this statement, though, is Munoz v. City of Union City, 120 Cal. App. 4th 1077 13 (Cal. Ct. App. 2004), which said that California case law does “implicitly recognize a duty on the 14 part of police officers to use reasonable care in deciding to use and in fact using deadly force.” Id. at 15 1101. But that duty would go only to Charles Burns, not to John Burns or Tammy Burns. Plaintiffs 16 provide no authority supporting their claim that Defendants owed them a duty of reasonable care. 17 And as for the Estate of Charles Burns, it cannot assert a negligent infliction of emotional distress 18 claim because, as explained above, emotional distress damages do not survive the death of the 19 person who suffered them. See Cal. Code Civ. P. § 377.34. Claim Ten fails for this reason. 20 21 22 23 24 25 26 The City of Concord also points out Plaintiffs’ failure to specify a theory of liability. The following explanation provides the background: California courts recognize two categories of liability for negligent infliction of emotional distress: “bystander” liability and “direct victim” liability. Burgess v. Superior Court, 2 Cal. 4th 1064, 1072 (1992). The distinction between the two lies in the source of a defendant’s duty to a plaintiff. Ibid. In bystander actions, a plaintiff may recover if she “(1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim, and, (3) as a result, suffers emotional distress beyond that which would be anticipated in a disinterested witness.” Thing v. La Chusa, 48 Cal. 3d 644, 647 (1989). Plaintiffs do not contend that they are bystanders to defendants' alleged negligence. 27 28 Instead, plaintiffs seek recovery as direct victims. This requires evidence of a duty “that is assumed by the defendant or imposed on the defendant as a matter of C 14-00535 LB ORDER 35 1 law, or that arises out of a relationship between” the parties. Marlene, 48 Cal.3d at 590. 2 3 Turek v. Stanford Univ. Med. Ctr., No. C 12–00444 WHA, 2013 WL 4866331, at *2 (N.D. Cal. 4 Sept. 12, 2013). The City of Concord points out that Plaintiffs do not allege that either John Burns 5 or Tammy Burns was present at the scene of Charles Burns’s killing, so they cannot be proceeding 6 on a bystander theory. And they also point out that Plaintiffs do not allege any facts to show that 7 any defendant assumed a duty or had one imposed by law, or that one arose out of the relationship 8 between a defendant any John Burns or Tammy Burns. Because Plaintiffs have not shown that there 9 is a duty, the court need not reach this issue now. However, upon the re-allegation of this claim in 10 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 any amended complaint, Plaintiffs should be mindful of these requirements. Accordingly, the court dismisses Claim Ten without prejudice as to John Burns and Tammy Burns and with prejudice as to the Estate of Charles Burns.10 13 J. Claim Eleven 14 Claim Eleven is brought by the Estate of Charles Burns against the“Concord Officer 15 Defendants” (defined as described when discussing Claim One) for battery. The Concord 16 Defendants do not move to dismiss this claim. 17 K. Claim Twelve 18 Claim Twelve is brought by John Burns, Tammy Burns, and Bobby Lawrence against all 19 Defendants for a violation of their “right[s] to have a lawful investigation into crimes in which they 20 are victims” under Article I, Section 28 of the California Constitution. 21 Defendants each argue that there is no private right of action for damages, which is what 22 Plaintiffs seek, that allows John Burns, Tammy Burns, and Bobby Lawrence to bring this claim 23 against them. They are right. Article I, Section 28(b) enumerates a “victim’s” rights, and Article I, 24 Section 28(c) provides when and how a “victim” may enforce those rights. Article I, Section 25 10 26 27 28 Again, because the court has given Plaintiffs another opportunity to allege and clarify their negligent infliction of emotional distress claim—and therefore the conduct alleged to form the basis of the claim may change—the court does not reach the Contra Costa Defendants’ argument that prosecutorial immunity bars the claim against them. The Contra Costa Defendants may make this argument again should Plaintiffs’ re-allege their claim against them. C 14-00535 LB ORDER 36 1 28(c)(1) provides that “[a] victim, the retained attorney of a victim, a lawful representative of the 2 victim, or the prosecuting attorney upon request of the victim, may enforce the rights enumerated in 3 subdivision (b) in any trial or appellate court with jurisdiction over the case as a matter of right. The 4 court shall act promptly on such a request.” Article I, Section 28(c)(2), however, provides that 5 “[t]his section does not create any cause of action for compensation or damages against the State, 6 any political subdivision of the State, any officer, employee, or agent of the State or of any of its 7 political subdivisions, or any officer or employee of the court.” Each of the Defendants in this 8 action is public entity or an employee of a public entity. Therefore, under Article I, Section 9 28(c)(2), John Burns’s, Tammy Burns’s, and Bobby Lawrence’s claim fails. Accordingly, the court 10 dismisses with prejudice Claim Twelve. CONCLUSION 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 Based on the foregoing, the court GRANTS Defendants’ motions and dismisses the Second 13 Amended Complaint to extent described above. Plaintiffs may file a Third Amended Complaint by 14 November 21, 2014. 15 16 IT IS SO ORDERED. Dated: November 6, 2014 _______________________________ LAUREL BEELER United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 C 14-00535 LB ORDER 37

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