Harvey v. City of Fresno, et al., No. 1:2008cv01399 - Document 41 (E.D. Cal. 2009)
Court Description: ORDER GRANTING 33 Motion to Dismiss and 34 Motion to Dismiss; An Amended Complaint shall be filed within twenty (20) days, signed by Judge Oliver W. Wanger on 09/25/2009. (Martin, S)
Download PDF
<![CDATA[
Harvey v. City of Fresno, et al. Doc. 41 1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 5 DEMETRIUS L. HARVEY, 6 1:08-CV-01399-OWW-DLB Plaintiff, MEMORANDUM DECISION AND ORDER RE: CITY OF FRESNO AND COUNTY OF FRESNO’S MOTIONS TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT (Docs. 33, 34.) 7 v. 8 9 CITY OF FRESNO, et al., 10 Defendants. 11 12 I. 13 14 15 16 17 18 19 20 21 22 23 24 INTRODUCTION Before the court are two motions to dismiss or, in the alternative, for a more definite statement. One motion is brought by Defendants City of Fresno, the Fresno Police Department, Chief Jerry Dyer, Officers Robert Gonzales, Jesus Cerda, Brent Willey, and Detectives defendants”). Brian Valles and Brendan Rhames (the “City The other motion is brought by Defendant County of Fresno (the “County defendant”).1 Defendants seek dismissal of Plaintiff’s 42 U.S.C. § 1983 and related claims on grounds that the claims fail to allege necessary elements. amended Plaintiff, appearing pro se, contends that his first complaint satisfies requirements to plead necessary elements of his claims. 25 26 27 28 1 Fresno County limits its challenge to the sufficiency of the complaint under Federal Rule 12(b)(6). (See Doc. 33, “Fresno County’s Motion to Dismiss.”) 1 Dockets.Justia.com 1 II. 2 3 4 FACTUAL BACKGROUND. The following facts are derived from Plaintiff’s first amended complaint, (“FAC”), filed on June 3, 2009. (Doc. 31.) 5 Plaintiff, a 23 year-old African-American male, alleges that 6 on January 7, 2007, he went over to a friend’s apartment to help 7 him move. 8 Officer Yeager received a dispatch of an alleged attack and robbery 9 of Matt Billet, a Comcast Cable employee who was attacked while (FAC ¶ 4, 22.) Around 8:00 p.m., Defendant Willey and 10 working on a friend’s cable box. 11 and told the dispatcher that “D-Boy” was wearing an orange t-shirt 12 after asking someone in the background what “D-Boy” was wearing. 13 (FAC ¶ 23.) 14 had a “slight” amount of redness on his right cheek that went away. 15 According to the report, Defendant Willey did not photograph Billet 16 because hewas unable to see any injuries. 17 refused all emergency medical services. 18 Willey and Officer Yeager went to the crime scene and did not find 19 any physical evidence. 20 At (FAC ¶ 23.) Billet called 911 Defendant Willey interviewed Billet and noted that he approximately (FAC ¶ 24.) (FAC ¶ 24.) Billet Defendant (FAC ¶ 25.) 9:00 (FAC ¶ 26.) p.m., officers came to Rooter’s 21 apartment. Plaintiff went outside and gave his name 22 and was eventually placed under arrest by order of Defendant Cerda. 23 (FAC ¶ 27.) 24 placed in the patrol car. 25 the police station, he was interrogated by Defendants Gonzales and 26 Valles. 27 committing a robbery. 28 that he had a conflict with Plaintiff several weeks before the He was handcuffed and searched by Defendant Willey and (FAC ¶ 27.) When Plaintiff arrived at (FAC ¶ 27.) Plaintiff waived his rights and denied (FAC ¶ 28.) 2 Billet told Defendant Willey 1 robbery, but Plaintiff told both officers that he was not involved 2 “in any type of physical disturbance with a white male.” 3 29.) 4 request was denied. 5 would go to jail and then go to trial to prove his innocence. 6 ¶ 28.) (FAC ¶ Plaintiff also requested to take a polygraph test, but the (FAC ¶ 30.) He told the officers that he (FAC 7 On January 9, 2007, Defendant County of Fresno filed a Felony 8 Complaint against Plaintiff and four other individuals who were in 9 the apartment on January 7, 2007, including Rooter. 10 Plaintiff 11 controlled substance while armed with a firearm; and (3) possession 12 of marijuana for sale. 13 plea at his arraignment. 14 appeared at the preliminary hearing. (FAC ¶ 35.) Billet testified 15 and changed his story, explaining that he and a friend went to a 16 friend’s house to buy marijuana. 17 working for Comcast or working on his friend’s cable box. 18 35.) 19 heard the inconsistent testimony. 20 and Cerda also testified. 21 answer to the robbery charge, while the drug charges were dropped. 22 (FAC ¶ 38.) 23 was charged with (1) (FAC ¶ 32.) robbery; (2) (FAC ¶ 32.) possession of a Plaintiff entered a not guilty (FAC ¶ 34.) On March 13, 2007, Plaintiff (FAC ¶ 35.) He did not mention (FAC ¶ Prosecutor Esmeralda Garcia was present at the hearing and (FAC ¶ 36.) (FAC ¶ 37.) Defendants Willey Plaintiff was held to During the five day trial, Defendants Willey, Cerda, Rhames 24 and Gonzales testified. 25 own behalf, having rejected another plea offer the day prior to 26 trial. 27 guilty on all charges (second degree robbery, grand theft person 28 and petty theft). (FAC ¶ 42.) (FAC ¶ 41.) Plaintiff testified on his On July 6, 2007, a jury found Plaintiff not (FAC ¶ 43.) 3 1 Plaintiff was incarcerated from January 7, 2007, to July 6, 2 2007. 3 humiliation, suffered emotional distress, lost his job, and was 4 separated from his pregnant girlfriend who eventually miscarried 5 before her delivery date. 6 (FAC ¶ 20.) Plaintiff During this time, he alleges that he endured alleges (FAC ¶ 21.) he was wrongfully accused, wrongfully 7 arrested, and wrongfully held in custody against his will for six 8 months. 9 arrested, and imprisoned Plaintiff, and held him against his will All five Officers are alleged to have falsely detained, 10 without probable cause. Plaintiff also alleges that the Officers 11 were motivated by racial prejudice because the victim is Caucasian, 12 while the Plaintiff is African American. 13 Chief of Police, Jerry Dyer, and the City of Fresno are sued 14 because they allegedly did not effectively train, supervise, and 15 supervise 16 constitutional and statutory limits of the existence of their 17 authority. Plaintiff also accuses them of initiating and promoting 18 a meritless and malicious prosecution, which deprived Plaintiff of 19 his constitutional rights. City police officers with regard to the proper 20 The County of Fresno is sued because “Plaintiff hopes by 21 bringing this lawsuit ... the County of Fresno will review their 22 patterns and practices, and customs pertaining to false arrests and 23 imprisonments, wrongful detentions and malicious prosecutions in a 24 way 25 constitutional 26 Plaintiff 27 specifically Deputy District Attorney Esmeralda Garcia, knew or 28 should have know that the alleged victim, Billet, was not telling that this also tragedy and civil alleges will not rights that the 4 be of repeated individuals.” District by violating (FAC Attorney’s 13.) office, 1 the truth. (FAC 36.) 2 III. 3 PROCEDURAL BACKGROUND. 4 The original complaint was filed on September 19, 2008. (Doc. 5 1, Original Complaint.) Fresno County moved to dismiss Plaintiff’s 6 Original Complaint on March 17, 2009. 7 moved to dismiss the complaint on April 3, 2009. (Doc. 17.) City Defendants (Doc. 19.) 8 The hearing on Defendants’ motions to dismiss, originally set 9 for May 18, 2009, was continued to June 15, 2009 due to the press 10 11 12 13 of court business. (Doc. 30.) On June 6, 2009, Plaintiff filed his First Amended Complaint. The First Amended Complaint alleges nine claims for relief: 1. First Claim for Relief (All Defendants) - Denial of 14 Constitutional Right Against Unreasonable Search and Seizure in 15 violation of the Fourth and Fourteenth Amendments pursuant to 28 16 U.S.C. § 1983; 17 2. Second Claim for Relief (All Defendants) - False Arrest and 18 Imprisonment; 19 3. 20 Prosecution; 21 22 23 24 25 26 27 28 Third Claim for Relief (all Defendants) - Malicious 4. Fourth Claim for Relief (all Defendants) - Intentional Infliction of Emotional Distress; 5. Fifth Claim for Relief (Officer Defendants) - Violation of California Civil Code § 52.1; 6. Sixth Claim for Relief (All Defendants) - Vicarious Liability; 7. Seventh Claim for Relief (City Defendants) - Negligent Hiring, Retention, Training, Supervision, and Discipline. 5 1 2 3 8. Eighth Claim for Relief (Officer Defendants) - Violation of California Civil Code § 52.7; and 9. Ninth Claim for Relief (Officer Defendants) - Negligence. 4 5 The FAC prays for injunctive relief enjoining City Defendants 6 from authorizing, allowing, or ratifying the use of excessive force 7 by its police officers; for a “public apology” from all Defendants; 8 and for attorney’s fees as provided by law. 9 County and City Defendants separately moved (Docs. 33, 34.) to dismiss 10 Plaintiff’s FAC on June 17, 2009. City Defendants 11 contend that the above causes of action fail to allege necessary 12 elements or facts for Defendants’ liability and that Chief Dyer, 13 Officers Cerda, Willey, and Brendan Rhames, and Detectives Gonzales 14 and Valles are redundantly named in their official capacities. 15 Alternatively, defendants seek a more definite statement in that 16 the allegations are vague and ambiguous. 17 Fresno County argues that the claims arising out of the 18 conduct of the DA’s office should be dismissed as a matter of law 19 as a County is not a proper defendant in a prosecutorial misconduct 20 case. 21 case because she was found to be “absolutely immune” pursuant to an 22 Order filed on December 5, 2008. 23 The County also moves to remove DA Elizabeth Egan from the Plaintiff opposed the motions on August 27 and August 31, 24 2009. (Docs. 36, 38.) Plaintiff claims that his FAC is sufficient 25 to put “these officers on notice” and that the motions should be 26 denied because “discovery process has not been done.” 27 4:1-4:4.) 28 6 (Doc. 36, III. 1 2 LEGAL STANDARD A. 12(b)(6) 3 Under Federal Rule of Civil Procedure 12(b)(6), a motion to 4 dismiss can be made and granted when the complaint fails “to state 5 a claim upon which relief can be granted.” 6 12(b)(6) is appropriate where the complaint lacks a cognizable 7 legal theory or sufficient facts to support a cognizable legal 8 theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th 9 Cir.1990). Dismissal under Rule 10 To sufficiently state a claim to relief and survive a 12(b)(6) 11 motion, a complaint “does not need detailed factual allegations” 12 but the “[f]actual allegations must be enough to raise a right to 13 relief above the speculative level.” 14 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Mere 15 “labels and conclusions” or a “formulaic recitation of the elements 16 of a cause of action will not do.” 17 “enough facts to state a claim to relief that is plausible on its 18 face.” Id. at 570. In other words, “[t]o survive a motion to 19 dismiss, 20 accepted as true, to state a claim to relief that is plausible on 21 its face.” 22 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). “The 23 plausibility standard is not akin to a probability requirement, but 24 it asks for more than a sheer possibility that a defendant has 25 acted unlawfully. Where a complaint pleads facts that are merely 26 consistent with a defendant's liability, it stops short of the line 27 between possibility and plausibility of entitlement to relief.” 28 Id. (internal citation and quotation marks omitted). a complaint must contain Bell Atl. Corp. v. Twombly, Id. Rather, there must be sufficient factual matter, Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 7 1 In deciding whether to grant a motion to dismiss, the court 2 must accept as true all “well-pleaded factual allegations.” Iqbal, 3 129 S.Ct. at 1950. 4 true allegations that are merely conclusory, unwarranted deductions 5 of fact, or unreasonable inferences.” 6 Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see, e.g., Doe I v. 7 Wal-Mart Stores, Inc., --- F.3d ----, 2009 WL 1978730, at *3 (9th 8 Cir. July 10, 2009) (“Plaintiffs' general statement that Wal-Mart 9 exercised control over their day-to-day employment is a conclusion, 10 not a factual allegation stated with any specificity. We need not 11 accept Plaintiffs' unwarranted conclusion in reviewing a motion to 12 dismiss.”). 13 A court is not, however, “required to accept as Sprewell v. Golden State The Ninth Circuit has summarized the governing standard, in 14 light of Twombly and Iqbal, as follows: “In sum, for a complaint 15 to survive a motion to dismiss, the non-conclusory factual content, 16 and reasonable inferences from that content, must be plausibly 17 suggestive of a claim entitling the plaintiff to relief.” 18 U.S. Secret Service, 572 F.3d 962, 2009 WL 2052985, at *6 (9th Cir. 19 July 16, 2009) (internal quotation marks omitted). Moss v. 20 IV. 21 22 DISCUSSION A. City Defendants 23 1. 42 U.S.C. § 1983 24 Defendants City of Fresno, the Fresno Police Department, Chief 25 Jerry Dyer, Officers Robert Gonzales, Jesus Cerda, Brent Willey, 26 and Detectives Brian Valles and Brendan Rhames seek F.R.Civ.P. 27 12(b)(6) dismissal of plaintiffs' 42 U.S.C. § 1983 (“Section 1983”) 28 on grounds that the claims fail to allege necessary elements. 8 1 2 a. Official Capacity Suit 3 In a § 1983 case, an “official-capacity suit is, in all 4 respects other than name, to be treated as a suit against the 5 entity.” 6 no longer a need to bring official-capacity actions against local 7 government officials, for under Monell, ..., local government units 8 can be sued directly for damages and injunctive or declaratory 9 relief.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). “There is Graham, 473 U.S. at 167 n.14. Given that an official 10 capacity claim is treated as a claim against the local governmental 11 entity, when a plaintiff sues an officer of a local governmental 12 entity in his official capacity and also sues the local entity 13 itself, the official capacity claim is redundant of the claim 14 against 15 dismissed. 16 Sheriff Dep't, 533 F.3d 780, 799 (9th Cir. 2008); 17 Wittman, 550 F. Supp. 2d 1190, 1206 (E.D.Cal. 2008); 18 Abbott, 954 F. Supp. 202, 204 (C.D. Cal. 1997). the entity and the official capacity claim can be See Center For Bio-Ethical Reform, Inc. v. L.A. County Megargee v. Luke v. 19 Plaintiff has sued Chief Dyer, Officers Robert Gonzales, 20 Jesus Cerda, and Brent Willey, and Detectives Brian Valles and 21 Brendan Rhames in their official capacity and the City itself. The 22 official capacity claims against Dyer and Officers Gonzales, Cerda, 23 Willey, Valles, and Rhames are redundant of the claims against the 24 City; therefore, the motion is GRANTED on the claims against Dyer, 25 Gonzales, Cerda, Willey, Valles, and Rhames in their official 26 capacities. 27 Plaintiff's § 1983 claims against Chief Dyer, Officers Robert 28 Gonzales, Jesus Cerda, and Brent Willey, and Detectives Brian 9 1 Valles and Brendan Rhames in their official capacities is DISMISSED 2 from the suit WITH PREJUDICE, it is redundant and spurious. 3 4 b. Municipal Departments Not Proper Defendants 5 Plaintiff brings suit not only against the City of Fresno but 6 also its municipal department, the City of Fresno Police 7 Department. 8 Department, are not appropriate Defendants. 9 "person" acting under color of law may be sued for violations of Municipal departments, here the City of Fresno Police Under Section 1983, a 10 the U.S. Constitution or federal laws. The term "persons" under § 11 1983 encompasses state and local officials sued in their individual 12 capacities, private individuals and entities which acted under 13 color of state law, and local governmental entities. 14 County of Santa Clara, 928 F. Supp. 993, 995-96 (N.D. Cal. 1996). 15 But "persons" do not include municipal departments. 16 a municipal department as a defendant is not an appropriate means 17 of pleading a § 1983 action against a municipality." Stump v. 18 Gates, 777 F. Supp. 808, 816 (D. Colo. 1991). 19 is the proper defendant in a § 1983 suit, not the City of Fresno 20 Police Department, which is DISMISSED WITHOUT LEAVE TO AMEND. Vance v. Id. "Naming The City of Fresno 21 22 23 c. Monell Liability Plaintiff brings a § 1983 constitutional violation claim 24 against the City of Fresno under the Fourth and Fourteenth 25 Amendments. 26 "constitutional 27 Brosseau, 339 F.3d 857, 874 (9th Cir. 2003) (citing Monell v. Dep't 28 of Soc. Servs., 436 U.S. 658, 691 n.55 (1978)) Local governments are "persons" subject to suit for tort[s]" under 42 10 U.S.C. § 1983. Haugen v. "[O]ur holding ... 1 that local governments can be sued under § 1983 necessarily decides 2 that local government officials sued in their official capacities 3 are ‘persons’ under § 1983 in those cases in which, as here, a 4 local government would be suable in its own name". 5 U.S. at 691 n.55. 6 directly under § 1983 for monetary, declaratory, or injunctive 7 relief 8 unconstitutional, 9 ordinance, where, Monell, 436 "Local governing bodies, therefore, can be sued as here, the implements regulation, or action or that executes decision is a alleged policy officially to be statement, adopted and 10 promulgated by that body's officers ... [or for] deprivations 11 visited pursuant to governmental 'custom' even though such a custom 12 has not received formal approval through the body's official 13 decision making channels." 14 Although a local Id. at 690-91. government can be held liable for its 15 official policies or customs, it will not be held liable for an 16 employee's actions outside of the scope of these policies or 17 customs. "[T]he language of § 1983, read against the background of 18 the same legislative history, compels the conclusion that Congress 19 did not intend municipalities to be held liable unless action 20 pursuant to official municipal policy of some nature caused a 21 constitutional tort. 22 held liable solely because it employs a tortfeasor. A municipality 23 cannot be held liable under § 1983 on a respondeat superior 24 theory." 25 liability on a government that, under color of some official 26 policy, ‘causes’ an employee to violate another's constitutional 27 rights." 28 In particular, ... a municipality cannot be Id. at 691. The statute's "language plainly imposes Id. at 692. To prevail on a § 1983 claim against a local government under 11 1 Monell, 2 official(s) 3 rights; (2) The violation must be a part of policy or custom and 4 may not be an isolated incident; and (3) A nexus must link the 5 specific policy or custom to the plaintiff's injury. See Monell, 6 436 U.S. at 690-92. There are three ways to show a policy or custom 7 of a municipality: 8 a plaintiff must must have satisfy violated a the three-part plaintiff's test: (1) The constitutional (1) By showing a longstanding practice or custom which constitutes the standard operating procedure of the local government entity; 9 10 (2) By showing that the decision-making official was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision or 11 12 (3) By showing that an official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate. 13 14 15 Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005). 16 A municipal policy may be inferred from widespread practices 17 or evidence of repeated constitutional violations for which the 18 errant municipal officers were not discharged or reprimanded. Id. 19 Municipalities can be held liable "if its deliberate policy caused 20 the constitutional violation alleged." 21 484. Blackenhorn, 485 F.3d at 22 Prior to Iqbal, “a claim of municipal liability under section 23 1983 [was] sufficient to withstand a motion to dismiss even if the 24 claim [was] based on nothing more than a bare allegation that the 25 individual officers' conduct conformed to official policy, custom, 26 or practice.” 27 2007). However, Iqbal has made clear that conclusory, “threadbare” 28 allegations that merely recite the elements of a cause of action Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir. 12 1 will not withstand a motion to dismiss. See Iqbal, 129 S.Ct. at 2 1949-50. 3 insufficient. 4 policy of the City or any other indicia of Monell liability, other 5 than a conclusory incantation that the City “knew” of an illegal 6 policy. Even under a Whitaker standard, Plaintiff’s FAC is Plaintiff’s FAC fails to even cite a custom or 7 Plaintiff has not sufficiently alleged that, in depriving him 8 of his constitutional rights, a City employee was acting pursuant 9 to an official policy, custom or practice of the City of Fresno. 10 There is 11 explanation as to what comprises the “illegal policy, pattern, 12 practice, custom” referred to in the FAC: 13 a brief reference to an “illegal policy,” but no Despite Defendant CITY'S knowledge of this illegal policy, pattern, practice and custom, in that their supervisory and policy-making officers need to take effective steps to terminate such policies, patterns, practices, and customs; to effectively disciplined or otherwise properly supervised the individual officers who engage in the policy, pattern, practice and custom. 14 15 16 17 18 (FAC, ¶ 45.) 19 20 As best understood, paragraph 45 of the FAC refers to the 21 City’s “knowledge” 22 custom” 23 criminal charges against him. Plaintiff’s factual description ends 24 there. 25 Plaintiff must identify what “policy” or “custom” he is challenging 26 and how that policy or custom deprived him of his constitutional concerning of the an illegal District “policy, Attorney’s pattern, decision practice, to file If Plaintiff seeks to allege a claim against the City, 27 28 13 1 rights.2 2 (9th Cir. 2007) (“Generally, a municipality is liable under Monell 3 only if a municipal policy or custom was the ‘moving force’ behind 4 the constitutional violation.”). 5 “policy, pattern, practice, custom” Plaintiff refers to and how the 6 City’s purported “knowledge” of these policies deprived him of his 7 constitutional rights. See Galen v. County of Los Angeles, 477 F.3d 652, 667 At this time, it is unclear what 8 The FAC also alleges that Plaintiff was held “against his will 9 without probable cause and without lawful process, and continued to 10 incarcerate Plaintiff without probable cause and without lawful 11 process.” 12 support his Monell claim, he concedes that during his March 13, 13 2007 preliminary hearing, a Fresno Superior Court Judge found 14 probable cause to exist as to hold him for trial on burglary 15 charges against him. 16 to run contrary to Plaintiff’s assertions that he was held “without 17 probable cause.” 18 finding by a neutral magistrate supports Plaintiff’s Monell claims 19 against the City and, in fact, the finding appears to bar his claim 20 under the fourth amendment.3 To the extent Plaintiff relies on these allegations to A specific finding of probable cause appears It is unclear how a specific probable cause 21 22 23 24 25 2 There must be “a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989). Furthermore, it is not enough to “merely [to] alleg[e] that the existing ... program ... represents a policy for which the city is responsible.” Id. at 389. 3 26 27 28 It appears from the record that there was a probable cause hearing that determined Plaintiff’s arrest was supported by probable clause. Plaintiff's Fourth Amendment claim would then be barred by collateral estoppel. Allen v. McCurry, 449 U.S. 90, 95-96 (1980); see also Barry v. Fowler, 902 F.2d 770, 772-73 (9th 14 1 The allegations in the FAC do not identify the challenged 2 policy/custom, explain how the policy/custom is deficient, explain 3 how the policy/custom caused the plaintiff harm. 4 motion to dismiss is GRANTED. 5 complaint 6 opportunity. once. Leave to City Defendants' Plaintiff has already amended his amend is GRANTED for one final No further leave will be given. 7 8 d. 9 Chief Dyer, Officers Gonzales, Cerda, and Willey, and Detectives Valles and Rhames 10 Plaintiff sues Defendants Chief Dyer, Officers Gonzales, 11 Cerda, and Willey, and Detectives Valles and Rhames in their 12 individual capacities for liability under § 1983. To establish 13 liability under § 1983, Plaintiff must allege that the individual 14 defendants deprived plaintiff of a right secured by the United 15 States Constitution or a federal law. 16 "Section 1983 provides for liability against any person acting 17 under color of law who deprives another 'of any rights, privileges, 18 or immunities secured by the Constitution and laws' of the United 19 States." S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 20 (9th Cir. 2003) (quoting 42 U.S.C. § 1983). "The rights guaranteed 21 by section 1983 are 'liberally and beneficently construed.'" Id. 22 23 24 25 26 27 28 Cir. 1990) (warrantless misdemeanor arrest supported by probable cause satisfies requirements of Fourth Amendment). Similarly, Plaintiff's third cause of action for malicious prosecution arising out of the January 7 arrest would be barred because plaintiff cannot rejudicate an essential element of that tort, i.e., lack of probable cause. See Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3d 863, 871 (1989) (probable cause element of tort of malicious prosecution) 15 1 (quoting Dennis v. Higgins, 498 U.S. 439, 443 (1991)). Pursuant to 2 § 1983, plaintiffs may bring a civil action for deprivation of 3 rights under the following circumstances: 4 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. 5 6 7 8 9 10 11 12 13 14 To establish liability under § 1983, a plaintiff must show (1) 15 that he was deprived of a right secured by the United States 16 Constitution or a federal law and (2) that the deprivation was 17 effected "under color of state law." 18 1023, 1028 (9th Cir. 2003). Broam v. Bogan, 320 F.3d 19 The City defendants argue that Plaintiff fails to allege 20 sufficient facts to support a claim that City defendants personally 21 participated in the alleged deprivation of a federal constitutional 22 right. 23 sufficient to state a claim and that “discovery process has not 24 been done to know each individual participation in this case ... 25 [o]nce discovery begins, plaintiff can amend his complaint.” (Doc. 26 36, 4:15-4:19.) 27 28 In opposition, Plaintiff cites that his allegations are Plaintiff has alleged one claim under § 1983. The claim incorporates all of the previous “factual” allegations, and alleges 16 1 that “[t]he defendants deprived the Plaintiff of his right to be 2 free from unreasonable searches and seizures, as set forth and 3 assured by the Fourth and Fourteenth Amendments of the United 4 States Constitution.” 5 injuries 6 degradation, e. Loss of income.” 7 word, certain paragraphs. 8 FAC does not identify which defendants are named in the § 1983 9 claim or what constitutional deprivations (i.e., “facts”) support 10 such as Plaintiff then simply recites a list of his “c. Severe emotional distress, d. Public Plaintiff also repeats, word for (See Doc 1., ¶50(c) and ¶50(d).) The his claims. 11 Where plaintiff has identified a federal constitutional right, 12 such as the Fourth and Fourteenth Amendments, plaintiff must allege 13 who violated those rights, and how. 14 claim, the complaint alleges “defendants deprived of his right to 15 be free from unreasonable searches and seizures” and “defendants 16 deprived Plaintiff of his right to be free from prosecution.” 17 Plaintiff must, without providing elaborate detail, allege who 18 denied him of these rights, and how. For example, under the § 1983 19 Iqbal has made clear that conclusory, "threadbare" allegations 20 that merely recite the elements of a cause of action will not 21 withstand a motion to dismiss. 22 If Plaintiff seeks to pursue this action, he must amend the § 1983 23 claim to identify the Defendants who violated his constitutional 24 rights and how those rights were allegedly violated. 25 leave will be given after this opportunity to amend. See Iqbal, 129 S.Ct. at 1949-50. No further 26 Finally, to the extent Plaintiff seeks to hold Chief Dyer 27 liable for acts of his officers/detectives, Plaintiff is cautioned 28 that “[a] supervisor is only liable for constitutional violations 17 1 of his subordinates if the supervisor participated in or directed 2 the violations, or knew of the violations and failed to act to 3 prevent them. 4 section 1983.” 5 1989). 6 applicable law and facts may result in sanctions. 7 8 There is no respondeat superior liability under Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. Plaintiff is cautioned that a failure to research City Defendants motion to dismiss is GRANTED WITH LEAVE TO AMEND.4 9 10 2. State Law Claims 11 a. California Tort Claims Act 12 City Defendants argue that Plaintiff’s state law claims are 13 barred by his failure to comply with the presentment requirements 14 of the California Tort Claims Act. 15 that Plaintiff failed to file this lawsuit within six months after 16 the notice of the rejection of the claims, as required by Section 17 946.6 of the California Government Code. 18 Claims Act provides, in pertinent part, that “no suit for money or 19 damages may be brought against a public entity on a cause of action 20 [against 21 therefor has been presented to the public entity and has been acted 22 upon by the board, or has been deemed to have been rejected by the 23 board ....“ 24 public entity must provide written notice, and if such notice is a public entity or In particular, the City argues employee] Cal. Gov't Code § 945.4. The California Tort until a written claim If a claim is rejected, the 25 26 27 28 4 In light of the numerous Defendants in this case and the nature of the arrest/detention alleged, it is possible that the first cause of action was so vague that fair notice of the claims against the defendants is not provided. 18 1 provided in accordance with the statute, a plaintiff wishing to 2 file a lawsuit must do so “not later than six months after the date 3 such notice is personally delivered or deposited in the mail.” Id. 4 § 945.6(a)(1). 5 Here, it is uncontested that Plaintiff’s claims against the 6 City of Fresno and the County of Fresno were denied, and that the 7 notices of rejection were mailed to 360 South Helm Avenue, Fresno, 8 California (the address provided in Plaintiff’s government claims) 9 on March 19, 2008 by the City of Fresno (Doc. 23, Ex. 3), and on 10 March 25, 2008 by the Fresno County Board of Supervisors, (Doc. 23, 11 Ex. 4). 12 on September 19, 2008. It is also uncontested that Plaintiff filed this lawsuit 13 City Defendants argue that “pursuant to Government Code 946.6, 14 before filing this civil action, plaintiff was required to first 15 petition the appropriate court for an order relieving him from the 16 provisions of the Government Code ... Defendants believe that no 17 such petition has ever been filed.” 18 contend that the U.S. District Court of California is not the 19 “appropriate court” for purposes of § 946.6. City Defendants essentially 20 After a review of the relevant case law, the district courts 21 in California are split on the issue of whether federal district 22 courts have “jurisdiction” under § 946.6. See Rahimi v. Nat’l R.R. 23 Passenger Corp. (Amtrak), No. C 08-4712-MEJ, 2009 WL 1883756 (N.D. 24 Cal. June 30, 2009) (summarizing the district court cases on point 25 and holding that “the reasoning set forth in Perez to be the better 26 approach ... [i]t would not further the remedial purpose of the 27 statute to deny the petition, require Plaintiffs to re-file their 28 petitions in Superior Court, file their tort causes of action in 19 1 state court upon the granting of the petitions, and then to have 2 the claims removed to the Court again and joined with the current 3 case.”); Cf. Hernandez v. McClanahan, 996 F.Supp. 975, 979 (N.D. 4 Cal. 1998) (stating that “federal courts do not have jurisdiction 5 over section 946.6 petitions”). 6 align with City Defendant’s position regarding jurisdiction under 7 § 946.6., there is no clear pronouncement from the Ninth Circuit on 8 the issue.5 9 Here, for purposes of While the number of decisions the City’s motion to dismiss, 10 Plaintiff’s allegations are sufficient to deny the motion. The 11 denial is without prejudice regarding City’s ability to raise a 12 similar motion on a motion for summary judgment. 13 14 b. 15 16 17 False Arrest/Imprisonment (Count II), Malicious Prosecution (Count III), IIED (Count IV), California Civil Code section 52.1 (Count V), Vicarious Liability (Count VI), and Negligence (Counts VII, IX). 18 19 Plaintiff alleges causes of action against City Defendants for 20 false arrest and imprisonment (Count II), malicious prosecution 21 (Count III), intentional infliction of emotional distress (Count 22 IV), and violation of California Civil Code section 52.1 (Count V). 23 He also alleges a cause of action for “Vicarious Liability” against 24 5 25 26 27 28 There is also the parties’ conflicting positions regarding whether or not Plaintiff’s claims are considered “personal injury” claims under the California Tort Claims Act. Plaintiff argues that his claims are “civil wrong” claims and are not governed by the six-month deadline. City Defendants contend his action is essential a “personal injury” action, which is required to be filed within six months. 20 1 Defendants 2 California Government Code section 815.2 (Count VI). 3 alleges two “negligent” causes of action against Defendants City of 4 Fresno and County of Fresno pursuant to California Government Code 5 section 815.2 6 City of Fresno and County of Fresno pursuant to He also As described in Part(IV)(A)(1)(d), supra, the complaint must 7 be dismissed for failure to state a claim. Here, the complaint 8 must be dismissed because it fails to put the individual defendants 9 on notice of the claims asserted against them.6 Under Federal Rule 10 of Civil Procedure 8, a complaint must contain “a short and plain 11 statement of the claim showing that the pleader is entitled to 12 relief.” 13 allege a wrong has been committed and demand relief. 14 Rule 8 does not demand detailed factual allegations, "it demands 15 more 16 accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949. "Threadbare 17 recitals of the elements of a cause of action, supported by mere 18 conclusory statements, do not suffice." Fed. R. Civ. P. 8(a)(2). than an unadorned, A pleading may not simply Id. While the-defendant-unlawfully-harmed-me Id. 19 Put another way, a complaint must contain sufficient factual 20 matter, accepted as true, to “state a claim to relief that is 21 plausible on its face.” 22 Atlantic Corp. v. Twombly, 550 U.S. 544, 570.). 23 plausible "when the plaintiff pleads factual content that allows 24 the court to draw the reasonable inference that the defendant is Iqbal, 129 S.Ct. 1937, 1949 (quoting Bell A claim is 25 6 26 27 28 For instance, Plaintiff supports his “false imprisonment” cause of action by stating “Plaintiff had not committed any crimes, and there was no reason upon defendant police officers could have reasonably believed the plaintiff had committed any crimes.” (Compl. ¶ 59.) 21 1 liable for the misconduct alleged." 2 complaint 3 context-specific task that requires the reviewing court to draw on 4 its 5 Plaintiff’s state law causes of action, in total, fail to meet the 6 rigors of Iqbal. states judicial a plausible experience and Id. claim common "Determining whether a for relief sense." [is] Id. at ... a 1950. 7 In his opposition brief Plaintiff submits that his FAC is 8 “sufficient to sue Defendant named officers ... Plaintiff has put 9 these officers on notice that they are being sued.” Plaintiff also 10 states that he “needs discovery, which includes police documents 11 and 12 accordingly, pending discovery.” 13 Court rejected a similar argument, finding that “a motion to 14 dismiss a complaint for insufficient pleadings does not turn on the 15 controls placed upon the discovery process.” trial records ... Plaintiff will amend his complaint However, in Iqbal, the Supreme Id. at 1953. 16 Whatever state law claims Plaintiff intends to allege against 17 any defendant in connection with the events of January 7, 2007 18 through June 6, 2007, he must state facts that support the elements 19 of each cause of action, as to each defendant. 20 21 The City Defendants’ motion to dismiss is GRANTED WITH LEAVE TO AMEND. 22 23 24 B. Fresno County Fresno County moves to dismiss Plaintiff’s FAC for failure to 25 state a claim. Specifically, Fresno County argues that it is not 26 subject to Monell liability in that its District Attorney acts as 27 an arm of the State of California, not the County, to prosecute and 28 investigate crimes. The County also argues that Plaintiff “does 22 1 not allege any other official County policy or custom that caused 2 his alleged constitutional deprivation.” 3 law causes of action, the County asserts that is immune under 4 California Government Code sections 815.2(b) and 821.6. As to Plaintiff’s state 5 6 1. District Attorney Elizabeth Egan 7 The County first argues that Fresno County District Attorney 8 Elizabeth Egan should be dismissed from this action because she is 9 entitled to absolute immunity. Defendant Egan was previously 10 dismissed from this action on immunity grounds, however, Plaintiff 11 repeated his allegations against Ms. Egan in his FAC. 12 The December 5, 2008 order determined that Plaintiff was 13 entitled to absolute immunity because she was sued in her capacity 14 as District Attorney: 15 16 17 18 19 20 21 22 23 Defendant Egan is entitled to absolute immunity. Prosecutors are absolutely immune from civil suits for damages under section 1983 which challenge activities related to the initiation and presentation of criminal prosecutions. Imbler v. Pachtman, 424 U.S. 409 (1976). Determining whether a prosecutor’s actions are immunized requires a functional analysis. The classification of the challenged acts, not the motivation underlying them, determines whether absolute immunity applies. Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986). The prosecutor’s quasi-judicial functions, rather than administrative or investigative functions, are absolutely immune. Thus, even charges of malicious prosecution, falsification of evidence, coercion of perjured testimony and concealment of exculpatory evidence will be dismissed on grounds of prosecutorial immunity. See Stevens v. Rifkin, 608 F. Supp. 710, 728 (N.D.Cal.1984). 24 25 (Doc. 7, 4:8-4:21.) 26 27 28 Here, Defendant Egan is entitled to absolute immunity. Plaintiff does not make any specific allegations, in either the 23 1 original or FAC, that Defendant Egan was involved in any capacity 2 other 3 Plaintiff 4 dismissing 5 controlling. 6 section 1983 cause of action. 7 charge against her is DISMISSED WITHOUT LEAVE TO AMEND. than her does chief not prosecutor’s even Defendant address Egan. The role. the In his December December 5, opposition, 5, 2007 2007 order Order is Defendant Egan is not a proper defendant for the She is absolutely immune. The 8 9 2. Constitutional Allegations Against Fresno County 10 There are allegations in the FAC from which it may be inferred 11 that Plaintiff is seeking to hold the County of Fresno liable for 12 alleged 13 Attorneys. constitutional violations by Fresno County District 14 To hold a local government liable for an official's conduct, 15 a plaintiff must first establish that the official 1) had final 16 policymaking authority "concerning the action alleged to have 17 caused the particular constitutional or statutory violation at 18 issue" and 2) was the policymaker for the local governing body for 19 the purposes of the particular act. 20 Alabama, 21 official's "actual function ... in a particular area" for section 22 1983 purposes and this function must be evaluated to determine 23 whether he or she acts for the state or county. Id. at 786. 24 Pitts v. County of Kern, 17 Cal.4th 340 (1998), the California 25 Supreme Court concluded that a district attorney acts on behalf of 26 the state rather than the county in preparing to prosecute crimes 27 and in training and developing policies for prosecutorial staff. 28 520 U.S. 781, 785 McMillian v. Monroe County, (1997). State law defines the In The Ninth Circuit has also concluded that "under California 24 1 law a county district attorney acts as a state official when 2 deciding whether to prosecute an individual. 3 County, 210 F.3d 1025, 1030 (9th Cir. 2000). 4 extent that the FAC attempts to impose Section 1983 liability on 5 the County of Fresno for decisions of the prosecutors, the FAC does 6 not state a claim against the County upon which relief can be 7 granted. 8 9 Weiner v. San Diego Therefore, to the Ninth Circuit authority also suggests that only acts falling outside a prosecutor's absolute immunity can give rise to 10 governmental entity liability under Monell. 11 Garcetti, 361 F.3d 1168, 1183 (9th Cir. 2004)(using absolute 12 immunity cases to guide analysis of whether a district attorney is 13 acting in a prosecutorial capacity and therefore on behalf of the 14 State); see also Botello v. Gammick, 413 F.3d at 979 (Dismissal of 15 Monell claim against County was error when District Attorney acted 16 as policymaker for the County when he performed administrative 17 functions outside the scope of absolute prosecutorial immunity.). 18 There are such allegations in the FAC. 19 WITH PREJUDICE AND WITHOUT LEAVE TO AMEND. 20 Additionally, for Plaintiff policies, See Ceballos v. These claims are DISMISSED alleges procedures, that Fresno customs, and County is 21 responsible practices 22 “implemented through its various agencies, agents, departments, and 23 employees,” and requests that the County review its policies. 24 (Doc. 23, ¶¶ 6, 13.) 25 policies, regulations or ordinances to support his allegations, and 26 has not established that Deputy DA Esmeralda Garcia, who is not a 27 party to this lawsuit, had final policy-making authority on the 28 issues that Plaintiff identifies. Plaintiff has not identified any written 25 1 Here, as discussed in Part IV(A)(1)(c), supra, Plaintiff does 2 not identify an official County policy or custom followed by either 3 the Fresno City Police Department, Fresno County District Attorneys 4 (who are not named in this action), or any other employee of the 5 County of Fresno. 6 absence of an underlying constitutional deprivation or injury. 7 See, e.g., Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 8 957 (9th Cir.2008) (“Because there is no constitutional violation, 9 there can be no municipal liability.”) Plaintiff’s Monell claim is also fatal in the At this time, it is unclear 10 how Plaintiff’s allegations against Fresno County relate to any 11 alleged 12 Department or any other municipal department employee. 13 unclear how Fresno County imposed on Plaintiff’s constitutional 14 rights. unlawful conduct, whether by the Fresno City Police It is also 15 These claims are DISMISSED WITHOUT PREJUDICE. Plaintiff is 16 given one additional opportunity to amend his complaint. 17 18 3. Remaining State Law Allegations Against Fresno County 19 The same conclusion applies to the extent that the FAC seeks 20 to impose state law tort liability for malicious prosecution 21 against 22 specifically name the individual prosecutors as defendants, he 23 mentions them - specifically, Deputy DA Esmeralda Garcia - in his 24 complaint. 25 pursuant to California Government Code § 821.6,7 the County and the Fresno County. Here, although Plaintiff does not Because Deputy DA Garcia is immune from liability 26 27 28 7 Section 821.6 states: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, 26 1 District Attorney are also immune. California Government Code § 2 Section 815.2(b) provides: 3 (b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability. 4 5 6 Because individual district attorneys are immune from 7 liability, immunity applies to the public entity as well. 8 Poppell v. City of San Diego, 149 F.3d 951, 970 (9th Cir. 1998) 9 (“The City of San Diego cannot be held liable for such acts [of 10 See negligence] where its employees are immune from liability.”). 11 The California Supreme Court has held that § 821.6 “grants 12 immunity to any ‘public employee’ for damages arising from 13 malicious prosecution.” See Asgari v. City of Los Angeles, 15 Cal. 14 4th 744, 756 (1997). 15 immunity is not limited to claims for malicious prosecution, 16 “although that is a principal use of the statute.” 17 200 Cal. App. 3d at 1436. Courts have repeatedly held that § 821.6 See Kemmerer, 18 With respect to Plaintiff’s remaining state law claims, County 19 Defendant has not cited any case holding such claims to be subject 20 to § 821.6. 21 law 22 Twombly, 550 U.S. at 570. 23 motion to dismiss is GRANTED WITH LEAVE TO AMEND.8 However, the FAC does not raise the prospect of state liability against the County to the “plausible” level. Absent such allegations, the County’s 24 25 even if he acts maliciously and without probable cause.” 26 27 28 8 Plaintiff's third cause of action for malicious prosecution against the County is DISMISSED WITHOUT LEAVE TO AMEND. 27 1 2 C. 3 Attorney’s Fees Defendants move to strike Plaintiff’s request for attorney’s 4 fees from his FAC. Defendants argue that “Plaintiff is 5 representing himself in this action and thus, he should not be 6 allowed to proceed with the impression he can potentially recover 7 attorney’s fees.” Plaintiff counters that “his request is based on 8 seeking counsel ... this request will be in place when an attorney 9 takes over the case.” 10 Plaintiff’s argument is not well-taken. Although Section 1988 11 provides for “reasonable attorney's fees” in any action to enforce 12 § 1983, pro se civil litigants are not entitled to attorney's 13 fees.9 14 Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 816 (9th Cir. 15 1985). 16 litigation related to his complaint, he may amend his complaint at 17 that 18 “potential for counsel” argument. 19 20 See Kay v. Ehrler, 499 U.S. 432, 435-38 (1991); see also Should time. the plaintiff Plaintiff cites retain no an case attorney law in for support further of his Defendants’ motion to strike is GRANTED as to Plaintiff’s request for attorney’s fees. 21 22 23 24 D. Motion For A More Definite Statement City Defendants move for a more definite statement under Fed. R. Civ. Proc. 12(e). The relevant question here is whether the 25 26 27 28 9 In the Ninth Circuit, pro se litigants are not entitled to attorney's fees without express statutory authorization. Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 815-16 (9th Cir.1985) Plaintiff has not identified such statutory support. 28 1 complaint gives City Defendants sufficient notice of the claims. 2 "A court will deny a motion for a more definite statement" where 3 the complaint is specific enough to apprise the defendant of the 4 substance of the claim being asserted." 5 392 F.Supp.2d 1159, 1169 (E.D.Cal. 2005). 6 definite statement is proper only where the complaint is "so vague 7 or ambiguous that the opposing party cannot respond, even with a 8 simple denial, in good faith or without prejudice to himself. Neveau v. City of Fresno, A motion for a more Id. 9 A Rule 12(e) motion for a more definite statement must be 10 considered in light of the liberal pleading standards set forth in 11 Fed.R.Civ.P. 8(a)(2). 12 1450, 1461 (C.D.Cal. 1996) (citing Sagan v. Apple Computer, Inc., 13 874 F.Supp. 1072, 1077 (C.D. Cal. 1994) ("Motions for a more 14 definite statement are viewed with disfavor and are rarely granted 15 because 16 Rules.")). A motion for a more definite statement is proper only 17 where the complaint is "so vague or ambiguous that the opposing 18 party cannot respond, even with a simple denial, in good faith or 19 without prejudice to himself." Cellars v. Pacific Coast Packaging, 20 Inc., 189 F.R.D. 575, 578 (N.D.Cal. 1999) (internal quotations and 21 citation omitted). 22 definite statement lies within the discretion of the district 23 court. 24 946 F.Supp. 790, 804 (C.D.Cal. 1996). 25 of the See, e.g., Bureerong v. Uvawas, 922 F.Supp. minimal pleading requirements of the Federal Whether to grant a Rule 12(e) motion for a more See, e.g., San Bernardino Public Employees Ass'n v. Stout, Here, any issues concerning sufficiently pled causes of action 26 have been addressed in the 12(b)(6) 27 Defendants motion for more definite statement is DENIED. 28 29 analysis above. City V. 1 CONCLUSION 2 For the foregoing reasons: 3 1. Plaintiff's § 1983 claims against Chief Dyer, Officers 4 Robert Gonzales, Jesus Cerda, and Brent Willey, and Detectives 5 Brian Valles and Brendan Rhames in their official capacities is 6 DISMISSED from the suit WITH PREJUDICE. 7 2. The City of Fresno is the proper defendant in a § 1983 8 suit, not the City of Fresno Police Department, which is DISMISSED 9 WITHOUT LEAVE TO AMEND. 10 11 12 3. Plaintiff’s Monell claim against the City of Fresno is DISMISSED WITH LEAVE TO AMEND. 4. Plaintiff’s § 1983 claim against Defendants Chief Dyer, 13 Officers Gonzales, Cerda, and Willey, and Detectives Valles and 14 Rhames in their individual capacities is DISMISSED WITH LEAVE TO 15 AMEND. 16 17 5. Plaintiff’s related state law causes of action against City Defendants are DISMISSED WITH LEAVE TO AMEND. 18 6. Defendant Fresno County District Attorney Elizabeth Egan 19 is not a proper defendant for Plaintiff’s § 1983 cause of action. 20 She is absolutely immune. 21 WITHOUT LEAVE TO AMEND. 22 The charge against her is DISMISSED 7. Plaintiff’s allegations against the County of Fresno for 23 alleged 24 Attorneys are DISMISSED WITH PREJUDICE AND WITHOUT LEAVE TO AMEND. 25 8. Plaintiff’s Monell claim against the County of Fresno is 26 27 28 constitutional violations by Fresno County District DISMISSED WITH LEAVE TO AMEND. 9. Plaintiff’s related state law causes of action against County Defendants are DISMISSED WITH LEAVE TO AMEND. 30 1 10. Plaintiff’s request for attorney’s fees is DISMISSED. 2 3 Any amended complaint shall be filed within twenty (20) days 4 following electronic service of this order. 5 IT IS SO ORDERED. 6 Dated: 9i274f September 25, 2009 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31
]]>
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.
