Morris et al v. City of Fresno et al, No. 1:2008cv01422 - Document 90 (E.D. Cal. 2010)
Court Description: MEMORANDUM DECISION Regarding Defendants' Motion to Dismiss Plaintiffs' Sixth Amended Complaint 83 signed by Judge Oliver W. Wanger on 9/21/2010. Amended complaint due within 14 days. (Esteves, C)
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Morris et al v. City of Fresno et al Doc. 90 1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 ROBERT MORRIS and MICHELLE MORRIS, 5 Plaintiffs, v. 6 7 FRESNO POLICE DEPARTMENT, OFFICERS CHRISTOPHER LONG, JEREMY DEMOSS, 8 08-CV-01422-OWW-GSA MEMORANDUM DECISION REGARDING DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ SIXTH AMENDED COMPLAINT(Doc. 83) Defendants. 9 10 I. 11 12 13 14 Plaintiffs Robert Morris and Michelle Morris (“Plaintiffs”) are proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. 17 (Doc 83). Plaintiffs filed opposition to Defendants’ motion to dismiss on August 25, 2010. II. 19 21 22 23 26 27 (Doc. 86). FACTUAL BACKGROUND Plaintiffs’ SAC contains allegations regarding two Defendants: Fresno Police Department Officers Christopher Long (“Long”) and Jeremy DeMoss (“DeMoss”). Although the caption of the complaint lists the City of Fresno as a defendant, the SAC is devoid of allegations pertaining to the City. 24 25 (Doc. 82). Defendants filed a motion to dismiss the SAC on June 28, 2010. 18 20 Plaintiffs filed a sixth amended complaint (“SAC”) on June 24, 2010. 15 16 INTRODUCTION Mrs. Morris asserts a Fourth Amendment excessive force claim against DeMoss. Mr. Morris asserts a Fourth Amendment claim for excessive force against officer Long. /// 28 1 Dockets.Justia.com 1 Mrs. Morris’s Allegations 2 Mrs. Morris asserts a claim for “Excessive Force” against 3 officer DeMoss stemming from an incident on “10/28/07.” (SAC at 4 1). 5 and robbery,” presumably by some third party. (SAC at 1). 6 appears that DeMoss was the first officer to arrive at the scene of 7 the assault and robbery, which occurred at 2904 E. Austin Way in 8 Fresno, California. (SAC at 1). Defendant Long stopped Plaintiffs 9 a few blocks away from Austin Way at the intersection of Holland According to the SAC, Mrs. Morris was “a victim of an assault 10 Avenue and Fresno Street. 11 officer identified in the SAC as “Alexander” placed Mrs. Morris in 12 handcuffs. 13 she demanded that her “rights be observed,” prompting officers to 14 laugh. 15 warning, 16 unexpectedly...grabbing [Mrs. Morris’] right elbow from behind and 17 lifting her up.” 18 large bruses approximately three to four inches in diameter on the 19 inside of Mrs. Morris’ right forearm and bicep. (SAC at 2). 20 Morris alleges that she was not under arrest and had not broken any 21 laws at the time DeMoss exercised force against her. 22 DeMoss placed Mrs. Morris in his patrol car, drove her to her 23 residence, and “dropped [Mrs. Morris] off.” 24 Mr. Morris’s Allegations (SAC at 2). (SAC at 2). (SAC at 1). It At some point, a police As Mrs. Morris sat on the curb handcuffed, DeMoss walked over to Mrs. Morris and, without “snatched Plaintiff (SAC at 2). up” by “quickly and The force used by DeMoss caused Mrs. (SAC at 2). (SAC at 2). 25 Mr. Morris contends that Defendant Long “committed excessive 26 force” against him on October 28, 2007 by conducting a “forced 27 blood draw” and employing unreasonable force during the blood draw. 28 (SAC at 3-4). Morris contends that Long drove him to a Fresno 2 1 Police Department substation and forced him to submit to a blood 2 draw, denying him the “right” to have either a breath test or urine 3 test. 4 sobriety test, but was told he was being taken for a blood draw. 5 (SAC at 4). 6 testing procedures, to which he would have consented. (SAC at 4). Plaintiff contends he asked for a field Plaintiff contends he was never told of alternative 7 Mr. Morris also alleges that during the blood draw, Long 8 turned Mr. Morris’ wrist backwards and twisted his arm into an arm- 9 bar lock. (SAC at 3). While he held Mr. Morris in the arm-bar 10 lock, Long threatened him by saying “move so I can break your arm.” 11 (SAC at 3). 12 he dislocated Mr. Morris’ shoulder caused Mr. Morris to suffer a 13 torn ligament. (SAC at 3). 14 Mr. Morris alleges that Long used so much force that III. LEGAL STANDARD 15 Dismissal under Rule 12(b)(6) is appropriate where the 16 complaint lacks sufficient facts to support a cognizable legal 17 theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th 18 Cir.1990). To sufficiently state a claim to relief and survive a 19 12(b) (6) motion, the pleading “does not need detailed factual 20 allegations” but the “[f]actual allegations must be enough to raise 21 a right to relief above the speculative level.” Bell Atl. Corp. v. 22 Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). 23 Mere “labels and conclusions” or a “formulaic recitation of the 24 elements of a cause of action will not do.” Id. Rather, there must 25 be “enough facts to state a claim to relief that is plausible on 26 its face.” Id. at 570. In other words, the “complaint must contain 27 sufficient factual matter, accepted as true, to state a claim to 28 relief that is plausible on its face.” Ashcroft v. Iqbal, --- U.S. 3 1 ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal 2 quotation marks omitted). 3 The Ninth Circuit has summarized the governing standard, in 4 light of Twombly and Iqbal, as follows: “In sum, for a complaint to 5 survive a motion to dismiss, the nonconclusory factual content, and 6 reasonable 7 suggestive of a claim entitling the plaintiff to relief.” Moss v. 8 U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (internal 9 quotation marks omitted). Apart from factual insufficiency, a 10 complaint is also subject to dismissal under Rule 12(b)(6) where it 11 lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or 12 where the allegations on their face “show that relief is barred” 13 for some legal reason, Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 14 910, 166 L.Ed.2d 798 (2007). inferences from that content, must be plausibly 15 In deciding whether to grant a motion to dismiss, the court 16 must accept as true all “well-pleaded factual allegations” in the 17 pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not, 18 however, “required to accept as true allegations that are merely 19 conclusory, 20 inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 21 (9th Cir.2001). “When ruling on a Rule 12(b)(6) motion to dismiss, 22 if a district court considers evidence outside the pleadings, it 23 must normally convert the 12(b)(6) motion into a Rule 56 motion for 24 summary 25 opportunity to respond.” United States v. Ritchie, 342 F.3d 903, 26 907 court 27 materials-documents 28 incorporated by reference in the complaint, or matters of judicial (9th unwarranted judgment, and Cir.2003). “A deductions it must attached of give may, to 4 fact, the unreasonable nonmoving however, the or party consider complaint, an certain documents 1 notice-without converting the motion to dismiss into a motion for 2 summary judgment.” Id. at 908. IV. 3 4 A. DISCUSSION Municipal Liability 5 Municipalities such as the City of Fresno, "are ‘persons' 6 under 42 U.S.C. § 1983 and thus may be liable for causing a 7 constitutional deprivation." Long v. County of Los Angeles, 442 8 F.3d 1178, 1185 (9th Cir. 2006). 9 cannot be liable for a constitutional violation on the basis of 10 respondeat superior. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 11 691 (1978). 12 pursuant to official municipal policy of some nature caused a 13 constitutional tort.'" Christie v. Iopa, 176 F.3d 1231, 1235 (9th 14 Cir. 1999) (quoting Monell, 436 U.S. at 691). The "official 15 municipal policy 16 longstanding practice or custom." Id. (internal quotation marks 17 omitted). 18 In a § 1983 case, a municipality Rather, a municipality is "liable only when ‘action policy" can be an expressly practices or policies of the City. 20 motion to dismiss provides: 22 23 24 or "a The SAC is devoid of allegations pertaining to any such 19 21 adopted Plaintiff’s opposition to the as to the City of Fresno being listed as a defendant, the defense are correct with respect to the Plaintiffs not amending the complaint....after a long discussion between both Plaintiff’s the [sic] still feel that the City of Fresno should be held accountable for the allegation listed in the [complaint]. The police departments [sic] policies are one of the City of Fresno [sic]. 25 (Opposition at 1). Plaintiffs’ concession that they failed to 26 amend the complaint to properly assert any facts against the City 27 of Fresno requires granting of Defendants’ motion to dismiss. 28 Plaintiffs have been given opportunities to amend their complaint 5 1 and have been provided with an explanation of the law and specific 2 reasons why previous versions of the complaint were insufficient to 3 state a claim for municipal liability. 4 dismiss Plaintiffs’ claims against the City of Fresno is GRANTED, 5 with prejudice. 6 Cir. 1992) (where a court instructs a party regarding a specific 7 pleading deficiency, the party’s failure to remedy the deficiency 8 may warrant dismissal of a claim with prejudice). 9 B. Defendants’ motion to See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Mr. Morris’ Blood Draw Claim 10 “The Fourth Amendment is not violated by ...failure to advise 11 [an arrestee], who did not request or consent to a urine or breath 12 test, of their right to choose among the alternative tests.” 13 Nelson v. City of Irvine, 143 F.3d 1196, 1203-1204 (9th Cir. 1998). 14 Although the SAC does allege that Mr. Morris requested a field 15 sobriety test, it fails to allege that he consented to alternative 16 chemical testing procedures or even that he objected to a blood 17 draw. 18 physical coercion he was subjected to before and during his blood 19 draw prevented him from consenting to an alternative chemical test. 20 Defendants’ motion to dismiss Plaintiff’s blood draw claim is 21 GRANTED, without prejudice, except as to the excessive force claim 22 arising out of the force employed during the blood draw. 23 Morris will be given one more opportunity to plead his blood draw 24 claim. 25 At oral argument, however, Mr. Morris stated that the Mr. ORDER 26 For the reasons stated, IT IS ORDERED: 27 1) Defendants’ motion to dismiss Plaintiffs’ claims against 28 the City of Fresno is GRANTED with prejudice; 6 1 2) Defendants’ motion to dismiss Mr. Morris’ Fourth Amendment 2 claim based on Mr. Morris’ blood draw is GRANTED, without 3 prejudice, except as to excessive force; 4 3) Plaintiffs shall file an amended complaint within fourteen 5 (14) days of service of the Memorandum Decision. 6 shall filed a response within ten (10) days of service of the 7 amended complaint; and 8 4) Defendants shall submit a form of order consistent with 9 this Memorandum Decision within five (5) Defendants days electronic service of this decision. 10 11 IT IS SO ORDERED. 12 Dated: hkh80h September 21, 2010 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 following
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