Young, et al v. City Of Visalia et al, No. 1:2009cv00115 - Document 54 (E.D. Cal. 2009)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART Defendants' 36 and 38 Motions to Dismiss, and GRANTING Plaintiffs Leave to Amend, signed by Chief Judge Anthony W. Ishii on 8/17/2009. Amended Complaint due by 9/8/2009. (Jessen, A)
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Young, et al v. City Of Visalia et al Doc. 54 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 THAD YOUNG and SANDRA YOUNG, ) ) Plaintiffs, ) v. ) ) CITY OF VISALIA, et al., ) ) ) Defendants. ) ____________________________________) 1:09-CV-115 AWI GSA ORDER ON DEFENDANTS’ MOTIONS TO DISMISS (Doc. Nos. 36, 38) 16 17 18 This is a civil rights case brought by Plaintiffs Thad Young and Sandra Young against 23 19 defendants. The City of Visalia (“Visalia”), along with 14 individual officers, (collectively 20 “Visalia Defendants”) have filed a Rule 12(b)(6) motion to dismiss. The City of Farmersville, 21 (“Farmersville”) along with Farmersville police officers Troy Evrett and Mike Marquez and 22 Chief Mario Krstic, (collectively “Farmersville Defendants”) have also filed a Rule 12(b)(6) 23 motion to dismiss. The Farmersville Defendants have filed declarations with their motion and 24 request that the Court utilize Rule 12(d) and convert the motion into one for summary judgment. 25 For the reasons that follow, the Court will view the motions only as Rule 12(b)(6) motions, 26 which in turn will be granted in part and denied in part. 27 28 Dockets.Justia.com 1 2 FACTUAL BACKGROUND As alleged in the complaint, on November 29, 2007, Defendant Nathan Flaws of the 3 Visalia Police Department obtained a search warrant for property owned and occupied by 4 Plaintiffs. The search warrant application identified the property as having multiple structures 5 and an address of 29022 Road 164. The application did not include a description of a separate, 6 adjacent property parcel. The separate, adjacent property was known locally as the “Old Grange 7 Hall” and had its own separate address, 29006 Road 164, prominently printed on the side of its 8 mailbox. A wooden fence ran along most of the boundary between the “Old Grange Hall” and 9 29022 Road 164, and other physical characteristics, including a separate parking lot, further 10 showed the separateness of the two properties. The Tulare County Superior Court issued the 11 search warrant, but the warrant made no mention of the Old Grange Hall property. 12 On December 4, 2007, the warrant was executed. The complaint alleges that all 13 defendants participated in the search of 29022 Road 164 and in detaining Thad Young 14 (“Young”). The defendants also entered and searched the Old Grange Hall despite the fact that 15 this property was not part of the search warrant. The Old Grange Hall was searched without 16 exigent circumstances, permission, or other legal justification and was searched against 17 Plaintiffs’ will. Defendants are alleged to have known that the Old Grange Hall was not part of 18 29022 Road 164. During the search of the two separate properties, the Defendants destroyed or 19 substantially damaged numerous pieces of Plaintiffs’ property. 20 While executing the warrant, Defendants trained their guns on Young, who was working 21 in his shop on the 29022 Road 164 property, and ordered him not to move, but did not identify 22 themselves as law enforcement. Defendants handcuffed Young and led him out of the shop. As 23 they were leaving the shop, the Defendants pepper sprayed Young’s dogs without reason, despite 24 his pleas not to do so. Defendants took Young to the residential portion of 29022 Road 164 and 25 set him in a room with other persons. Young informed Defendants that he had diabetes and a 26 heart condition and both of these conditions required that he take medication. Young also 27 informed Defendants that he had a back condition for which he took pain medication. For nearly 28 fives hours, Defendants refused Young access to fluids, the bathroom, and his prescribed 2 1 medication despite Young’s requests. Defendants also kept Young seated on an uncomfortable 2 chair and kept him in handcuffs without reason. During the detention, Defendants requested that 3 Young sign a form. When Young asked for his eyeglasses, defendants refused and threatened to 4 take him to the police station if he did not sign. Defendants told Young that they were “just there 5 for the money” and that they were going to put his son away for 37 years because of a gun that 6 Young owned. Young then signed the form without reading it and later learned that it was a 7 disclaimer of ownership for $2,000 cash that had been discovered during the search. 8 9 Young brought this lawsuit in January 2009. He alleges civil rights violations under 42 U.S.C. § 1983 and various state law claims. 10 LEGAL FRAMEWORK 11 Rule 8 12 Federal Rule of Civil Procedure 8(a) sets the pleading standard for claims for relief. 13 “Under the liberal rules of pleading, a plaintiff need only provide a ‘short and plain statement of 14 the claim showing that the pleader is entitled to relief.’” Sagana v. Tenorio, 384 F.3d 731, 736 15 (9th Cir. 2004) (quoting Fed. R. Civ. P. 8(a)). This rule does “not require a claimant to set out in 16 detail the facts upon which he bases his claim.” Conley v. Gibson, 355 U.S. 41, 47 (1957). The 17 pleadings need only give the opposing party fair notice of a claim and the claim’s basis. Conley, 18 355 U.S. at 47; Sagana, 384 F.3d at 736; Fontana v. Haskin, 262 F.3d 871, 877 (9th Cir. 2001). 19 47). The pleadings are to “be construed as to do substantial justice,” and “no technical forms of 20 pleading . . . are required.” Fed. Rules Civ. Pro. 8(e)(1), 8(f); Sagana, 384 F.3d at 736; Fontana, 21 262 F.3d at 877. “Specific legal theories need not be pleaded so long as sufficient factual 22 averments show that the claimant may be entitled to some relief.” Fontana, 262 F.3d at 877; 23 American Timber & Trading Co. v. First Nat’l Bank, 690 F.2d 781, 786 (9th Cir. 1982). 24 However, “[c]ontext matters in notice pleading. Fair notice under [Rule 8(a)] depends on the 25 type of case.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008); see also 26 Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). 27 Rule 12(b)(6) 28 Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the 3 1 plaintiff’s “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A 2 dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the 3 absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside 4 Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th 5 Cir. 2001). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are 6 taken as true and construed in the light most favorable to the non-moving party. Marceau v. 7 Balckfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 8 1077 (9th Cir. 1999). The Court must also assume that general allegations embrace the 9 necessary, specific facts to support the claim. Smith v. Pacific Prop. and Dev. Corp., 358 F.3d 10 1097, 1106 (9th Cir. 2004); Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir. 11 1994). But, the Court is not required “to accept as true allegations that are merely conclusory, 12 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 13 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th 14 Cir. 2001). Although they may provide the framework of a complaint, legal conclusions are not 15 accepted as true and “[t]hreadbare recitals of elements of a cause of action, supported by mere 16 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009); see 17 also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). As the 18 Supreme Court has recently explained: 19 20 21 While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact). 22 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, “a complaint must contain 23 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 24 Ashcroft, 129 S.Ct. at 1949; see Twombly, 550 U.S. at 570; see also Weber v. Department of 25 Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). “A claim has facial plausibility when the 26 plaintiff pleads factual content that allows the court draw the reasonable inference that the 27 defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. 28 4 1 The plausibility standard is not akin to a ‘probability requirement,’ but it asks more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ... 2 3 4 Determining whether a complaint states a plausible claim for relief will . . . be a context specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not shown – that the pleader is entitled to relief. 5 6 7 Iqbal, 129 S.Ct. at 1949-50. “In sum, for a complaint to survive a motion to dismiss, the non8 conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly 9 suggestive of a claim entitling the plaintiff to relief.” Moss v. United States Secret Serv., - - 10 F.3d - - -, 2009 U.S. App. LEXIS 15694 (9th Cir. Or. July 16, 2009). 11 If a Rule 12(b)(6) motion to dismiss is granted, “[the] district court should grant leave to 12 amend even if no request to amend the pleading was made, unless it determines that the pleading 13 could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 14 1127 (9th Cir. 2000) (en banc). In other words, leave to amend need not be granted when 15 amendment would be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002). 16 17 I. VISALIA DEFENDANTS’ MOTION TO DISMISS 18 Defendants’ Arguments 19 Visalia argues that the first through third causes of action should be dismissed because 20 the allegations in the complaint do not sufficiently allege Monell liability. Plaintiffs have failed 21 to plead a policy or custom, but have instead merely alleged inadequate training and/or 22 supervision. There are no facts alleged that show Visalia’s training reflects a policy or custom or 23 how the training is inadequate. 24 Visalia also argues that Plaintiffs appear to have alleged a state law negligence claim 25 against it. If Plaintiffs indeed intend to plead such a cause of action, they have failed to allege a 26 specific statute that creates a duty on the part of Visalia. 27 Finally, the Visalia Defendants argue that the fourth cause of action is inappropriately 28 5 1 pled because the allegations are conclusory, ignore principles of immunity, and assume without 2 citation to any authority that the various penal statutes create an implied cause of action. 3 Plaintiffs’ Opposition 4 Plaintiffs quote from Paragraph 19 and argue that, although a single incident involving a 5 low level officer is insufficient in and of itself to show a custom or policy, the participation of so 6 many officers, including supervisors, in blatant violations of the Fourth Amendment implies the 7 existence of a departmental custom or policy. 8 9 10 11 With respect to an implied cause of action for negligence against the City of Visalia, no such cause of action is pled or intended to be pled. Finally, with respect to the fourth cause of action for violations of numerous state law violations, “Plaintiffs agree to amend these allegations.” 12 Relevant Allegation 13 In relevant part, Paragraph 19 reads: 14 Defendants City of Visalia . . . City of Farmersville . . . are named herein for having so knowingly failed to reasonably select and hire, and to reasonably well educate, instruct and train, and direct, supervise, control and discipline the conduct of its officers and supervisors, including the individual defendants named herein, in recurring situations such as are alleged herein, in which their officers’, deputes’, and supervisors’ violations of the civil and statutory rights of individuals, including plaintiffs herein, were anticipated and could have been prevented by such selection and hiring, education, training, direction, supervision, control, and discipline, that [the Cities of Visalia and Farmersville] set in motion a chain of events that made the violations alleged herein foreseeable and substantially certain to occur. The actions and inactions of the [Cities of Visalia and Farmersville] were thus the moving force causing the violations alleged herein. 15 16 17 18 19 20 21 Complaint at ¶ 19. 22 Legal Framework – Municipal Liability Under 42 U.S.C. § 1983 23 Municipalities are considered “persons” under 42 U.S.C. § 1983 and therefore may be 24 liable for causing a constitutional deprivation. Monell v. Department of Soc. Servs., 436 U.S. 25 658, 690 (1978); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). A 26 municipality, however, “cannot be held liable solely because it employs a tortfeasor – or, in other 27 words, a municipality cannot be held liable under [42 U.S.C. § 1983] under a respondeat 28 superior theory.” Monell, 436 U.S. at 691; see Long, 442 F.3d at 1185; Ulrich v. City & County 6 1 of San Francisco, 308 F.3d 968, 984 (9th Cir. 2002). Liability only attaches where the 2 municipality itself causes the constitutional violation through “execution of a government’s 3 policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be 4 said to represent official policy.” Monell, 436 U.S. at 694; Ulrich, 308 F.3d at 984. Municipal 5 liability may be premised on: (1) conduct pursuant to an expressly adopted official policy; (2) a 6 longstanding practice or custom which constitutes the ‘standard operating procedure’ of the local 7 government entity; (3) a decision of a decision-making official who was, as a matter of state law, 8 a final policymaking authority whose edicts or acts may fairly be said to represent official policy 9 in the area of decision; or (4) an official with final policymaking authority either delegating that 10 authority to, or ratifying the decision of, a subordinate. See Price v. Sery, 513 F.3d 962, 966 (9th 11 Cir. Or. 2008); Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004); Ulrich, 308 F.3d at 984-85; 12 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1995). A “policy” is a “deliberate choice to follow a 13 course of action . . . made from among various alternatives by the official or officials responsible 14 for establishing final policy with respect to the subject matter in question.” Fogel v. Collins, 531 15 F.3d 824, 834 (9th Cir. 2008); Long, 442 F.3d at 1185. A “custom” for purposes of municipal 16 liability is a “widespread practice that, although not authorized by written law or express 17 municipal policy, is so permanent and well-settled as to constitute a custom or usage with the 18 force of law.” St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988); Los Angeles Police Protective 19 League v. Gates, 907 F.2d 879, 890 (9th Cir. 1990); see also Bouman v. Block, 940 F.2d 1211, 20 231-32 (9th Cir. 1991). Stated differently, a custom is a widespread and longstanding practice 21 that “constitutes the standard operating procedure of the local government entity.” Trevino, 99 22 F.3d at 918; Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992). “Liability for 23 improper custom may not be predicated on isolated or sporadic incidents; it must be founded 24 upon practices of sufficient duration, frequency and consistency that the conduct has become a 25 traditional method of carrying out policy.” Trevino, 99 F.3d at 918; see also McDade v. West, 26 223 F.3d 1135, 1141 (9th Cir. 2000); Thompson v. Los Angeles, 885 F.2d 1439, 1443-44 (9th 27 Cir. 1989). After proving one of the above methods of liability, the plaintiff must show that the 28 challenged municipal conduct was both the cause in fact and the proximate cause of the 7 1 constitutional deprivation. See Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2 2008); Trevino, 99 F.3d at 918. 3 Additionally, a municipality’s failure to train its employees may create § 1983 liability 4 where the “failure to train amounts to deliberate indifference to the rights of persons with whom 5 the [employees] come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989); Long, 6 442 F.3d at 1186; Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001). “The issue is 7 whether the training program is adequate and, if it is not, whether such inadequate training can 8 justifiably be said to represent municipal policy.” Long, 442 F.3d at 1186. A plaintiff alleging a 9 failure to train claim must show: (1) he was deprived of a constitutional right, (2) the 10 municipality had a training policy that “amounts to deliberate indifference to the [constitutional] 11 rights of the persons’ with whom [its police officers] are likely to come into contact;” and (3) his 12 constitutional injury would have been avoided had the municipality properly trained those 13 officers. Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007); Lee, 250 F.3d at 14 681. “Only where a municipality’s failure to train its employees in a relevant respect evidences a 15 ‘deliberate indifference’ to the rights of its inhabitants can such a shortcoming be properly 16 thought of as a city ‘policy or custom’ that is actionable under § 1983.” City of Canton, 489 U.S. 17 at 389; Long v. City & County of Honolulu, 511 F.3d 901, 907 (9th Cir. 2007). A municipality 18 is “deliberately indifferent” when the need for more or different action, “is so obvious, and the 19 inadequacy [of the current procedure] so likely to result in the violation of constitutional rights, 20 that the policymakers … can reasonably be said to have been deliberately indifferent to the 21 need.” City of Canton, 489 U.S. at 390; Lee, 250 F.3d at 682. A “pattern of tortious conduct,” 22 despite the existence of a training program, or “highly predictable” constitutional violations due 23 to a “failure to equip law enforcement officers with specific tools to handle recurring situations,” 24 are circumstances in which liability for failure to train may be imposed. See Board of County 25 Comm’rs v. Brown, 520 U.S. 397, 407-10 (1997); Long, 442 F.3d at 1186-87. However, 26 “adequately trained officers occasionally make mistakes; the fact that they do says little about the 27 training program or the legal basis for holding the [municipality] liable.” City of Canton, 489 28 U.S. at 391; see also Merritt v. County of Los Angeles, 875 F.2d 765, 770 (9th Cir. 1989); 8 1 McDade, 223 F.3d at1135, 1141 (9th Cir. 2000). 2 Discussion 3 With respect to Visalia’s arguments about an implied cause of action for negligence, such 4 a cause of action is not expressly identified in the Complaint and Plaintiffs’ opposition states that 5 no such cause of action is intended to be pled. In light of Plaintiffs’ representation, the Court 6 will read the complaint as containing no state law negligence claim, either implied or expressed, 7 against Visalia. Accordingly, dismissal is unnecessary since no such cause of action exists. 8 9 With respect to the fourth cause of action, Plaintiffs merely state that they will replead it in light of the Visalia Defendants’ motion to dismiss. The Visalia Defendants do not mention the 10 Fourth Cause of Action or Plaintiffs’ statement in their reply brief. In light of the Plaintiffs’ 11 request to replead and the lack of response from the Visalia Defendants, the Court will grant 12 dismissal of the Fourth Cause of Action with leave to amend. 13 Finally, with respect to municipal liability, the Ninth Circuit has held that, “a claim of 14 municipal liability under section 1983 is sufficient to withstand a motion to dismiss even if the 15 claim is based on nothing more than a bare allegation that the individual officers’ conduct 16 conformed to official policy, custom, or practice.” Whitaker v. Garcetti, 486 F.3d 572, 581 (9th 17 Cir. 2007). However, Iqbal has made clear that conclusory, “threadbare” allegations that merely 18 recite the elements of a cause of action will not defeat a motion to dismiss. See Iqbal, 129 S.Ct. 19 at 1949-50. In light of Iqbal, it would seem that the prior Ninth Circuit pleading standard for 20 Monell claims (i.e. “bare allegations”) is no longer viable. Nevertheless, in Lee, the Ninth 21 Circuit found that the following Monell allegations rose above the level of “bare allegations” and 22 stated a claim: 23 24 25 26 27 28 [Despite the City's] awareness that persons taken into custody by the LAPD --in particular persons with mental disabilities --were often misidentified … the City of Los Angeles deliberately failed [to properly train and supervise their employees (including the police) and] to implement and maintain proper procedures which would have required that prior to the processing for extradition of any person to a foreign jurisdiction, some efforts --such as the verification of fingerprints --are made to match the identity of the person in custody with that of the person wanted. Indeed … the City of Los Angeles maintained an official policy, custom or practice of rounding up people for arrest and/or extradition without taking proper efforts to ensure that the particular person in custody was actually the person being sought …. As a result of the aforementioned policy, practice or 9 1 custom, no one bothered to check the identity of Mr. Sanders, thereby causing him to be extradited to New York where he remained imprisoned for two years. 2 6 Because of the risk that persons --especially mentally incapacitated persons who are incapable of taking care of themselves --will be mistakenly extradited to a foreign jurisdiction when no steps are taken to confirm their identities is a grave one, the need for training and procedures to guard against such risks is obvious. However, despite this obvious risk, [the] City of Los Angeles []chose to ignore the problem, thereby displaying an official custom, policy or practice which was deliberately indifferent to the rights of persons who were likely to come into contact with the criminal justice system. 7 Lee, 250 F.3d at 682. The allegations in Lee identified the challenged policy/custom, explained 8 how the policy/custom was deficient, explained how the policy/custom caused the plaintiff harm, 9 and reflected how the policy/custom amounted to deliberate indifference, i.e. explained how the 3 4 5 10 deficiency involved was obvious and the constitutional injury was likely to occur. The Court 11 believes that such allegations would pass muster under Iqbal. 12 In the case at bar, the relevant allegation in the Complaint is Paragraph 19. The Court 13 reads Paragraph 19 as attempting to allege liability based on inadequate training and hiring 14 practices. Paragraph 19, however, merely makes “threadbare” conclusions that track the 15 elements for Monell liability. Cf. Iqbal, 129 S.Ct. at 1249-50. The complaint does not identify 16 what the training and hiring practices were, how the training and hiring practices were deficient, 17 or how the training and hiring practices caused Plaintiffs’ harm. See Querry v. Smale, 2009 U.S. 18 Dist. LEXIS 60889, *10-*11 (S.D. Cal. July 15, 2009); Gelband v. Hondo, 2009 U.S. Dist. 19 LEXIS 51801, *18-*19 (D. Me. June 16, 2009); Lee v. O’Malley, 533 F.Supp.2d 548, 553 (D. 20 Md. 2007); cf. Lee, 250 F.3d at 682. Although Paragraph 19's allegation that Plaintiffs’ 21 constitutional injuries were “foreseeable and substantially certain to occur,” which is an 22 allegation of deliberate indifference, see City of Canton, 489 U.S. at 390, without identifying the 23 training and hiring practices, how those practices were deficient, and without an identification of 24 the obviousness of the risk involved, the Court cannot determine if a plausible claim is made for 25 deliberately indifferent conduct. Cf. Lee, 250 F.3d at 682. Because the Complaint contains 26 insufficient facts that plausibly indicate a valid Monell claim, dismissal is appropriate. See Iqbal, 27 129 S.Ct. at 1949-50; Twombly, 550 U.S. at 555; cf. Lee, 250 F.3d at 682. Since it is not clear 28 that amendment would be futile, the Court will do so with leave to amend. See Gompper, 298 10 1 F.3d at 898. Any amended complaint, however, should contain facts that sufficiently show 2 plausible causes of action. See Iqbal, 129 S.Ct. at 1949-50; Twombly, 550 U.S. at 555. 3 II. FARMERSVILLE DEFENDANTS’ MOTION 4 A. 5 In relevant part, Rule 12(d) provides, “If, on a motion under Rule 12(b)(6) . . ., matters Rule 12(d) Motion 6 outside the pleadings are presented to and not excluded by the court, the motion must be treated 7 as one for summary judgment under Rule 56.” Fed. R. Civ. Pro. 12(d). Whether to convert a 8 12(b)(6) motion to one for summary judgment is within the discretion of the district court. See 9 Trans-Spec Truck Serv. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008); Campos v. New 10 Direction Equip. Co., 2009 U.S. Dist. LEXIS 29933 (D. Nev. Apr. 6, 2009); Gauntner v. Doyle, 11 554 F.Supp.2d 779, 780 (N.D. Ohio 2008); Galloway v. Hadl, 548 F. Supp. 2d 1215, 1218 n.2 12 (D. Kan. 2008); United States v. International Longshoremen’s Ass’n, 518 F. Supp.2d 422, 451 13 (E.D. N.Y. 2007); Estate of Axelrod v. Flannery, 476 F. Supp.2d 188, 202-03 (D. Conn. 2007). 14 In fact, one commentator has stated, “As the language of [Rule 12(d)] suggests, federal courts 15 have complete discretion to determine whether or not to accept the submission of any material 16 beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion . . . .” 5C 17 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1366, at 159 (3d ed. 18 2004) (emphasis added) (hereinafter “Wright & Miller”). Thus, “a district court is not obliged to 19 convert a 12(b)(6) motion to one for summary judgment in every case in which a defendant seeks 20 to rely on matters outside the complaint . . . .” International Longshoremen, 518 F.Supp.2d at 21 451; see also Kellogg v. Wyeth, 612 F.Supp.2d 421, 427 (D. Vt. 2008); Kapf v. Professional 22 Collection Servs., 525 F.Supp.2d 324, 326 (E.D. N.Y. 2007); Galloway, 548 F.Supp.2d at 1218 23 n.2; Axelrod, 476 F.Supp.2d at 202. If the district court chooses “to ignore supplementary 24 materials submitted with the motion papers and determine the motion under the Rule 12(b)(6) 25 standard, no conversion occurs and the supplementary materials do not become part of the record 26 for purposes of the Rule 12(b)(6) motion.” Trans-Spec Truck, 524 F.3d at 321; see Swedberg v. 27 Marotzke, 339 F.3d 1139, 1143 (9th Cir. 2003) (“Upon review of the record, we concluded that 28 the district court had not relied on the materials that the defendant had submitted and that the 11 1 motion was properly characterized as one to dismiss under Rule 12(b)(6).”); Kapf, 525 F.Supp.2d 2 at 326. 3 Here, the Farmersville Defendants have submitted three declarations in connection with 4 their Rule 12(b)(6) motion. The three declarations are nearly identical and essentially state that 5 no Farmersville police officer participated in the searches and detentions in this case.1 Plaintiffs 6 have responded by filing inter alia a declaration by Thad Young that in part indicates that 7 Defendant Troy Evrett participated in Young’s detention, see Young Declaration at ¶ 4, and a 8 police report by Defendant Nathan Flaws that indicates that Farmersville police officers were 9 present during the pre-execution warrant briefing and suggests that Farmersville officers may 10 have been “assisting” officers during the search. See Holland Declaration Exhibit A. After due 11 consideration, the Court will exercise its discretion and decline to convert the Farmersville 12 Defendants’ motion into a Rule 56 summary judgment. See Kapf, 525 F.Supp.2d at 326; 13 International Longshoremen, 518 F.Supp.2d at 451; see also Kellogg, 612 F.Supp.2d at 427; 14 Galloway, 548 F.Supp.2d at 1218 n.2; Axelrod, 476 F.Supp.2d at 202; Wright & Miller at § 15 1366. The Court will instead treat the Farmersville Defendants’ motion as a Rule 12(b)(6) 16 motion to dismiss. See Trans-Spec Truck, 524 F.3d at 321; Swedberg, 339 F.3d at 1143; Kapf, 17 525 F.Supp.2d at 326. The materials submitted by the parties are hereby excluded, see Fed. R. 18 Civ. Pro. 12(d), and the Court will not consider them in deciding the motion to dismiss. See 19 Swedberg, 339 F.3d at 1143. 20 B. 21 Rule 12(b)(6) Motion to Dismiss 1. California Tort Claims Act 22 Defendants’ Argument 23 The Farmersville Defendants argue that the California Tort Claims Act requires a person 24 with a potential claim against a public entity to file a claim with that entity before commencing a 25 lawsuit. Specifically, any claim relating to injuries to persons or property must be filed within 26 six months of accrual and suit must be brought within two years of accrual if no written denial is 27 28 1 The Court notes that Defendant Troy Evrett was apparently so eager to obtain summary judgment that he signed a declaration that begins, “I, Mike Marquez.” See Court’s Docket Doc. No. 42. For future filings, the Farmersville Defendants are urged to be more careful with what is signed and submitted to this Court. 12 1 issued by the entity. The complaint only alleges compliance in a conclusory manner without 2 alleging specific details as to how they complied. There are no allegations that specify when the 3 necessary claims were filed, when the claims were denied, and whether the claims were denied 4 expressly or by operation of law. Because the allegations are conclusory and compliance with 5 the Tort Claims Act is a mandatory prerequisite, dismissal is appropriate. 6 Plaintiffs’ Opposition 7 Plaintiffs argue that the Complaint alleges in concise and plain terms that they complied 8 with the Tort Claims Act. Should the Court disagree, leave to amend should be granted as 9 amendment would not be futile. 10 Relevant Allegation 11 Paragraph 8 of the Complaint alleges in part: 12 Pursuant to the California Tort Claims Act . . . plaintiffs submitted to defendants . . . City of Farmersville administrative tort claims that asserted plaintiffs’ right to legal redress based upon the same events as are alleged herein. Inasmuch as this instant action is filed not later than six months, including pertinent periods of tolling, after notice of rejection of said administrative tort claims was served by said defendants, and/or not later than two years, including pertinent periods of tolling, after said administrative tort claims were deemed rejected by operation of law, plaintiffs have exhausted all administrative remedies and fulfilled all such prerequisites for the maintenance of this instant action as to state law based counts. 13 14 15 16 17 Complaint at ¶8. 18 Legal Standard 19 As a prerequisite for money damages litigation against a public entity, the California Tort 20 Claims Act requires presentation of the claim to that entity. See Cal. Gov. Code § 945.4; State of 21 California v. Superior Court, 32 Cal.4th 1234, 1240-44 (2004) (“Bodde”). Compliance with the 22 Tort Claims Act is an element of a cause of action against a public entity. Willis v. Reddin, 418 23 F.2d 702, 704 (9th Cir. 1969); Bodde, 32 Cal.4th at 1240. As such, “compliance with the claims 24 statute is mandatory and failure to file a claim is fatal to the cause of action.” Hacienda La 25 Puente Unified School Dist. v. Honig, 976 F.2d 487, 494 (9th Cir. 1992); City of San Jose v. 26 Superior Court, 12 Cal.3d 447, 455 (1974); see also Bodde, 32 Cal.4th at 1240. In federal court, 27 the failure to allege facts that either demonstrate or excuse compliance with the California Tort 28 Claims Act will subject a state law claim to dismissal. See Mangold v. California Pub. Utils. 13 1 Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995); Karim-Panahi v. Los Angele Police Dep’t, 839 2 F.2d 621, 627 (9th Cir. 1988); cf. Bodde, 32 Cal.4th at 1239. However, the California Tort 3 Claims Act does not apply to 42 U.S.C. § 1983 claims. Bodde, 32 Cal.4th at 1240; Williams v. 4 Horvath, 16 Cal.3d 834, 842 (1976). 5 Discussion 6 The Complaint alleges that Plaintiffs submitted their tort claims to Farmersville, that the 7 basis for the claims is the events described in the complaint, that this lawsuit was filed either 8 within six months of receiving a written denial or within two years of the claim being denied by 9 operation of law, and that all prerequisites for maintaining a suit have been met.2 Although a 10 bare allegation that the Tort Claims Act has been followed would seem to be a mere conclusion 11 that is insufficient under Iqbal and Twombly, the Complaint contains more. The factual 12 allegation that a claim based on the events alleged in the complaint was presented to and rejected 13 by Farmersville gives muscle to the skeletal assertion that all prerequisites of the Tort Claims Act 14 have been fulfilled. Viewing the allegations in the light most favorable to Plaintiffs, there are 15 sufficient facts alleged that plausibly indicate compliance with the Tort Claims Act. Dismissal 16 on this basis is denied. 17 2. Failure To State Claims Under 42 U.S.C. § 1983 18 Defendants’ Argument 19 The Farmersville Defendants argue that in order to be held liable under § 1983, there 20 must be a showing of personal participation by the defendant in the constitutional deprivations. 21 The Complaint is unduly vague in that it does not identify which officers engaged in which 22 specific conduct. Although the allegations are in terms of “defendants,” some of the allegations 23 clearly indicate an individual actor, e.g. “defendants ordered plaintiff ‘move and I’ll blow you 24 head off’ . . . .” Complaint at p. 10. An officer is not liable simply because he was present at the 25 search. Further, the Complaint fails to identify any policy or custom by Farmersville that caused 26 27 28 2 The California Government Code requires that a lawsuit be filed either: (1) within six months of a plaintiff receiving a written denial from the municipal entity; or (2) within two of the date the plaintiff’s cause of action accrued if no written denial is given. Cal. Gov. Code § 945.6(a); W estcon Construction Corp. v. County of Sacramento, 152 Cal.App.4th 183, 190 (2007). 14 1 Plaintiffs an injury. 2 Plaintiffs’ Opposition 3 The complaint alleges that the defendants participated in the improper searches and 4 detention. Plaintiffs argue that the defendant officers had exclusive control over the property 5 and that Thad Young could not see the specific wrongs of the officers. The Ninth Circuit has 6 indicated that a group liability instruction may be appropriate when the conduct of the officers 7 prevent the plaintiffs from learning which officers took what actions. The allegations in the 8 complaint suggest that this case may represent such a scenario. 9 10 Legal Standard “A person subjects another to the deprivation of a constitutional right, within the meaning 11 of section 1983, if he does an affirmative act, participates in another’s affirmative acts, or omits 12 to perform an act which he is legally required to do that causes the deprivation of which 13 complaint is made.” Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th 14 Cir. 2007); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As such, a plaintiff cannot hold 15 an officer liable “because of his membership in a group without a showing of individual 16 participation in the unlawful conduct.” Jones v. Williams, 297 F.3d 930, 935 (9th Cir. 2002); see 17 Motley v. Parks, 432 F.3d 1072, 1082 (9th Cir. 2005); Chuman v. Wright, 76 F.3d 292, 294 (9th 18 Cir. 1996). Instead, a plaintiff must “establish the ‘integral participation’ of the officers in the 19 alleged constitutional violation.” Jones, 297 F.3d at 935; see Torres v. City of Los Angeles, 548 20 F.3d 1197, 1206 (9th Cir. 2008). “Integral participation” requires “some fundamental 21 involvement in the conduct that allegedly caused the violation.” Blankenhorn v. City of Orange, 22 485 F.3d 463, 481 n.12 (9th Cir. 2007); see Torres, 548 F.3d at 1206. However, “‘integral 23 participation’ does not require that each officer’s actions themselves rise to the level of a 24 constitutional violation.” Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir. 2004). 25 Discussion 26 With respect to the Monell claim against Farmersville, for the same reasons that the 27 Complaint did not state a claim against Visalia, the Complaint also does not state a claim against 28 Farmersville (or the County of Tulare). Dismissal with leave to amend is appropriate. 15 1 With respect to the argument that the first two causes of action (for illegal search and 2 property damage) are unduly vague, the argument in the context of this case is not well taken. 3 Farmersville is correct that a police officer is not liable simply because he was present at a 4 search. See Motley, 432 F.3d at 1082; Jones, 297 F.3d at 935. Farmersville is also correct that 5 liability under 42 U.S.C. § 1983 requires a showing of some personal, inculpatory conduct by a 6 defendant. See Preschooler II, 479 F.3d at 1183; Motley, 432 F.3d at 1082; Jones, 297 F.3d at 7 935. The Complaint alleges that “defendant detectives, officers, agents, deputies, supervisors, 8 and Farmersville Chief of Police Mario [Krstic]” each entered and searched the Old Grange Hall 9 and the 29022 Road 164 property. See Complaint at ¶¶ 16-18. The Complaint also alleges that 10 all “defendants” caused various types of property damage. See Complaint at ¶ 23-25. The 11 Complaint does not identify the specific conduct of any individual defendant during the searches. 12 Nevertheless, in this case, the Complaint indicates that Thad Young was taken by gun point into 13 a particular room of his house, was made to sit in an uncomfortable chair for five hours, and later 14 was forced to retrieve the defendants’ battering ram for them as they were leaving. See 15 Complaint at ¶¶ 30-37. Thus, the Complaint reasonably indicates that Young was kept in a 16 separate room by certain officers/defendants while other officers/defendants searched the 17 properties. The question then becomes, if Young was kept in a separate room while other 18 Defendants searched other rooms and other buildings, how can he allege with more specificity 19 which Defendants did which particular acts during the search? In an ordinary civil lawsuit, a 20 plaintiff should generally be able to identify the particular conduct of individual defendants. 21 That is not the case when one set of defendants prevent the plaintiff from observing the acts of 22 another set of defendants. Cf. Jones, 297 F.3d at 938 n.7 (noting that a jury instruction on group 23 liability may be appropriate where officers deprive the victim of any chance to learn exactly 24 which officers took what actions during a search). In light of the circumstances of the search and 25 seizure alleged in this case, and in light of the allegations that all defendants searched while 26 Young was detained, dismissal of the first and second causes of action is not appropriate. Cf. 27 Gallagher v. City of Winlock Wash., 287 Fed. Appx. 568, 577-78 (9th Cir. 2008) (in the context 28 of summary judgment where officers argued that they did not integrally participate, and in 16 1 response to an argument that further discovery was warranted in order to “determine which 2 officers did what, to whom, when, where, and with knowledge of what facts,” holding that 3 “[w]ithout deposing the defendants, the plaintiffs have not had a fair opportunity to sort out the 4 roles of the various officers.”). 5 The situation and context of the third cause of action (for improper detention of Thad 6 Young) is different from the first two causes of action. Although the Complaint alleges generally 7 that all “defendants” detained Young, the Complaint as a whole indicates that less than all of the 8 defendants actually detained him. Unlike the defendants who were searching different rooms and 9 different buildings while Young was kept in a separate location, Young would have seen exactly 10 which defendants were detaining him. It is possible that Young does not know the names of 11 those individual officers who took him by gun point to his house or the names of the individual 12 officers who kept watch over him while other officers searched. If the identity of any of the 13 “detaining officers” is known, Plaintiffs should expressly allege their identities. If the precise 14 identities of the “detaining officers” are not known, then Plaintiffs should state that the precise 15 identities are unknown but, if possible, should allege facts that may help to identify such 16 defendants – for example (hypothetically), “two unknown defendants, one male and one female, 17 believed to be police officers of the Visalia police department approached Thad Young with their 18 guns drawn.” In light of the numerous defendants in this case and the nature of the detention 19 alleged, the Court will dismiss the third cause of action as so vague that fair notice of the claims 20 against the defendants is not provided. See Fed. R. Civ. Pro. 8; Bryson v. Gonzales, 534 F.3d 21 1282, 1290 (10th Cir. 2008); Wong v. United States INS, 373 F.3d 952, 967 (9th Cir. 2004); 22 Refai v. Lazaro, 614 F.Supp.2d 1103, 1116 (D. Nev. 2009). Dismissal will be with leave to 23 amend. 24 25 26 CONCLUSION The Visalia Defendants and the Farmersville Defendants have each filed motions to 27 dismiss. With respect to the Visalia Defendants’ motion, the Monell claims against Visalia will 28 be dismissed with leave to amend because no policy or custom has been sufficiently alleged. The 17 1 fourth cause of action is dismissed with leave amend in light of Plaintiffs’ essential non- 2 opposition to dismissal and the failure of the Visalia Defendants to respond to Plaintiffs’ 3 opposition. Finally, since there is no implied cause of action for state law negligence against 4 Visalia in the Complaint, there is no need for a dismissal. 5 With respect to the Farmersville Defendants’ motion, the Court declines to convert the 6 motion to dismiss into a motion for summary judgment through Rule 12(d) and will instead treat 7 the motion as a pure Rule 12(b)(6) dismissal. So viewing the motion, Plaintiffs have plausibly 8 alleged compliance with the Tort Claims Act and dismissal of any state law claims due to non- 9 compliance is not appropriate. As with the Monell claims against Visalia, the Monell claims 10 against the City of Farmersville (and the County of Tulare) will be dismissed because Plaintiffs 11 have not plausibly alleged a policy or custom. The first and second causes of action will not be 12 dismissed due to vagueness/ambiguity because the Complaint alleges that all Defendants 13 searched and indicates that it was not possible for Thad Young to observe which Defendants 14 performed which acts during the search. Finally, the third cause of Action will be dismissed due 15 to vagueness because, unlike the conditions surrounding the search of Plaintiffs’ properties, Thad 16 Young should have been able to observe which officers detained him. 17 18 19 Accordingly, IT IS HEREBY ORDERED that: 1. 20 21 The Visalia Defendants’ motion to dismiss the Fourth Cause of Action is GRANTED and that cause of action is DISMISSED with leave to amend; 2. The motions to dismiss the Monell claims in the First, Second, and Third Causes of 22 Action against the municipal defendants are GRANTED and those claims are 23 DISMISSED with leave to amend; 24 3. The Farmersville Defendants’ Rule 12(d) conversion request is DENIED; 25 4. The Farmersville Defendants’ motion to dismiss all state law claims based on a failure to 26 27 28 comply with the California Tort Claims Act is DENIED; 5. The Farmersville Defendants’ motion to dismiss the non-Monell claims of the First and Second Causes of Action is DENIED; 18 1 6. 2 3 The Farmersville Defendants’ motion to dismiss the non-Monell claims of the Third Cause of Action is GRANTED with leave to amend; and 7. Plaintiffs may file an amended complaint within twenty (20) days of service of this order. 4 5 IT IS SO ORDERED. 6 Dated: 0m8i78 August 17, 2009 /s/ Anthony W. Ishii CHIEF 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 19
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