Aguilar v. City Of Concord et al, No. 3:2016cv01670 - Document 69 (N.D. Cal. 2017)

Court Description: ORDER granting in part and denying in part 64 Motion for Judgment on the Pleadings. The attached order grants in part and denies in part the defendants' motion for judgment on the pleadings. The following claims are adequately pleaded: (1) the integral-participation theory against Corporal Phalen under § 1983 insofar as it rests on the factual allegation that Corporal Phalen choked the plaintiff with a wire; (2) the failure-to-intervene theory against both individual defendan ts; (3) the California-law claims against Officer Boccio and against Corporal Phalen (based only on the choking allegation); and (4) the vicarious-liability claims against the City. With respect to the defendants' arguments concerning the amende d complaint's (1) integral-participation theory against Corporal Phalen for assisting in Officer Boccio's restraining of the plaintiff; and (2) California state-law claims against Corporal Phalen (on the same basis), the motion is granted with leave to amend. A second amended complaint may be filed with the court on or before September 19, 2017. (Beeler, Laurel) (Filed on 9/5/2017)

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Aguilar v. City Of Concord et al Doc. 69 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division United States District Court Northern District of California 11 Case No. 16-cv-01670-LB 12 IGNACIO AGUILAR, 13 Plaintiff, v. 14 15 ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS WITH LEAVE TO AMEND CITY OF CONCORD, et al., Defendants. 16 Re: ECF No. 64 17 18 INTRODUCTION 19 This is an excessive-force suit under the Fourth Amendment and 42 U.S.C. § 1983.1 Plaintiff 20 Ignacio Aguilar claims that the defendants, City of Concord police officers Boccio and Phalen, 21 physically abused him during an arrest.2 His only federal claim is under § 1983. He also brings 22 California-law claims for assault, battery, negligence, and under the state’s Bane Act (Cal. Civ. 23 Code § 52.1). On his state-law claims (except for the Bane Act claim), he sues the City of Concord 24 for vicarious liability. See Cal. Gov’t Code § 815.2. The defendants have moved under Federal 25 26 27 1 See generally Am. Compl. – ECF No. 54. Record citations refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents. 2 28 No one has given the court these officers’ first names. Their own answer and Rule 12(c) motion identify them only as Officer Boccio and Corporal Phalen. ORDER – No. 16-cv-01670-LB Dockets.Justia.com 1 Rule of Civil Procedure 12(c) for a judgment on the pleadings.3 They primarily contend that the 2 plaintiff’s claims are legally conclusory and factually incomplete and indefinite. Because 3 discovery is closed, moreover — and perhaps especially because the plaintiff did not depose the 4 defendant officers, the defendants argue that it would be futile for the plaintiff to try and amend 5 his complaint. They thus ask the court to dismiss the complaint with prejudice — or without leave 6 to amend. All parties have consented to magistrate jurisdiction.4 This matter can be decided 7 without oral argument. See Civil L.R. 7-1(b). The court now grants in part the motion for 8 judgment on the pleadings, mostly for the reasons that the defendants give, but gives the plaintiff 9 one last chance to amend his complaint. 10 STATEMENT United States District Court Northern District of California 11 On November 30, 2014, Officer Boccio “stopped and detained” the plaintiff, who was 12 13 walking to work, for violating a restraining order.5 He ordered him to the ground.6 As the plaintiff 14 was trying “to comply with officers’ orders to sit down, [Officer] Boccio elbowed [him] in the 15 face causing the plaintiff to fall down to the ground.”7 “As the Plaintiff was now lying face down 16 on the ground, defendant Boccio and or defendant Phalen wrapped the wire from their 17 communication device around the Plaintiff’s neck and began choking the Plaintiff from behind.”8 18 “Based on video footage,” the plaintiff believes that the officers used additional force.9 19 “[D]efendant Boccio struck the plaintiff with his fist or elbow after the Plaintiff was already on the 20 ground and the defendant was on top of him.”10 “[W]ith the assistance of defendant Phalen, 21 22 24 25 26 3 Mot. for J. on the Pleadings – ECF No. 64. 4 23 ECF Nos. 13, 15. 5 Am. Compl. – ECF No. 54 at 3 (¶ 8). 6 Id. at 3 (¶ 9). 7 Id. 8 27 Id. at 3 (¶ 10). 9 Id. at 3 (¶¶ 11 13). 28 10 Id. at 3 (¶ 11). ORDER – No. 16-cv-01670-LB 2 1 defendant Boccio hyper extended the Plaintiff’s arm injuring his shoulder, back and arm.”11 And 2 “with the assistance of defendant Phalen, . . . defendant Boccio intentionally slammed his knee 3 into the Plaintiff’s hyper extended arm, injuring his shoulder, back, and arm.”12 The plaintiff 4 “suffered severe injuries to his back and shoulder area . . . causing him to undergo over a year of 5 physical therapy.”13 Mr. Agular charges the individual officers in claim one with excessive force in violation of the 6 7 Fourth Amendment and § 1983. He brings state battery, assault, and negligence claims against 8 both officers (claims two, four, and six) and the same state claims against the City of Concord 9 based on its vicarious liability (claims three, five, and seven). His eighth claim charges the officers 10 with violating the state’s Bane Act by their excessive force.14 United States District Court Northern District of California 11 GOVERNING LAW 12 13 After the pleadings are closed “but early enough not to delay trial,” a party may move for 14 judgment on the pleadings. Fed. R. Civ. P. 12(c). “[T]he same standard of review applicable to a 15 Rule 12(b) motion applies to its Rules 12(c) analog” because the motions are “functionally 16 identical.” Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). A Rule 12(c) 17 motion may thus be predicated on either (1) the lack of a cognizable legal theory or (2) insufficient 18 facts to support a cognizable legal claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 19 (9th Cir. 1990). When considering a motion to dismiss under Rule 12(c), the court “must accept all 20 factual allegations in the complaint as true and construe them in the light most favorable to the 21 non-moving party.” Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). “A judgment on the 22 pleadings is proper if, taking all of [the plaintiff]’s allegations in its pleadings as true, [the 23 defendant] is entitled to judgment as a matter of law.” Compton Unified School Dist. v. Addison, 24 598 F.3d 1181, 1185 (9th Cir. 2010). 25 11 Id. at 3 (¶ 12). 12 Id. at 3 (¶12-13). 27 13 Id. at 3-4 (¶¶ 13–14). 28 14 Id. at 5–10. 26 ORDER – No. 16-cv-01670-LB 3 1 If a court dismisses a complaint, it should give leave to amend unless the “the pleading could 2 not possibly be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. Northern 3 California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990). 4 ANALYSIS 5 6 The court essentially agrees with the defendants. The plaintiff’s pleadings are deficient in 7 much the ways that the defendants say. The factual allegations are not robust and sometimes are 8 conclusory. That said, this case is not factually or legally complicated. And its core 9 straightforwardness saves the plaintiff. The main charges are a federal claim of excessive force and the state equivalents (assault, battery, and the Bane Act), which follow the federal standards. 11 United States District Court Northern District of California 10 Moreover, the complaint alleges that there is a video. (Though the court presumes that it belongs 12 to a bystander and does not capture fully the events, given that the reference to the video is paired 13 with the plaintiff’s “belief” about excessive force.) And the plaintiff pleads his resulting injuries. It 14 cannot be said that the defendants do not have fair notice of what they are being sued for, in terms 15 of both factual allegations and legal theories. Some of the complaint, though, does fail for reasons that the defendants identify. The court 16 17 nonetheless thinks that the plaintiff should be allowed to amend his complaint. Even if discovery 18 is closed, and the defendant officers have not been deposed, the facts that have been developed 19 may allow the plaintiff to state a basically viable claim. The court is not a position to know. The 20 court cannot say that amendment would be futile. 21 22 1. Section 1983 23 The defendants challenge the sufficiency of the complaint’s allegations regarding Corporal 24 Phelan, generally on the ground that alleging his “assistance” of Officer Boccio does not establish 25 his integral participation or responsibility to intervene.15 They also assert that the plaintiff cannot 26 27 28 15 Mot. for J. on the Pleadings ECF No. 64 at 10 11. ORDER – No. 16-cv-01670-LB 4 1 charge Officer Boccio with excessive force and a failure to intervene; it has to be one or the 2 other.16 3 4 1.1 Integral Participation (Phalen) 5 “An officer’s liability under 42 U.S.C. § 1983 is predicated on his ‘integral participation’ in the 6 alleged [constitutional] violation.” Blankenhorn v. City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 7 2007) (citing Chuman v. Wright, 76 F.3d 292, 294–95 (9th Cir. 1996)). The “integral participant” 8 rule “extends liability to those actors who were integral participants in the constitutional violation, 9 even if they did not directly engage in the unconstitutional conduct themselves.” Hopkins v. Bonvicino, 573 F.3d 752, 770 (9th Cir. 2009). Integral participation “does not require that each 11 United States District Court Northern District of California 10 officer’s actions themselves rise to the level of a constitutional violation.’’ Blankenhorn, 485 F.3d 12 at 481 n.12 (quoting Boyd v. Benton Cnty., 374 F.3d 773, 780 (9th Cir. 2004)). “But it does require 13 some fundamental involvement in the conduct that allegedly caused the violation.” Blankenhorn, 14 485 F.3d at 481 n.12 (citing Boyd, 374 F.3d at 780) (emphasis added). Only one fact allegation sufficiently supports the plaintiff’s integral-participation theory 15 16 against Corporal Phalen. The complaint alleges that Officer Boccio “and or” [sic] Corporal Phalen 17 “wrapped the wire from their communication device around the Plaintiff’s neck.”17 If the plaintiff 18 is indeed alleging that Corporal Phalen did this, then that is enough to state a viable § 1983 19 participation claim. (Though it may be worth noting that the plaintiff’s opposition brief identifies 20 only Officer Boccio, not Corporal Phalen, as wrapping a wire around his neck.18) At the pleadings 21 stage, the court finds the fact allegation sufficient. 22 Beyond this, the plaintiff has not sufficiently alleged that Corporal Phalen integrally 23 participated in a constitutional violation. Apart from the wire-choking allegation, even in his 24 opposition brief, the plaintiff points only to his allegation that Phalen “assisted” Boccio in 25 26 16 Id. at 15 16. 27 17 Am. Compl. – ECF No. 54 at 3 (¶ 10). 28 18 Opp’n – ECF No. 66 at 3. ORDER – No. 16-cv-01670-LB 5 1 physically restraining him.19 The plaintiff claims only that, when Officer Boccio allegedly hyperextended his arm, and then 2 3 “slammed his knee” into that arm, Officer Boccio acted “with the assistance of” Corporal 4 Phalen.20 He repeats this raw “assistance” allegation throughout his legal claims.21 But he never 5 says anything more specific about what Corporal Phalen allegedly did. The defendants rightly say 6 that these naked “assistance” allegations are conclusory and fatally deficient. They are exactly the 7 sort of formulaic recitations that Iqbal and Twombly rule out. While the allegation about the wire 8 might suggest that Corporal Phelan was a “hands on” integral participant, the court will not 9 assume that. The plaintiff must plead his actual integral participation. To this extent, the court grants the defendants’ motion. Were the complaint to go forward as 11 United States District Court Northern District of California 10 currently pleaded, in other words, Corporal Phalen could be held liable (if at all) only for allegedly 12 choking the plaintiff with his communications-device wire. The other “assistance” allegations will 13 not support a prima facie participation theory under § 1983. 14 15 1.2 Failure to Intervene (Phalen) 16 This § 1983 theory is adequately pleaded. The plaintiff alleges that, during the incident, 17 Officer Boccio elbowed him in the face, which knocked him to the ground; choked him with a 18 wire; struck him while he was on the ground; hyperextended his arm; and then “slammed” his 19 knee into that arm.22 And he suggests that somewhere in all this, Corporal Phalen had an 20 opportunity to intervene and halt the alleged constitutional violation.23 The court thinks that this is 21 just enough to survive a Rule 12(c) motion. It should perhaps be noted that Corporal Phalen’s allegedly “assisting” Officer Boccio is 22 23 24 19 25 Id. at 3–4. The plaintiff expressly confirms that these “assistance” allegations are meant to support his § 1983 claim and his California claims for assault, battery, and violation of the state’s Bane Act. Id. 20 Am. Compl. – ECF No. 54 at 3 (¶¶ 12–13). 21 E.g., id. at 4-5 (¶¶ 18–21). 27 22 Id. at 3 (¶¶ 8–13). 28 23 See Opp’n – ECF No. 66 at 5–6. 26 ORDER – No. 16-cv-01670-LB 6 1 distinct from his allegedly failing to intervene. The court has already held that the current 2 participation allegations against Corporal Phalen are insufficient because they are conclusory. But 3 the intervention theory does not depend upon the flawed assistance allegations. All that is needed 4 for the intervention theory to hold up is the allegation that Corporal Phalen had a “realistic 5 opportunity” to intercede, but failed to. See, e.g., Cunningham v. Gates, 229 F.3d 1271, 1289–90 6 (9th Cir. 2000). The court thinks that, under the notice-pleading standard of Rule 8(a)(1), the 7 complaint adequately claims these things. Or describes a situation in which these things are 8 apparent. The pleading flaws that the defendants identify in this theory are real, but they are hyper- 9 technical. The court will not dismiss this claim at the pleading stage. 10 United States District Court Northern District of California 11 1.3 Failure to Intervene (Boccio) 12 The defendants understandably raise an eyebrow at the plaintiff’s failure-to-intervene theory as 13 it is directed at Officer Boccio. Under the plaintiff’s allegations, after all, Officer Boccio was the 14 primary assailant. Yet the plaintiff also claims that Boccio failed to prevent Corporal Phalen from 15 assisting in Boccio’s use of force.24 (The plaintiff indeed confirms that “it is [his] position that 16 Defendant Boccio can be found . . . liable for failing to . . . prevent Defendant Phelan from 17 assisting in the . . . excessive force . . . .”25) That is a visibly strange narrative. But it may not fall apart logically — though the court is not 18 19 finally decided on that point — and, as far as the court knows, prompting a raised eyebrow does 20 not a fatal legal deficiency make. Proof and further explication may show that excessive-force 21 doctrine has room for such a theory. The court is not willing to reject this theory on the current 22 record and under the parties’ current analyses. That said, depending on the facts, probably the 23 plaintiff needs to pick a theory and stick to it, and possibly the issue is resolvable for the reasons 24 that the defendants advance. 25 26 27 24 Opp’n – ECF No. 66 at 4–5. 28 25 Id. at 5. ORDER – No. 16-cv-01670-LB 7 The court suggests that the parties address the issue with better briefing at summary judgment 1 2 and in the context of any amended pleading. 3 4 2. State-Law Claims 5 2.1 Boccio 6 The plaintiff’s state-law claims survive with respect to Officer Boccio. The plaintiff says 7 enough to state prima facie claims. This case is not factually complicated. And the relevant laws 8 are familiar. In that context, at least with respect to Officer Boccio, the plaintiff’s claims notify the 9 defendants of what they are being sued for. The defendants raise several arguments that, while possibly dispositive at summary judgment, 11 United States District Court Northern District of California 10 do not warrant dismissing the complaint under Rule 12(c). For example, the defendants complain 12 about the plaintiff’s “mutually exclusive” causation theories against Officer Boccio. The 13 defendants rightly observe that the plaintiff raises claims against Officer Boccio that entail both 14 direct causation (e.g, the straight § 1983 claim) and indirect causation (the failure-to-intervene 15 theory). The defendants argue that this ambiguity defeats the plaintiff’s claim.26 The court is not convinced. Parties can always plead alternative theories. And the ambiguity 16 17 that lies in the plaintiff’s different theories of causation does not raise the logical knot, the 18 inconsistency, that the defendants (rather less than clearly) identify. It certainly does not fatally 19 undermine the plaintiff’s claims. At the very least, this wrinkle in the allegations does not warrant 20 dismissing the plaintiff’s claims at the pleading stage. (The court’s analysis of the excessive-force 21 claim against Officer Boccio rests on this same analysis.) The defendants also argue that the assault claim must fail because the plaintiff has also 22 23 claimed battery. Battery is a “consummated assault,” the defendants argue, which thus 24 “subsume[s]” and precludes the assault claim.27 At this stage, and on this briefing, the court rejects 25 the argument. A plaintiff can plead both assault and battery as separate civil claims. It matters not 26 27 26 See Mot. for J. on the Pleadings – ECF No. 64 at 15–16. 28 27 Id. at 16. ORDER – No. 16-cv-01670-LB 8 1 at the pleadings stage that, as the defendants correctly observe, a defendant “cannot be [criminally] 2 convicted of both assault and battery.”28 That said, generally battery is the state charge that 3 accompanies the federal excessive-force claim (and has the same legal instruction). See May v. 4 City of San Mateo, No. 16-cv-00252-LB ECF No. 173 (final jury instructions). But again at the 5 pleadings state, and on this briefing, the court will not slim the pleadings. The issue is better 6 addressed either at summary judgment or by the appropriate charges and theories at trial. Finally in this area, the court will not dismiss the negligence claim. This claim may not be the 7 8 most elaborately stated negligence claim ever, but the court thinks that, in connection with the 9 alleged facts, it is adequately stated. The California-law claims against Officer Boccio thus survive the defendants’ challenges. 10 United States District Court Northern District of California 11 12 2.2 Phalen 13 The same cannot be said of the state-law claims against Corporal Phalen. Except for the 14 allegation that he choked the plaintiff with a communication wire, the plaintiff’s allegations 15 against Corporal Phalen are vague and boilerplate. The court’s analysis about the excessive-force 16 claim drives the analysis here. The complaint’s vague allegations that Corporal Phalen “assist[ed]” 17 in the incident are insufficient to advance any of the state-law claims. These allegations do not 18 give Corporal Phalen sufficient notice of what he is being sued for. If discovery is closed, and this 19 vague charge of “assistance” is all that the defendants have to prepare their case on, what should 20 they prepare to defend, exactly? Merely saying that Corporal Phalen “assisted” some wrong, 21 without more, is equivalent to saying that Corporal Phalen “is also liable.” That is plainly 22 inadequate. The plaintiff has one more chance to sufficiently allege an actionable wrong by 23 Corporal Phalen. (Again, apart from the wire-choking allegation.) 24 25 26 27 28 28 See id. (quoting People v. Lopez, 47 Cal. App. 3d 8, 15 (1975)). ORDER – No. 16-cv-01670-LB 9

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