Brockman v. City of Monterey et al, No. 5:2020cv03029 - Document 22 (N.D. Cal. 2020)
Court Description: ORDER GRANTING DEFENDANTS' MOTION TO DISMISS; GRANTING LEAVE TO AMEND. Re: Dkt. No. 9 . The amended complaint is due by 9/18/2020. Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 8/19/2020)
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Brockman v. City of Monterey et al Doc. 22 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 TODD BROCKMAN, 9 v. 10 United States District Court Northern District of California 11 12 CITY OF MONTEREY, AARON DELGADO, BRYCE MORGAN, SABRINA PEREZ, and MAYHAR ROOHBAKHSH, Case No. 5:20-cv-03029-NC ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS; GRANTING LEAVE TO AMEND Re: Dkt. No. 9 Defendants. 13 14 15 16 In this civil rights case, plaintiff Todd Brockman brings a complaint against the City 17 of Monterey and four of its police officers stemming from a search of Brockman’s home. 18 Dkt. No. 1. Defendants move to dismiss three of Brockman’s four claims under Rule 19 12(b)(6). Dkt. No. 9. Brockman voluntarily dismisses one of them. Finding that 20 Brockman has failed to allege sufficient facts to plausibly plead the two remaining claims, 21 the motion to dismiss is hereby GRANTED. Brockman is granted LEAVE TO AMEND 22 the complaint to allege additional facts. 23 I. Background 24 A. Facts Alleged in the Complaint 25 The following facts are alleged in the complaint. For the purposes of deciding this 26 motion, the Court assumes them to be true. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 27 337 (2009). 28 In the middle of the night on May 3, 2019, the Monterey Police Department Dockets.Justia.com 1 received a call to its non-emergency line. Dkt. No. 1, Complaint, at ¶¶ 17, 21. The caller 2 was from an out-of-county area code but said that he lived at 29 Portola Avenue. Id. ¶ 23. 3 He told the emergency dispatcher that “there is some idiot over on Portola shooting a rifle 4 in their backyard,” and, when asked from which address the shots were fired, said, “I don’t 5 know, it’s close to like 30 Portola, somewhere, I am pretty sure.” Id. The caller described 6 the shots as coming from “right next door.” Id. The caller, stuttering and pausing, 7 identified himself as “Stan.” Id. ¶ 25. He said he would be waiting at home for the police 8 to arrive. Id. ¶ 27. United States District Court Northern District of California 9 Twenty-five minutes later, officers responded to the call but found no answer and 10 no sign of activity at 29 Portola Avenue. Id. The officers then spoke with a resident of 22 11 Portola named John Brown, who reported having heard no gunshots that day. Id. ¶ 28. 12 John Brown told the officers that Todd Brockman lived at 30 Portola Avenue. Id. The 13 officers checked 29 Portola again, still got no answer, so proceeded to Todd Brockman’s 14 house at 30 Portola. Id. ¶ 29. 15 Brockman awoke around 1:00 a.m. to the sound of officers pounding on his door, 16 ringing his doorbell, shining flashlights into his windows, and demanding to be let inside. 17 Id. ¶ 17–18. He opened the door in his underwear. Id. ¶ 20. Officers told Brockman that 18 there had been a 911 call about gunshots fired at his address. Id. They instructed 19 Brockman to back up and get his dog, and Officer Morgan stepped into the house which 20 prevented Brockman from closing the front door. Id. ¶ 31. During this entire encounter, 21 the officers had their guns drawn. Id. 22 Officer Roohbakhsh asked Brockman if he owned a gun, and Brockman said that he 23 did not. Id. ¶ 33. Officer Morgan asked Brockman for ID and Brockman provided his 24 driver’s license number. Id. Sergeant Delgado insisted that the officers needed to search 25 the house and told Brockman to lead them downstairs. Id. ¶ 34. They searched 26 Brockman’s office, bedroom, closet, mattress, and dresser, and then searched the backyard, 27 a storage shed, and a guest house at the rear of the property occupied by two tenants. Id. 28 ¶¶ 35–37. 2 1 2 2018. Id. ¶ 38. Only after that meeting, on May 17, did any of the officers document the 3 incident in a police report. Id. ¶ 39. The report omits the fact that the officers drew their 4 weapons on Brockman and incorrectly states that Brockman consented to their entry and 5 search of his home. Id. A few days later, Lieutenant Michael Bruno tried to convince 6 Brockman to revise the statement he had made at the City Council meeting. Id. ¶ 40. 7 United States District Court Northern District of California Brockman complained about the incident at a City Council meeting on May 15, Brockman later pursued a restraining order against the caller who had claimed to 8 hear gunshots at his address. Id. ¶ 41. Through that process, Brockman requested the 9 officers’ body-worn camera footage from the incident. Id. The City Attorney’s Office 10 only provided some, but not all, of the BWC footage; additionally, the logs associated with 11 the footage contain evidence that the files had been tampered with. Id. ¶ 42. 12 B. Procedural Background 13 Plaintiff Todd Brockman brings this case against the City of Monterey and its 14 police officers Aaron Delgado, Bryce Morgan, Sabrina Perez, and Mayhar Roohbakhsh. 15 Dkt. No. 1. Brockman brings claims for (1) violation of his Fourth Amendment right to be 16 free from unreasonable search and seizure under 42 U.S.C. § 1983 against the individual 17 officer defendants; (2) violation of his Fourth and Fourteenth Amendment rights under 42 18 U.S.C. § 1983 against the City of Monterey; (3) violation of his Fourteenth Amendment 19 right to due process for deliberate fabrication of evidence under 42 U.S.C. § 1983 against 20 the individual officer defendants; and (4) conspiracy to violate his civil rights against the 21 individual officer defendants. Id. 22 Defendants move to dismiss Brockman’s second, third, and fourth claims but do not 23 challenge his first claim. Dkt. No. 9. Brockman concedes that his second claim, based on 24 Monell liability against the City of Monterey, should be dismissed at this stage but requests 25 that it be without prejudice. Dkt. No. 18 at 4. The Court therefore dismisses that claim 26 and grants Brockman leave to amend it. 27 28 All parties consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c). See Dkt. Nos. 6, 11. 3 1 II. A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal 2 United States District Court Northern District of California Legal Standard 3 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). On a 4 motion to dismiss, all allegations of material fact are taken as true and construed in the 5 light most favorable to the non-movant. Cahill, 80 F.3d at 337–38. The Court, however, 6 need not accept as true “allegations that are merely conclusory, unwarranted deductions of 7 fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th 8 Cir. 2008). A complaint need not give detailed factual allegations but must contain 9 sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its 10 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible 11 when it “allows the court to draw the reasonable inference that the defendant is liable for 12 the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If a court grants a 13 motion to dismiss, the plaintiff should be given leave to amend unless the pleading could 14 not possibly be cured by the allegation of other facts. Lopez v. Smith, 203 F.3d 1122, 1127 15 (9th Cir. 2000). 16 III. Discussion As mentioned previously, defendants do not move to dismiss Brockman’s first 17 18 claim for deprivation of his Fourth Amendment right to be free from unreasonable search 19 and seizure. Additionally, Brockman has agreed to dismiss his second claim, for 20 deprivation of his Fourth and Fourteenth Amendment rights under 42 U.S.C. § 1983 21 against the City of Monterey under a Monell theory of liability. The remaining claims are 22 Brockman’s third claim for deprivatoin of his Fourteenth Amendment right to due process, 23 fashioned in the complaint as for “deliberate fabrication of evidence,” and his fourth claim 24 for conspiracy to violate his civil rights, both against the individual officer defendants 25 only. 26 A. Brockman’s Third Claim: Fourteenth Amendment Due Process 27 In the complaint, Brockman titles his Fourteenth Amendment claim “Deliberate 28 Fabrication of Evidence.” Compl. at 14. He references the following alleged facts: the 4 1 defendants’ fabrication of the BWC logs; the officers’ omission of witness statements; and 2 the misrepresentation of whether Brockman had consented to the search of his home. Id. ¶ 3 72. Brockman alleges that because of this evidence fabrication, he “was provided with 4 incomplete evidence and evidence that had been tampered with in response to his 5 subpoena duces tecum in the restraining order case he was pursuing in Monterey County 6 Superior Court.” Id. ¶ 74. The complaint then references an earlier damages section as to 7 the harm caused by the evidence fabrication. Id. ¶ 75. Those damages include 8 Brockman’s severe emotional and mental distress exhibited by nightmares, flashbacks, 9 anxiety, depression, PTSD diagnosis and subsequent treatment, and lost past and future 10 United States District Court Northern District of California 11 wages resulting from the PTSD. Id. ¶¶ 50–52. For the first time, in his opposition to the defendants’ motion to dismiss, Brockman 12 describes this claim as: “interference with meaningful access to the courts.” Dkt. No. 18 at 13 7. He argues that “Defendants’ tampering with the evidence and submitting it to the 14 superior court in response to valid legal process interfered with [his] ability to litigate his 15 restraining order case and rendered his state court remedy ineffective.” Id. This appears to 16 the Court to be a different claim from the one described in the complaint. 17 The complaint contains very little information about the restraining order case— 18 such as what relief Brockman sought, or what resulted—and, most importantly, leaves out 19 any connection between the alleged evidence tampering and the presumably bad result that 20 Brockman obtained. If Brockman wishes to bring a claim for interference with his 21 meaningful access to the courts, then he must allege more facts to explain how his court 22 access was interrupted by the defendants in this case. He must also allege what harm 23 resulted form that interference, as his current damages pleading does not address his 24 restraining order case at all. 25 Before the Court can meaningfully assess the motion to dismiss the claim for 26 violation of Brockman’s due process rights, he must further clarify the substance of that 27 claim. The opposition to the motion to dismiss is not the appropriate avenue for bringing 28 new claims or modifying existing ones. See Pirani v. Slack Techs., Inc., 2020 WL 5 United States District Court Northern District of California 1 1929241, at *4 (N.D. Cal. April 21, 2020) (citing Lee v. City of Los Angeles, 250 F.3d 668, 2 688–89 (9th Cir. 2001) (stating that “[a]s a general rule, courts may not consider beyond 3 the pleadings when ruling on as 12(b)(6) motion.”). Instead, Brockman should amend his 4 complaint. As such, the motion to dismiss the third claim is GRANTED; the claim is 5 DISMISSED; and Brockman is granted LEAVE TO AMEND. 6 B. Brockman’s Fourth Claim: Conspiracy 7 Brockman’s fourth claim is for conspiracy to violate his civil rights. In order to 8 plausibly state this claim, Brockman must first plausibly allege that his civil rights were 9 violated. The conspiracy claim is predicated on the underlying civil rights claim. 10 Thornton v. City of St. Helens, 425 F.3d 1158, 1168 (9th Cir. 2005). Brockman has 11 dismissed his second claim for violation of his civil rights under a Monell theory; the Court 12 has dismissed Brockman’s third claim for violation of his Fourteenth Amendment right to 13 due process. The only remaining viable civil rights claim that could form the basis of 14 Brockman’s conspiracy claim is his first claim, not challenged by the defendants in their 15 motion, for violation of his Fourth Amendment right to be free from unreasonable search 16 and seizure. 17 However, the language of the complaint indicates that Brockman does not intend to 18 frame his conspiracy claim in this way. Instead, the complaint’s description of his 19 conspiracy claim refers to the officers’ fabrication of documentation, concealment of 20 witness testimony, omission of witness statements, and destruction and alteration of BWC 21 footage. See Compl. at 16. These allegations suggest to the Court that Brockman is 22 predicating his conspiracy claim on his due process claim, not his search and seizure claim. 23 The opposition to the motion to dismiss corroborates this: Brockman argues there that 24 defendants “omitted material witness statements from their reports, materially altered 25 BWC footage, altered and fabricated BWC audit logs, and produced this altered evidence 26 to the Superior Court of California.” Dkt. No. 18 at 8. 27 Assuming that Brockman’s conspiracy claim is based on the officers acting in 28 concert to deprive him of his right to due process, the claim cannot survive because the due 6 1 process claim has been dismissed in this Order. If Brockman wishes to bring a conspiracy 2 claim on other grounds—such as predicated on the allegedly unreasonable search and 3 seizure—he may clarify that in an amended complaint. Accordingly, the motion to dismiss 4 the fourth claim is GRANTED; the claim is DISMISSED; and Brockman is granted 5 LEAVE TO AMEND. 6 United States District Court Northern District of California 7 IV. Conclusion Brockman’s second claim against the City of Monterey for Monell liability is 8 hereby DISMISSED based on his concession in the briefing on this motion. Brockman’s 9 third claim for deprivation of due process is hereby DISMISSED for failure to allege 10 sufficient facts to state a plausible claim. Brockman’s fourth claim for conspiracy is also 11 DISMISSED insofar as it appears to be based on his due process claim. 12 Brockman is hereby granted LEAVE TO AMEND these claims. He may not add 13 any new claims or parties without further leave of Court. The amended complaint is due 14 by September 18, 2020. The defendants need not answer the surviving first claim for 15 unreasonable search and seizure until the amended complaint is filed, or until Brockman 16 indicates that he does not intend to file an amended complaint. If Brockman files no 17 claims against it in the amended complaint, the City of Monterey will be dismissed from 18 the case. 19 20 IT IS SO ORDERED. 21 22 23 Dated: August 19, 2020 _____________________________________ NATHANAEL M. COUSINS United States Magistrate Judge 24 25 26 27 28 7
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