The Estate of Angel Lopez et al v. Torres et al, No. 3:2015cv00111 - Document 25 (S.D. Cal. 2015)

Court Description: ORDER Granting In Part and Denying In Part 18 Defendants Motion for Judgment on the Pleadings. Defendants' motion for judgment on the pleadings is Granted with respect to Plaintiffs' Second, Fifth and Sixth causes of action; The Court D ismisses Without Prejudice Plaintiffs' First, Third and Fourth causes of action. Plaintiffs may file an amended complaint as to the First, Third and Fourth causes of action on or before November 6, 2015. Signed by Judge Gonzalo P. Curiel on 10/21/2015. (srm)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 THE ESTATE OF ANGEL LOPEZ by and through its successors in interest, LYDIA LOPEZ; LYDIA LOPEZ; ANGEL LOPEZ, JR. and HECTOR LOPEZ, by and through their guardian ad litem, LYDIA LOPEZ, 15 16 17 18 19 20 Case No.: 15-cv-0111-GPC-MDD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS Plaintiffs, [ECF No. 18] v. LOU TORRES; ANDREW MILLS; SCOTT HOLSLAG; STEVE RIDDLE; LT LEOS; ALEC POJAS; and DOES 230, Defendants. 21 INTRODUCTION 22 23 Presently before the Court is a Motion for Judgment on the Pleadings filed by 24 Defendants Scott Holslag, Steve Riddle and Alberto Leos (collectively “Defendants”). 25 (ECF No. 18.) The parties have fully briefed the motion. (ECF Nos. 20, 21.) A hearing 26 was held on October 9, 2015. 27 submissions and oral arguments, as well as applicable law, the Court GRANTS in part and 28 DENIES in part Defendants’ motion. (See ECF No. 24.) Having considered the parties 1 15-cv-0111-GPC-MDD 1 FACTUAL BACKGROUND 2 This case arises from the shooting death of Angel Lopez (“Lopez”) on January 17, 3 2013. Plaintiffs allege that shortly after 8:00 a.m. on January 17, 2013, a heroin dealer and 4 police informant named Alec Pojas (“Pojas”) placed a telephone call to Defendant Lou 5 Torres (“Agent Torres”), a parole agent employed by the California Department of 6 Corrections and Rehabilitation. (Compl. ¶¶ 9, 14, 29, 30, ECF No. 1.) Pojas refused to 7 provide his name, but told Agent Torres that Lopez and his father, Alex Lopez, had 8 kidnapped Pojas and held him prisoner in Apartment 58 of 5444 Reservoir Drive, San 9 Diego, California, for over four weeks. (Id. ¶¶ 31, 33-35.) During that time, Lopez and 10 his father allegedly tortured Pojas, leaving his blood on the floor. (Id. ¶¶ 36-37.) Pojas 11 informed Agent Torres that Lopez and his father possessed an AK-47 and that Lopez 12 always carried a .25 caliber pistol on his person. (Id. ¶¶ 40-41.) Pojas claimed he had 13 finally escaped the night before by jumping from a third floor balcony. (Id. ¶ 38.) 14 Plaintiffs allege that Agent Torres provided the information he learned from Pojas 15 to Andrew Mills, a captain in the Eastern Division of the San Diego Police Department 16 (“Captain Mills”). (Id. ¶ 46.) Captain Mills and Agent Torres then relayed the information 17 to Lieutenant Leos (“Lt. Leos”) and Sergeant Scott Holslag (“Sgt. Holslag”), also of the 18 San Diego Police Department. (Id. ¶¶ 11, 13, 47.) According to Plaintiffs, instead of 19 investigating the reliability and accuracy of the information provided by Pojas, Sgt. 20 Holslag, with Captain Mills’s concurrence, contacted the San Diego Police Department’s 21 SWAT unit. (Id. ¶ 48.) The SWAT officers allegedly were told that a kidnap victim likely 22 was still present in Apartment 58 and was being held by “cartel” members who were armed 23 with AK-47s. (Id. ¶ 57.) 24 Pojas contacted Agent Torres several more times during the morning of January 17, 25 2013, once informing Agent Torres that he knew Lopez and his father were planning to 26 leave Apartment 58 within forty-five minutes because Pojas had scheduled a meeting with 27 them. (Id. ¶¶ 58, 60.) Plaintiffs allege that Captain Mills, Lt. Leos, and Sgt. Holslag, in 28 joint venture with Torres and Detective Steve Riddle (“Detective Riddle”), conveyed this 2 15-cv-0111-GPC-MDD 1 information to the SWAT unit and requested the assistance of the SWAT unit to seize and 2 arrest Lopez at 5444 Reservoir Drive. (Id. ¶¶ 59, 62.) 3 Later that morning, SWAT units arrived at 5444 Reservoir Drive. (Id. ¶ 64.) At 4 12:56 p.m., a car occupied by Lopez and Xavier Lenyoun, the lessee of Apartment 58, left 5 the parking lot. (Id. ¶ 66.) The SWAT unit maneuvered to stop the car and then pointed 6 machine guns at the occupants. (Id. ¶¶ 66-7.) Lopez and Xavier Lenyoun fled back into 7 the building. (Id. ¶¶ 67, 69.) SWAT officers entered the building and Officer Kristopher 8 Walb (“Officer Walb”) encountered Lopez in a third floor hallway. (Id. ¶¶ 68-9.). Officer 9 Walb shouted at Lopez to get down, and Plaintiffs allege that Lopez complied and was in 10 a kneeling position when Officer Walb shot him twice in the back and once in the back of 11 the head with a MP-5 submachine gun. (Id. ¶¶ 69-70.) Officer Walb later explained in a 12 statement to other police officers that he remembered being told earlier that day that the 13 suspect was always armed with a .25 caliber pistol and that thought went through his mind 14 just before he shot and killed Lopez. (Id. ¶ 72.) Plaintiffs allege that SWAT officers did 15 not administer first aid to Lopez because they believed persons armed with AK-47s were 16 in nearby Apartment 58. (Id. ¶ 74.) 17 Subsequent investigation revealed that Lopez was not armed, no one was in 18 Apartment 58, there were no AK-47s in the apartment, and Pojas’s blood was not on the 19 apartment floor. (Id. ¶¶ 71, 77.) None of the neighbors in the apartment building had ever 20 heard any unusual noises or screaming coming from Apartment 58. (Id. ¶ 51.) Further, 21 the balcony of Apartment 58 was observed to be approximately 23 to 25 feet above the 22 ground. (Id. ¶ 54.) Plaintiffs allege that Pojas relayed all of this false information to Agent 23 Torres in order to obtain revenge against Lopez for not paying Pojas for some heroin. (Id. 24 ¶¶ 31-2, 77.) Pojas knew Lopez was on parole and wanted for a parole violation and sought 25 to manipulate police into harming Lopez. (Id.) Police officers did not locate and identify 26 Pojas until the next day. (Id. ¶ 89.) 27 // 28 // 3 15-cv-0111-GPC-MDD 1 PROCEDURAL BACKGROUND 2 On January 16, 2015, Plaintiffs filed the instant case, alleging various claims under 3 42. U.S.C. § 1983, as well as wrongful death pursuant to California Civil Code § 377.60 et 4 seq.1 (Compl. at 20-21, ECF No. 1.) On January 29, 2015, the Court low-numbered the 5 related case of The Estate of Angel Lopez, et al. v. City of San Diego, et al., 13-cv-2240- 6 GPC-MDD, in which this Court’s Order Granting in Part and Denying in Part Defendants’ 7 Motion for Summary Judgment is under review with the Ninth Circuit. (See 13-cv-2240- 8 GPC-MDD, ECF. Nos. 59-60.) Defendants filed an Answer in the instant case on February 9 10, 2015. (ECF No. 11.) 10 On August 10, 2015, Defendants filed a Motion for Judgment on the Pleadings (ECF 11 No. 18.) Plaintiffs timely opposed the motion on September 4, 2015 (ECF No. 20), and 12 Defendants filed a reply on September 11, 2015 (ECF No. 21). The Court heard oral 13 argument on the motion on October 9, 2015. (See ECF No. 24.) 14 LEGAL STANDARD 15 Under FRCP 12(c), “[a]fter the pleadings are closed but within such time as not to 16 delay the trial, any party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). 17 The principal difference between motions filed pursuant to Rule 12(b) and Rule 12(c) is 18 the time of filing—a motion for judgment on the pleadings is typically brought after an 19 answer has been filed whereas a motion to dismiss is typically brought before an answer is 20 filed. See Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). Because 21 the motions are functionally identical, the same standard of review applicable to a Rule 22 12(b) motion applies to its Rule 12(c) analog. Id.; see also Chavez v. United States, 683 23 F.3d 1102, 1108 (9th Cir. 2012) (“Analysis under Rule 12(c) is ‘substantially identical’ to 24 analysis under Rule 12(b)(6), because, under both rules, a court must determine whether 25 the facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy.”) 26 27 1 28 The state law claim for wrongful death is against Defendant Pojas only. (See Compl. ¶¶ 134-38, ECF No. 1.) 4 15-cv-0111-GPC-MDD 1 (internal quotations and citation omitted). Thus, when deciding a Rule 12(c) motion, “the 2 allegations of the non-moving party must be accepted as true, while the allegations of the 3 moving party which have been denied are assumed to be false.” Hal Roach Studios, Inc. 4 v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989) (citing Doleman v. 5 Meiji Mutual Life Ins. Co., 727 F.2d 1480, 1482 (9th Cir. 1984); Austad v. United States, 6 386 F.2d 147, 149 (9th Cir. 1967)). The court construes all material allegations in the light 7 most favorable to the non-moving party. Deveraturda v. Globe Aviation Sec. Servs., 454 8 F.3d 1043, 1046 (9th Cir. 2006). “Judgment on the pleadings is proper when the moving 9 party clearly establishes on the face of the pleadings that no material issue of fact remains 10 to be resolved and that it is entitled to judgment as a matter of law.” Hal Roach Studios, 11 896 F.2d at 1550. Thus, judgment on the pleadings in favor of a defendant is not 12 appropriate if the complaint raises issues of fact that, if proved, would support the 13 plaintiff’s legal theory. Gen. Conference Corp. of Seventh-Day Adventists v. Seventh-Day 14 Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989). 15 The mere fact that a motion is couched in terms of Rule 12(c) does not prevent the 16 district court from disposing of the motion by dismissal rather than judgment. Sprint 17 Telephony PCS, L.P. v. Cnty. of San Diego, 311 F. Supp. 2d 898, 903 (S.D. Cal. 2004) 18 (citing Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th Cir. 1979)). Courts have 19 discretion to grant Rule 12(c) motions with leave to amend. In re Dynamic Random Access 20 Memory Antitrust Litigation, 516 F. Supp. 2d 1072, 1084 (N.D. Cal. 2007). Courts also 21 have discretion to grant dismissal on a 12(c) motion, in lieu of judgment, on any given 22 claim. Id.; see also Amersbach, 598 F.2d at 1038. 23 // 24 // 25 // 26 // 27 28 5 15-cv-0111-GPC-MDD DISCUSSION2 1 2 A. Excessive Force (First Cause of Action) 3 Defendants argue that Plaintiffs’ claim for excessive force fails to state a cause of 4 action because Plaintiffs do not allege that any of the Defendants personally participated 5 as an “integral participant” in the alleged use of excessive force and there is no basis for 6 respondeat superior liability under 42 U.S.C. § 1983. (Mot. J. Pleadings at 8-12, ECF No. 7 18.) Defendants also argue that Plaintiffs fail to adequately plead causation. (Id. at 10- 8 11.) Plaintiffs respond that Defendants are liable as supervisory personnel who were 9 integral participants in the SWAT operation. (Opp’n at 10, ECF No. 20.) 10 Excessive force claims relating to police conduct during an arrest must be analyzed 11 under the Fourth Amendment and its reasonableness standard. Plumhoff v. Rickard, __ 12 U.S. __, 134 S. Ct. 2012, 2020 (2014); Graham v. Connor, 490 U.S. 386, 394-95 (1989). 13 Proper application of the reasonableness standard requires a court to assess the specific 14 facts of the case, “including the severity of the crime at issue, whether the suspect poses an 15 immediate threat to the safety of the officers or others, and whether he is actively resisting 16 arrest or attempting to evade arrest by flight.” Id. 396. However, this list of factors is not 17 exclusive; the court must “[]examine the totality of the circumstances and consider 18 ‘whatever specific factors may be appropriate in a particular case, whether or not listed in 19 Graham.’” Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (quoting Bryan v. 20 MacPherson, 630 F.3d 805, 826 (9th Cir. 2010)). The standard is to be applied objectively, 21 without consideration of the officers’ “underlying intent or motivation.” Graham, 490 U.S. 22 at 397. The Supreme Court further explained in Graham that the analysis must be whether 23 the force was reasonable at the moment it was applied. Id. at 396. In other words, “[t]he 24 25 26 27 28 2 As an independent ground for dismissal, Defendants argue that Plaintiffs have failed to comply with the Court’s scheduling order to join parties in the related case of The Estate of Angel Lopez et al. v. City of San Diego et al, in which this Court’s Summary Judgment Order is under review with the Ninth Circuit. (See 13cv2240-GPC-MDD, ECF. Nos. 59-60.) Defendants cite no authority supporting a dismissal under these circumstances; nor is the argument properly raised in a motion for judgment on the pleadings. 6 15-cv-0111-GPC-MDD 1 ‘reasonableness’ of a particular use of force must be judged from the perspective of a 2 reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. 3 1. 4 Section 1983 creates a cause of action based on personal participation by a 5 defendant. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“Liability under section 6 1983 arises only upon a showing of personal participation by the defendant”). A person 7 deprives another “of a constitutional right, within the meaning of section 1983, if he does 8 an affirmative act, participates in another’s affirmative acts, or omits to perform an act 9 which he is legally required to do that causes the deprivation.” Johnson v. Duffy, 588 F.2d 10 740, 743 (9th Cir. 1978). As such, a police officer who is merely a bystander to his 11 colleagues’ conduct cannot be found to have caused any injury. Hopkins v. Bonvicino, 573 12 F.3d 752, 770 (9th Cir. 2009); see also Chuman v. Wright, 76 F.3d 292, 295 (9th Cir. 1996) 13 (rejecting a jury instruction that allowed the jury to “lump all the defendants together, rather 14 than require it to base each individual’s liability on his own conduct”). Instead, a plaintiff 15 must “establish the ‘integral participation’ of the officers in the alleged constitutional 16 violation.” Jones v. Williams, 297 F.3d 930, 935 (9th Cir. 2002); see also Torres v. City of 17 Los Angeles, 548 F.3d 1197, 1206 (9th Cir. 2008). Integral Participation 18 Officers who are “integral participants” in a constitutional violation are potentially 19 liable under § 1983, even if they did not directly engage in the unconstitutional conduct 20 themselves. See Boyd v. Benton County, 374 F.3d 773, 781 (9th Cir. 2004) (“An officer 21 who does not enter an apartment, but stands at the door, armed with his gun, while other 22 officers conduct the search, can . . . be a ‘full, active participant’ in the search” and therefore 23 can be subject to § 1983 liability). Officers are not integral participants simply by the 24 virtue of being present at the scene of an alleged unlawful act, however. Jones, 297 F.3d 25 at 936; see also Bryan v. Las Vegas Metro. Police Dep’t, 349 F. App’x 132, 133 (9th Cir. 26 2009) (finding grant of summary judgment appropriate as to police officers who were 27 merely present when plaintiff was shot). Instead, integral participation requires some 28 fundamental involvement in the conduct that allegedly caused the violation. See id.; Boyd, 7 15-cv-0111-GPC-MDD 1 374 F.3d at 780, 880 (holding that every officer who provided armed backup for another 2 officer who unconstitutionally deployed a flash-bang device to gain entry to a suspect’s 3 home could be held liable for that use of excessive force because “every officer participated 4 in some meaningful way” in the arrest and “every officer was aware of the decision to use 5 the flash-bang, did not object to it, and participated in the search operation knowing the 6 flash-bang was to be deployed”). 7 Officers are fundamentally involved in the alleged violation when they provide some 8 affirmative physical support at the scene of the alleged violation and when they are aware 9 of the plan to commit the alleged violation or have reason to know of such a plan, but do 10 not object. See id. at 780. While the Ninth Circuit has acknowledged that the “integral 11 participant” rule may extend liability beyond simply those officers who provided “armed 12 backup,” it has not extended liability to officers who were not present where the alleged 13 violation occurred. See, e.g., Hopkins, 573 F.2d at 770 (“[I]t is clear that an officer who 14 waits in the front yard interviewing a witness and does not participate in the 15 unconstitutional search in any fashion cannot be held liable.”). 16 The parties do not dispute that Officer Walb shot and killed Lopez or that Defendants 17 were not physically present when the alleged excessive force occurred. Rather, Plaintiffs’ 18 Complaint premises Defendants’ liability on the fact that they failed to conduct a 19 reasonable investigation into the information obtained from an anonymous informant 20 before “putting in motion the events that caused the death of [Lopez].” (Opp’n at 9, ECF 21 No. 20.) Plaintiffs allege that Defendants failed to analyze and investigate the reliability 22 of the information provided by an anonymous informant, which they knew or should have 23 known to be false, before conveying this information with reckless or deliberate 24 indifference to its truth or falsity in a “misleading and inaccurate fashion” which resulted 25 in Lopez’ death. (Compl. ¶¶ 102-03, ECF No. 1.) 26 Even accepting all of Plaintiffs’ allegations as true, as the Court is bound to do, see 27 Thompson, 295 F.3d at 895, the Court finds no law supporting Plaintiffs’ assertion that an 28 officer who was not at the scene of the alleged excessive use of force nonetheless can be 8 15-cv-0111-GPC-MDD 1 considered an “integral participant” in the constitutional deprivation. Cf. Torres v. City of 2 Los Angeles, 548 F.3d 1197 (9th Cir. 2008) (finding that detective who conducted 3 investigation and provided information to arresting officers was not an integral participant 4 in the unlawful arrest because she was not present when the arrest was made); Bravo v. 5 City of Santa Maria, 665 F.3d 1076, 1090 (9th Cir. 2011) (concluding that officers who 6 conducted a background investigation, but were not present during SWAT unit’s unlawful 7 residential search, were not integral participants); Cunningham v. Gates, 229 F.3d 1271, 8 1290 (9th Cir. 2000), as amended (Oct. 31, 2000) (finding that non-present officers could 9 not be held liable for failing to intercede to prevent their fellow officers from shooting the 10 plaintiff); Monteilh v. County of Los Angeles, 820 F. Supp. 2d 1081, 1090 (C.D. Cal. 2011) 11 (confirming that officers must “provide some affirmative physical support at the scene of 12 the alleged violation . . .” in order to be considered integral participants). It is undisputed 13 that Defendants were not present when Officer Walb fired on Lopez and did not provide 14 “armed backup” for the SWAT unit. Moreover, Plaintiffs do not allege that Defendants 15 were aware of the plain to commit the alleged violation or had reason to know of such a 16 plan but did not object. See Boyd, 374 F.3d at 780. Therefore, the Court finds that Plaintiffs 17 have failed to allege sufficient facts to support their claim that Defendants were integral 18 participants in the alleged violation. 19 2. Supervisory Liability Under 42 U.S.C. § 1983 20 Defendants argue that merely alleging that Defendants are superiors of Officer Walb 21 or that Defendants failed to fully investigate the source of information provided by the 22 informant is insufficient and that Plaintiffs must plead personal involvement by Defendants 23 for supervisory liability. (Mot. J. Pleadings a 9, ECF No. 18.) Plaintiffs respond that 24 Defendants were supervisory San Diego Police officials and that they were personal 25 participants in the dissemination of false information which was a proximate cause of 26 Lopez’s death. (Opp’n at 10-11, ECF No. 20.) 27 The law recognizes that personal participation in a constitutional deprivation is not 28 the only predicate for section 1983 liability. Johnson, 588 F.2d at 743. Anyone who 9 15-cv-0111-GPC-MDD 1 “causes” any citizen to be subjected to a constitutional deprivation is also liable. Id. In 2 Ashcroft v. Iqbal, decided in 2009, the Supreme Court clarified the requirements for 3 supervisory liability under section 1983. 556 U.S. 662, 676-77 (2009). In Iqbal, Justice 4 Kennedy explained that “[i]n a § 1983 suit . . . where masters do not answer for the torts 5 of their servants—the term ‘supervisory liability’ is a misnomer” and “[a]bsent vicarious 6 liability, each Government official, his or her title notwithstanding, is only liable for his or 7 her own misconduct.” Iqbal, 556 U.S. at 677. 8 Justice Kennedy further explained that, just as “purpose rather than knowledge is 9 required to impose [direct] liability on the subordinate for unconstitutional 10 discrimination[,] the same holds true for an official charged with violations arising from 11 his or her superintendent responsibilities.” Id. Thus, courts before Iqbal generally did not 12 have to determine the required mental state for constitutional violations—“[a] uniform 13 mental state requirement applied to supervisors: so long as they acted with deliberate 14 indifference, they were liable, regardless of the specific constitutional right at issue.” OSU 15 Student Alliance v. Ray, 699 F.3d 1053, 1072-73 (9th Cir. 2012). Iqbal instructed that 16 “constitutional claims against supervisors must satisfy the elements of the underlying 17 claim, including the mental state element, and not merely a threshold supervisory test that 18 is divorced from the underlying claim.” 19 constitutional tort does not impose a mens rea (e.g., under the Fourth Amendment), some 20 Ninth Circuit decisions have read the supervisory liability test into Fourth Amendment 21 reasonableness. See, e.g., Lacey v. Maricopa County, 648 F.3d 1118 (9th Cir. 2011) 22 (holding that a Sheriff’s behavior in a Fourth Amendment false arrest case was 23 unreasonable because “he either knew or should have known that something was amiss” 24 and failed to act). Id. at 1081 n. 15. When the underlying 25 In the years post-Iqbal, lower courts have interpreted Iqbal’s supervisory liability 26 holding in different ways, with some circuits treating Iqbal as a pleading decision, others 27 limiting Iqbal to its facts, and others reading Iqbal as annihilating supervisory liability to 28 various degrees. See William N. Evans, Supervisory Liability in the Fallout of Iqbal, 65 10 15-cv-0111-GPC-MDD 1 Syracuse L. Rev. 103 at 14 (2014) (collecting cases). The Ninth Circuit has generally 2 interpreted Iqbal in a more limited way. Id. at 29-30. However, under Iqbal and under the 3 Ninth Circuit’s more expansive interpretation of supervisory liability in the § 1983 context, 4 the Court finds that Plaintiffs have failed to state a claim predicated on supervisory liability. 5 In the Ninth Circuit, a defendant may be held liable as a supervisor under § 1983 “if 6 there exists either (1) his or her personal involvement in the constitutional deprivation, or 7 (2) a sufficient causal connection between the supervisor’s wrongful conduct and the 8 constitutional violation.” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). The 9 requisite causal connection can be established not only by some kind of direct personal 10 participation in the deprivation but also by “set[ting] in motion a series of acts by others[] 11 or knowingly refus[ing] to terminate a series of acts by others, which [a supervisor] knew 12 or reasonably should have known, would cause others to inflict the constitutional injury.” 13 Larez, 946 F.2d at 646 (citations omitted); see also Motley v. Parks, 432 F.3d 1072, 1081 14 (9th Cir. 2005) (confirming that a supervisor who was the moving force behind acts he 15 knew or reasonably should have known would result in a constitutional injury can be found 16 liable, even when he did not directly participate in the acts), overruled on other grounds by 17 United States v. King, 687 F.3d 1189 (9th Cir. 2012). The critical question is whether it 18 was reasonably foreseeable to a supervisor that the actions of particular subordinates would 19 lead to the rights violations alleged to have occurred. See Kwai Fun Wong v. United States, 20 373 F.3d 952, 966 (9th Cir. 2004) (citing Gini v. Las Vegas Metro. Police Dep’t, 40 F.3d 21 1041, 1044 (9th Cir. 1994) (noting that where official did not directly cause a constitutional 22 violation, plaintiff must show the violation was reasonably foreseeable to him). “[A] 23 plaintiff must show the supervisor breached a duty to plaintiff which was the proximate 24 cause of the injury.” Starr, 652 F.3d at 1207. The Ninth Circuit has held that this causal 25 connection can be proved by showing the supervisor’s “own culpable action or inaction in 26 the training, supervision, or control of his subordinates; for his acquiescence in the 27 constitutional deprivation; or for conduct that showed a reckless or callous indifference to 28 the rights of others.” Starr, 652 F.3d at 1208 (quoting Watkins v. City of Oakland, 145 F.3d 11 15-cv-0111-GPC-MDD 1 1087, 1093 (9th Cir. 1998)) (holding that plaintiff’s allegations that “the actions or 2 inactions of the person ‘answerable for the prisoner’s safe-keeping’ caused his injury 3 [were] sufficient to state a claim of supervisory liability for deliberate indifference.”). 4 Plaintiffs allege that Defendants failed to analyze and investigate the reliability of 5 the information provided by an anonymous informant, which they knew or should have 6 known to be false, before conveying this information with reckless or deliberate 7 indifference to its truth or falsity in a “misleading and inaccurate fashion” to SWAT, which 8 resulted in Lopez’ death. (Compl. ¶¶ 102-03, ECF No 1.) The Court finds that Plaintiffs 9 allegations are insufficient to state a claim for excessive force premised on supervisory 10 liability. 11 As a threshold issue, Plaintiffs do not allege that Defendants were supervisors of or 12 had any authority or control over the SWAT unit or its officers. Plaintiffs initially allege 13 that Sgt. Holslag, “with the concurrence of Mills,” is the one who requested SWAT 14 involvement. (Compl. ¶ 48, ECF No. 1.) Plaintiffs state later in the Complaint that “Mills, 15 Leos, and Holslag, with the participation in this joint venture of Torres and Riddle, 16 requested the assistance of the SWAT unit” (id. ¶ 62) and that Defendants “caused the 17 deployment of SRT” (id. ¶ 95). Nowhere in the Complaint do Plaintiffs specify the relevant 18 chain of command, what role each Defendant played in conveying unverified information 19 to SWAT and requesting SWAT’s engagement, and what authority each Defendant had 20 over the actions of SWAT officers. 21 Second, Plaintiffs do not allege sufficient facts to find that Defendants “set in motion 22 a series of acts by others . . . which [they] knew or reasonably should have known, would 23 cause others to inflict the constitutional injury.” Larez, 946 F.2d at 646 (emphasis added). 24 Starr, 652 F.3d at 1208 (quoting Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 25 1998)). Plaintiffs allege that Defendants requested SWAT involvement without verifying 26 the accuracy of the information provided by an anonymous informant. Plaintiffs state that 27 Defendants requested the assistance of SWAT and relayed the informant’s information to 28 SWAT without confirming its accuracy, including that Lopez was at Apartment 58, Lopez 12 15-cv-0111-GPC-MDD 1 had a .25 caliber pistol on his person, there was an AK-47 present at the apartment, or the 2 plausibility of the informant’s story that he was falsely imprisoned for a month and escaped 3 by leaping from a third floor balcony. (Id. ¶ 63, 80.) Plaintiffs also allege that Defendants 4 informed SWAT officers that the kidnapping was related to the “cartel” (id. 85) and that 5 Defendants continued forward with the operation even when Pojas “suddenly terminated 6 contact with Torres” during the deployment of the operation (id. ¶ 94-95). Even assuming 7 the truth of Plaintiffs’ allegations, it is not reasonable to infer that Defendants knew or 8 should have known that conveying that information to SWAT and requesting SWAT’s 9 engagement would result in a SWAT officer shooting Lopez in the back and head. 10 Third, even assuming Defendants were supervisors and set in motion the series of 11 acts that ultimately resulted in Lopez’s shooting, Defendants did not proximately cause 12 Lopez’s death because the actions of the SWAT unit were an intervening event. (See ECF 13 No. 12-1 at 7.) Traditional tort law’s dictate that an abnormal or unforeseen action that 14 intervenes to break the chain of proximate causality applies in section 1983 actions. Van 15 Ort v. Estate of Stanewich, 92 F.3d 831, 837 (9th Cir. 1996); see also Gutierrez-Rodriguez 16 v. Cartagena, 882 F.2d 553, 561 (1st Cir. 1989) (confirming that in a § 1983 action, a 17 superseding intervening cause that is reasonably foreseeable will not relieve a defendant of 18 liability, but an “‘unforeseen and abnormal’ intervention” will break the chain of proximate 19 causation) (quoting Marshall v. Perez Arzuaga, 828 F.2d 845, 848 (1st Cir.1987), cert. 20 denied, 484 U.S. 1065 (1988)). It was the SWAT team’s decision to use submachine guns, 21 to pursue Lopez when he fled into the apartment building, and to shoot him when he 22 allegedly was kneeling in compliance with the Officer Walb’s order. Defendants could not 23 have foreseen that highly trained SWAT officers allegedly would use excessive force in 24 attempting to apprehend Lopez. Thus, the Court finds that Plaintiffs do not allege sufficient 25 facts to find that Defendants “set in motion a series of acts by others . . . which [they] knew 26 or reasonably should have known, would cause others to inflict the constitutional injury” 27 (Larez, 946 F.2d at 646), demonstrating “a reckless or callous indifference to the rights of 28 others.” Starr, 652 F.3d at 1208. Officer Walb’s use of lethal force was unforeseeable in 13 15-cv-0111-GPC-MDD 1 light of the information Defendants conveyed to SWAT when requesting SWAT’s 2 engagement. 3 At this stage, the Court DENIES Plaintiffs’ motion for judgment on the pleadings 4 with respect to Plaintiffs’ first cause of action and instead DISMISSES their excessive 5 force claim without prejudice. 6 B. Wrongful Death (Second Cause of Action) 7 Plaintiffs’ second cause of action is for wrongful death under 42 U.S.C. § 1983. 8 (Compl. at 16-17, ECF No 1.) Defendants contend that wrongful death is a state law claim, 9 which cannot be maintained for two reasons. (Mot. Summ. J. at 15-16, ECF No. 18.) First, 10 a valid § 1983 claim must allege violation of a right secured by the Constitution and the 11 laws of the United States, not duties arising in tort. (Id. at 15 (citing West v. Atkins, 487 12 U.S. 42, 48 (1988))). Second, to the extent Plaintiffs actually seek to assert a state law 13 claim (instead of a claim under § 1983), this too fails because California Code of Civil 14 Procedure 377.60 provides for wrongful death actions based on personal injuries resulting 15 from the death of another, not survival actions that are based on injuries incurred by the 16 decedent. (Id. (citing Cal. Civ. Proc. Code § 377.60).)3 17 In its order granting Defendant Torres’s motion to dismiss (“Order”), the Court 18 explained that only a survivor action but not a wrongful death action may be brought under 19 § 1983. (Order at 13 n. 1, ECF No. 16.) In actions pursuant to 42 U.S.C. § 1983, “the 20 survivors of an individual killed as a result of an officer’s excessive use of force may assert 21 a Fourth Amendment claim on that individual’s behalf if the relevant state’s law authorizes 22 a survival action. The party seeking to bring a survival action bears the burden of 23 demonstrating that a particular state’s law authorizes a survival action and that the plaintiff 24 meets that state’s requirements for bringing a survival action.” Moreland v. Las Vegas 25 Metro. Police Dep’t, 159 F.3d 365, 369 (9th Cir. 1998) (internal citations omitted). See 26 27 3 28 Defendants’ second argument is irrelevant as Plaintiffs assert a state wrongful death claim (Seventh Cause of Action) against Pojas only. (Compl. ¶¶ 134-38, ECF No. 1.) 14 15-cv-0111-GPC-MDD 1 also Fed. R. Civ. P 17(b) (“[C]apacity to sue or be sued shall be determined by the law of 2 the state in which the district court is held.”). Under California law, “[a] cause of action 3 that survives the death of the person entitled to commence an action or proceeding passes 4 to the decedent’s successor in interest, . . . and an action may be commenced by the 5 decedent’s personal representative or, if none, by the decedent’s successor in interest.” Cal. 6 Civ. Proc. § 377.30. 7 Plaintiffs’ second claim is brought on behalf of “All Plaintiffs.” Yet if the underlying 8 constitutional violations alleged are excessive force and seizure without probable cause 9 then the § 1983 claim may not be brought as a wrongful death action to vindicate the rights 10 of Lopez’s wife and children because Fourth Amendment rights are personal to the 11 decedent.4 Cf. Moreland, 159 F.3d at 369. This claim must be dismissed. To the extent 12 Plaintiffs also allege wrongful death on behalf of Lopez’s estate5, that claim would be 13 duplicative of Plaintiffs’ first claim for relief. 14 Thus, the Court GRANTS Defendants’ motion as to Plaintiffs’ second cause of 15 action. 16 C. Right of Association (Third Cause of Action) 17 Defendants argue that Plaintiffs fail to state a claim for right of association because 18 this cause of action is derivative of the decedent’s excessive force claims and Plaintiffs 19 have failed to state a claim for excessive force. (Mot. J. Pleadings at 16, ECF No. 18.) 20 Alternatively, Defendants contend that Defendants’ actions do not satisfy the “shocks the 21 conscience” standard required under the Fourteenth Amendment. (Id. at 17.) Plaintiffs 22 23 4 24 25 26 27 28 Plaintiffs request that the Court permit Lopez’ widow and children to assert the second cause of action as their own wrongful death claim “because § 1983 was designed and intended to provide a remedy to the woman whose husband has been murdered and the children whose father has been killed.” (Opp’n at 19, ECF No. 20.) As the Court has explained supra and in its Order (ECF No. 16), only a survivor action may be brought in a 42 U.S.C. § 1983 action. Plaintiffs do not provide any Ninth Circuit precedent to the contrary. 5 Plaintiffs explicitly request that the Court construe the second cause of action as an “action by the Estate for vindication of the claim of Angel Lopez for violation of his Fourth Amendment right to be free of excessive force.” (Opp’n at 18-19, ECF No. 20.) 15 15-cv-0111-GPC-MDD 1 respond that the appropriate standard is the lower standard of “deliberate indifference” 2 because Defendants’ conduct took place over a matter of several hours. (Opp’n at 19, ECF 3 No. 20.) 4 The same allegations of excessive force giving rise to Lopez’s claim, via his estate, 5 also give his spouse and children a substantive due process claim based on their loss of his 6 society and companionship. See Smith v. City of Fontana, 818 F.2d 1411, 1419-20 (9th 7 Cir. 1987), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 8 1040 n.1 (9th Cir. 1999). For a loss of association claim to be actionable, the claim “must 9 be based on underlying wrongful governmental conduct that amounts to a constitutional 10 deprivation.” Corales v. Bennett, 488 F. Supp. 2d 975, 986 (C.D. Cal. 2007), aff’d, 567 11 F.3d 554 (9th Cir. 2009). If the court finds that “no underlying dependent constitutional 12 deprivation” was demonstrated, the family relations substantive due process claim also 13 must fail. Corales v. Bennett, 567 F.3d 554, 569 n.11 (9th Cir. 2009). Because the Court 14 found that Plaintiffs’ underlying Fourth Amendment excessive force claim fails, the instant 15 right of association claim also fails. See Corales, 488 F. Supp. 2d at 986 (“In the absence 16 of an underlying constitutional violation, plaintiffs’ family relations claim fails”). 17 Furthermore, Plaintiffs fail to allege facts sufficient to set forth a viable substantive 18 due process cause of action. Spouses and children may assert Fourteenth Amendment 19 substantive due process claims if official conduct deprives them of their liberty interest in 20 the companionship and society of their spouse or parent. Lemire v. Cal. Dep’t of Corr. & 21 Rehab., 726 F.3d 1062, 1075 (9th Cir. 2013); Morales v. City of Delano, 852 F. Supp. 2d 22 1253, 1273-74 (E.D. Cal. 2012). The Fourteenth Amendment’s Due Process Clause creates 23 a right to be free from “executive abuse of power . . . which shocks the conscience.” County 24 of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). “In determining whether excessive 25 force shocks the conscience, the court must first ask whether the circumstances are such 26 that actual deliberation by the officer is practical.” Wilkinson v. Torres, 610 F.3d 546, 554 27 (9th Cir. 2010) (internal quotations and alterations omitted). If the officer in question was 28 faced with a time frame where actual deliberation was practical, a plaintiff may establish a 16 15-cv-0111-GPC-MDD 1 Fourteenth Amendment violation by showing that the officer “acted with deliberate 2 indifference.” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008); see also Wilkinson 3 v. Torres, 610 F.3d 546, 554 (9th Cir. 2010) (holding that “deliberate indifference” is the 4 appropriate standard where the circumstances provide for “actual deliberation”). 5 Otherwise, if the officer “faced an evolving set of circumstances that took place over a 6 short time period necessitating ‘fast action,’” a plaintiff must make a higher showing that 7 the officer “acted with a purpose to harm” the plaintiff. Id. at 1139 (quoting Lewis, 523 8 U.S. at 853); Wilkinson, 610 F.3d at 554 (finding application of the purpose-to-harm 9 standard appropriate where within a matter of seconds a car chase evolved into an 10 accelerating vehicle in close proximity to officers on foot). 11 “Deliberate indifference occurs when an official acted or failed to act despite his 12 knowledge of a substantial risk of serious harm.” Solis v. County of Los Angeles, 514 F.3d 13 946, 957 (9th Cir. 2008). This standard is met by a showing “that a municipal actor 14 disregarded a known or obvious consequence of his actions.” Bryan County v. Brown, 520 15 U.S. 397, 410 (1997) (citing Canton v. Harris, 489 U.S. 378 (1989)). It does not require 16 that “the conscience of the federal judiciary be shocked by deliberate indifference . . . .” 17 Kennedy, 439 F.3d at 1064-65 (quoting L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996) 18 (“Deliberate indifference to a known, or so obvious as to imply knowledge of, danger, by 19 a supervisor who participated in creating the danger, is enough.”). “As the very term 20 ‘deliberate indifference’ implies, the standard is sensibly employed only when actual 21 deliberation is practical.” Lewis, 523 U.S. at 851. 22 The Court finds that the “deliberate indifference” standard is applicable in light of 23 the almost five-hour time frame during which the alleged wrongful conduct occurred. See, 24 e.g., Lee v. City of Los Angeles, 250 F.3d 668, 684 (9th Cir. 2001) (applying the deliberate 25 indifference standard where officers had ample time to correct their obviously mistaken 26 detention of the wrong individual, but nonetheless failed to do so). Torres received the 27 anonymous call from Pojas “shortly after 8:00 a.m. on January 17, 2013.” (Compl. at 5, 28 ECF No. 1.) Defendants did not “face[] an evolving set of circumstances that took place 17 15-cv-0111-GPC-MDD 1 over a short time period necessitating ‘fast action.” Wilkinson, 610 F.3d at 554. The 2 timeline suggests that they had opportunity to at least partially investigate the veracity of 3 the anonymous informant’s claims before engaging SWAT. 4 However, the Court finds that Plaintiffs have not sufficiently alleged deliberate 5 indifference. As discussed in the Court’s analysis of Plaintiffs’ excessive force claim, 6 Plaintiffs do not allege sufficient facts to suggest that it was foreseeable the SWAT officers 7 would use excessive force. Plaintiffs allege that Defendants requested the assistance of 8 SWAT and provided SWAT with unverified information that, inter alia, “there was an 9 actual or probable kidnap victim still being held in Apartment 58” (Compl. ¶ 85, ECF 1); 10 the kidnapping was related to the “cartel” (id. ¶ 86); the cartel members were armed with 11 AK-47s (id. ¶ 57); and that the parolee suspect “was always armed with a .25 caliber pistol” 12 (id. ¶¶ 40-41). Assuming the truth of Plaintiffs’ allegations, the law does not support a 13 finding that calling in a highly trained, advanced tactical team and providing it with the 14 alleged information creates an excessive risk that the team will use more force than 15 necessary. Thus, Plaintiffs do not plead sufficient facts for a finding that Defendants acted 16 with deliberate indifference in light of the circumstances. 17 At this stage, the Court DENIES Plaintiffs’ motion for judgment on the pleadings 18 with respect to Plaintiffs’ third cause of action and instead DISMISSES their right of 19 association claim without prejudice. 20 D. Seizure Without Probable Cause (Fourth Cause of Action) 21 Plaintiffs allege that Defendants deprived Lopez of his constitutional rights to be 22 free from seizure without probable cause. (Compl. ¶¶ 119-25, ECF No. 1.) Defendants 23 argue that Lopez was a parolee at large and, under California and federal law, probable 24 cause is not required to arrest a parolee for violation of parole. (Mot. Summ. J. at 18-19 25 (citing U.S. v. Rabb, 752 F.2d 1320, 1324 (9th Cir. 1984); People v. Kanos, 14 Cal. App. 26 3d 642, 648 (1971)). Plaintiffs respond that the fourth cause of action alleges that 27 defendants were responsible for the use of deadly force, not the arrest of a parolee (which 28 never occurred), and constitutes a seizure without probable cause. (Opp’n at 19, ECF No. 18 15-cv-0111-GPC-MDD 1 20.) 2 The Fourth Amendment guarantees that “[t]he right of the people to be secure in 3 their persons, houses, papers, and effects, against unreasonable searches and seizures, shall 4 not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath 5 or affirmation, and particularly describing the place to be searched, and the persons or 6 things to be seized.” U.S. Const., amend. IV. A person is seized by the police and thus 7 entitled to challenge the government's action under the Fourth Amendment when the 8 officer, “‘by means of physical force or show of authority,’” terminates or restrains his 9 freedom of movement, Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting Terry v. Ohio, 10 392 U.S. 1, 19, n. 16 (1968)), “through means intentionally applied,” Brower v. County of 11 Inyo, 489 U.S. 593, 597 (1989) (emphasis in original). Apprehension by use of deadly 12 force is a “seizure” subject to the reasonableness requirement of the Fourth Amendment. 13 Tennessee v. Garner, 471 U.S. 1, 7 (1985). It is undisputed that deadly force was employed 14 and thus that Lopez was “seized.” The parties dispute whether the employment of deadly 15 was under these circumstances was reasonable under Fourth Amendment. 16 To determine whether such a seizure is reasonable, the extent of the intrusion on the 17 suspect's rights under that Amendment must be balanced against the governmental interests 18 in effective law enforcement. Id. at 2. Plaintiffs allege that Defendants acted without 19 probable cause and caused the use of deadly force resulting in the loss of life “by 20 disseminating false and reliable information as if it were true.” (Compl. ¶¶ 122-23, ECF 21 No. 1.) Plaintiffs state that “Pojas knew that [Lopez] was on parole and wanted for a parole 22 violation” (id. ¶ 32) and that Parole Agent information provided the information Pojas told 23 him to Mills (id. ¶ 46), who passed the information from Pojas to Defendants (id. ¶ 47). 24 Defendants are correct that although police officers also must have probable cause before 25 making a warrantless arrest, Ramirez v. City of Buena Park, 560 F.3d 1012, 1023 (9th Cir. 26 2009), an exception to this rule exists for parolees. While parolees are protected against 27 unreasonable searches and seizures, their Fourth Amendment rights are not as extensive as 28 those of other citizens. Sherman v. U.S. Parole Comm’n, 502 F.3d 869, 873 (9th Cir. 2007). 19 15-cv-0111-GPC-MDD 1 “Under California and federal law, probable cause is not required to arrest a parolee for a 2 violation of parole. Warrantless arrests of parole violators are also valid.” Id. at 884 3 (quoting United States v. Butcher, 926 F.2d 811, 814 (9th Cir. 1991)). The rationale for 4 this is that “a parolee ‘remains under legal custody,’ [so] ‘a parole arrest [is] more like a 5 mere transfer of the subject from constructive custody into actual or physical custody, 6 rather than like an arrest of a private individual who is the suspect of a crime.’” Id. (quoting 7 United States v. Rabb, 752 F.2d 1320, 1324 (9th Cir. 1984) (internal quotation marks 8 omitted)). 9 Thus, if an officer “reasonably believes a parolee is in violation of his parole, the 10 officer may arrest the parolee.”5 Rabb, 752 F.2d at 1324, abrogated in part on other 11 grounds by Bourjaily v. United States, 483 U.S. 171 (1987). “A parole officer is not 12 required personally to effect the arrest or search of his parolee to validate the arrest or 13 search.” United States v. Butcher, 926 F.2d 811, 814 (9th Cir. 1991). The seizure remains 14 legal even if it is carried out by other officers. See id. at 814-15 (agreeing with the 15 California Court of Appeal’s determination in People v. Kanos, 14 Cal. App. 3d 642, 649 16 (2nd Distr. 1971) (“that ‘[p]olice assistance properly may be requested by parole agents for 17 providing protection and for aiding in the apprehension and investigation of a parole 18 violator’”). 19 Here, Plaintiffs concede that Lopez was wanted for a parole violation. (Compl. ¶ 32, 20 ECF No. 1.) As such, he was subject to seizure without probable cause. See Sherman, 502 21 F.3d at 884. However, that fact that an officer has probable cause (or does not need 22 probable cause) to make an arrest—and therefore to use some amount of force to seize the 23 suspect—is not enough, standing alone, to allow to officer to do so by using deadly force. 24 See Garner, 471 U.S. at 2 (“The use of deadly force to prevent the escape of all felony 25 26 27 28 5 The same is true under California law, which expressly requires prisoners being released on parole to be notified that they are “subject to search or seizure by a probation or parole officer or other peace officer at any time of the day or night, with or without a search warrant or with or without cause.” Cal. Penal Code Ann. § 3067(b)(3) (West, Westlaw through 2015 Reg. Sess.) (emphasis added). 20 15-cv-0111-GPC-MDD 1 suspects, whatever the circumstances, is constitutionally unreasonable.”). As in other 2 Fourth Amendment contexts, the question is whether the officers’ actions are “objectively 3 reasonable” in light of the facts and circumstances confronting them, without regard to 4 their underlying intent or motivation. See Graham, 490 U.S. at 398. Nonetheless, the 5 Court, finds that Plaintiffs fail to state a claim for seizure without probable cause for the 6 same reasons Plaintiffs’ first cause of action alleging excessive force fails. Plaintiffs do 7 not plead facts sufficient to establish Defendants’ liability as “integral participants” or 8 supervisors in the alleged deprivation of Lopez’ constitutional right to be free from seizure 9 without probable cause. Furthermore, even assuming Defendants were supervisors and set 10 in motion the series of acts that ultimately resulted in Lopez’s shooting, Defendants did not 11 proximately cause Lopez’s death because the actions of the SWAT unit were an intervening 12 event. 13 At this stage, the Court DENIES Plaintiffs’ motion for judgment on the pleadings 14 with respect to Plaintiffs’ fourth cause of action and instead DISMISSES their excessive 15 force claim without prejudice. 16 E. Due Process Claims (Fifth and Sixth Causes of Action) 17 Defendants argue that Plaintiffs’ fifth and sixth causes of actions for due process 18 violations must be dismissed because (1) Defendants are not federal employees and the 19 Fourteenth Amendment’s Due Process applies only to federal actions, and (2) claims 20 arising from excessive force must be prosecuted under the Fourth and not the Fourteenth 21 Amendment. (Mot. J. Pleadings at 19, ECF No. 18.) Plaintiffs contend that the Fourteenth 22 Amendment applies to Defendants’ actions and, while the Fourth Amendment is the 23 exclusive source of analysis for excessive force claims, “a cold-blooded execution of a 24 kneeling man, with intent to impose punishment without invocation of judicial process” 25 violates Fourteenth Amendment Due Process Clause. (Opp’n at 20, ECF No. 20.) 26 Plaintiffs’ fifth cause of action alleges that Defendants violated the Fifth 27 Amendment by depriving Lopez of life without due process of law. (Compl. ¶¶ 127-28, 28 ECF No. 1.) “The Due Process Clause of the Fifth Amendment . . . appl[ies] only to actions 21 15-cv-0111-GPC-MDD 1 of the federal government—not to those of state or local governments.” Lee v. City of L.A., 2 250 F.3d 668, 687 (9th Cir. 2001) (citing Schweiker v. Wilson, 450 U.S. 221, 227 (1981)). 3 Plaintiffs have not alleged that Defendants are federal employees. To the contrary, 4 Plaintiffs’ Complaint states that Sgt. Holslag was an Eastern Division SDPD sergeant, 5 Detective Riddle was a detective with the SDPD, and Lt. Leos was Eastern Division SDPD 6 lieutenant. (Compl. ¶ 9, ECF No. 1.) Because Plaintiffs have only alleged actions taken 7 by state officials7, Plaintiffs fail to state a claim under the Fifth Amendment. 8 In the sixth cause of action, Plaintiffs allege that Detective Riddle’s actions resulted 9 in the imposition of punishment without trial or process. (Id. 132.) Detective Riddle 10 responds that this claim must be dismissed because claims arising from excessive force 11 must be prosecuted under the Fourth Amendment, not the Fourteenth Amendment. (Mot 12 J. Pleadings at 20, ECF No. 18.) Plaintiffs counter that the evidence supports not just the 13 excessive use of force but conduct that violated the Due Process Clause of the Fourteenth 14 Amendment. (Opp’n at 20, ECF No. 20.) 15 There is no legal support for Plaintiffs’ substantive due process claim. The Supreme 16 21 Court made explicitly clear in Graham that: [A]ll claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard, rather than under a “substantive due process” approach. Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims. Graham, 490 U.S. at 395 (finding reversible error where appellate court reviewed an 22 excessive force claim under substantive due process standard); Reed v. Hoy, 909 F.2d 324, 23 329 (9th Cir. 1989) (“under Graham, excessive force claims arising before or during arrest 24 are to be analyzed exclusively under the fourth amendment’s reasonableness standard”), 25 overruled on other grounds by Edgerly v. City & Cnty. of San Francisco, 599 F.3d 946, 17 18 19 20 26 27 28 7 The other Defendants, with the exception of Pojas who is not a government official, are all alleged to be employees of the San Diego Police Department. 22 15-cv-0111-GPC-MDD 1 956 n.14 (9th Cir. 2010); see also Ward v. City of San Jose, 967 F.2d 280, 285 (9th Cir. 2 1991) (holding that “[i]t is reversible error to give a substantive due process instruction in 3 an excessive force case after Graham”). Plaintiffs cite no law in support of their effort to 4 restyle their excessive force claim as one substantive due process and the Court finds none. 5 Accordingly, Plaintiffs sixth cause of action must be dismissed. 6 7 For the foregoing reasons, the Court GRANTS Defendants’ motion as to Plaintiffs’ fifth and sixth causes of action. 8 9 10 CONCLUSION For the foregoing reasons, the court hereby orders: (1) 11 12 Defendants’ motion for judgment on the pleadings is GRANTED with respect to Plaintiffs’ SECOND, FIFTH and SIXTH causes of action; (2) Defendants’ motion for judgment on the pleadings is DENIED with respect to 13 Plaintiffs’ FIRST, THIRD and FOURTH causes of action. Instead, the Court 14 DISMISSES WITHOUT PREJUDICE Plaintiffs’ FIRST, THIRD and 15 FOURTH causes of action. Plaintiffs may file an amended complaint as to the 16 FIRST, THIRD and FOURTH causes of action on or before November 6, 17 2015. 18 IT IS SO ORDERED. 19 20 Dated: October 21, 2015 21 22 23 24 25 26 27 28 23 15-cv-0111-GPC-MDD

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.