Bradley James Much v. Michael Langston, No. 2:2016cv00863 - Document 66 (C.D. Cal. 2017)
Court Description: MEMORANDUM AND ORDER DENYING MOTION TO DISMISS FOURTH AMENDED COMPLAINT WITHOUT PREJUDICE by Magistrate Judge Suzanne H. Segal. The Motion to Dismiss (Dkt. No. 54 ) is DENIED, and Defendants Moreau, Moulton, and Nadal shall answer the Fourth Amended Complaint no later than fourteen (14) days from the date of this Order. (See document for further details). (mr)
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Bradley James Much v. Michael Langston Doc. 66 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BRADLEY JAMES MUCH, Plaintiff, 12 13 14 Case No. CV 16-0863 VAP(SS) MEMORANDUM AND ORDER DENYING v. MOTION DR. HIRUY H. GESSESSE, et al., AMENDED Defendants. 15 TO DISMISS COMPLAINT FOURTH WITHOUT PREJUDICE 16 17 I. 18 INTRODUCTION 19 20 21 22 23 24 25 On February 8, 2016, pro se plaintiff Bradley James Much (“Plaintiff”) filed a civil rights complaint pursuant to 42 U.S.C. § 1983, as well as eight related Section 1983 actions. Nos. 1, 6). (See Dkt. On February 12, 2016, the Court consolidated the complaints in this action, and dismissed the consolidated complaint with leave to amend. (Dkt. No. 6). 26 27 28 Dockets.Justia.com 1 On March 11, 2016, Plaintiff filed a First Amended Complaint, 2 which the Court dismissed with leave to amend on April 28, 2016. 3 (Dkt. Nos. 10, 12). 4 Amended Complaint, which the Court dismissed with leave to amend 5 on November 14, 2016. On July 7, 2016, Plaintiff filed a Second (Dkt. Nos. 19, 36). 6 7 On December 14, 2016, Plaintiff filed a Third Amended 8 Complaint (“TAC”), naming as defendants Drs. Hiruy H. Gessesse and 9 Azad Kurjian, and Signal Hill Police Department (“SHPD”) Officers 10 Donald Moreau, Brian Moulton and Terrence Nadal. 11 On April 10, 2017, the Court ordered the TAC served on the named 12 defendants in their individual capacities. (Dkt. No. 37). (Dkt. Nos. 38-40). 13 14 Plaintiff subsequently sought leave to amend the TAC, which 15 the Court granted, and Plaintiff filed the pending Fourth Amended 16 Complaint (“FAC”) on June 8, 2017. (Dkt. Nos. 43-47). 17 18 On July 5, 2017, Officers Moreau, Moulton and Nadal 19 (collectively “Defendants”) filed a Motion to Dismiss the FAC 20 (“Motion”). 21 an Opposition to the Motion (“Opposition”).1 (Dkt. No. 62). 22 the following reasons, the Motion is DENIED. However, the Motion (Dkt. No. 54). On October 11, 2017, Plaintiff filed For 23 24 25 26 27 28 1 On September 8, 2017, the Court sua sponte extended the deadline for Plaintiff to file an Opposition or Notice of Non-Opposition to the Motion. (Dkt. No. 59). Even so, the Opposition is untimely. Nevertheless, since Plaintiff recently filed a document indicating he was repeatedly hospitalized in August and September 2017 (see Dkt. No. 61 at 4), the Court will consider Plaintiff’s untimely Opposition. The Court emphasizes, however, that it would reach the same result regardless of Plaintiff’s untimely Opposition. 2 1 is denied without prejudice to renewing Defendants’ arguments in a 2 motion for summary judgment. 3 4 II. 5 PLAINTIFF’S ALLEGATIONS 6 7 Plaintiff alleges that on December 28, 2014, he was at home 8 watching television when Officers Moreau and Nadal knocked on his 9 door. Officer Moreau explained that he intended to take Plaintiff 10 into custody for a psychiatric evaluation based on a note Plaintiff 11 provided a consignment furniture store and police reports Plaintiff 12 had submitted.2 13 quick transaction as Plaintiff was considering leaving the area 14 due 15 reported 16 “instances of suspected unlawful entry into Plaintiff’s residence 17 18 19 20 21 22 23 24 25 26 27 28 to an to (FAC ¶ 9). ongoing the pattern [SHPD,]” “The note requested options for a of harassment while the which police Plaintiff reports had concerned At the time of Plaintiff’s detention, Cal. Welf. & Inst. Code § 5150 provided, in pertinent part, that: 2 When a person, as a result of a mental health disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, professional person in charge of a facility designated by the county for evaluation and treatment, member of the attending staff, as defined by regulation, of a facility designated by the county for evaluation and treatment, designated members of a mobile crisis team, or professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody for a period of up to 72 hours for assessment, evaluation, and crisis intervention, or placement for evaluation and treatment in a facility designated by the county for evaluation and treatment and approved by the State Department of Health Care Services. Cal. Welf. & Inst. Code § 5150(a). 3 1 and theft of stolen property.” 2 Plaintiff the “legally required advisement” and Plaintiff was taken 3 to College Medical Center in Long Beach. 4 completed an Application for 72-Hour Detention for Evaluation and 5 Treatment (“5150 application”), indicating that Plaintiff was a 6 danger to himself and others. The complaint alleges that the 7 officer objective 8 supporting this conclusion. 9 application failed to include included (Id.). any Officer Moreau then read (Id.). and Officer Moreau observable (FAC ¶ 9 & Exh. A).3 subjective statements facts Instead, the from Plaintiff’s 10 neighbors who were biased against Plaintiff due to his sexual 11 orientation and disability. 12 72-hour hold based solely on the 5150 application. (FAC ¶ 9). Plaintiff was placed on a (Id.). 13 14 Plaintiff asserts that on December 31, 2014, pursuant to Cal. 15 Welf. & Inst. Code § 5250(a),4 Dr. Gessesse certified Plaintiff for 16 3 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff attached as exhibits to his FAC the five applications for 72-hour holds discussed in the FAC. (See FAC, Exhs. A-E). The Court can consider these documents in ruling on the Motion. See Wilhelm v. Rotman, 680 F.3d 1113, 1116 n.1 (9th Cir. 2012) (“‘When a plaintiff has attached various exhibits to the complaint, those exhibits may be considered in determining whether dismissal was proper without converting the motion to one for summary judgment.’” (citation omitted)); Roth v. Garcia Marquez, 942 F.2d 617, 625 n.1 (9th Cir. 1991) (“If a complaint is accompanied by attached documents, the court is not limited by the allegations contained in the complaint. These documents are part of the complaint and may be considered in determining whether the plaintiff can prove any set of facts in support of the claim.” (citations and internal punctuation omitted)). 4 At the time of Plaintiff’s detention, Welf. & Inst. Code § 5250 provided, in pertinent part, that: If a person is detained for 72 hours under [Welf. & Inst. Code § 5150, et al.,] . . . and has received an evaluation, he or she may be certified for not more than 14 days of intensive treatment related to the mental disorder or impairment by chronic alcoholism, under the 4 1 intensive 2 additional fourteen days. 3 failed 4 certification. (FAC ¶ 10). 5 one additional day beyond the initial 72-hour hold. to treatment comply at College with Medical Center for up to an The complaint alleges that Dr. Gessesse the legal requirements for such Ultimately, Plaintiff was hospitalized (Id.). 6 7 Plaintiff claims that on January 10, 2015, he was at home when 8 he heard individuals threaten his physical safety while they were 9 talking on the balcony directly above his balcony. (FAC ¶ 11). 10 Plaintiff then left his home, walked to the city limits of Long 11 Beach 12 Plaintiff indicates he “purposely walked into the city limits of 13 Long Beach, outside the jurisdiction of the [SHPD,] so that the 14 Long Beach Police Department would respond to Plaintiff’s call[,]” 15 and, after placing the call, Plaintiff remained in Long Beach. 16 (Id.). Nevertheless, Officers Moreau and Nadal and an unidentified 17 female officer responded to the call. 18 the threat to the officers, but they did not indicate any intent 19 to investigate the threat. 20 Plaintiff and placed him in handcuffs, and Officers Moreau and 21 Nadal took Plaintiff to Community Hospital in Long Beach. 22 When they reached the hospital, Officer Nadal read Plaintiff the and placed a 911 call to (Id.). report the (Id.). threats. (Id.). Plaintiff reported Instead, Officer Nadal frisked (Id.). 23 24 25 26 27 28 following conditions: [¶] (a) The professional staff of the agency or facility providing evaluation services has analyzed the person’s condition and has found the person is, as a result of mental disorder or impairment by chronic alcoholism, a danger to others, or to himself or herself, or gravely disabled. Cal. Welf. & Inst. Code § 5250(a). 5 1 “legally required advisement” and then completed a 5150 application 2 in which Officer Nadal claimed Plaintiff was a danger to himself. 3 According to the complaint, Officer Nadal failed to substantiate 4 this conclusion with accurate, objective and observable facts. 5 (FAC ¶ 11 & Exh. B). 6 Plaintiff contacted the SHPD and refused to return home. 7 Plaintiff was placed on a 72-hour hold based solely on the 5150 8 application. Instead, Officer Nadal falsely claimed (Id.). (FAC ¶ 11). 9 10 Plaintiff alleges that on January 17, 2015, Officers Moreau 11 and Nadal went to Plaintiff’s home, where Officer Nadal questioned 12 Plaintiff about a blocked fire exit and a blocked interior door, 13 but did not allow Plaintiff to respond to the questions. 14 12). 15 then transported him to Community Hospital in Long Beach without 16 reading him the “legally required advisement[.]” 17 Nadal completed a 5150 application to hold Plaintiff as a danger 18 to others. 19 to support this conclusion with accurate facts. 20 C). 21 contacted the SHPD and that Plaintiff’s neighbor had directed 22 Officer Nadal to the two blocked doors, claiming that Plaintiff 23 was responsible. 24 based solely on the 5150 application. (FAC ¶ Instead, Officer Nadal frisked and handcuffed Plaintiff, and (Id.). Officer Again, the complaint alleges that Officer Nadal failed Instead, Officer (Id.). Nadal incorrectly (FAC ¶ 12 & Exh. stated Plaintiff had Plaintiff was placed on a 72-hour hold (FAC ¶ 12). 25 26 Plaintiff claims that on January 20, 2015, pursuant to Cal. 27 Welf. & Inst. Code § 5250(a), Dr. Gessesse certified Plaintiff for 28 intensive treatment at Community Hospital Long Beach for up to an 6 1 additional 14 days. 2 Gessesse did not comply with the legal requirements for such 3 certification. 4 additional days beyond the initial 72-hour hold. However, according to the complaint, Dr. (FAC ¶ 13). Plaintiff was hospitalized for two (Id.). 5 6 Plaintiff next asserts that on January 25, 2015, he was at 7 home when he heard voices from the apartment upstairs saying that 8 Plaintiff’s friends and family were across the street. 9 Plaintiff went across the street on three different occasions, each 10 time asking for a different person and each time being told that 11 person was not there. 12 following the third incident, Officer Moulton and another unknown 13 officer stopped Plaintiff, and Officer Moulton directed Plaintiff 14 to sit on the curb while Moulton made inquiries at the house 15 Plaintiff 16 searched and handcuffed Plaintiff and then transported Plaintiff 17 to 18 “required advisement[.]” 19 Moulton submitted to detain Plaintiff for psychiatric evaluation 20 and treatment contained false and exaggerated statements made to 21 justify the detention. 22 on a 72-hour hold based solely on the 5150 application. 23 14). had Community (Id.). visited. Hospital While Plaintiff was walking home (Id.). in (FAC ¶ 14). Long Thereafter, Beach (Id.). without Officer reading Moulton him the The 5150 application Officer (FAC ¶ 14 & Exh. D). Plaintiff was placed (FAC ¶ 24 25 Plaintiff states that on January 30, 2015, Officers Moreau 26 and Nadal as well as two unidentified female officers responded to 27 an emergency call at Plaintiff’s residence after someone pulled 28 the fire alarm next to Plaintiff’s home. 7 (FAC ¶ 15). Plaintiff, 1 who was returning from a walk, encountered the officers near the 2 building’s front entrance, and Officer Moreau directed Plaintiff 3 to remain on the front porch, which prevented Plaintiff from 4 returning home. 5 his medication compliance and searched and handcuffed Plaintiff. 6 (Id.). 7 Hospital in Long Beach, where, without providing Plaintiff with 8 the “legally-required advisement[,]” Officer Moreau completed a 9 5150 application that, among other things, falsely reported the (Id.). Officer Moreau questioned Plaintiff about Officers Moreau and Nadal then drove Plaintiff to Community 10 fire exit was again blocked. 11 concluded Plaintiff was a gravely disabled adult because Plaintiff 12 did not have any electricity in his unit. 13 Plaintiff 14 application 15 Plaintiff was placed on a 72-hour hold based solely on the 5150 16 application. claims was the (FAC ¶ 14, Exh. E). only that a Officer Moreau (Id.). accurate fire statement alarm been had on However, the pulled. 5150 (Id.). (FAC ¶ 14). 17 18 Plaintiff claims that on February 1, 2015, pursuant to Cal. 19 Welf. & Inst. Code § 5250(a), Dr. Kurjian certified Plaintiff for 20 intensive treatment at Community Hospital Long Beach for up to an 21 additional 22 evaluation. 23 anti-psychotic 24 Plaintiff’s 25 consent. 26 coerce 27 Plaintiff a petition to determine Plaintiff’s capacity to refuse 28 anti-psychotic 14 days without (FAC ¶ 16). medication consent, (Id.). Plaintiff but completing the legally required Dr. Kurjian recommended a regimen of for Plaintiff, Plaintiff which declined to required provide this According to the complaint, in an effort to into providing medication, and 8 consent, Plaintiff Dr. was Kurjian showed informed his 1 involuntary 2 provide consent to injectable anti-psychotic medication. 3 Dr. Kurjian’s actions kept Plaintiff hospitalized for an additional 4 four days beyond the initial 72-hour hold. hospitalization would be extended until Plaintiff (Id.). (Id.). 5 6 Based on these allegations, Plaintiff raises a Fourth 7 Amendment claim against Officers Moreau, Nadal and Moulton (Claim 8 One) and a second Fourth Amendment claim against Doctors Gessesse 9 and 10 Kurjian (Claim compensatory damages. Two). (FAC ¶¶ 17-22). Plaintiff seeks (Id. ¶ 23). 11 12 III. 13 STANDARD OF REVIEW 14 15 A Rule 12(b)(6) motion to dismiss for failure to state a claim 16 should be granted if the plaintiff fails to proffer “enough facts 17 to state a claim to relief that is plausible on its face.” 18 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 19 556 U.S. 662, 678 (2009). 20 the plaintiff pleads factual content that allows the court to draw 21 the reasonable inference that the defendant is liable for the 22 misconduct alleged.” 23 Dep’t of Corr. & Rehab., 707 F.3d 1114, 1121-22 (9th Cir. 2013). 24 Although 25 conclusions, and a formulaic recitation of the elements of a cause 26 of action will not do[,]” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. 27 at 678, “[s]pecific facts are not necessary; the [complaint] need 28 only give the defendant[s] fair notice of what the . . . claim is the Bell “A claim has facial plausibility when Iqbal, 556 U.S. at 678; Hartmann v. Cal. plaintiff must provide 9 “more than labels and 1 and the grounds upon which it rests.” 2 89, 93 (2007) (per curiam) (citations and internal quotation marks 3 omitted); Twombly, 550 U.S. at 555. Erickson v. Pardus, 551 U.S. 4 5 “When ruling on a motion to dismiss, [the court] may generally 6 consider only allegations contained in the pleadings, exhibits 7 attached to the complaint, and matters properly subject to judicial 8 notice.” 9 955 (9th Cir. 2011) (citations, footnote, and internal quotation Colony Cove Props., LLC v. City of Carson, 640 F.3d 948, The court must accept the complaint’s allegations 10 marks omitted). 11 as true, Erickson, 551 U.S. at 93-94; Twombly, 550 U.S. at 555-56, 12 construe the pleading in the light most favorable to the pleading 13 party, and resolve all doubts in the pleader’s favor. 14 McKeithen, 395 U.S. 411, 421 (1969); Berg v. Popham, 412 F.3d 1122, 15 1125 (9th Cir. 2005). Jenkins v. 16 17 However, the court “need not accept as true allegations 18 contradicting documents that are referenced in the complaint or 19 that are properly subject to judicial notice.” 20 v. Behrens, 546 F.3d 580, 588 (9th Cir. 2006). 21 tenet that a court must accept as true all of the allegations 22 contained in a complaint is inapplicable to legal conclusions.” 23 Iqbal, 556 U.S. at 678; Stapley v. Pestalozzi, 733 F.3d 804, 809 24 (9th Cir. 2013). Lazy Y Ranch Ltd. Likewise, “the 25 26 Pro se pleadings are “to be liberally construed” and are held 27 to a less stringent standard than those drafted by a lawyer. 28 Erickson, 551 U.S. at 94; see also Hebbe v. Pliler, 627 F.3d 338, 10 1 342 (9th Cir. 2010) (“Iqbal incorporated the Twombly pleading 2 standard and Twombly did not alter courts’ treatment of pro se 3 filings; 4 liberally when evaluating them under Iqbal.”). accordingly, we continue to construe pro se filings 5 6 Dismissal for failure to state a claim can be warranted based 7 on either a lack of a cognizable legal theory or the absence of 8 factual support for a cognizable legal theory. 9 Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). See Mendiondo v. 10 11 IV. 12 DISCUSSION 13 14 The Fourth Amendment protects the “[t]he right of . . . people 15 to be secure in their persons, houses, papers, and effects, against 16 unreasonable searches and seizures.” 17 person is seized by the police and thus entitled to challenge the 18 government’s action under the Fourth Amendment when the officer, 19 by means of physical force or show of authority, terminates or 20 restrains his freedom of movement, through means intentionally 21 applied[.]” Brendlin v. California, 551 U.S. 249, 254 (2007) 22 ((citations, internal 23 Seizure of a person alleged to be mentally ill “is analogous to a 24 criminal arrest and must therefore be supported by probable cause.” 25 Maag v. Wessler, 960 F.2d 773, 775-76 (9th Cir. 1991) (per curiam); 26 Bias v. Moynihan, 508 F.3d 1212, 1220 (9th Cir. 2007). quotation 27 28 11 U.S. Const. amend. IV. marks and emphasis “A omitted). 1 In this case, Defendants repeatedly seized Plaintiff under 2 Cal. Welf. & Inst. Code § 5150, which provides that “an officer 3 may detain any person the officer determines, ‘as a result of 4 mental disorder, is a danger to others, or to himself or herself, 5 or gravely disabled’” and “[i]f such a determination is made, the 6 officer may place the person at a county-designated facility for a 7 ‘72–hour treatment and evaluation.’” 8 (quoting Cal. Welf. & Inst. Code § 5150). 9 under section 5150 if facts are known to the officer ‘that would 10 lead a person of ordinary care and prudence to believe, or to 11 entertain a strong suspicion, that the person detained is mentally 12 disordered and is a danger to himself or herself.’” 13 People v. Triplett, 144 Cal. App. 3d 283, 287-88 (1983)). Bias, 508 F.3d at 1220 “Probable cause exists Id. (quoting 14 15 Defendants argue they are entitled to dismissal of this action 16 because probable cause existed as to each and every detention of 17 Plaintiff. 18 Plaintiff’s allegations because he is a pro se litigant, and 19 applying the standard that the court must accept the allegations 20 as true, Plaintiff’s FAC sufficiently alleges his Fourth Amendment 21 rights 22 without probable cause. 23 January 17, 2015 detention occurred when Officers Moreau and Nadal 24 visited Plaintiff’s residence as he was preparing to go out, asked 25 Plaintiff about a blocked fire exit and blocked internal door, and 26 placed Plaintiff in custody without even allowing him to respond were (See Motion at 8-13). violated when However, broadly construing Defendants repeatedly detained him For example, Plaintiff alleges that the 27 28 12 1 to their questions.5 2 Officer Nadal – the officer who Plaintiff alleges completed the 3 5150 application6 – did not substantiate his conclusions that 4 detention was justified, and Plaintiff was placed on a 72-hour hold 5 due solely to the 5150 application. 6 alleges he was returning from a walk on January 30, 2015 when 7 Officers Moreau and Nadal detained him because a fire alarm had 8 been pulled next to Plaintiff’s residence. 9 also asserts that Officer Moreau questioned Plaintiff about his 10 medication compliance and demanded to see Plaintiff’s medication, 11 but would not allow Plaintiff into his home, and that the 5150 12 application Officer Moreau completed was inaccurate except for the 13 statement that a fire alarm was pulled.7 (FAC at 6). Plaintiff further claims that (Id.). Similarly, Plaintiff (FAC ¶ 15). Plaintiff (FAC ¶ 15 & Exh. E). 14 15 To survive Defendants’ motion, Plaintiff must allege facts to 16 show that these individual defendants lacked probable cause to 17 detain him under Section 5150. Courts have found a pleading to 18 19 20 21 22 23 24 25 26 27 28 The 5150 application states that Plaintiff “called the SHPD today because he was concerned about his upstairs neighbors[,]” (FAC, Exh. C), but Plaintiff claims this statement is false (FAC ¶ 12), and the Court accepts Plaintiff’s allegation in ruling on the pending Motion. 6 The 5150 application indicates that Officer Nadal gave Plaintiff the requisite advisement, but the form also appears to be signed by Officer Moreau. (See FAC, Exh. C). 7 Defendants suggest that since Plaintiff asserts that physicians ultimately certified Plaintiff for further treatment following the detentions on January 17, 2015 and January 30, 2015, there was probable cause to detain Plaintiff on those dates. However, because Plaintiff alleges the certifying physicians – Drs. Gessesse and Kurjian – did not independently evaluate Plaintiff’s mental health or otherwise comply with certification requirements (see FAC ¶¶ 13, 16), the certifications provide no basis for judgment in Defendants’ favor at this stage of the proceedings. 5 13 1 satisfy this showing even with allegations less compelling than 2 those of the instant complaint.8 3 6014459, *8 (N.D. Cal. 2011) (denying motion to dismiss for lack 4 of probable cause); cf. Bias, 508 F.3d at 1220 (finding probable 5 cause to detain Bias under § 5150 where: Bias had written a letter 6 threatening 7 officer’s question of whether she was going to hurt herself by 8 saying 9 detaining officer she feared a terrorist was going to kill her; 10 and the detaining officer observed that Bias appeared depressed 11 and did not have family at home to watch her); LeFay v. LeFay, 673 12 F. App’x 722, 724 (9th Cir. 2016) (detaining officer “had probable 13 cause to place [the plaintiff] on a section 5150 mental health 14 hold” when the officer was informed the plaintiff “was delusional, 15 had not eaten in days, . . . was in a ‘gradual mental decline[,]’” 16 and was accusing her husband of stealing her purse and poisoning 17 her food, the officer confirmed with the plaintiff that she had 18 not eaten in three days, did not remember when she last consumed 19 liquid, and was concerned her husband was stealing her purse, and 20 the officer observed the plaintiff had trouble walking, appeared 21 malnourished and dehydrated, and was wearing dirty clothing, as if “she to kill would herself; do Bias ‘whatever’ See Haines v. Brand, 2011 WL responded she to wanted”; the Bias detaining told the 22 8 23 24 25 26 27 28 Moreover, such cases are typically decided at summary judgment or trial, not on a motion to dismiss. Indeed, Defendants have not cited a single case in which a court has granted a motion to dismiss when faced with allegations similar to Plaintiff’s claims. Rather, the cases Defendants cite addressing probable cause for detention under Cal. Welf. & Inst. Code § 5150 – such as Bias, Brown v. Cnty. of San Bernardino, __ F. Supp. 3d __, 2017 WL 1398639 (C.D. Cal. 2017), LeFay v. LeFay, 2015 WL 106262 (E.D. Cal. 2015), affirmed by, 673 F. App’x 722 (9th Cir. 2016), and MacLellan v. Cnty. of Alameda, 2014 WL 793444 (N.D. Cal. 2014) – were all decided on summary judgment after development of the record. 14 1 she had not changed in several days); Triplett, 144 Cal. App. 3d 2 at 288 (probable cause for detention under § 5150 when person 3 detained was intoxicated, weeping, and there were “obvious physical 4 signs of a recent suicide attempt”). 5 6 Accordingly, the pending Motion must be denied because the 7 allegations in Plaintiff’s FAC are more than sufficient to state a 8 Fourth Amendment claim against Officers Moreau, Moulton and Nadal. 9 See Haines, 2011 WL 6014459 at *8 (“Plaintiff has sufficiently pled 10 a cause of action under the Fourth Amendment that Defendant Brand 11 lacked probable cause to detain him” when “there are no allegations 12 in 13 establishing that Plaintiff evinced signs of disordered thinking, 14 verbal or physical outbursts, or signs of previous or current 15 attempts to harm himself.”). 16 dismiss 17 arguments on a motion for summary judgment. 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ Plaintiff’s is complaint without (construed in Plaintiff’s favor) However, the denial of the motion to prejudice to 27 28 15 Defendants’ renewal of these 1 V. 2 ORDER 3 4 For the foregoing reasons, the Motion to Dismiss (Dkt. No. 5 54) is DENIED, and Defendants Moreau, Moulton, and Nadal shall 6 answer the Fourth Amended Complaint no later than fourteen (14) 7 days from the date of this Order. Fed. R. Civ. P. 12(a)(4)(A). 8 9 DATED: October 26, 2017 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 10 11 12 13 THIS ORDER IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS OR ANY OTHER LEGAL DATABASE. 14 15 16 . 17 18 19 20 21 22 23 24 25 26 27 28 16
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